[Title 20 CFR ]
[Code of Federal Regulations (annual edition) - April 1, 2006 Edition]
[From the U.S. Government Printing Office]



[[Page i]]



          20


          Parts 1 to 399

                         Revised as of April 1, 2006


          Employees' Benefits
          
          


________________________

          Containing a codification of documents of general 
          applicability and future effect

          As of April 1, 2006
          With Ancillaries
                    Published by
                    Office of the Federal Register
                    National Archives and Records
                    Administration
                    A Special Edition of the Federal Register

[[Page ii]]

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                            Table of Contents



                                                                    Page
  Explanation.................................................       v

  Title 20:
          Chapter I--Office of Workers' Compensation Programs, 
          Department of Labor                                        3
          Chapter II--Railroad Retirement Board                    151
  Finding Aids:
      Table of CFR Titles and Chapters........................     657
      Alphabetical List of Agencies Appearing in the CFR......     675
      List of CFR Sections Affected...........................     685

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                     ----------------------------

                     Cite this Code: CFR
                     To cite the regulations in 
                       this volume use title, 
                       part and section number. 
                       Thus, 20 CFR 1.1 refers to 
                       title 20, part 1, section 
                       1.

                     ----------------------------

[[Page v]]



                               EXPLANATION

    The Code of Federal Regulations is a codification of the general and 
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    Each volume of the Code is revised at least once each calendar year 
and issued on a quarterly basis approximately as follows:

Title 1 through Title 16.................................as of January 1
Title 17 through Title 27..................................as of April 1
Title 28 through Title 41...................................as of July 1
Title 42 through Title 50................................as of October 1

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[[Page vi]]

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[[Page vii]]

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                          Office of the Federal Register.

April 1, 2006.

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                               THIS TITLE

    Title 20--Employees' Benefits is composed of three volumes. The 
first volume, containing parts 1-399, includes all current regulations 
issued by the Office of Workers' Compensation Programs, Department of 
Labor and the Railroad Retirement Board. The second volume, containing 
parts 400-499, includes all current regulations issued by the Social 
Security Administration. The third volume, containing part 500 to End, 
includes all current regulations issued by the Employees' Compensation 
Appeals Board, the Employment and Training Administration, the 
Employment Standards Administration, the Benefits Review Board, the 
Office of the Assistant Secretary for Veterans' Employment and Training 
(all of the Department of Labor) and the Joint Board for the Enrollment 
of Actuaries. The contents of these volumes represent all current 
regulations codified under this title of the CFR as of April 1, 2006.

    For this volume, Robert J. Sheehan was Chief Editor. The Code of 
Federal Regulations publication program is under the direction of 
Frances D. McDonald, assisted by Alomha S. Morris.

[[Page 1]]



                      TITLE 20--EMPLOYEES' BENEFITS




                   (This book contains parts 1 to 399)


  --------------------------------------------------------------------
                                                                    Part

chapter i--Office of Workers' Compensation Programs, 
  Department of Labor.......................................           1

chapter ii--Railroad Retirement Board.......................         200

[[Page 3]]



                      CHAPTER I--OFFICE OF WORKERS'
                         COMPENSATION PROGRAMS,
                           DEPARTMENT OF LABOR




  --------------------------------------------------------------------

                SUBCHAPTER A--ORGANIZATION AND PROCEDURES
Part                                                                Page
1               Performance of functions under this chapter.           5
            SUBCHAPTER B--FEDERAL EMPLOYEES' COMPENSATION ACT
10              Claims for compensation under the Federal 
                    Employees' Compensation Act, as amended.           7
25              Compensation for disability and death of 
                    noncitizen Federal employees outside the 
                    United States...........................          68
SUBCHAPTER C--ENERGY EMPLOYEES OCCUPATIONAL ILLNESS COMPENSATION PROGRAM 
                               ACT OF 2000
30              Claims for compensation under the Energy 
                    Employees Occupational Illness 
                    Compensation Program Act of 2000, as 
                    amended.................................          77
                       SUBCHAPTERS D-E [RESERVED]
   SUBCHAPTER F--COMPENSATION FOR INJURY, DISABILITY, DEATH, OR ENEMY 
      DETENTION OF EMPLOYEES OF CONTRACTORS WITH THE UNITED STATES
61              Claims for compensation under the War 
                    Hazards Compensation Act, as amended....         138
 SUBCHAPTER G--COMPENSATION FOR INJURY, DISABILITY OR DEATH OF CIVILIAN 
   AMERICAN CITIZENS INCURRED WHILE DETAINED BY OR IN HIDING FROM THE 
                      IMPERIAL JAPANESE GOVERNMENT
71              General provisions..........................         148

[[Page 5]]



                SUBCHAPTER A_ORGANIZATION AND PROCEDURES





PART 1_PERFORMANCE OF FUNCTIONS UNDER THIS CHAPTER--Table of Contents




Sec.
1.1 Under what authority was the Office of Workers' Compensation 
          Programs established?
1.2 What functions are assigned to OWCP?
1.3 What rules are contained in this chapter?
1.4 Where are other rules concerning OWCP functions found?
1.5 When was the former Bureau of Employees' Compensation abolished?
1.6 How were many of OWCP's current functions administered in the past?

    Authority: 5 U.S.C. 301, 8145 and 8149 (Reorganization Plan No. 6 of 
1950, 15 FR 3174, 3 CFR, 1949-1953 Comp., p. 1004, 64 Stat. 1263); 42 
U.S.C. 7384d and 7385s-10; Executive Order 13179, 65 FR 77487, 3 CFR, 
2000 Comp., p. 321; Secretary of Labor's Order No. 13-71, 36 FR 8155; 
Employment Standards Order No. 2-74, 39 FR 34722.

    Source: 70 FR 33604, June 8, 2005, unless otherwise noted.



Sec. 1.1  Under what authority was the Office of Workers' Compensation 
Programs established?

    The Assistant Secretary of Labor for Employment Standards, by 
authority vested in him by the Secretary of Labor in Secretary's Order 
No. 13-71, 36 FR 8755, established in the Employment Standards 
Administration an Office of Workers' Compensation Programs (OWCP) by 
Employment Standards Order No. 2-74, 39 FR 34722. The Assistant 
Secretary subsequently designated as the head thereof a Director who, 
under the general supervision of the Assistant Secretary, administers 
the programs assigned to OWCP by the Assistant Secretary.



Sec. 1.2  What functions are assigned to OWCP?

    The Assistant Secretary of Labor for Employment Standards has 
delegated authority and assigned responsibility to the Director of OWCP 
for the Department of Labor's programs under the following statutes:
    (a) The Federal Employees' Compensation Act, as amended and extended 
(5 U.S.C. 8101 et seq.), except 5 U.S.C. 8149 as it pertains to the 
Employees' Compensation Appeals Board.
    (b) The War Hazards Compensation Act (42 U.S.C. 1701 et seq.).
    (c) The War Claims Act (50 U.S.C. App. 2003).
    (d) The Energy Employees Occupational Illness Compensation Program 
Act of 2000, as amended (42 U.S.C. 7384 et seq.), except activities, 
pursuant to Executive Order 13179 (``Providing Compensation to America's 
Nuclear Weapons Workers'') of December 7, 2000, assigned to the 
Secretary of Health and Human Services, the Secretary of Energy and the 
Attorney General.
    (e) The Longshore and Harbor Workers' Compensation Act, as amended 
and extended (33 U.S.C. 901 et seq.), except: 33 U.S.C. 919(d) with 
respect to administrative law judges in the Office of Administrative Law 
Judges; 33 U.S.C. 921(b) as it pertains to the Benefits Review Board; 
and activities, pursuant to 33 U.S.C. 941, assigned to the Assistant 
Secretary of Labor for Occupational Safety and Health.
    (f) The Black Lung Benefits Act, as amended (30 U.S.C. 901 et seq.).



Sec. 1.3  What rules are contained in this chapter?

    The rules in this chapter are those governing the OWCP functions 
under the Federal Employees' Compensation Act, the War Hazards 
Compensation Act, the War Claims Act and the Energy Employees 
Occupational Illness Compensation Program Act of 2000.



Sec. 1.4  Where are other rules concerning OWCP functions found?

    (a) The rules of the OWCP governing its functions under the 
Longshore and Harbor Workers' Compensation Act and its extensions are 
set forth in subchapter A of chapter VI of this title.
    (b) The rules of the OWCP governing its functions under the Black 
Lung Benefits Act program are set forth in subchapter B of chapter VI of 
this title.
    (c) The rules and regulations of the Employees' Compensation Appeals 
Board are set forth in chapter IV of this title.

[[Page 6]]

    (d) The rules and regulations of the Benefits Review Board are set 
forth in chapter VII of this title.



Sec. 1.5  When was the former Bureau of Employees' Compensation abolished?

    By Secretary of Labor's Order issued September 23, 1974, 39 FR 
34723, issued concurrently with Employment Standards Order 2-74, 39 FR 
34722, the Secretary revoked the prior Secretary's Order No. 18-67, 32 
FR 12979, which had delegated authority and assigned responsibility for 
the various workers' compensation programs enumerated in Sec. 1.2, 
except the Black Lung Benefits Program and the Energy Employees 
Occupational Illness Compensation Program not then in existence, to the 
Director of the former Bureau of Employees' Compensation.



Sec. 1.6  How were many of OWCP's current functions administered in 
the past?

    (a) Administration of the Federal Employees' Compensation Act and 
the Longshore and Harbor Workers' Compensation Act was initially vested 
in an independent establishment known as the U.S. Employees' 
Compensation Commission. By Reorganization Plan No. 2 of 1946 (3 CFR, 
1943-1949 Comp., p. 1064; 60 Stat. 1095, effective July 16, 1946), the 
Commission was abolished and its functions were transferred to the 
Federal Security Agency to be performed by a newly created Bureau of 
Employees' Compensation within such Agency. By Reorganization Plan No. 
19 of 1950 (15 FR 3178, 3 CFR, 1949-1954 Comp., page 1010, 64 Stat. 
1271), said Bureau was transferred to the Department of Labor (DOL), and 
the authority formerly vested in the Administrator, Federal Security 
Agency, was vested in the Secretary of Labor. By Reorganization Plan No. 
6 of 1950 (15 FR 3174, 3 CFR, 1949-1953 Comp., page 1004, 64 Stat. 
1263), the Secretary of Labor was authorized to make from time to time 
such provisions as he shall deem appropriate, authorizing the 
performance of any of his functions by any other officer, agency, or 
employee of the DOL.
    (b) In 1972, two separate organizational units were established 
within the Bureau: an Office of Workmen's Compensation Programs (37 FR 
20533) and an Office of Federal Employees' Compensation (37 FR 22979). 
In 1974, these two units were abolished and one organizational unit, the 
Office of Workers' Compensation Programs, was established in lieu of the 
Bureau of Employees' Compensation (39 FR 34722).

[[Page 7]]



            SUBCHAPTER B_FEDERAL EMPLOYEES' COMPENSATION ACT





PART 10_CLAIMS FOR COMPENSATION UNDER THE FEDERAL EMPLOYEES' COMPENSATION 
ACT, AS AMENDED--Table of Contents




                      Subpart A_General Provisions

                              Introduction

Sec.
10.0 What are the provisions of the FECA, in general?
10.1 What rules govern the administration of the FECA and this chapter?
10.2 What do these regulations contain?
10.3 Have the collection of information requirements of this part been 
          approved by the Office of Management and Budget (OMB)?

                          Definitions and Forms

10.5 What definitions apply to these regulations?
10.6 What special statutory definitions apply to dependents and 
          survivors?
10.7 What forms are needed to process claims under the FECA?

                     Information in Program Records

10.10 Are all documents relating to claims filed under the FECA 
          considered confidential?
10.11 Who maintains custody and control of FECA records?
10.12 How may a FECA claimant or beneficiary obtain copies of protected 
          records?
10.13 What process is used by a person who wants to correct FECA-related 
          documents?

                          Rights and Penalties

10.15 May compensation rights be waived?
10.16 What criminal penalties may be imposed in connection with a claim 
          under the FECA?
10.17 Is a beneficiary who defrauds the Government in connection with a 
          claim for benefits still entitled to those benefits?
10.18 Can a beneficiary who is incarcerated based on a felony conviction 
          still receive benefits?

        Subpart B_Filing Notices and Claims; Submitting Evidence

Notices and Claims for Injury, Disease and Death--Employee or Survivor's 
                                 Actions

10.100 How and when is a notice of traumatic injury filed?
10.101 How and when is a notice of occupational disease filed?
10.102 How and when is a claim for wage loss compensation filed?
10.103 How and when is a claim for permanent impairment filed?
10.104 How and when is a claim for recurrence filed?
10.105 How and when is a notice of death and claim for benefits filed?

  Notices and Claims for Injury, Disease and Death--Employer's Actions

10.110 What should the employer do when an employee files a notice of 
          traumatic injury or occupational disease?
10.111 What should the employer do when an employee files an initial 
          claim for compensation due to disability or permanent 
          impairment?
10.112 What should the employer do when an employee files a claim for 
          continuing compensation due to disability?
10.113 What should the employer do when an employee dies from a work-
          related injury or disease?

                      Evidence and Burden of Proof

10.115 What evidence is needed to establish a claim?
10.116 What additional evidence is needed in cases based on occupational 
          disease?
10.117 What happens if, in any claim, the employer contests any of the 
          facts as stated by the claimant?
10.118 Does the employer participate in the claims process in any other 
          way?
10.119 What action will OWCP take with respect to information submitted 
          by the employer?
10.120 May a claimant submit additional evidence?
10.121 What happens if OWCP needs more evidence from the claimant?

                  Decisions on Entitlement to Benefits

10.125 How does OWCP determine entitlement to benefits?
10.126 What does the decision contain?
10.127 To whom is the decision sent?

[[Page 8]]

                      Subpart C_Continuation of Pay

10.200 What is continuation of pay?

                           Eligibility for COP

10.205 What conditions must be met to receive COP?
10.206 May an employee who uses leave after an injury later decide to 
          use COP instead?
10.207 May an employee who returns to work, then stops work again due to 
          the effects of the injury, receive COP?

                            Responsibilities

10.210 What are the employee's responsibilities in COP cases?
10.211 What are the employer's responsibilities in COP cases?

                           Calculation of COP

10.215 How does OWCP compute the number of days of COP used?
10.216 How is the pay rate for COP calculated?
10.217 Is COP charged if the employee continues to work, but in a 
          different job that pays less?

                  Controversion and Termination of COP

10.220 When is an employer not required to pay COP?
10.221 How is a claim for COP controverted?
10.222 When may an employer terminate COP which has already begun?
10.223 Are there other circumstances under which OWCP will not authorize 
          payment of COP?
10.224 What happens if OWCP finds that the employee is not entitled to 
          COP after it has been paid?

                 Subpart D_Medical and Related Benefits

                         Emergency Medical Care

10.300 What are the basic rules for authorizing emergency medical care?
10.301 May the physician designated on Form CA-16 refer the employee to 
          another medical specialist or medical facility?
10.302 Should the employer authorize medical care if he or she doubts 
          that the injury occurred, or that it is work-related?
10.303 Should the employer use a Form CA-16 to authorize medical testing 
          when an employee is exposed to a workplace hazard just once?
10.304 Are there any exceptions to these procedures for obtaining 
          emergency medical care?

                  Medical Treatment and Related Issues

10.310 What are the basic rules for obtaining medical care?
10.311 What are the special rules for the services of chiropractors?
10.312 What are the special rules for the services of clinical 
          psychologists?
10.313 Will OWCP pay for preventive treatment?
10.314 Will OWCP pay for the services of an attendant?
10.315 Will OWCP pay for transportation to obtain medical treatment?
10.316 After selecting a treating physician, may an employee choose to 
          be treated by another physician instead?

                      Directed Medical Examinations

10.320 Can OWCP require an employee to be examined by another physician?
10.321 What happens if the opinion of the physician selected by OWCP 
          differs from the opinion of the physician selected by the 
          employee?
10.322 Who pays for second opinion and referee examinations?
10.323 What are the penalties for failing to report for or obstructing a 
          second opinion or referee examination?
10.324 May an employer require an employee to undergo a physical 
          examination in connection with a work-related injury?

                             Medical Reports

10.330 What are the requirements for medical reports?
10.331 How and when should the medical report be submitted?
10.332 What additional medical information will OWCP require to support 
          continuing payment of benefits?
10.333 What additional medical information will OWCP require to support 
          a claim for a schedule award?

                              Medical Bills

10.335 How are medical bills submitted?
10.336 What are the time frames for submitting bills?
10.337 If OWCP reimburses an employee only partially for a medical 
          expense, must the provider refund the balance of the amount 
          paid to the employee?

               Subpart E_Compensation and Related Benefits

               Compensation for Disability and Impairment

10.400 What is total disability?
10.401 When and how is compensation for total disability paid?
10.402 What is partial disability?
10.403 When and how is compensation for partial disability paid?
10.404 When and how is compensation for a schedule impairment paid?

[[Page 9]]

10.405 Who is considered a dependent in a claim based on disability or 
          impairment?
10.406 What are the maximum and minimum rates of compensation in 
          disability cases?

                         Compensation for Death

10.410 Who is entitled to compensation in case of death, and what are 
          the rates of compensation payable in death cases?
10.411 What are the maximum and minimum rates of compensation in death 
          cases?
10.412 Will OWCP pay the costs of burial and transportation of the 
          remains?
10.413 If a person dies while receiving a schedule award, to whom is the 
          balance of the schedule award payable?
10.414 What reports of dependents are needed in death cases?
10.415 What must a beneficiary do if the number of beneficiaries 
          decreases?
10.416 How does a change in the number of beneficiaries affect the 
          amount of compensation paid to the other beneficiaries?
10.417 What reports are needed when compensation payments continue for 
          children over age 18?

                       Adjustments to Compensation

10.420 How are cost-of-living adjustments applied?
10.421 May a beneficiary receive other kinds of payments from the 
          Federal Government concurrently with compensation?
10.422 May compensation payments be issued in a lump sum?
10.423 May compensation payments be assigned to, or attached by, 
          creditors?
10.424 May someone other than the beneficiary be designated to receive 
          compensation payments?
10.425 May compensation be claimed for periods of restorable leave?

                              Overpayments

10.430 How does OWCP notify an individual of a payment made?
10.431 What does OWCP do when an overpayment is identified?
10.432 How can an individual present evidence to OWCP in response to a 
          preliminary notice of an overpayment?
10.433 Under what circumstances can OWCP waive recovery of an 
          overpayment?
10.434 If OWCP finds that the recipient of an overpayment was not at 
          fault, what criteria are used to decide whether to waive 
          recovery of it?
10.435 Is an individual responsible for an overpayment that resulted 
          from an error made by OWCP or another Government agency?
10.436 Under what circumstances would recovery of an overpayment defeat 
          the purpose of the FECA?
10.437 Under what circumstances would recovery of an overpayment be 
          against equity and good conscience?
10.438 Can OWCP require the individual who received the overpayment to 
          submit additional financial information?
10.439 What is addressed at a pre-recoupment hearing?
10.440 How does OWCP communicate its final decision concerning recovery 
          of an overpayment, and what appeal right accompanies it?
10.441 How are overpayments collected?

                      Subpart F_Continuing Benefits

                           Rules and Evidence

10.500 What are the basic rules for continuing receipt of compensation 
          benefits and return to work?
10.501 What medical evidence is necessary to support continuing receipt 
          of compensation benefits?
10.502 How does OWCP evaluate evidence in support of continuing receipt 
          of compensation benefits?
10.503 Under what circumstances may OWCP reduce or terminate 
          compensation benefits?

               Return to Work--Employer's Responsibilities

10.505 What actions must the employer take?
10.506 May the employer monitor the employee's medical care?
10.507 How should the employer make an offer of suitable work?
10.508 May relocation expenses be paid for an employee who would need to 
          move to accept an offer of reemployment?
10.509 If an employee's light-duty job is eliminated due to downsizing, 
          what is the effect on compensation?

               Return to Work--Employee's Responsibilities

10.515 What actions must the employee take with respect to returning to 
          work?
10.516 How will an employee know if OWCP considers a job to be suitable?
10.517 What are the penalties for refusing to accept a suitable job 
          offer?
10.518 Does OWCP provide services to help employees return to work?
10.519 What action will OWCP take if an employee refuses to undergo 
          vocational rehabilitation?
10.520 How does OWCP determine compensation after an employee completes 
          a vocational rehabilitation program?

         Reports of Earnings From Employment and Self-Employment

10.525 What information must the employee report?

[[Page 10]]

10.526 Must the employee report volunteer activities?
10.527 Does OWCP verify reports of earnings?
10.528 What action will OWCP take if the employee fails to file a report 
          of activity indicating an ability to work?
10.529 What action will OWCP take if the employee files an incomplete 
          report?

                          Reports of Dependents

10.535 How are dependents defined, and what information must the 
          employee report?
10.536 What is the penalty for failing to submit a report of dependents?
10.537 What reports are needed when compensation payments continue for 
          children over age 18?

                Reduction and Termination of Compensation

10.540 When and how is compensation reduced or terminated?
10.541 What action will OWCP take after issuing written notice of its 
          intention to reduce or terminate compensation?

                        Subpart G_Appeals Process

10.600 How can final decisions of OWCP be reviewed?

              Reconsiderations and Reviews by the Director

10.605 What is reconsideration?
10.606 How does a claimant request reconsideration?
10.607 What is the time limit for requesting reconsideration?
10.608 How does OWCP decide whether to grant or deny the request for 
          reconsideration?
10.609 How does OWCP decide whether new evidence requires modification 
          of the prior decision?
10.610 What is a review by the Director?

                                Hearings

10.615 What is a hearing?
10.616 How does a claimant obtain a hearing?
10.617 How is an oral hearing conducted?
10.618 How is a review of the written record conducted?
10.619 May subpoenas be issued for witnesses and documents?
10.62 Who pays the costs associated with subpoenas?
10.621 What is the employer's role when an oral hearing has been 
          requested?
10.622 May a claimant withdraw a request for or postpone a hearing?

       Reviews by the Employees' Compensation Appeals Board (ECAB)

10.625 What kinds of decisions may be appealed?
10.626 Who has jurisdiction of cases on appeal to the ECAB?

                      Subpart H_Special Provisions

                             Representation

10.70 May a claimant designate a representative?
10.701 Who may serve as a representative?
10.702 How are fees for services paid?
10.703 How are fee applications approved?

                          Third Party Liability

10.705 When must an employee or other FECA beneficiary take action 
          against a third party?
10.706 How will a beneficiary know if OWCP or SOL has determined that 
          action against a third party is required?
10.707 What must a FECA beneficiary who is required to take action 
          against a third party do to satisfy the requirement that the 
          claim be ``prosecuted''?
10.708 Can a FECA beneficiary who refuses to comply with a request to 
          assign a claim to the United States or to prosecute the claim 
          in his or her own name be penalized?
10.709 What happens if a beneficiary directed by OWCP or SOL to take 
          action against a third party does not believe that a claim can 
          be successfully prosecuted at a reasonable cost?
10.71 Under what circumstances must a recovery of money or other 
          property in connection with an injury or death for which 
          benefits are payable under the FECA be reported to OWCP or 
          SOL?
10.711 How much of any settlement or judgment must be paid to the United 
          States?
10.712 What amounts are included in the gross recovery?
10.713 How is a structured settlement (that is, a settlement providing 
          for receipt of funds over a specified period of time) treated 
          for purposes of reporting the gross recovery?
10.714 What amounts are included in the refundable disbursements?
10.715 Is a beneficiary required to pay interest on the amount of the 
          refund due to the United States?
10.716 If the required refund is not paid within 30 days of the request 
          for repayment, can it be collected from payments due under the 
          FECA?
10.717 Is a settlement or judgment received as a result of allegations 
          of medical malpractice in treating an injury covered by the 
          FECA a gross recovery that must be reported to OWCP or SOL?

[[Page 11]]

10.718 Are payments to a beneficiary as a result of an insurance policy 
          which the beneficiary has purchased a gross recovery that must 
          be reported to OWCP or SOL?
10.719 If a settlement or judgment is received for more than one wound 
          or medical condition, can the refundable disbursements paid on 
          a single FECA claim be attributed to different conditions for 
          purposes of calculating the refund or credit owed to the 
          United States?

                     Federal Grand and Petit Jurors

10.725 When is a Federal grand or petit juror covered under the FECA?
10.726 When does a juror's entitlement to disability compensation begin?
10.727 What is the pay rate of jurors for compensation purposes?

                         Peace Corps Volunteers

10.73 What are the conditions of coverage for Peace Corps volunteers and 
          volunteer leaders injured while serving outside the United 
          States?
10.731 What is the pay rate of Peace Corps volunteers and volunteer 
          leaders for compensation purposes?

                  Non-Federal Law Enforcement Officers

10.735 When is a non-Federal law enforcement officer (LEO) covered under 
          the FECA?
10.736 What are the time limits for filing a LEO claim?
10.737 How is a LEO claim filed, and who can file a LEO claim?
10.738 Under what circumstances are benefits payable in LEO claims?
10.739 What kind of objective evidence of a potential Federal crime must 
          exist for coverage to be extended?
10.740 In what situations will OWCP automatically presume that a law 
          enforcement officer is covered by the FECA?
10.741 How are benefits calculated in LEO claims?

               Subpart I_Information for Medical Providers

                        Medical Records and Bills

10.800 What kind of medical records must providers keep?
10.801 How are medical bills to be submitted?
10.802 How should an employee prepare and submit requests for 
          reimbursement for medical expenses, transportation costs, loss 
          of wages, and incidental expenses?
10.803 What are the time limitations on OWCP's payment of bills?

                          Medical Fee Schedule

10.805 What services are covered by the OWCP fee schedule?
10.806 How are the maximum fees defined?
10.807 How are payments for particular services calculated?
10.808 Does the fee schedule apply to every kind of procedure?
10.809 How are payments for medicinal drugs determined?
10.810 How are payments for inpatient medical services determined?
10.811 When and how are fees reduced?
10.812 If OWCP reduces a fee, may a provider request reconsideration of 
          the reduction?
10.813 If OWCP reduces a fee, may a provider bill the claimant for the 
          balance?

                         Exclusion of Providers

10.815 What are the grounds for excluding a provider from payment under 
          the FECA?
10.816 What will cause OWCP to automatically exclude a physician or 
          other provider of medical services and supplies?
10.817 When are OWCP's exclusion procedures initiated?
10.818 How is a provider notified of OWCP's intent to exclude him or 
          her?
10.819 What requirements must the provider's reply and OWCP's decision 
          meet?
10.820 How can an excluded provider request a hearing?
10.821 How are hearings assigned and scheduled?
10.822 How are subpoenas or advisory opinions obtained?
10.823 How will the administrative law judge conduct the hearing and 
          issue the recommended decision?
10.824 How can a party request review by the Director of the 
          administrative law judge's recommended decision?
10.825 What are the effects of exclusion?
10.826 How can an excluded provider be reinstated?

    Authority: 5 U.S.C. 301, 8103, 8145 and 8149; 31 U.S.C. 3716 and 
3717; Reorganization Plan No. 6 of 1950, 15 FR 3174, 64 Stat. 1263; 
Secretary's Order 5-96, 62 FR 107.

    Source: 63 FR 65306, Nov. 25, 1998, unless otherwise noted.



                      Subpart A_General Provisions

                              Introduction



Sec. 10.0  What are the provisions of the FECA, in general?

    The Federal Employees' Compensation Act (FECA) as amended (5 U.S.C. 
8101 et seq.) provides for the payment of workers' compensation benefits 
to civilian officers and employees of all

[[Page 12]]

branches of the Government of the United States. The regulations in this 
part describe the rules for filing, processing, and paying claims for 
benefits under the FECA. Proceedings under the FECA are non-adversarial 
in nature.
    (a) The FECA has been amended and extended a number of times to 
provide workers' compensation benefits to volunteers in the Civil Air 
Patrol (5 U.S.C. 8141), members of the Reserve Officers' Training Corps 
(5 U.S.C. 8140), Peace Corps Volunteers (5 U.S.C. 8142), Job Corps 
enrollees and Volunteers in Service to America (5 U.S.C. 8143), members 
of the National Teachers Corps (5 U.S.C. 8143a), certain student 
employees (5 U.S.C. 5351 and 8144), certain law enforcement officers not 
employed by the United States (5 U.S.C. 8191-8193), and various other 
classes of persons who provide or have provided services to the 
Government of the United States.
    (b) The FECA provides for payment of several types of benefits, 
including compensation for wage loss, schedule awards, medical and 
related benefits, and vocational rehabilitation services for conditions 
resulting from injuries sustained in performance of duty while in 
service to the United States.
    (c) The FECA also provides for payment of monetary compensation to 
specified survivors of an employee whose death resulted from a work-
related injury and for payment of certain burial expenses subject to the 
provisions of 5 U.S.C. 8134.
    (d) All types of benefits and conditions of eligibility listed in 
this section are subject to the provisions of the FECA and of this part. 
This section shall not be construed to modify or enlarge upon the 
provisions of the FECA.



Sec. 10.1  What rules govern the administration of the FECA and this 
chapter?

    In accordance with 5 U.S.C. 8145 and Secretary's Order 5-96, the 
responsibility for administering the FECA, except for 5 U.S.C. 8149 as 
it pertains to the Employees' Compensation Appeals Board, has been 
delegated to the Assistant Secretary for Employment Standards. The 
Assistant Secretary, in turn, has delegated the authority and 
responsibility for administering the FECA to the Director of the Office 
of Workers' Compensation Programs (OWCP). Except as otherwise provided 
by law, the Director, OWCP and his or her designees have the exclusive 
authority to administer, interpret and enforce the provisions of the 
Act.



Sec. 10.2  What do these regulations contain?

    This part 10 sets forth the regulations governing administration of 
all claims filed under the FECA, except to the extent specified in 
certain particular provisions. Its provisions are intended to assist 
persons seeking compensation benefits under the FECA, as well as 
personnel in the various Federal agencies and the Department of Labor 
who process claims filed under the FECA or who perform administrative 
functions with respect to the FECA. This part 10 applies to part 25 of 
this chapter except as modified by part 25. The various subparts of this 
part contain the following:
    (a) Subpart A: The general statutory and administrative framework 
for processing claims under the FECA. It contains a statement of purpose 
and scope, together with definitions of terms, descriptions of basic 
forms, information about the disclosure of OWCP records, and a 
description of rights and penalties under the FECA, including 
convictions for fraud.
    (b) Subpart B: The rules for filing notices of injury and claims for 
benefits under the FECA. It also addresses evidence and burden of proof, 
as well as the process of making decisions concerning eligibility for 
benefits.
    (c) Subpart C: The rules governing claims for and payment of 
continuation of pay.
    (d) Subpart D: The rules governing emergency and routine medical 
care, second opinion and referee medical examinations directed by OWCP, 
and medical reports and records in general. It also addresses the kinds 
of treatment which may be authorized and how medical bills are paid.
    (e) Subpart E: The rules relating to the payment of monetary 
compensation benefits for disability, impairment and death. It includes 
the provisions for identifying and processing overpayments of 
compensation.

[[Page 13]]

    (f) Subpart F: The rules governing the payment of continuing 
compensation benefits. It includes provisions concerning the employee's 
and the employer's responsibilities in returning the employee to work. 
It also contains provisions governing reports of earnings and 
dependents, recurrences, and reduction and termination of compensation 
benefits.
    (g) Subpart G: The rules governing the appeals of decisions under 
the FECA. It includes provisions relating to hearings, reconsiderations, 
and appeals before the Employees' Compensation Appeals Board.
    (h) Subpart H: The rules concerning legal representation and for 
adjustment and recovery from a third party. It also contains provisions 
relevant to three groups of employees whose status requires special 
application of the provisions of the FECA: Federal grand and petit 
jurors, Peace Corps volunteers, and non-Federal law enforcement 
officers.
    (i) Subpart I: Information for medical providers. It includes rules 
for medical reports, medical bills, and the OWCP medical fee schedule, 
as well as the provisions for exclusion of medical providers.



Sec. 10.3  Have the collection of information requirements of this part 
been approved by the Office of Management and Budget (OMB)?

    The collection of information requirements in this part have been 
approved by OMB and assigned OMB control numbers 1215-0055, 1215-0067, 
1215-0078, 1215-0103, 1215-0105, 1215-0115, 1215-0116, 1215-0144, 1215-
0151, 1215-0154, 1215-0155, 1215-0161, 1215-0167, 1215-0176, 1215-0178, 
1215-0182, 1215-0193 and 1215-0194.

                          Definitions and Forms



Sec. 10.5  What definitions apply to these regulations?

    Certain words and phrases found in this part are defined in this 
section or in the FECA. Some other words and phrases that are used only 
in limited situations are defined in the later subparts of these 
regulations.
    (a) Benefits or Compensation means the money OWCP pays to or on 
behalf of a beneficiary from the Employees' Compensation Fund for lost 
wages, a loss of wage-earning capacity or a permanent physical 
impairment, as well as the money paid to beneficiaries for an employee's 
death. These two terms also include any other amounts paid out of the 
Employees' Compensation Fund for such things as medical treatment, 
medical examinations conducted at the request of OWCP as part of the 
claims adjudication process, vocational rehabilitation services, 
services of an attendant and funeral expenses, but does not include 
continuation of pay.
    (b) Beneficiary means an individual who is entitled to a benefit 
under the FECA and this part.
    (c) Claim means a written assertion of an individual's entitlement 
to benefits under the FECA, submitted in a manner authorized by this 
part.
    (d) Claimant means an individual whose claim has been filed.
    (e) Director means the Director of OWCP or a person designated to 
carry out his or her functions.
    (f) Disability means the incapacity, because of an employment 
injury, to earn the wages the employee was receiving at the time of 
injury. It may be partial or total.
    (g) Earnings from employment or self-employment means:
    (1) Gross earnings or wages before any deductions and includes the 
value of subsistence, quarters, reimbursed expenses and any other goods 
or services received in kind as remuneration; or
    (2) A reasonable estimate of the cost to have someone else perform 
the duties of an individual who accepts no remuneration. Neither lack of 
profits, nor the characterization of the duties as a hobby, removes an 
unremunerated individual's responsibility to report the estimated cost 
to have someone else perform his or her duties.
    (h) Employee means, but is not limited to, an individual who fits 
within one of the following listed groups:
    (1) A civil officer or employee in any branch of the Government of 
the United States, including an officer or employee of an 
instrumentality wholly owned by the United States;
    (2) An individual rendering personal service to the United States 
similar to the service of a civil officer or employee of the United 
States, without pay or for nominal pay, when a statute

[[Page 14]]

authorizes the acceptance or use of the service, or authorizes payment 
of travel or other expenses of the individual;
    (3) An individual, other than an independent contractor or an 
individual employed by an independent contractor, employed on the 
Menominee Indian Reservation in Wisconsin in operations conducted under 
a statute relating to tribal timber and logging operations on that 
reservation;
    (4) An individual appointed to a position on the office staff of a 
former President; or
    (5) An individual selected and serving as a Federal petit or grand 
juror.
    (i) Employer or Agency means any civil agency or instrumentality of 
the United States Government, or any other organization, group or 
institution employing an individual defined as an ``employee'' by this 
section. These terms also refer to officers and employees of an employer 
having responsibility for the supervision, direction or control of 
employees of that employer as an ``immediate superior,'' and to other 
employees designated by the employer to carry out the functions vested 
in the employer under the FECA and this part, including officers or 
employees delegated responsibility by an employer for authorizing 
medical treatment for injured employees.
    (j) Entitlement means entitlement to benefits as determined by OWCP 
under the FECA and the procedures described in this part.
    (k) FECA means the Federal Employees' Compensation Act, as amended.
    (l) Hospital services means services and supplies provided by 
hospitals within the scope of their practice as defined by State law.
    (m) Impairment means any anatomic or functional abnormality or loss. 
A permanent impairment is any such abnormality or loss after maximum 
medical improvement has been achieved.
    (n) Knowingly means with knowledge, consciously, willfully or 
intentionally.
    (o) Medical services means services and supplies provided by or 
under the supervision of a physician. Reimbursable chiropractic services 
are limited to physical examinations (and related laboratory tests), x-
rays performed to diagnose a subluxation of the spine and treatment 
consisting of manual manipulation of the spine to correct a subluxation.
    (p) Medical support services means services, drugs, supplies and 
appliances provided by a person other than a physician or hospital.
    (q) Occupational disease or Illness means a condition produced by 
the work environment over a period longer than a single workday or 
shift.
    (r) OWCP means the Office of Workers' Compensation Programs.
    (s) Pay rate for compensation purposes means the employee's pay, as 
determined under 5 U.S.C. 8114, at the time of injury, the time 
disability begins or the time compensable disability recurs if the 
recurrence begins more than six months after the injured employee 
resumes regular full-time employment with the United States, whichever 
is greater, except as otherwise determined under 5 U.S.C. 8113 with 
respect to any period.
    (t) Physician means an individual defined as such in 5 U.S.C. 
8101(2), except during the period for which his or her license to 
practice medicine has been suspended or revoked by a State licensing or 
regulatory authority.
    (u) Qualified hospital means any hospital licensed as such under 
State law which has not been excluded under the provisions of subpart I 
of this part. Except as otherwise provided by regulation, a qualified 
hospital shall be deemed to be designated or approved by OWCP.
    (v) Qualified physician means any physician who has not been 
excluded under the provisions of subpart I of this part. Except as 
otherwise provided by regulation, a qualified physician shall be deemed 
to be designated or approved by OWCP.
    (w) Qualified provider of medical support services or supplies means 
any person, other than a physician or a hospital, who provides services, 
drugs, supplies and appliances for which OWCP makes payment, who 
possesses any applicable licenses required under State law, and who has 
not been excluded under the provisions of subpart I of this part.
    (x) Recurrence of disability means an inability to work after an 
employee has returned to work, caused by a spontaneous change in a 
medical condition

[[Page 15]]

which had resulted from a previous injury or illness without an 
intervening injury or new exposure to the work environment that caused 
the illness. This term also means an inability to work that takes place 
when a light-duty assignment made specifically to accommodate an 
employee's physical limitations due to his or her work-related injury or 
illness is withdrawn (except when such withdrawal occurs for reasons of 
misconduct, non-performance of job duties or a reduction-in-force), or 
when the physical requirements of such an assignment are altered so that 
they exceed his or her established physical limitations.
    (y) Recurrence of medical condition means a documented need for 
further medical treatment after release from treatment for the accepted 
condition or injury when there is no accompanying work stoppage. 
Continuous treatment for the original condition or injury is not 
considered a ``need for further medical treatment after release from 
treatment,'' nor is an examination without treatment.
    (z) Representative means an individual properly authorized by a 
claimant in writing to act for the claimant in connection with a claim 
or proceeding under the FECA or this part.
    (aa) Student means an individual defined at 5 U.S.C. 8101(17). Two 
terms used in that particular definition are further defined as follows:
    (1) Additional type of educational or training institution means a 
technical, trade, vocational, business or professional school accredited 
or licensed by the United States Government or a State Government or any 
political subdivision thereof providing courses of not less than three 
months duration, that prepares the individual for a livelihood in a 
trade, industry, vocation or profession.
    (2) Year beyond the high school level means:
    (i) The 12-month period beginning the month after the individual 
graduates from high school, provided he or she had indicated an 
intention to continue schooling within four months of high school 
graduation, and each successive 12-month period in which there is school 
attendance or the payment of compensation based on such attendance; or
    (ii) If the individual has indicated that he or she will not 
continue schooling within four months of high school graduation, the 12-
month period beginning with the month that the individual enters school 
to continue his or her education, and each successive 12-month period in 
which there is school attendance or the payment of compensation based on 
such attendance.
    (bb) Subluxation means an incomplete dislocation, off-centering, 
misalignment, fixation or abnormal spacing of the vertebrae which must 
be demonstrable on any x-ray film to an individual trained in the 
reading of x-rays.
    (cc) Surviving spouse means the husband or wife living with or 
dependent for support upon a deceased employee at the time of his or her 
death, or living apart for reasonable cause or because of the deceased 
employee's desertion.
    (dd) Temporary aggravation of a pre-existing condition means that 
factors of employment have directly caused that condition to be more 
severe for a limited period of time and have left no greater impairment 
than existed prior to the employment injury.
    (ee) Traumatic injury means a condition of the body caused by a 
specific event or incident, or series of events or incidents, within a 
single workday or shift. Such condition must be caused by external 
force, including stress or strain, which is identifiable as to time and 
place of occurrence and member or function of the body affected.



Sec. 10.6  What special statutory definitions apply to dependents and 
survivors?

    (a) 5 U.S.C. 8133 provides that certain benefits are payable to 
certain enumerated survivors of employees who have died from an injury 
sustained in the performance of duty.
    (b) 5 U.S.C. 8148 also provides that certain other benefits may be 
payable to certain family members of employees who have been 
incarcerated due to a felony conviction.
    (c) 5 U.S.C. 8110(b) further provides that any employee who is found 
to be

[[Page 16]]

eligible for a basic benefit shall be entitled to have such basic 
benefit augmented at a specified rate for certain persons who live in 
the beneficiary's household or who are dependent upon the beneficiary 
for support.
    (d) 5 U.S.C. 8101, 8110, 8133 and 8148, which define the nature of 
such survivorship or dependency necessary to qualify a beneficiary for a 
survivor's benefit or an augmented benefit, apply to the provisions of 
this part.



Sec. 10.7  What forms are needed to process claims under the FECA?

    (a) Notice of injury, claims and certain specified reports shall be 
made on forms prescribed by OWCP. Employers shall not modify these forms 
or use substitute forms. Employers are expected to maintain an adequate 
supply of the basic forms needed for the proper recording and reporting 
of injuries.

------------------------------------------------------------------------
                 Form No.                               Title
------------------------------------------------------------------------
(1) CA-1..................................  Federal Employee's Notice of
                                             Traumatic Injury and Claim
                                             for Continuation of Pay/
                                             Compensation
(2) CA-2..................................  Notice of Occupational
                                             Disease and Claim for
                                             Compensation
(3) CA-2a.................................  Notice of Employee's
                                             Recurrence of Disability
                                             and Claim for Pay/
                                             Compensation
(4) CA-5..................................  Claim for Compensation by
                                             Widow, Widower and/or
                                             Children
(5) CA-5b.................................  Claim for Compensation by
                                             Parents, Brothers, Sisters,
                                             Grandparents, or
                                             Grandchildren
(6) CA-6..................................  Official Superior's Report
                                             of Employee's Death
(7) CA-7..................................  Claim for Compensation Due
                                             to Traumatic Injury or
                                             Occupational Disease
(8) CA-7a.................................  Time Analysis Form
(9) CA-7b.................................  Leave Buy Back (LBB)
                                             Worksheet/Certification and
                                             Election
(10) CA-16................................  Authorization of Examination
                                             and/or Treatment
(11) CA-17................................  Duty Status Report
(12) CA-20................................  Attending Physician's Report
------------------------------------------------------------------------

    (b) Copies of the forms listed in this paragraph are available for 
public inspection at the Office of Workers' Compensation Programs, 
Employment Standards Administration, U.S. Department of Labor, 
Washington, DC 20210. They may also be obtained from district offices, 
employers (i.e., safety and health offices, supervisors), and the 
Internet, at www.dol.gov./dol/esa/owcp.htm.

[63 FR 65306, Nov. 25, 1998; 63 FR 71202, Dec. 23, 1998]

                     Information in Program Records



Sec. 10.10  Are all documents relating to claims filed under the FECA 
considered confidential?

    All records relating to claims for benefits, including copies of 
such records maintained by an employer, are considered confidential and 
may not be released, inspected, copied or otherwise disclosed except as 
provided in the Freedom of Information Act and the Privacy Act of 1974.



Sec. 10.11  Who maintains custody and control of FECA records?

    All records relating to claims for benefits filed under the FECA, 
including any copies of such records maintained by an employing agency, 
are covered by the government-wide Privacy Act system of records 
entitled DOL/GOVT-1 (Office of Workers' Compensation Programs, Federal 
Employees' Compensation Act File). This system of records is maintained 
by and under the control of OWCP, and, as such, all records covered by 
DOL/GOVT-1 are official records of OWCP. The protection, release, 
inspection and copying of records covered by DOL/GOVT-1 shall be 
accomplished in accordance with the rules, guidelines and provisions of 
this part, as well as those contained in 29 CFR parts 70 and 71, and 
with the notice of the system of records and routine uses published in 
the Federal Register. All questions relating to access/disclosure, and/
or amendment of FECA records maintained by OWCP or the employing agency, 
are to be resolved in accordance with this section.



Sec. 10.12  How may a FECA claimant or beneficiary obtain copies of 
protected records?

    (a) A claimant seeking copies of his or her official FECA file 
should address a request to the District Director of the OWCP office 
having custody of the file. A claimant seeking copies of FECA-related 
documents in the custody of the employer should follow the procedures 
established by that agency.
    (b)(1) While an employing agency may establish procedures that an 
injured employee or beneficiary should

[[Page 17]]

follow in requesting access to documents it maintains, any decision 
issued in response to such a request must comply with the rules and 
regulations of the Department of Labor which govern all other aspects of 
safeguarding these records.
    (2) No employing agency has the authority to issue determinations 
with respect to requests for the correction or amendment of records 
contained in or covered by DOL/GOVT-1. That authority is within the 
exclusive control of OWCP. Thus, any request for correction or amendment 
received by an employing agency must be referred to OWCP for review and 
decision.
    (3) Any administrative appeal taken from a denial issued by the 
employing agency or OWCP shall be filed with the Solicitor of Labor in 
accordance with 29 CFR 71.7 and 71.9.



Sec. 10.13  What process is used by a person who wants to correct 
FECA-related documents?

    Any request to amend a record covered by DOL/GOVT-1 should be 
directed to the district office having custody of the official file. No 
employer has the authority to issue determinations with regard to 
requests for the correction of records contained in or covered by DOL/
GOVT-1. Any request for correction received by an employer must be 
referred to OWCP for review and decision.

                          Rights and Penalties



Sec. 10.15  May compensation rights be waived?

    No employer or other person may require an employee or other 
claimant to enter into any agreement, either before or after an injury 
or death, to waive his or her right to claim compensation under the 
FECA. No waiver of compensation rights shall be valid.



Sec. 10.16  What criminal penalties may be imposed in connection with 
a claim under the FECA?

    (a) A number of statutory provisions make it a crime to file a false 
or fraudulent claim or statement with the Government in connection with 
a claim under the FECA, or to wrongfully impede a FECA claim. Included 
among these provisions are sections 287, 1001, 1920, and 1922 of title 
18, United States Code. Enforcement of these and other criminal 
provisions that may apply to claims under the FECA are within the 
jurisdiction of the Department of Justice.
    (b) In addition, administrative proceedings may be initiated under 
the Program Fraud Civil Remedies Act of 1986 (PFCRA), 31 U.S.C. 3801-12, 
to impose civil penalties and assessments against persons who make, 
submit, or present, or cause to be made, submitted or presented, false, 
fictitious or fraudulent claims or written statements to OWCP in 
connection with a claim under the FECA. The Department of Labor's 
regulations implementing the PFRCA are found at 29 CFR part 22.



Sec. 10.17  Is a beneficiary who defrauds the Government in connection 
with a claim for benefits still entitled to those benefits?

    When a beneficiary either pleads guilty to or is found guilty on 
either Federal or State criminal charges of defrauding the Federal 
Government in connection with a claim for benefits, the beneficiary's 
entitlement to any further compensation benefits will terminate 
effective the date either the guilty plea is accepted or a verdict of 
guilty is returned after trial, for any injury occurring on or before 
the date of such guilty plea or verdict. Termination of entitlement 
under this section is not affected by any subsequent change in or 
recurrence of the beneficiary's medical condition.



Sec. 10.18  Can a beneficiary who is incarcerated based on a felony 
conviction still receive benefits?

    (a) Whenever a beneficiary is incarcerated in a State or Federal 
jail, prison, penal institution or other correctional facility due to a 
State or Federal felony conviction, he or she forfeits all rights to 
compensation benefits during the period of incarceration. A 
beneficiary's right to compensation benefits for the period of his or 
her incarceration is not restored after such incarceration ends, even 
though payment of compensation benefits may resume.
    (b) If the beneficiary has eligible dependents, OWCP will pay 
compensation

[[Page 18]]

to such dependents at a reduced rate during the period of his or her 
incarceration, by applying the percentages of 5 U.S.C. 8133(a)(1) 
through (5) to the beneficiary's gross current entitlement rather than 
to the beneficiary's monthly pay.
    (c) If OWCP's decision on entitlement is pending when the period of 
incarceration begins, and compensation is due for a period of time prior 
to such incarceration, payment for that period will only be made to the 
beneficiary following his or her release.



        Subpart B_Filing Notices and Claims; Submitting Evidence

     Notices and Claims for Injury, Disease, and Death--Employee or 
                           Survivor's Actions



Sec. 10.100  How and when is a notice of traumatic injury filed?

    (a) To claim benefits under the FECA, an employee who sustains a 
work-related traumatic injury must give notice of the injury in writing 
on Form CA-1, which may be obtained from the employer or from the 
Internet at www.dol.gov./dol/esa/owcp.htm. The employee must forward 
this notice to the employer. Another person, including the employer, may 
give notice of injury on the employee's behalf. The person submitting a 
notice shall include the Social Security Number (SSN) of the injured 
employee.
    (b) For injuries sustained on or after September 7, 1974, a notice 
of injury must be filed within three years of the injury. (The form 
contains the necessary words of claim.) The requirements for filing 
notice are further described in 5 U.S.C. 8119. Also see Sec. 10.205 
concerning time requirements for filing claims for continuation of pay.
    (1) If the claim is not filed within three years, compensation may 
still be allowed if notice of injury was given within 30 days or the 
employer had actual knowledge of the injury or death within 30 days 
after occurrence. This knowledge may consist of written records or 
verbal notification. An entry into an employee's medical record may also 
satisfy this requirement if it is sufficient to place the employer on 
notice of a possible work-related injury or disease.
    (2) OWCP may excuse failure to comply with the three-year time 
requirement because of truly exceptional circumstances (for example, 
being held prisoner of war).
    (3) The claimant may withdraw his or her claim (but not the notice 
of injury) by so requesting in writing to OWCP at any time before OWCP 
determines eligibility for benefits. Any continuation of pay (COP) 
granted to an employee after a claim is withdrawn must be charged to 
sick or annual leave, or considered an overpayment of pay consistent 
with 5 U.S.C. 5584, at the employee's option.
    (c) However, in cases of latent disability, the time for filing 
claim does not begin to run until the employee has a compensable 
disability and is aware, or reasonably should have been aware, of the 
causal relationship between the disability and the employment (see 5 
U.S.C. 8122(b)).



Sec. 10.101  How and when is a notice of occupational disease filed?

    (a) To claim benefits under the FECA, an employee who has a disease 
which he or she believes to be work-related must give notice of the 
condition in writing on Form CA-2, which may be obtained from the 
employer or from the Internet at www.dol.gov./dol/esa/owcp.htm. The 
employee must forward this notice to the employer. Another person, 
including the employer, may do so on the employee's behalf. The person 
submitting a notice shall include the Social Security Number (SSN) of 
the injured employee. The claimant may withdraw his or her claim (but 
not the notice of occupational disease) by so requesting in writing to 
OWCP at any time before OWCP determines eligibility for benefits.
    (b) For occupational diseases sustained as a result of exposure to 
injurious work factors that occurs on or after September 7, 1974, a 
notice of occupational disease must be filed within three years of the 
onset of the condition. (The form contains the necessary words of 
claim.) The requirements for timely filing are described in Sec. 
10.100(b)(1) through (3).

[[Page 19]]

    (c) However, in cases of latent disability, the time for filing 
claim does not begin to run until the employee has a compensable 
disability and is aware, or reasonably should have been aware, of the 
causal relationship between the disability and the employment (see 5 
U.S.C. 8122(b)).



Sec. 10.102  How and when is a claim for wage loss compensation filed?

    (a) Form CA-7 is used to claim compensation for periods of 
disability not covered by COP.
    (1) An employee who is disabled with loss of pay for more than three 
calendar days due to an injury, or someone acting on his or her behalf, 
must file Form CA-7 before compensation can be paid.
    (2) The employee shall complete the front of Form CA-7 and submit 
the form to the employer for completion and transmission to OWCP. The 
form should be completed as soon as possible, but no more than 14 
calendar days after the date pay stops due to the injury or disease.
    (3) The requirements for filing claims are further described in 5 
U.S.C. 8121.
    (b) Additional Forms CA-7 are used to claim compensation for 
additional periods of disability after the first Form CA-7 is submitted 
to OWCP.
    (1) It is the employee's responsibility to submit Form CA-7. Without 
receipt of such claim, OWCP has no knowledge of continuing wage loss. 
Therefore, while disability continues, the employee should submit a 
claim on Form CA-7 each two weeks until otherwise instructed by OWCP.
    (2) The employee shall complete the front of Form CA-7 and submit 
the form to the employer for completion and transmission to OWCP.
    (3) The employee is responsible for submitting, or arranging for the 
submittal of, medical evidence to OWCP which establishes both that 
disability continues and that the disability is due to the work-related 
injury. Form CA-20 is attached to Form CA-7 for this purpose.

[63 FR 65306, Nov. 25, 1998; 63 FR 71202, Dec. 23, 1998]



Sec. 10.103  How and when is a claim for permanent impairment filed?

    Form CA-7 is used to claim compensation for impairment to a body 
part covered under the schedule established by 5 U.S.C. 8107. If Form 
CA-7 has already been filed to claim disability compensation, an 
employee may file a claim for such impairment by sending a letter to 
OWCP which specifies the nature of the benefit claimed.



Sec. 10.104  How and when is a claim for recurrence filed?

    (a) A recurrence should be reported on Form CA-2a if it causes the 
employee to lose time from work and incur a wage loss, or if the 
employee experiences a renewed need for treatment after previously being 
released from care. However, a notice of recurrence should not be filed 
when a new injury, new occupational disease, or new event contributing 
to an already-existing occupational disease has occurred. In these 
instances, the employee should file Form CA-1 or CA-2.
    (b) The employee has the burden of establishing by the weight of 
reliable, probative and substantial evidence that the recurrence of 
disability is causally related to the original injury.
    (1) The employee must include a detailed factual statement as 
described on Form CA-2a. The employer may submit comments concerning the 
employee's statement.
    (2) The employee should arrange for the submittal of a detailed 
medical report from the attending physician as described on Form CA-2a. 
The employee should also submit, or arrange for the submittal of, 
similar medical reports for any examination and/or treatment received 
after returning to work following the original injury.



Sec. 10.105  How and when is a notice of death and claim for benefits 
filed?

    (a) If an employee dies from a work-related traumatic injury or an 
occupational disease, any survivor may file a claim for death benefits 
using Form CA-5 or CA-5b, which may be obtained from the employer or 
from the Internet at www.dol.gov./dol/esa/owcp.htm. The survivor must 
provide this notice in writing and forward it to the employer.

[[Page 20]]

Another person, including the employer, may do so on the survivor's 
behalf. The survivor may also submit the completed Form CA-5 or CA-5b 
directly to OWCP. The survivor shall disclose the SSNs of all survivors 
on whose behalf claim for benefits is made in addition to the SSN of the 
deceased employee. The survivor may withdraw his or her claim (but not 
the notice of death) by so requesting in writing to OWCP at any time 
before OWCP determines eligibility for benefits.
    (b) For deaths that occur on or after September 7, 1974, a notice of 
death must be filed within three years of the death. The form contains 
the necessary words of claim. The requirements for timely filing are 
described in Sec. 10.100(b)(1) through (3).
    (c) However, in cases of death due to latent disability, the time 
for filing the claim does not begin to run until the survivor is aware, 
or reasonably should have been aware, of the causal relationship between 
the death and the employment (see 5 U.S.C. 8122(b)).
    (d) The filing of a notice of injury or occupational disease will 
satisfy the time requirements for a death claim based on the same injury 
or occupational disease. If an injured employee or someone acting on the 
employee's behalf does not file a claim before the employee's death, the 
right to claim compensation for disability other than medical expenses 
ceases and does not survive.
    (e) A survivor must be alive to receive any payment; there is no 
vested right to such payment. A report as described in Sec. 10.414 of 
this part must be filed once each year to support continuing payments of 
compensation.

  Notices and Claims for Injury, Disease, and Death--Employer's Actions



Sec. 10.110  What should the employer do when an employee files a 
notice of traumatic injury or occupational disease?

    (a) The employer shall complete the agency portion of Form CA-1 (for 
traumatic injury) or CA-2 (for occupational disease) no more than 10 
working days after receipt of notice from the employee. The employer 
shall also complete the Receipt of Notice and give it to the employee, 
along with copies of both sides of Form CA-1 or Form CA-2.
    (b) The employer must complete and transmit the form to OWCP within 
10 working days after receipt of notice from the employee if the injury 
or disease will likely result in:
    (1) A medical charge against OWCP;
    (2) Disability for work beyond the day or shift of injury;
    (3) The need for more than two appointments for medical examination 
and/or treatment on separate days, leading to time loss from work;
    (4) Future disability;
    (5) Permanent impairment; or
    (6) Continuation of pay pursuant to 5 U.S.C. 8118.
    (c) The employer should not wait for submittal of supporting 
evidence before sending the form to OWCP.
    (d) If none of the conditions in paragraph (b) of this section 
applies, the Form CA-1 or CA-2 shall be retained as a permanent record 
in the Employee Medical Folder in accordance with the guidelines 
established by the Office of Personnel Management.



Sec. 10.111  What should the employer do when an employee files an 
initial claim for compensation due to disability or permanent impairment?

    (a) When an employee is disabled by a work-related injury and loses 
pay for more than three calendar days, or has a permanent impairment or 
serious disfigurement as described in 5 U.S.C. 8107, the employer shall 
furnish the employee with Form CA-7 for the purpose of claiming 
compensation.
    (b) If the employee is receiving continuation of pay (COP), the 
employer should give Form CA-7 to the employee by the 30th day of the 
COP period and submit the form to OWCP by the 40th day of the COP 
period. If the employee has not returned the form to the employer by the 
40th day of the COP period, the employer should ask him or her to submit 
it as soon as possible.
    (c) Upon receipt of Form CA-7 from the employee, or someone acting 
on his or her behalf, the employer shall complete the appropriate 
portions of the form. As soon as possible, but no more than five working 
days after receipt from the employee, the employer shall forward the 
completed Form CA-7 and

[[Page 21]]

any accompanying medical report to OWCP.



Sec. 10.112  What should the employer do when an employee files a claim 
for continuing compensation due to disability?

    (a) If the employee continues in a leave-without-pay status due to a 
work-related injury after the period of compensation initially claimed 
on Form CA-7, the employer shall furnish the employee with another Form 
CA-7 for the purpose of claiming continuing compensation.
    (b) Upon receipt of Form CA-7 from the employee, or someone acting 
on his or her behalf, the employer shall complete the appropriate 
portions of the form. As soon as possible, but no more than five working 
days after receipt from the employee, the employer shall forward the 
completed Form CA-7 and any accompanying medical report to OWCP.

[63 FR 65306, Nov. 25, 1998; 63 FR 71202, Dec. 23, 1998]



Sec. 10.113  What should the employer do when an employee dies from a 
work-related injury or disease?

    (a) The employer shall immediately report a death due to a work-
related traumatic injury or occupational disease to OWCP by telephone, 
telegram, or facsimile (fax). No more than 10 working days after 
notification of the death, the employer shall complete and send Form CA-
6 to OWCP.
    (b) When possible, the employer shall furnish a Form CA-5 or CA-5b 
to all persons likely to be entitled to compensation for death of an 
employee. The employer should also supply information about completing 
and filing the form.
    (c) The employer shall promptly transmit Form CA-5 or CA-5b to OWCP. 
The employer shall also promptly transmit to OWCP any other claim or 
paper submitted which appears to claim compensation on account of death.

                      Evidence and Burden of Proof



Sec. 10.115  What evidence is needed to establish a claim?

    Forms CA-1, CA-2, CA-5 and CA-5b describe the basic evidence 
required. OWCP may send any request for additional evidence to the 
claimant and to his or her representative, if any. Evidence should be 
submitted in writing. The evidence submitted must be reliable, probative 
and substantial. Each claim for compensation must meet five requirements 
before OWCP can accept it. These requirements, which the employee must 
establish to meet his or her burden of proof, are as follows:
    (a) The claim was filed within the time limits specified by the 
FECA;
    (b) The injured person was, at the time of injury, an employee of 
the United States as defined in 5 U.S.C. 8101(1) and Sec. 10.5(h) of 
this part;
    (c) The fact that an injury, disease or death occurred;
    (d) The injury, disease or death occurred while the employee was in 
the performance of duty; and
    (e) The medical condition for which compensation or medical benefits 
is claimed is causally related to the claimed injury, disease or death. 
Neither the fact that the condition manifests itself during a period of 
Federal employment, nor the belief of the claimant that factors of 
employment caused or aggravated the condition, is sufficient in itself 
to establish causal relationship.
    (f) In all claims, the claimant is responsible for submitting, or 
arranging for submittal of, a medical report from the attending 
physician. For wage loss benefits, the claimant must also submit medical 
evidence showing that the condition claimed is disabling. The rules for 
submitting medical reports are found in Sec. Sec. 10.330 through 
10.333.



Sec. 10.116  What additional evidence is needed in cases based on 
occupational disease?

    (a) The employee must submit the specific detailed information 
described on Form CA-2 and on any checklist (Form CA-35, A-H) provided 
by the employer. OWCP has developed these checklists to address 
particular occupational diseases. The medical report

[[Page 22]]

should also include the information specified on the checklist for the 
particular disease claimed.
    (b) The employer should submit the specific detailed information 
described on Form CA-2 and on any checklist pertaining to the claimed 
disease.



Sec. 10.117  What happens if, in any claim, the employer contests any 
of the facts as stated by the claimant?

    (a) An employer who has reason to disagree with any aspect of the 
claimant's report shall submit a statement to OWCP that specifically 
describes the factual allegation or argument with which it disagrees and 
provide evidence or argument to support its position. The employer may 
include supporting documents such as witness statements, medical reports 
or records, or any other relevant information.
    (b) Any such statement shall be submitted to OWCP with the notice of 
traumatic injury or death, or within 30 calendar days from the date 
notice of occupational disease or death is received from the claimant. 
If the employer does not submit a written explanation to support the 
disagreement, OWCP may accept the claimant's report of injury as 
established. The employer may not use a disagreement with an aspect of 
the claimant's report to delay forwarding the claim to OWCP or to compel 
or induce the claimant to change or withdraw the claim.



Sec. 10.118  Does the employer participate in the claims process in any 
other way?

    (a) The employer is responsible for submitting to OWCP all relevant 
and probative factual and medical evidence in its possession, or which 
it may acquire through investigation or other means. Such evidence may 
be submitted at any time.
    (b) The employer may ascertain the events surrounding an injury and 
the extent of disability where it appears that an employee who alleges 
total disability may be performing other work, or may be engaging in 
activities which would indicate less than total disability. This 
authority is in addition to that given in Sec. 10.118(a). However, the 
provisions of the Privacy Act apply to any endeavor by the employer to 
ascertain the facts of the case (see Sec. Sec. 10.10 and 10.11).
    (c) The employer does not have the right, except as provided in 
subpart C of this part, to actively participate in the claims 
adjudication process.



Sec. 10.119  What action will OWCP take with respect to information 
submitted by the employer?

    OWCP will consider all evidence submitted appropriately, and OWCP 
will inform the employee, the employee's representative, if any, and the 
employer of any action taken. Where an employer contests a claim within 
30 days of the initial submittal and the claim is later approved, OWCP 
will notify the employer of the rationale for approving the claim.



Sec. 10.120  May a claimant submit additional evidence?

    A claimant or a person acting on his or her behalf may submit to 
OWCP at any time any other evidence relevant to the claim.



Sec. 10.121  What happens if OWCP needs more evidence from the claimant?

    If the claimant submits factual evidence, medical evidence, or both, 
but OWCP determines that this evidence is not sufficient to meet the 
burden of proof, OWCP will inform the claimant of the additional 
evidence needed. The claimant will be allowed at least 30 days to submit 
the evidence required. OWCP is not required to notify the claimant a 
second time if the evidence submitted in response to its first request 
is not sufficient to meet the burden of proof.

                  Decisions on Entitlement to Benefits



Sec. 10.125  How does OWCP determine entitlement to benefits?

    (a) In reaching any decision with respect to FECA coverage or 
entitlement, OWCP considers the claim presented by the claimant, the 
report by the employer, and the results of such investigation as OWCP 
may deem necessary.
    (b) OWCP claims staff apply the law, the regulations, and its 
procedures to the facts as reported or obtained upon investigation. They 
also apply decisions of the Employees' Compensation

[[Page 23]]

Appeals Board and administrative decisions of OWCP as set forth in FECA 
Program Memoranda.



Sec. 10.126  What does the decision contain?

    The decision shall contain findings of fact and a statement of 
reasons. It is accompanied by information about the claimant's appeal 
rights, which may include the right to a hearing, a reconsideration, 
and/or a review by the Employees' Compensation Appeals Board. (See 
subpart G of this part.)



Sec. 10.127  To whom is the decision sent?

    A copy of the decision shall be mailed to the employee's last known 
address. If the employee has a designated representative before OWCP, a 
copy of the decision will also be mailed to the representative. 
Notification to either the employee or the representative will be 
considered notification to both. A copy of the decision will also be 
sent to the employer.



                      Subpart C_Continuation of Pay



Sec. 10.200  What is continuation of pay?

    (a) For most employees who sustain a traumatic injury, the FECA 
provides that the employer must continue the employee's regular pay 
during any periods of resulting disability, up to a maximum of 45 
calendar days. This is called continuation of pay, or COP. The employer, 
not OWCP, pays COP. Unlike wage loss benefits, COP is subject to taxes 
and all other payroll deductions that are made from regular income.
    (b) The employer must continue the pay of an employee who is 
eligible for COP, and may not require the employee to use his or her own 
sick or annual leave, unless the provisions of Sec. Sec. 10.200(c), 
10.220, or Sec. 10.222 apply. However, while continuing the employee's 
pay, the employer may controvert the employee's COP entitlement pending 
a final determination by OWCP. OWCP has the exclusive authority to 
determine questions of entitlement and all other issues relating to COP.
    (c) The FECA excludes certain persons from eligibility for COP. COP 
cannot be authorized for members of these excluded groups, which include 
but are not limited to: persons rendering personal service to the United 
States similar to the service of a civil officer or employee of the 
United States, without pay or for nominal pay; volunteers (for instance, 
in the Civil Air Patrol and Peace Corps); Job Corps and Youth 
Conservation Corps enrollees; individuals in work-study programs, and 
grand or petit jurors (unless otherwise Federal employees).

                           Eligibility for COP



Sec. 10.205  What conditions must be met to receive COP?

    (a) To be eligible for COP, a person must:
    (1) Have a ``traumatic injury'' as defined at Sec. 10.5(ee) which 
is job-related and the cause of the disability, and/or the cause of lost 
time due to the need for medical examination and treatment;
    (2) File Form CA-1 within 30 days of the date of the injury (but if 
that form is not available, using another form would not alone preclude 
receipt); and
    (3) Begin losing time from work due to the traumatic injury within 
45 days of the injury.
    (b) OWCP may find that the employee is not entitled to COP for other 
reasons consistent with the statute (see Sec. 10.220).



Sec. 10.206  May an employee who uses leave after an injury later 
decide to use COP instead?

    On Form CA-1, an employee may elect to use accumulated sick or 
annual leave, or leave advanced by the agency, instead of electing COP. 
The employee can change the election between leave and COP for 
prospective periods at any point while eligibility for COP remains. The 
employee may also change the election for past periods and request COP 
in lieu of leave already taken for the same period. In either situation, 
the following provisions apply:
    (a) The request must be made to the employer within one year of the 
date the leave was used or the date of the written approval of the claim 
by OWCP (if written approval is issued), whichever is later.
    (b) Where the employee is otherwise eligible, the agency shall 
restore leave taken in lieu of any of the 45 COP days.

[[Page 24]]

Where any of the 45 COP days remain unused, the agency shall continue 
pay prospectively.
    (c) The use of leave may not be used to delay or extend the 45-day 
COP period or to otherwise affect the time limitation as provided by 5 
U.S.C. 8117. Therefore, any leave used during the period of eligibility 
counts towards the 45-day maximum entitlement to COP.



Sec. 10.207  May an employee who returns to work, then stops work again 
due to the effects of the injury, receive COP?

    If the employee recovers from disability and returns to work, then 
becomes disabled again and stops work, the employer shall pay any of the 
45 days of entitlement to COP not used during the initial period of 
disability where:
    (a) The employee completes Form CA-2a and elects to receive regular 
pay;
    (b) OWCP did not deny the original claim for disability;
    (c) The disability recurs and the employee stops work within 45 days 
of the time the employee first returned to work following the initial 
period of disability; and
    (d) Pay has not been continued for the entire 45 days.

                            Responsibilities



Sec. 10.210  What are the employee's responsibilities in COP cases?

    An employee who sustains a traumatic injury which he or she 
considers disabling, or someone authorized to act on his or her behalf, 
must take the following actions to ensure continuing eligibility for 
COP. The employee must:
    (a) Complete and submit Form CA-1 to the employing agency as soon as 
possible, but no later than 30 days from the date the traumatic injury 
occurred.
    (b) Ensure that medical evidence supporting disability resulting 
from the claimed traumatic injury, including a statement as to when the 
employee can return to his or her date of injury job, is provided to the 
employer within 10 calendar days after filing the claim for COP.
    (c) Ensure that relevant medical evidence is submitted to OWCP, and 
cooperate with OWCP in developing the claim.
    (d) Ensure that the treating physician specifies work limitations 
and provides them to the employer and/or representatives of OWCP.
    (e) Provide to the treating physician a description of any specific 
alternative positions offered the employee, and ensure that the treating 
physician responds promptly to the employer and/or OWCP, with an opinion 
as to whether and how soon the employee could perform that or any other 
specific position.



Sec. 10.211  What are the employer's responsibilities in COP cases?

    Once the employer learns of a traumatic injury sustained by an 
employee, it shall:
    (a) Provide a Form CA-1 and Form CA-16 to authorize medical care in 
accordance with Sec. 10.300. Failure to do so may mean that OWCP will 
not uphold any termination of COP by the employer.
    (b) Advise the employee of the right to receive COP, and the need to 
elect among COP, annual or sick leave or leave without pay, for any 
period of disability.
    (c) Inform the employee of any decision to controvert COP and/or 
terminate pay, and the basis for doing so.
    (d) Complete Form CA-1 and transmit it, along with all other 
available pertinent information, (including the basis for any 
controversion), to OWCP within 10 working days after receiving the 
completed form from the employee.

                           Calculation of COP



Sec. 10.215  How does OWCP compute the number of days of COP used?

    COP is payable for a maximum of 45 calendar days, and every day used 
is counted toward this maximum. The following rules apply:
    (a) Time lost on the day or shift of the injury does not count 
toward COP. (Instead, the agency must keep the employee in a pay status 
for that period);
    (b) The first COP day is the first day disability begins following 
the date of injury (providing it is within the 45 days following the 
date of injury), except where the injury occurs before the

[[Page 25]]

beginning of the work day or shift, in which case the date of injury is 
charged to COP;
    (c) Any part of a day or shift (except for the day of the injury) 
counts as a full day toward the 45 calendar day total;
    (d) Regular days off are included if COP has been used on the 
regular work days immediately preceding or following the regular day(s) 
off, and medical evidence supports disability; and
    (e) Leave used during a period when COP is otherwise payable is 
counted toward the 45-day COP maximum as if the employee had been in a 
COP status.
    (f) For employees with part-time or intermittent schedules, all 
calendar days on which medical evidence indicates disability are counted 
as COP days, regardless of whether the employee was or would have been 
scheduled to work on those days. The rate at which COP is paid for these 
employees is calculated according to Sec. 10.216(b).

[63 FR 65306, Nov. 25, 1998; 63 FR 71202, Dec. 23, 1998]



Sec. 10.216  How is the pay rate for COP calculated?

    The employer shall calculate COP using the period of time and the 
weekly pay rate.
    (a) The pay rate for COP purposes is equal to the employee's regular 
``weekly'' pay (the average of the weekly pay over the preceding 52 
weeks).
    (1) The pay rate excludes overtime pay, but includes other 
applicable extra pay except to the extent prohibited by law.
    (2) Changes in pay or salary (for example, promotion, demotion, 
within-grade increases, termination of a temporary detail, etc.) which 
would have otherwise occurred during the 45-day period are to be 
reflected in the weekly pay determination.
    (b) The weekly pay for COP purposes is determined according to the 
following formulas:
    (1) For full or part-time workers (permanent or temporary) who work 
the same number of hours each week of the year (or of the appointment), 
the weekly pay rate is the hourly pay rate (A) in effect on the date of 
injury multiplied by (x) the number of hours worked each week (B): A x B 
= Weekly Pay Rate.
    (2) For part-time workers (permanent or temporary) who do not work 
the same number of hours each week, but who do work each week of the 
year (or period of appointment), the weekly pay rate is an average of 
the weekly earnings, established by dividing (/) the total earnings 
(excluding overtime) from the year immediately preceding the injury (A) 
by the number of weeks (or partial weeks) worked in that year (B): A / B 
= Weekly Pay Rate.
    (3) For intermittent and seasonal workers, whether permanent or 
temporary, who do not work either the same number of hours or every week 
of the year (or period of appointment), the weekly pay rate is the 
average weekly earnings established by dividing (/) the total earnings 
during the full 12-month period immediately preceding the date of injury 
(excluding overtime) (A), by the number of weeks (or partial weeks) 
worked during that year (B) (that is, A / B); or 150 times the average 
daily wage earned in the employment during the days employed within the 
full year immediately preceding the date of injury divided by 52 weeks, 
whichever is greater.

[63 FR 65306, Nov. 25, 1998; 63 FR 71202, Dec. 23, 1998]



Sec. 10.217  Is COP charged if the employee continues to work, but 
in a different job that pays less?

    If the employee cannot perform the duties of his or her regular 
position, but instead works in another job with different duties with no 
loss in pay, then COP is not chargeable. COP must be paid and the days 
counted against the 45 days authorized by law whenever an actual 
reduction of pay results from the injury, including a reduction of pay 
for the employee's normal administrative workweek that results from a 
change or diminution in his or her duties following an injury. However, 
this does not include a reduction of pay that is due solely to an 
employer being prohibited by law from paying extra pay to an employee 
for work he or she does not actually perform.

[[Page 26]]

                  Controversion and Termination of COP



Sec. 10.220  When is an employer not required to pay COP?

    An employer shall continue the regular pay of an eligible employee 
without a break in time for up to 45 calendar days, except when, and 
only when:
    (a) The disability was not caused by a traumatic injury;
    (b) The employee is not a citizen of the United States or Canada;
    (c) No written claim was filed within 30 days from the date of 
injury;
    (d) The injury was not reported until after employment has been 
terminated;
    (e) The injury occurred off the employing agency's premises and was 
otherwise not within the performance of official duties;
    (f) The injury was caused by the employee's willful misconduct, 
intent to injure or kill himself or herself or another person, or was 
proximately caused by intoxication by alcohol or illegal drugs; or
    (g) Work did not stop until more than 45 days following the injury.

[63 FR 65306, Nov. 25, 1998; 64 FR 12684, Mar. 12, 1999]



Sec. 10.221  How is a claim for COP controverted?

    When the employer stops an employee's pay for one of the reasons 
cited in Sec. 10.220, the employer must controvert the claim for COP on 
Form CA-1, explaining in detail the basis for the refusal. The final 
determination on entitlement to COP always rests with OWCP.



Sec. 10.222  When may an employer terminate COP which has already begun?

    (a) Where the employer has continued the pay of the employee, it may 
be stopped only when at least one of the following circumstances is 
present:
    (1) Medical evidence which on its face supports disability due to a 
work-related injury is not received within 10 calendar days after the 
claim is submitted (unless the employer's own investigation shows 
disability to exist). Where the medical evidence is later provided, 
however, COP shall be reinstated retroactive to the date of termination;
    (2) The medical evidence from the treating physician shows that the 
employee is not disabled from his or her regular position;
    (3) Medical evidence from the treating physician shows that the 
employee is not totally disabled, and the employee refuses a written 
offer of a suitable alternative position which is approved by the 
attending physician. If OWCP later determines that the position was not 
suitable, OWCP will direct the employer to grant the employee COP 
retroactive to the termination date.
    (4) The employee returns to work with no loss of pay;
    (5) The employee's period of employment expires or employment is 
otherwise terminated (as established prior to the date of injury);
    (6) OWCP directs the employer to stop COP; and/or
    (7) COP has been paid for 45 calendar days.
    (b) An employer may not interrupt or stop COP to which the employee 
is otherwise entitled because of a disciplinary action, unless a 
preliminary notice was issued to the employee before the date of injury 
and the action becomes final or otherwise takes effect during the COP 
period.
    (c) An employer cannot otherwise stop COP unless it does so for one 
of the reasons found in this section or Sec. 10.220. Where an employer 
stops COP, it must file a controversion with OWCP, setting forth the 
basis on which it terminated COP, no later than the effective date of 
the termination.



Sec. 10.223  Are there other circumstances under which OWCP will not 
authorize payment of COP?

    When OWCP finds that an employee or his or her representative 
refuses or obstructs a medical examination required by OWCP, the right 
to COP is suspended until the refusal or obstruction ceases. COP already 
paid or payable for the period of suspension is forfeited. If already 
paid, the COP may be charged to annual or sick leave or considered an 
overpayment of pay consistent with 5 U.S.C. 5584.

[[Page 27]]



Sec. 10.224  What happens if OWCP finds that the employee is not 
entitled to COP after it has been paid?

    Where OWCP finds that the employee is not entitled to COP after it 
has been paid, the employee may chose to have the time charged to annual 
or sick leave, or considered an overpayment of pay under 5 U.S.C. 5584. 
The employer must correct any deficiencies in COP as directed by OWCP.



                 Subpart D_Medical and Related Benefits

                         Emergency Medical Care



Sec. 10.300  What are the basic rules for authorizing emergency medical 
care?

    (a) When an employee sustains a work-related traumatic injury that 
requires medical examination, medical treatment, or both, the employer 
shall authorize such examination and/or treatment by issuing a Form CA-
16. This form may be used for occupational disease or illness only if 
the employer has obtained prior permission from OWCP.
    (b) The employer shall issue Form CA-16 within four hours of the 
claimed injury. If the employer gives verbal authorization for such 
care, he or she should issue a Form CA-16 within 48 hours. The employer 
is not required to issue a Form CA-16 more than one week after the 
occurrence of the claimed injury. The employer may not authorize 
examination or medical or other treatment in any case that OWCP has 
disallowed.
    (c) Form CA-16 must contain the full name and address of the 
qualified physician or qualified medical facility authorized to provide 
service. The authorizing official must sign and date the form and must 
state his or her title. Form CA-16 authorizes treatment for 60 days from 
the date of issuance, unless OWCP terminates the authorization sooner.
    (d) The employer should advise the employee of the right to his or 
her initial choice of physician. The employer shall allow the employee 
to select a qualified physician, after advising him or her of those 
physicians excluded under subpart I of this part. The physician may be 
in private practice, including a health maintenance organization (HMO), 
or employed by a Federal agency such as the Department of the Army, 
Navy, Air Force, or Veterans Affairs. Any qualified physician may 
provide initial treatment of a work-related injury in an emergency. See 
also Sec. 10.825(b).



Sec. 10.301  May the physician designated on Form CA-16 refer the 
employee to another medical specialist or medical facility?

    The physician designated on Form CA-16 may refer the employee for 
further examination, testing, or medical care. OWCP will pay this 
physician or facility's bill on the authority of Form CA-16. The 
employer should not issue a second Form CA-16.



Sec. 10.302  Should the employer authorize medical care if he or 
she doubts that the injury occurred, or that it is work-related?

    If the employer doubts that the injury occurred, or that it is work-
related, he or she should authorize medical care by completing Form CA-
16 and checking block 6B of the form. If the medical and factual 
evidence sent to OWCP shows that the condition treated is not work-
related, OWCP will notify the employee, the employer, and the physician 
or hospital that OWCP will not authorize payment for any further 
treatment.



Sec. 10.303  Should the employer use a Form CA-16 to authorize medical 
testing when an employee is exposed to a workplace hazard just once?

    (a) Simple exposure to a workplace hazard, such as an infectious 
agent, does not constitute a work-related injury entitling an employee 
to medical treatment under the FECA. The employer therefore should not 
use a Form CA-16 to authorize medical testing for an employee who has 
merely been exposed to a workplace hazard, unless the employee has 
sustained an identifiable injury or medical condition as a result of 
that exposure. OWCP will authorize preventive treatment only under 
certain well-defined circumstances (see Sec. 10.313).

[[Page 28]]

    (b) Employers may be required under other statutes or regulations to 
provide their employees with medical testing and/or other services in 
situations described in paragraph (a) of this section. For example, 
regulations issued by the Occupational Safety and Health Administration 
at 29 CFR chapter XVII require employers to provide their employees with 
medical consultations and/or examinations when they either exhibit 
symptoms consistent with exposure to a workplace hazard, or when an 
identifiable event such as a spill, leak or explosion occurs and results 
in the likelihood of exposure to a workplace hazard. In addition, 5 
U.S.C. 7901 authorizes employers to establish health programs whose 
staff can perform tests for workplace hazards, counsel employees for 
exposure or feared exposure to such hazards, and provide health care 
screening and other associated services.



Sec. 10.304  Are there any exceptions to these procedures for obtaining 
medical care?

    In cases involving emergencies or unusual circumstances, OWCP may 
authorize treatment in a manner other than as stated in this subpart.

                  Medical Treatment and Related Issues



Sec. 10.310  What are the basic rules for obtaining medical care?

    (a) The employee is entitled to receive all medical services, 
appliances or supplies which a qualified physician prescribes or 
recommends and which OWCP considers necessary to treat the work-related 
injury. The employee need not be disabled to receive such treatment. If 
there is any doubt as to whether a specific service, appliance or supply 
is necessary to treat the work-related injury, the employee should 
consult OWCP prior to obtaining it.
    (b) Any qualified physician or qualified hospital may provide such 
services, appliances and supplies. A qualified provider of medical 
support services may also furnish appropriate services, appliances, and 
supplies. OWCP may apply a test of cost-effectiveness to appliances and 
supplies. With respect to prescribed medications, OWCP may require the 
use of generic equivalents where they are available.



Sec. 10.311  What are the special rules for the services of 
chiropractors?

    (a) The services of chiropractors that may be reimbursed are limited 
by the FECA to treatment to correct a spinal subluxation. The costs of 
physical and related laboratory tests performed by or required by a 
chiropractor to diagnose such a subluxation are also payable.
    (b) In accordance with 5 U.S.C. 8101(3), a diagnosis of spinal 
``subluxation as demonstrated by X-ray to exist'' must appear in the 
chiropractor's report before OWCP can consider payment of a 
chiropractor's bill.
    (c) A chiropractor may interpret his or her x-rays to the same 
extent as any other physician. To be given any weight, the medical 
report must state that x-rays support the finding of spinal subluxation. 
OWCP will not necessarily require submittal of the x-ray, or a report of 
the x-ray, but the report must be available for submittal on request.
    (d) A chiropractor may also provide services in the nature of 
physical therapy under the direction of a qualified physician.



Sec. 10.312  What are the special rules for the services of clinical 
psychologists?

    A clinical psychologist may serve as a physician only within the 
scope of his or her practice as defined by State law. Therefore, a 
clinical psychologist may not serve as a physician for conditions that 
include a physical component unless the applicable State law allows 
clinical psychologists to treat physical conditions. A clinical 
psychologist may also perform testing, evaluation and other services 
under the direction of a qualified physician.



Sec. 10.313  Will OWCP pay for preventive treatment?

    The FECA does not authorize payment for preventive measures such as 
vaccines and inoculations, and in general, preventive treatment may be a 
responsibility of the employing agency under the provisions of 5 U.S.C. 
7901

[[Page 29]]

(see Sec. 10.303). However, OWCP can authorize treatment for the 
following conditions, even though such treatment is designed, in part, 
to prevent further injury:
    (a) Complications of preventive measures which are provided or 
sponsored by the agency, such as an adverse reaction to prophylactic 
immunization.
    (b) Actual or probable exposure to a known contaminant due to an 
injury, thereby requiring disease-specific measures against infection. 
Examples include the provision of tetanus antitoxin or booster toxoid 
injections for puncture wounds; administration of rabies vaccine for a 
bite from a rabid or potentially rabid animal; or appropriate measures 
where exposure to human immunodeficiency virus (HIV) has occurred.
    (c) Conversion of tuberculin reaction from negative to positive 
following exposure to tuberculosis in the performance of duty. In this 
situation, the appropriate therapy may be authorized.
    (d) Where injury to one eye has resulted in loss of vision, periodic 
examination of the uninjured eye to detect possible sympathetic 
involvement of the uninjured eye at an early stage.



Sec. 10.314  Will OWCP pay for the services of an attendant?

    Yes, OWCP will pay for the services of an attendant up to a maximum 
of $1,500 per month, where the need for such services has been medically 
documented. In the exercise of the discretion afforded by 5 U.S.C. 
8111(a), the Director has determined that, except where payments were 
being made prior to January 4, 1999, direct payments to the claimant to 
cover such services will no longer be made. Rather, the cost of 
providing attendant services will be paid under section 8103 of the Act, 
and medical bills for these services will be considered under Sec. 
10.801. This decision is based on the following factors:
    (a) The additional payments authorized under section 8111(a) should 
not be necessary since OWCP will authorize payment for personal care 
services under 5 U.S.C. 8103, whether or not such care includes medical 
services, so long as the personal care services have been determined to 
be medically necessary and are provided by a home health aide, licensed 
practical nurse, or similarly trained individual.
    (b) A home health aide, licensed practical nurse, or similarly 
trained individual is better able to provide quality personal care 
services, including assistance in feeding, bathing, and using the 
toilet. In the past, provision of supplemental compensation directly to 
injured employees may have encouraged family members to take on these 
responsibilities even though they may not have been trained to provide 
such services. By paying for the services under section 8103, OWCP can 
better determine whether the services provided are necessary and/or 
adequate to meet the needs of the injured employee. In addition, a 
system requiring the personal care provider to submit a bill to OWCP, 
where the amount billed will be subject to OWCP's fee schedule, will 
result in greater fiscal accountability.



Sec. 10.315  Will OWCP pay for transportation to obtain medical 
treatment?

    The employee is entitled to reimbursement of reasonable and 
necessary expenses, including transportation needed to obtain authorized 
medical services, appliances or supplies. To determine what is a 
reasonable distance to travel, OWCP will consider the availability of 
services, the employee's condition, and the means of transportation. 
Generally, 25 miles from the place of injury, the work site, or the 
employee's home, is considered a reasonable distance to travel. The 
standard form designated for Federal employees to claim travel expenses 
should be used to seek reimbursement under this section.



Sec. 10.316  After selecting a treating physician, may an employee 
choose to be treated by another physician instead?

    (a) When the physician originally selected to provide treatment for 
a work-related injury refers the employee to a specialist for further 
medical care, the employee need not consult OWCP for approval. In all 
other instances, however, the employee must submit a written request to 
OWCP with his or her

[[Page 30]]

reasons for desiring a change of physician.
    (b) OWCP will approve the request if it determines that the reasons 
submitted are sufficient. Requests that are often approved include those 
for transfer of care from a general practitioner to a physician who 
specializes in treating conditions like the work-related one, or the 
need for a new physician when an employee has moved. The employer may 
not authorize a change of physicians.

                      Directed Medical Examinations



Sec. 10.320  Can OWCP require an employee to be examined by another 
physician?

    OWCP sometimes needs a second opinion from a medical specialist. The 
employee must submit to examination by a qualified physician as often 
and at such times and places as OWCP considers reasonably necessary. The 
employee may have a qualified physician, paid by him or her, present at 
such examination. However, the employee is not entitled to have anyone 
else present at the examination unless OWCP decides that exceptional 
circumstances exist. For example, where a hearing-impaired employee 
needs an interpreter, the presence of an interpreter would be allowed. 
Also, OWCP may send a case file for second opinion review where actual 
examination is not needed, or where the employee is deceased.



Sec. 10.321  What happens if the opinion of the physician selected by 
OWCP differs from the opinion of the physician selected by the employee?

    (a) If one medical opinion holds more probative value, OWCP will 
base its determination of entitlement on that medical conclusion (see 
Sec. 10.502). A difference in medical opinion sufficient to be 
considered a conflict occurs when two reports of virtually equal weight 
and rationale reach opposing conclusions (see James P. Roberts, 31 ECAB 
1010 (1980)).
    (b) If a conflict exists between the medical opinion of the 
employee's physician and the medical opinion of either a second opinion 
physician or an OWCP medical adviser or consultant, OWCP shall appoint a 
third physician to make an examination (see Sec. 10.502). This is 
called a referee examination. OWCP will select a physician who is 
qualified in the appropriate specialty and who has had no prior 
connection with the case. The employee is not entitled to have anyone 
present at the examination unless OWCP decides that exceptional 
circumstances exist. For example, where a hearing-impaired employee 
needs an interpreter, the presence of an interpreter would be allowed. 
Also, a case file may be sent for referee medical review where there is 
no need for an actual examination, or where the employee is deceased.



Sec. 10.322  Who pays for second opinion and referee examinations?

    OWCP will pay second opinion and referee medical specialists 
directly. OWCP will reimburse the employee all necessary and reasonable 
expenses incident to such an examination, including transportation costs 
and actual wages lost for the time needed to submit to an examination 
required by OWCP.



Sec. 10.323  What are the penalties for failing to report for or 
obstructing a second opinion or referee examination?

    If an employee refuses to submit to or in any way obstructs an 
examination required by OWCP, his or her right to compensation under the 
FECA is suspended until such refusal or obstruction stops. The action of 
the employee's representative is considered to be the action of the 
employee for purposes of this section. The employee will forfeit 
compensation otherwise paid or payable under the FECA for the period of 
the refusal or obstruction, and any compensation already paid for that 
period will be declared an overpayment and will be subject to recovery 
pursuant to 5 U.S.C. 8129.



Sec. 10.324  May an employer require an employee to undergo a physical 
examination in connection with a work-related injury?

    The employer may have authority independent of the FECA to require 
the employee to undergo a medical examination to determine whether he or 
she meets the medical requirements of the position held or can perform 
the duties of that position. Nothing in the FECA

[[Page 31]]

or in this part affects such authority. However, no agency-required 
examination or related activity shall interfere with the employee's 
initial choice of physician or the provision of any authorized 
examination or treatment, including the issuance of Form CA-16.

                             Medical Reports



Sec. 10.330  What are the requirements for medical reports?

    In all cases reported to OWCP, a medical report from the attending 
physician is required. This report should include:
    (a) Dates of examination and treatment;
    (b) History given by the employee;
    (c) Physical findings;
    (d) Results of diagnostic tests;
    (e) Diagnosis;
    (f) Course of treatment;
    (g) A description of any other conditions found but not due to the 
claimed injury;
    (h) The treatment given or recommended for the claimed injury;
    (i) The physician's opinion, with medical reasons, as to causal 
relationship between the diagnosed condition(s) and the factors or 
conditions of the employment;
    (j) The extent of disability affecting the employee's ability to 
work due to the injury;
    (k) The prognosis for recovery; and
    (l) All other material findings.



Sec. 10.331  How and when should the medical report be submitted?

    (a) Form CA-16 may be used for the initial medical report, while 
Form CA-20 may be used for the initial report and for subsequent 
reports, including where continued compensation is claimed. Use of 
medical report forms is not required, however. The report may also be 
made in narrative form on the physician's letterhead stationery. The 
report should bear the physician's signature or signature stamp. OWCP 
may require an original signature on the report.
    (b) The report shall be submitted directly to OWCP as soon as 
possible after medical examination or treatment is received, either by 
the employee or the physician. (See also Sec. 10.210.) The employer may 
request a copy of the report from OWCP. The employer should use Form CA-
17 to obtain interim reports concerning the duty status of an employee 
with a disabling injury.

[63 FR 65306, Nov. 25, 1998; 63 FR 71202, Dec. 23, 1998]



Sec. 10.332  What additional medical information will OWCP require to 
support continuing payment of benefits?

    In all cases of serious injury or disease, especially those 
requiring hospital treatment or prolonged care, OWCP will request 
detailed narrative reports from the attending physician at periodic 
intervals. The physician will be asked to describe continuing medical 
treatment for the condition accepted by OWCP, a prognosis, a description 
of work limitations, if any, and the physician's opinion as to the 
continuing causal relationship between the employee's condition and 
factors of his or her Federal employment.



Sec. 10.333  What additional medical information will OWCP require 
to support a claim for a schedule award?

    To support a claim for a schedule award, a medical report must 
contain accurate measurements of the function of the organ or member, in 
accordance with the American Medical Association's Guides to the 
Evaluation of Permanent Impairment. These measurements may include: The 
actual degree of loss of active or passive motion or deformity; the 
amount of atrophy; the decrease, if any, in strength; the disturbance of 
sensation; and pain due to nerve impairment.

                              Medical Bills



Sec. 10.335  How are medical bills submitted?

    Usually, medical providers submit bills directly to OWCP. The rules 
for submitting and paying bills are stated in subpart I of this part. An 
employee claiming reimbursement of medical expenses should submit an 
itemized bill as described in Sec. 10.802.

[[Page 32]]



Sec. 10.336  What are the time frames for submitting bills?

    To be considered for payment, bills must be submitted by the end of 
the calendar year after the year when the expense was incurred, or by 
the end of the calendar year after the year when OWCP first accepted the 
claim as compensable, whichever is later.



Sec. 10.337  If OWCP reimburses an employee only partially for a medical 
expense, must the provider refund the balance of the amount paid to the employee?

    (a) The OWCP fee schedule sets maximum limits on the amounts payable 
for many services (see Sec. 10.805). The employee may be only partially 
reimbursed for medical expenses because the amount he or she paid to the 
medical provider for a service exceeds the maximum allowable charge set 
by the OWCP fee schedule.
    (b) If this happens, OWCP shall advise the employee of the maximum 
allowable charge for the service in question and of his or her 
responsibility to ask the provider to refund to the employee, or credit 
to the employee's account, the amount he or she paid which exceeds the 
maximum allowable charge. The provider may request reconsideration of 
the fee determination as set forth in Sec. 10.812.
    (c) If the provider does not refund to the employee or credit to his 
or her account the amount of money paid in excess of the charge which 
OWCP allows, the employee should submit documentation of the attempt to 
obtain such refund or credit to OWCP. OWCP may make reasonable 
reimbursement to the employee after reviewing the facts and 
circumstances of the case.



               Subpart E_Compensation and Related Benefits

               Compensation for Disability and Impairment



Sec. 10.400  What is total disability?

    (a) Permanent total disability is presumed to result from the loss 
of use of both hands, both arms, both feet, or both legs, or the loss of 
sight of both eyes. However, the presumption of permanent total 
disability as a result of such loss may be rebutted by evidence to the 
contrary, such as evidence of continued ability to work and to earn 
wages despite the loss.
    (b) Temporary total disability is defined as the inability to return 
to the position held at the time of injury or earn equivalent wages, or 
to perform other gainful employment, due to the work-related injury. 
Except as presumed under paragraph (a) of this section, an employee's 
disability status is always considered temporary pending return to work.



Sec. 10.401  When and how is compensation for total disability paid?

    (a) Compensation is payable when the employee starts to lose pay if 
the injury causes permanent disability or if pay loss continues for more 
than 14 calendar days. Otherwise, compensation is payable on the fourth 
day after pay stops. Compensation may not be paid while an injured 
employee is in a continuation of pay status or receives pay for leave.
    (b) Compensation for total disability is payable at the rate of 
66\2/3\ percent of the pay rate if the employee has no dependents, or 75 
percent of the pay rate if the employee has at least one dependent. 
(``Dependents'' are defined at 5 U.S.C. 8110(a).)



Sec. 10.402  What is partial disability?

    An injured employee who cannot return to the position held at the 
time of injury (or earn equivalent wages) due to the work-related 
injury, but who is not totally disabled for all gainful employment, is 
considered to be partially disabled.



Sec. 10.403  When and how is compensation for partial disability paid?

    (a) 5 U.S.C. 8115 outlines how compensation for partial disability 
is determined. If the employee has actual earnings which fairly and 
reasonably represent his or her wage-earning capacity, those earnings 
may form the basis for payment of compensation for partial disability. 
(See Sec. Sec. 10.500 through 10.520 concerning return to work.) If the 
employee's actual earnings do not fairly and reasonably represent his or 
her wage-earning capacity, or if the employee has no actual earnings,

[[Page 33]]

OWCP uses the factors stated in 5 U.S.C. 8115 to select a position which 
represents his or her wage-earning capacity. However, OWCP will not 
secure employment for the employee in the position selected for 
establishing a wage-earning capacity.
    (b) Compensation for partial disability is payable as a percentage 
of the difference between the employee's pay rate for compensation 
purposes and the employee's wage-earning capacity. The percentage is 
66\2/3\ percent of this difference if the employee has no dependents, or 
75 percent of this difference if the employee has at least one 
dependent.
    (c) The formula which OWCP uses to compute the compensation payable 
for partial disability employs the following terms: Pay rate for 
compensation purposes, which is defined in Sec. 10.5(s) of this part; 
current pay rate, which means the salary or wages for the job held at 
the time of injury at the time of the determination; and earnings, which 
means the employee's actual earnings, or the salary or pay rate of the 
position selected by OWCP as representing the employee's wage-earning 
capacity.
    (d) The employee's wage-earning capacity in terms of percentage is 
computed by dividing the employee's earnings by the current pay rate. 
The comparison of earnings and ``current'' pay rate for the job held at 
the time of injury need not be made as of the beginning of partial 
disability. OWCP may use any convenient date for making the comparison 
as long as both wage rates are in effect on the date used for 
comparison.
    (e) The employee's wage-earning capacity in terms of dollars is 
computed by first multiplying the pay rate for compensation purposes by 
the percentage of wage-earning capacity. The resulting dollar amount is 
then subtracted from the pay rate for compensation purposes to obtain 
the employee's loss of wage-earning capacity.



Sec. 10.404  When and how is compensation for a schedule impairment paid?

    Compensation is provided for specified periods of time for the 
permanent loss or loss of use of certain members, organs and functions 
of the body. Such loss or loss of use is known as permanent impairment. 
Compensation for proportionate periods of time is payable for partial 
loss or loss of use of each member, organ or function. OWCP evaluates 
the degree of impairment to schedule members, organs and functions as 
defined in 5 U.S.C. 8107 according to the standards set forth in the 
specified (by OWCP) edition of the American Medical Association's Guides 
to the Evaluation of Permanent Impairment.
    (a) 5 U.S.C. 8107(c) provides a list of schedule members. Pursuant 
to the authority provided by 5 U.S.C. 8107(c)(22), the Secretary has 
added the following organs to the compensation schedule for injuries 
that were sustained on or after September 7, 1974:

------------------------------------------------------------------------
                            Member                               Weeks
------------------------------------------------------------------------
Breast (one).................................................         52
Kidney (one).................................................        156
Larynx.......................................................        160
Lung (one)...................................................        156
Penis........................................................        205
Testicle (one)...............................................         52
Tongue.......................................................        160
Ovary (one)..................................................         52
Uterus/cervix and vulva/vagina...............................        205
------------------------------------------------------------------------

    (b) Compensation for schedule awards is payable at 66\2/3\ percent 
of the employee's pay, or 75 percent of the pay when the employee has at 
least one dependent.
    (c) The period of compensation payable under 5 U.S.C. 8107(c) shall 
be reduced by the period of compensation paid or payable under the 
schedule for an earlier injury if:
    (1) Compensation in both cases is for impairment of the same member 
or function or different parts of the same member or function, or for 
disfigurement; and
    (2) OWCP finds that compensation payable for the later impairment in 
whole or in part would duplicate the compensation payable for the pre-
existing impairment.
    (d) Compensation not to exceed $3,500 may be paid for serious 
disfigurement of the face, head or neck which is likely to handicap a 
person in securing or maintaining employment.

[[Page 34]]



Sec. 10.405  Who is considered a dependent in a claim based on disability 
or impairment?

    (a) Dependents include a wife or husband; an unmarried child under 
18 years of age; an unmarried child over 18 who is incapable of self-
support; a student, until he or she reaches 23 years of age or completes 
four years of school beyond the high school level; or a wholly dependent 
parent.
    (b) Augmented compensation payable for an unmarried child, which 
would otherwise terminate when the child reached the age of 18, may be 
continued while the child is a student as defined in 5 U.S.C. 8101(17).



Sec. 10.406  What are the maximum and minimum rates of compensation in 
disability cases?

    (a) Compensation for total or partial disability may not exceed 75 
percent of the basic monthly pay of the highest step of grade 15 of the 
General Schedule. (Basic monthly pay does not include locality 
adjustments.) However, this limit does not apply to disability sustained 
in the performance of duty which was due to an assault which occurred 
during an attempted assassination of a Federal official described under 
10 U.S.C. 351(a) or 1751(a).
    (b) Compensation for total disability may not be less than 75 
percent of the basic monthly pay of the first step of grade 2 of the 
General Schedule or actual pay, whichever is less. (Basic monthly pay 
does not include locality adjustments.)

                         Compensation for Death



Sec. 10.410  Who is entitled to compensation in case of death, and 
what are the rates of compensation payable in death cases?

    (a) If there is no child entitled to compensation, the employee's 
surviving spouse will receive compensation equal to 50 percent of the 
employee's monthly pay until death or remarriage before reaching age 55. 
Upon remarriage, the surviving spouse will be paid a lump sum equal to 
24 times the monthly compensation payment (excluding compensation 
payable on account of another individual) to which the surviving spouse 
was entitled immediately before the remarriage. If remarriage occurs at 
age 55 or older, the lump-sum payment will not be paid and compensation 
will continue until death.
    (b) If there is a child entitled to compensation, the compensation 
for the surviving spouse will equal 45 percent of the employee's monthly 
pay plus 15 percent for each child, but the total percentage may not 
exceed 75 percent.
    (c) If there is a child entitled to compensation and no surviving 
spouse, compensation for one child will equal 40 percent of the 
employee's monthly pay. Fifteen percent will be awarded for each 
additional child, not to exceed 75 percent, the total amount to be 
shared equally among all children.
    (d) If there is no child or surviving spouse entitled to 
compensation, the parents will receive compensation equal to 25 percent 
of the employee's monthly pay if one parent was wholly dependent on the 
employee at the time of death and the other was not dependent to any 
extent, or 20 percent each if both were wholly dependent on the 
employee, or a proportionate amount in the discretion of the Director if 
one or both were partially dependent on the employee. If there is a 
child or surviving spouse entitled to compensation, the parents will 
receive so much of the compensation described in the preceding sentence 
as, when added to the total percentages payable to the surviving spouse 
and children, will not exceed a total of 75 percent of the employee's 
monthly pay.
    (e) If there is no child, surviving spouse or dependent parent 
entitled to compensation, the brothers, sisters, grandparents and 
grandchildren will receive compensation equal to 20 percent of the 
employee's monthly pay to such dependent if one was wholly dependent on 
the employee at the time of death; or 30 percent if more than one was 
wholly dependent, divided among such dependents equally; or 10 percent 
if no one was wholly dependent but one or more was partly dependent, 
divided among such dependents equally. If there is a child, surviving 
spouse or dependent parent entitled to compensation, the brothers, 
sisters, grandparents and grandchildren will receive so much of the 
compensation described in the preceding sentence as, when

[[Page 35]]

added to the total percentages payable to the children, surviving spouse 
and dependent parents, will not exceed a total of 75 percent of the 
employee's monthly pay.
    (f) A child, brother, sister or grandchild may be entitled to 
receive death benefits until death, marriage, or reaching age 18. 
Regarding entitlement after reaching age 18, refer to Sec. 10.417 of 
these regulations.



Sec. 10.411  What are the maximum and minimum rates of compensation 
in death cases?

    (a) Compensation for death may not exceed the employee's pay or 75 
percent of the basic monthly pay of the highest step of grade 15 of the 
General Schedule, except that compensation may exceed the employee's 
basic monthly pay if such excess is created by authorized cost-of-living 
increases. (Basic monthly pay does not include locality adjustments.) 
However, the maximum limit does not apply when the death occurred during 
an assassination of a Federal official described under 18 U.S.C. 351(a) 
or 18 U.S.C. 1751(a).
    (b) Compensation for death is computed on a minimum pay rate equal 
to the basic monthly pay of an employee at the first step of grade 2 of 
the General Schedule. (Basic monthly pay does not include locality 
adjustments.)



Sec. 10.412  Will OWCP pay the costs of burial and transportation of 
the remains?

    In a case accepted for death benefits, OWCP will pay up to $800 for 
funeral and burial expenses. When an employee's home is within the 
United States and the employee dies outside the United States, or away 
from home or the official duty station, an additional amount may be paid 
for transporting the remains to the employee's home. An additional 
amount of $200 is paid to the personal representative of the decedent 
for reimbursement of the costs of terminating the decedent's status as 
an employee of the United States.



Sec. 10.413  If a person dies while receiving a schedule award, to whom 
is the balance of the schedule award payable?

    The circumstances under which the balance of a schedule award may be 
paid to an employee's survivors are described in 5 U.S.C. 8109. 
Therefore, if there is no surviving spouse or child, OWCP will pay 
benefits as follows:
    (a) To the parent, or parents, wholly dependent for support on the 
decedent in equal shares with any wholly dependent brother, sister, 
grandparent or grandchild;
    (b) To the parent, or parents, partially dependent for support on 
the decedent in equal shares when there are no wholly dependent 
brothers, sisters, grandparents or grandchildren (or other wholly 
dependent parent); and
    (c) To the parent, or parents, partially dependent upon the 
decedent, 25 percent of the amount payable, shared equally, and the 
remaining 75 percent to any wholly dependent brother, sister, 
grandparent or grandchild (or wholly dependent parent), shared equally.



Sec. 10.414  What reports of dependents are needed in death cases?

    If a beneficiary is receiving compensation benefits on account of an 
employee's death, OWCP will ask him or her to complete a report once 
each year on Form CA-12. The report requires the beneficiary to note 
changes in marital status and dependents. If the beneficiary fails to 
submit the form (or an equivalent written statement) within 30 days of 
the date of request, OWCP shall suspend compensation until the requested 
form or equivalent written statement is received. The suspension will 
include compensation payable for or on behalf of another person (for 
example, compensation payable to a widow on behalf of a child). When the 
form or statement is received, compensation will be reinstated at the 
appropriate rate retroactive to the date of suspension, provided the 
beneficiary is entitled to such compensation.



Sec. 10.415  What must a beneficiary do if the number of beneficiaries 
decreases?

    The circumstances under which compensation on account of death shall 
be terminated are described in 5 U.S.C. 8133(b). A beneficiary in a 
claim for death benefits should promptly notify OWCP of any event which 
would affect

[[Page 36]]

his or her entitlement to continued compensation. The terms ``marriage'' 
and ``remarriage'' include common-law marriage as recognized and defined 
by State law in the State where the beneficiary resides. If a 
beneficiary, or someone acting on his or her behalf, receives a check 
which includes payment of compensation for any period after the date 
when entitlement ended, he or she must promptly return the check to 
OWCP.



Sec. 10.416  How does a change in the number of beneficiaries affect 
the amount of compensation paid to the other beneficiaries?

    If compensation to a beneficiary is terminated, the amount of 
compensation payable to one or more of the remaining beneficiaries may 
be reapportioned. Similarly, the birth of a posthumous child may result 
in a reapportionment of the amount of compensation payable to other 
beneficiaries. The parent, or someone acting on the child's behalf, 
shall promptly notify OWCP of the birth and submit a copy of the birth 
certificate.



Sec. 10.417  What reports are needed when compensation payments continue 
for children over age 18?

    (a) Compensation payable on behalf of a child, brother, sister, or 
grandchild, which would otherwise end when the person reaches 18 years 
of age, shall be continued if and for so long as he or she is not 
married and is either a student as defined in 5 U.S.C. 8101(17), or 
physically or mentally incapable of self-support.
    (b) At least twice each year, OWCP will ask a beneficiary receiving 
compensation based on the student status of a dependent to provide proof 
of continuing entitlement to such compensation, including certification 
of school enrollment.
    (c) Likewise, at least twice each year, OWCP will ask a beneficiary 
or legal guardian receiving compensation based on a dependent's physical 
or mental inability to support himself or herself to submit a medical 
report verifying that the dependent's medical condition persists and 
that it continues to preclude self-support.

                       Adjustments to Compensation



Sec. 10.420  How are cost-of-living adjustments applied?

    (a) In cases of disability, a beneficiary is eligible for cost-of-
living adjustments under 5 U.S.C. 8146a where injury-related disability 
began more than one year prior to the date the cost-of-living adjustment 
took effect. The employee's use of continuation of pay as provided by 5 
U.S.C. 8118, or of sick or annual leave, during any part of the period 
of disability does not affect the computation of the one-year period.
    (b) Where an injury does not result in disability but compensation 
is payable for permanent impairment of a covered member, organ or 
function of the body, a beneficiary is eligible for cost-of-living 
adjustments under 5 U.S.C. 8146a where the award for such impairment 
began more than one year prior to the date the cost-of-living adjustment 
took effect.
    (c) In cases of recurrence of disability, where the pay rate for 
compensation purposes is the pay rate at the time disability recurs, a 
beneficiary is eligible for cost-of-living adjustments under 5 U.S.C. 
8146a where the effective date of that pay rate began more than one year 
prior to the date the cost-of living adjustment took effect.
    (d) In cases of death, entitlement to cost-of-living adjustments 
under 5 U.S.C. 8146a begins with the first such adjustment occurring 
more than one year after the date of death. However, if the death was 
preceded by a period of injury-related disability, compensation payable 
to the survivors will be increased by the same percentages as the cost-
of-living adjustments paid or payable to the deceased employee for the 
period of disability, as well as by subsequent cost-of-living 
adjustments to which the survivors would otherwise be entitled.



Sec. 10.421  May a beneficiary receive other kinds of payments from 
the Federal Government concurrently with compensation?

    (a) 5 U.S.C. 8116(a) provides that a beneficiary may not receive 
wage-loss

[[Page 37]]

compensation concurrently with a Federal retirement or survivor annuity. 
The beneficiary must elect the benefit that he or she wishes to receive, 
and the election, once made, is revocable.
    (b) An employee may receive compensation concurrently with military 
retired pay, retirement pay, retainer pay or equivalent pay for service 
in the Armed Forces or other uniformed services, subject to the 
reduction of such pay in accordance with 5 U.S.C. 5532(b).
    (c) An employee may not receive compensation for total disability 
concurrently with severance pay or separation pay. However, an employee 
may concurrently receive compensation for partial disability or 
permanent impairment to a schedule member, organ or function with 
severance pay or separation pay.
    (d) Pursuant to 5 U.S.C. 8116(d), a beneficiary may receive 
compensation under the FECA for either the death or disability of an 
employee concurrently with benefits under title II of the Social 
Security Act on account of the age or death of such employee. However, 
this provision of the FECA also requires OWCP to reduce the amount of 
any such compensation by the amount of any Social Security Act benefits 
that are attributable to the Federal service of the employee.
    (e) To determine the employee's entitlement to compensation, OWCP 
may require an employee to submit an affidavit or statement as to the 
receipt of any Federally funded or Federally assisted benefits. If an 
employee fails to submit such affidavit or statement within 30 days of 
the date of the request, his or her right to compensation shall be 
suspended until such time as the requested affidavit or statement is 
received. At that time compensation will be reinstated retroactive to 
the date of suspension provided the employee is entitled to such 
compensation.



Sec. 10.422  May compensation payments be issued in a lump sum?

    (a) In exercise of the discretion afforded under 5 U.S.C. 8135(a), 
OWCP has determined that lump-sum payments will not be made to persons 
entitled to wage-loss benefits (that is, those payable under 5 U.S.C. 
8105 and 8106). Therefore, when OWCP receives requests for lump-sum 
payments for wage-loss benefits, OWCP will not exercise further 
discretion in the matter. This determination is based on several 
factors, including:
    (1) The purpose of the FECA, which is to replace lost wages;
    (2) The prudence of providing wage-loss benefits on a regular, 
recurring basis; and
    (3) The high cost of the long-term borrowing that is needed to pay 
out large lump sums.
    (b) However, a lump-sum payment may be made to an employee entitled 
to a schedule award under 5 U.S.C. 8107 where OWCP determines that such 
a payment is in the employee's best interest. Lump-sum payments of 
schedule awards generally will be considered in the employee's best 
interest only where the employee does not rely upon compensation 
payments as a substitute for lost wages (that is, the employee is 
working or is receiving annuity payments). An employee possesses no 
absolute right to a lump-sum payment of benefits payable under 5 U.S.C. 
8107.
    (c) Lump-sum payments to surviving spouses are addressed in 5 U.S.C. 
8135(b).



Sec. 10.423  May compensation payments be assigned to, or attached by, 
creditors?

    (a) As a general rule, compensation and claims for compensation are 
exempt from the claims of private creditors. This rule does not apply to 
claims submitted by Federal agencies. Further, any attempt by a FECA 
beneficiary to assign his or her claim is null and void. However, 
pursuant to provisions of the Social Security Act, 42 U.S.C. 659, and 
regulations issued by the Office of Personnel Management (OPM) at 5 CFR 
part 581, FECA benefits, including survivor's benefits, may be garnished 
to collect overdue alimony and child support payments.
    (b) Garnishment for child support and alimony may be requested by 
providing a copy of the State agency or court order to the district 
office handling the FECA claim.

[[Page 38]]



Sec. 10.424  May someone other than the beneficiary be designated to 
receive compensation payments?

    A beneficiary may be incapable of managing or directing the 
management of his or her benefits because of a mental or physical 
disability, or because of legal incompetence, or because he or she is 
under 18 years of age. In this situation, absent the appointment of a 
guardian or other party to manage the financial affairs of the claimant 
by a court or administrative body authorized to do so, OWCP in its sole 
discretion may approve a person to serve as the representative payee for 
funds due the beneficiary.



Sec. 10.425  May compensation be claimed for periods of restorable leave?

    The employee may claim compensation for periods of annual and sick 
leave which are restorable in accordance with the rules of the employing 
agency. Forms CA-7a and CA-7b are used for this purpose.

                              Overpayments



Sec. 10.430  How does OWCP notify an individual of a payment made?

    (a) In addition to providing narrative descriptions to recipients of 
benefits paid or payable, OWCP includes on each periodic check a clear 
indication of the period for which payment is being made. A form is sent 
to the recipient with each supplemental check which states the date and 
amount of the payment and the period for which payment is being made. 
For payments sent by electronic funds transfer (EFT), a notification of 
the date and amount of payment appears on the statement from the 
recipient's financial institution.
    (b) By these means, OWCP puts the recipient on notice that a payment 
was made and the amount of the payment. If the amount received differs 
from the amount indicated on the written notice or bank statement, the 
recipient is responsible for notifying OWCP of the difference. Absent 
affirmative evidence to the contrary, the beneficiary will be presumed 
to have received the notice of payment, whether mailed or transmitted 
electronically.



Sec. 10.431  What does OWCP do when an overpayment is identified?

    Before seeking to recover an overpayment or adjust benefits, OWCP 
will advise the beneficiary in writing that:
    (a) The overpayment exists, and the amount of overpayment;
    (b) A preliminary finding shows either that the individual was or 
was not at fault in the creation of the overpayment;
    (c) He or she has the right to inspect and copy Government records 
relating to the overpayment; and
    (d) He or she has the right to present evidence which challenges the 
fact or amount of the overpayment, and/or challenges the preliminary 
finding that he or she was at fault in the creation of the overpayment. 
He or she may also request that recovery of the overpayment be waived.



Sec. 10.432  How can an individual present evidence to OWCP in response 
to a preliminary notice of an overpayment?

    The individual may present this evidence to OWCP in writing or at a 
pre-recoupment hearing. The evidence must be presented or the hearing 
requested within 30 days of the date of the written notice of 
overpayment. Failure to request the hearing within this 30-day time 
period shall constitute a waiver of that right.



Sec. 10.433  Under what circumstances can OWCP waive recovery of an 
overpayment?

    (a) OWCP may consider waiving an overpayment only if the individual 
to whom it was made was not at fault in accepting or creating the 
overpayment. Each recipient of compensation benefits is responsible for 
taking all reasonable measures to ensure that payments he or she 
receives from OWCP are proper. The recipient must show good faith and 
exercise a high degree of care in reporting events which may affect 
entitlement to or the amount of benefits. A recipient who has done any 
of the following will be found to be at fault with respect to creating 
an overpayment:
    (1) Made an incorrect statement as to a material fact which he or 
she knew or should have known to be incorrect; or

[[Page 39]]

    (2) Failed to provide information which he or she knew or should 
have known to be material; or
    (3) Accepted a payment which he or she knew or should have known to 
be incorrect. (This provision applies only to the overpaid individual.)
    (b) Whether or not OWCP determines that an individual was at fault 
with respect to the creation of an overpayment depends on the 
circumstances surrounding the overpayment. The degree of care expected 
may vary with the complexity of those circumstances and the individual's 
capacity to realize that he or she is being overpaid.



Sec. 10.434  If OWCP finds that the recipient of an overpayment was not 
at fault, what criteria are used to decide whether to waive recovery of it?

    If OWCP finds that the recipient of an overpayment was not at fault, 
repayment will still be required unless:
    (a) Adjustment or recovery of the overpayment would defeat the 
purpose of the FECA (see Sec. 10.436), or
    (b) Adjustment or recovery of the overpayment would be against 
equity and good conscience (see Sec. 10.437).



Sec. 10.435  Is an individual responsible for an overpayment that 
resulted from an error made by OWCP or another Government agency?

    (a) The fact that OWCP may have erred in making the overpayment, or 
that the overpayment may have resulted from an error by another 
Government agency, does not by itself relieve the individual who 
received the overpayment from liability for repayment if the individual 
also was at fault in accepting the overpayment.
    (b) However, OWCP may find that the individual was not at fault if 
failure to report an event affecting compensation benefits, or 
acceptance of an incorrect payment, occurred because:
    (1) The individual relied on misinformation given in writing by OWCP 
(or by another Government agency which he or she had reason to believe 
was connected with the administration of benefits) as to the 
interpretation of a pertinent provision of the FECA or its regulations; 
or
    (2) OWCP erred in calculating cost-of-living increases, schedule 
award length and/or percentage of impairment, or loss of wage-earning 
capacity.



Sec. 10.436  Under what circumstances would recovery of an overpayment 
defeat the purpose of the FECA?

    Recovery of an overpayment will defeat the purpose of the FECA if 
such recovery would cause hardship to a currently or formerly entitled 
beneficiary because:
    (a) The beneficiary from whom OWCP seeks recovery needs 
substantially all of his or her current income (including compensation 
benefits) to meet current ordinary and necessary living expenses; and
    (b) The beneficiary's assets do not exceed a specified amount as 
determined by OWCP from data furnished by the Bureau of Labor 
Statistics. A higher amount is specified for a beneficiary with one or 
more dependents.



Sec. 10.437  Under what circumstances would recovery of an overpayment 
be against equity and good conscience?

    (a) Recovery of an overpayment is considered to be against equity 
and good conscience when any individual who received an overpayment 
would experience severe financial hardship in attempting to repay the 
debt.
    (b) Recovery of an overpayment is also considered to be against 
equity and good conscience when any individual, in reliance on such 
payments or on notice that such payments would be made, gives up a 
valuable right or changes his or her position for the worse. In making 
such a decision, OWCP does not consider the individual's current ability 
to repay the overpayment.
    (1) To establish that a valuable right has been relinquished, it 
must be shown that the right was in fact valuable, that it cannot be 
regained, and that the action was based chiefly or solely in reliance on 
the payments or on the notice of payment. Donations to charitable causes 
or gratuitous transfers of funds to other individuals are not considered 
relinquishments of valuable rights.
    (2) To establish that an individual's position has changed for the 
worse, it must be shown that the decision made would not otherwise have 
been made

[[Page 40]]

but for the receipt of benefits, and that this decision resulted in a 
loss.



Sec. 10.438  Can OWCP require the individual who received the overpayment 
to submit additional financial information?

    (a) The individual who received the overpayment is responsible for 
providing information about income, expenses and assets as specified by 
OWCP. This information is needed to determine whether or not recovery of 
an overpayment would defeat the purpose of the FECA, or be against 
equity and good conscience. This information will also be used to 
determine the repayment schedule, if necessary.
    (b) Failure to submit the requested information within 30 days of 
the request shall result in denial of waiver, and no further request for 
waiver shall be considered until the requested information is furnished.



Sec. 10.439  What is addressed at a pre-recoupment hearing?

    At a pre-recoupment hearing, the OWCP representative will consider 
all issues in the claim on which a formal decision has been issued. Such 
a hearing will thus fulfill OWCP's obligation to provide pre-recoupment 
rights and a hearing under 5 U.S.C. 8124(b). Pre-recoupment hearings 
shall be conducted in exactly the same manner as provided in Sec. 
10.615 through Sec. 10.622.



Sec. 10.440  How does OWCP communicate its final decision concerning 
recovery of an overpayment, and what appeal right accompanies it?

    (a) OWCP will send a copy of the final decision to the individual 
from whom recovery is sought; his or her representative, if any; and the 
employing agency.
    (b) The only review of a final decision concerning an overpayment is 
to the Employees' Compensation Appeals Board. The provisions of 5 U.S.C. 
8124(b) (concerning hearings) and 5 U.S.C. 8128(a) (concerning 
reconsiderations) do not apply to such a decision.



Sec. 10.441  How are overpayments collected?

    (a) When an overpayment has been made to an individual who is 
entitled to further payments, the individual shall refund to OWCP the 
amount of the overpayment as soon as the error is discovered or his or 
her attention is called to same. If no refund is made, OWCP shall 
decrease later payments of compensation, taking into account the 
probable extent of future payments, the rate of compensation, the 
financial circumstances of the individual, and any other relevant 
factors, so as to minimize any hardship. Should the individual die 
before collection has been completed, collection shall be made by 
decreasing later payments, if any, payable under the FECA with respect 
to the individual's death.
    (b) When an overpayment has been made to an individual who is not 
entitled to further payments, the individual shall refund to OWCP the 
amount of the overpayment as soon as the error is discovered or his or 
her attention is called to same. The overpayment is subject to the 
provisions of the Federal Claims Collection Act of 1966 (as amended) and 
may be reported to the Internal Revenue Service as income. If the 
individual fails to make such refund, OWCP may recover the same through 
any available means, including offset of salary, annuity benefits, or 
other Federal payments, including tax refunds as authorized by the Tax 
Refund Offset Program, or referral of the debt to a collection agency or 
to the Department of Justice.



                      Subpart F_Continuing Benefits

                           Rules and Evidence



Sec. 10.500  What are the basic rules governing continuing receipt of 
compensation benefits and return to work?

    (a) Benefits are available only while the effects of a work-related 
condition continue. Compensation for wage loss due to disability is 
available only for any periods during which an employee's work-related 
medical condition prevents him or her from earning the wages earned 
before the work-related injury. Payment of medical benefits is available 
for all treatment necessary due to a work-related medical condition.
    (b) Each disabled employee is obligated to perform such work as he 
or

[[Page 41]]

she can, and OWCP's goal is to return each disabled employee to suitable 
work as soon as he or she is medically able. In determining what 
constitutes ``suitable work'' for a particular disabled employee, OWCP 
considers the employee's current physical limitations, whether the work 
is available within the employee's demonstrated commuting area, the 
employee's qualifications to perform such work, and other relevant 
factors. (See Sec. 10.508 with respect to the payment of relocation 
expenses.)



Sec. 10.501  What medical evidence is necessary to support continuing 
receipt of compensation benefits?

    (a) The employee is responsible for providing sufficient medical 
evidence to justify payment of any compensation sought.
    (1) To support payment of continuing compensation, narrative medical 
evidence must be submitted whenever OWCP requests it but ordinarily not 
less than once a year. It must contain a physician's rationalized 
opinion as to whether the specific period of alleged disability is 
causally related to the employee's accepted injury or illness.
    (2) The physician's opinion must be based on the facts of the case 
and the complete medical background of the employee, must be one of 
reasonable medical certainty and must include objective findings in 
support of its conclusions. Subjective complaints of pain are not 
sufficient, in and of themselves, to support payment of continuing 
compensation. Likewise, medical limitations based solely on the fear of 
a possible future injury are also not sufficient to support payment of 
continuing compensation. See Sec. 10.330 for a fuller discussion of 
medical evidence.
    (b) OWCP may require any kind of non-invasive testing to determine 
the employee's functional capacity. Failure to undergo such testing will 
result in a suspension of benefits. In addition, OWCP may direct the 
employee to undergo a second opinion or referee examination in any case 
it deems appropriate (see Sec. Sec. 10.320 and 10.321).



Sec. 10.502  How does OWCP evaluate evidence in support of continuing 
receipt of compensation benefits?

    In considering the medical and factual evidence, OWCP will weigh the 
probative value of the attending physician's report, any second opinion 
physician's report, any other medical reports, or any other evidence in 
the file. If OWCP determines that the medical evidence supporting one 
conclusion is more consistent, logical, and well-reasoned than evidence 
supporting a contrary conclusion, OWCP will use the conclusion that is 
supported by the weight of the medical evidence as the basis for 
awarding or denying further benefits. If medical reports that are 
equally well-reasoned support inconsistent determinations of an issue 
under consideration, OWCP will direct the employee to undergo a referee 
examination to resolve the issue. The results of the referee examination 
will be given special weight in determining the issue.



Sec. 10.503  Under what circumstances may OWCP reduce or terminate 
compensation benefits?

    Once OWCP has advised the employee that it has accepted a claim and 
has either approved continuation of pay or paid medical benefits or 
compensation, benefits will not be terminated or reduced unless the 
weight of the evidence establishes that:
    (a) The disability for which compensation was paid has ceased;
    (b) The disabling condition is no longer causally related to the 
employment;
    (c) The employee is only partially disabled;
    (d) The employee has returned to work;
    (e) The beneficiary was convicted of fraud in connection with a 
claim under the FECA, or the beneficiary was incarcerated based on any 
felony conviction; or
    (f) OWCP's initial decision was in error.

[[Page 42]]

               Return to Work--Employer's Responsibilities



Sec. 10.505  What actions must the employer take?

    Upon authorizing medical care, the employer should advise the 
employee in writing as soon as possible of his or her obligation to 
return to work under Sec. 10.210 and as defined in this subpart. The 
term ``return to work'' as used in this subpart is not limited to 
returning to work at the employee's normal worksite or usual position, 
but may include returning to work at other locations and in other 
positions. In general, the employer should make all reasonable efforts 
to place the employee in his or her former or an equivalent position, in 
accordance with 5 U.S.C. 8151(b)(2), if the employee has fully recovered 
after one year. The Office of Personnel Management (not OWCP) 
administers this provision.
    (a) Where the employer has specific alternative positions available 
for partially disabled employees, the employer should advise the 
employee in writing of the specific duties and physical requirements of 
those positions.
    (b) Where the employer has no specific alternative positions 
available for an employee who can perform restricted or limited duties, 
the employer should advise the employee of any accommodations the agency 
can make to accommodate the employee's limitations due to the injury.



Sec. 10.506  May the employer monitor the employee's medical care?

    The employer may monitor the employee's medical progress and duty 
status by obtaining periodic medical reports. Form CA-17 is usually 
adequate for this purpose. To aid in returning an injured employee to 
suitable employment, the employer may also contact the employee's 
physician in writing concerning the work limitations imposed by the 
effects of the injury and possible job assignments. (However, the 
employer shall not contact the physician by telephone or through 
personal visit.) When such contact is made, the employer shall send a 
copy of any such correspondence to OWCP and the employee, as well as a 
copy of the physician's response when received. The employer may also 
contact the employee at reasonable intervals to request periodic medical 
reports addressing his or her ability to return to work.



Sec. 10.507  How should the employer make an offer of suitable work?

    Where the attending physician or OWCP notifies the employer in 
writing that the employee is partially disabled (that is, the employee 
can perform some work but not return to the position held at date of 
injury), the employer should act as follows:
    (a) If the employee can perform in a specific alternative position 
available in the agency, and the employer has advised the employee in 
writing of the specific duties and physical requirements, the employer 
shall notify the employee in writing immediately of the date of 
availability.
    (b) If the employee can perform restricted or limited duties, the 
employer should determine whether such duties are available or whether 
an existing job can be modified. If so, the employer shall advise the 
employee in writing of the duties, their physical requirements and 
availability.
    (c) The employer must make any job offer in writing. However, the 
employer may make a job offer verbally as long as it provides the job 
offer to the employee in writing within two business days of the verbal 
job offer.
    (d) The offer must include a description of the duties of the 
position, the physical requirements of those duties, and the date by 
which the employee is either to return to work or notify the employer of 
his or her decision to accept or refuse the job offer. The employer must 
send a complete copy of any job offer to OWCP when it is sent to the 
employee.



Sec. 10.508  May relocation expenses be paid for an employee who would 
need to move to accept an offer of reemployment?

    If possible, the employer should offer suitable reemployment in the 
location where the employee currently resides. If this is not practical, 
the employer may offer suitable reemployment at the employee's former 
duty station or other location. Where the distance between the location 
of the offered job

[[Page 43]]

and the location where the employee currently resides is at least 50 
miles, OWCP may pay such relocation expenses as are considered 
reasonable and necessary if the employee has been terminated from the 
agency's employment rolls and would incur relocation expenses by 
accepting the offered reemployment. OWCP may also pay such relocation 
expenses when the new employer is other than a Federal employer. OWCP 
will notify the employee that relocation expenses are payable if it 
makes a finding that the job is suitable. To determine whether a 
relocation expense is reasonable and necessary, OWCP shall use as a 
guide the Federal travel regulations for permanent changes of duty 
station.



Sec. 10.509  If an employee's light-duty job is eliminated due to 
downsizing, what is the effect on compensation?

    (a) In general, an employee will not be considered to have 
experienced a compensable recurrence of disability as defined in Sec. 
10.5(x) merely because his or her employer has eliminated the employee's 
light-duty position in a reduction-in-force or some other form of 
downsizing. When this occurs, OWCP will determine the employee's wage-
earning capacity based on his or her actual earnings in such light-duty 
position if this determination is appropriate on the basis that such 
earnings fairly and reasonably represent the employee's wage-earning 
capacity and such a determination has not already been made.
    (b) For the purposes of this section only, a light-duty position 
means a classified position to which the injured employee has been 
formally reassigned that conforms to the established physical 
limitations of the injured employee and for which the employer has 
already prepared a written position description such that the position 
constitutes ``regular'' Federal employment. In the absence of a ``light-
duty position'' as described in this paragraph, OWCP will assume that 
the employee was instead engaged in non-competitive employment which 
does not represent the employee's wage-earning capacity, i.e., work of 
the type provided to injured employees who cannot otherwise be employed 
by the Federal Government or in any well-known branch of the general 
labor market.

               Return to Work--Employee's Responsibilities



Sec. 10.515  What actions must the employee take with respect to 
returning to work?

    (a) If an employee can resume regular Federal employment, he or she 
must do so. No further compensation for wage loss is payable once the 
employee has recovered from the work-related injury to the extent that 
he or she can perform the duties of the position held at the time of 
injury, or earn equivalent wages.
    (b) If an employee cannot return to the job held at the time of 
injury due to partial disability from the effects of the work-related 
injury, but has recovered enough to perform some type of work, he or she 
must seek work. In the alternative, the employee must accept suitable 
work offered to him or her. (See Sec. 10.500 for a definition of 
``suitable work''.) This work may be with the original employer or 
through job placement efforts made by or on behalf of OWCP.
    (c) If the employer has advised an employee in writing that specific 
alternative positions exist within the agency, the employee shall 
provide the description and physical requirements of such alternate 
positions to the attending physician and ask whether and when he or she 
will be able to perform such duties.
    (d) If the employer has advised an employee that it is willing to 
accommodate his or her work limitations, the employee shall so advise 
the attending physician and ask him or her to specify the limitations 
imposed by the injury. The employee is responsible for advising the 
employer immediately of these limitations.
    (e) From time to time, OWCP may require the employee to report his 
or her efforts to obtain suitable employment, whether with the Federal 
Government, State and local Governments, or in the private sector.

[[Page 44]]



Sec. 10.516  How will an employee know if OWCP considers a job to be 
suitable?

    OWCP shall advise the employee that it has found the offered work to 
be suitable and afford the employee 30 days to accept the job or present 
any reasons to counter OWCP's finding of suitability. If the employee 
presents such reasons, and OWCP determines that the reasons are 
unacceptable, it will notify the employee of that determination and that 
he or she has 15 days in which to accept the offered work without 
penalty. At that point in time, OWCP's notification need not state the 
reasons for finding that the employee's reasons are not acceptable.



Sec. 10.517  What are the penalties for refusing to accept a suitable 
job offer?

    (a) 5 U.S.C. 8106(c) provides that a partially disabled employee who 
refuses to seek suitable work, or refuses to or neglects to work after 
suitable work is offered to or arranged for him or her, is not entitled 
to compensation. An employee who refuses or neglects to work after 
suitable work has been offered or secured for him or her has the burden 
to show that this refusal or failure to work was reasonable or 
justified.
    (b) After providing the two notices described in Sec. 10.516, OWCP 
will terminate the employee's entitlement to further compensation under 
5 U.S.C. 8105, 8106, and 8107, as provided by 5 U.S.C. 8106(c)(2). 
However, the employee remains entitled to medical benefits as provided 
by 5 U.S.C. 8103.



Sec. 10.518  Does OWCP provide services to help employees return to work?

    (a) OWCP may, in its discretion, provide vocational rehabilitation 
services as authorized by 5 U.S.C. 8104. These services include 
assistance from registered nurses working under the direction of OWCP. 
Among other things, these nurses visit the worksite, ensure that the 
duties of the position do not exceed the medical limitations as 
represented by the weight of medical evidence established by OWCP, and 
address any problems the employee may have in adjusting to the work 
setting. The nurses do not evaluate medical evidence; OWCP claims staff 
perform this function.
    (b) Vocational rehabilitation services may also include vocational 
evaluation, testing, training, and placement services with either the 
original employer or a new employer, when the injured employee cannot 
return to the job held at the time of injury. These services also 
include functional capacity evaluations, which help to tailor individual 
rehabilitation programs to employees' physical reconditioning and 
behavioral modification needs, and help employees to meet the demands of 
current or potential jobs.



Sec. 10.519  What action will OWCP take if an employee refuses to undergo 
vocational rehabilitation?

    Under 5 U.S.C. 8104(a), OWCP may direct a permanently disabled 
employee to undergo vocational rehabilitation. To ensure that vocational 
rehabilitation services are available to all who might be entitled to 
benefit from them, an injured employee who has a loss of wage-earning 
capacity shall be presumed to be ``permanently disabled,'' for purposes 
of this section only, unless and until the employee proves that the 
disability is not permanent. If an employee without good cause fails or 
refuses to apply for, undergo, participate in, or continue to 
participate in a vocational rehabilitation effort when so directed, OWCP 
will act as follows:
    (a) Where a suitable job has been identified, OWCP will reduce the 
employee's future monetary compensation based on the amount which would 
likely have been his or her wage-earning capacity had he or she 
undergone vocational rehabilitation. OWCP will determine this amount in 
accordance with the job identified through the vocational rehabilitation 
planning process, which includes meetings with the OWCP nurse and the 
employer. The reduction will remain in effect until such time as the 
employee acts in good faith to comply with the direction of OWCP.
    (b) Where a suitable job has not been identified, because the 
failure or refusal occurred in the early but necessary stages of a 
vocational rehabilitation effort (that is, meetings with the OWCP nurse, 
interviews, testing,

[[Page 45]]

counseling, functional capacity evaluations, and work evaluations), OWCP 
cannot determine what would have been the employee's wage-earning 
capacity.
    (c) Under the circumstances identified in paragraph (b) of this 
section, in the absence of evidence to the contrary, OWCP will assume 
that the vocational rehabilitation effort would have resulted in a 
return to work with no loss of wage-earning capacity, and OWCP will 
reduce the employee's monetary compensation accordingly (that is, to 
zero). This reduction will remain in effect until such time as the 
employee acts in good faith to comply with the direction of OWCP.



Sec. 10.520  How does OWCP determine compensation after an employee 
completes a vocational rehabilitation program?

    After completion of a vocational rehabilitation program, OWCP may 
adjust compensation to reflect the injured worker's wage-earning 
capacity. Actual earnings will be used if they fairly and reasonably 
reflect the earning capacity. The position determined to be the goal of 
a training plan is assumed to represent the employee's earning capacity 
if it is suitable and performed in sufficient numbers so as to be 
reasonably available, whether or not the employee is placed in such a 
position.

         Reports of Earnings From Employment and Self-Employment



Sec. 10.525  What information must the employee report?

    (a) An employee who is receiving compensation for partial or total 
disability must advise OWCP immediately of any return to work, either 
part-time or full-time. In addition, an employee who is receiving 
compensation for partial or total disability will periodically be 
required to submit a report of earnings from employment or self-
employment, either part-time or full-time. (See Sec. 10.5(g) for a 
definition of ``earnings''.)
    (b) The employee must report even those earnings which do not seem 
likely to affect his or her level of benefits. Many kinds of income, 
though not all, will result in reduction of compensation benefits. While 
earning income will not necessarily result in a reduction of 
compensation, failure to report income may result in forfeiture of all 
benefits paid during the reporting period.



Sec. 10.526  Must the employee report volunteer activities?

    An employee who is receiving compensation for partial or total 
disability is periodically required to report volunteer activity or any 
other kind of activity which shows that the employee is no longer 
totally disabled for work.



Sec. 10.527  Does OWCP verify reports of earnings?

    To make proper determinations of an employee's entitlement to 
benefits, OWCP may verify the earnings reported by the employee through 
a variety of means, including but not limited to computer matches with 
the Office of Personnel Management and inquiries to the Social Security 
Administration. Also, OWCP may perform computer matches with records of 
State agencies, including but not limited to workers' compensation 
administrations, to determine whether private employers are paying 
workers' compensation insurance premiums for recipients of benefits 
under the FECA.



Sec. 10.528  What action will OWCP take if the employee fails to file 
a report of activity indicating an ability to work?

    OWCP periodically requires each employee who is receiving 
compensation benefits to complete an affidavit as to any work, or 
activity indicating an ability to work, which the employee has performed 
for the prior 15 months. If an employee who is required to file such a 
report fails to do so within 30 days of the date of the request, his or 
her right to compensation for wage loss under 5 U.S.C. 8105 or 8106 is 
suspended until OWCP receives the requested report. At that time, OWCP 
will reinstate compensation retroactive to the date of suspension if the 
employee remains entitled to compensation.

[[Page 46]]



Sec. 10.529  What action will OWCP take if the employee files an 
incomplete report?

    (a) If an employee knowingly omits or understates any earnings or 
work activity in making a report, he or she shall forfeit the right to 
compensation with respect to any period for which the report was 
required. A false or evasive statement, omission, concealment, or 
misrepresentation with respect to employment activity or earnings in a 
report may also subject an employee to criminal prosecution.
    (b) Where the right to compensation is forfeited, OWCP shall recover 
any compensation already paid for the period of forfeiture pursuant to 5 
U.S.C. 8129 and other relevant statutes.

                          Reports of Dependents



Sec. 10.535  How are dependents defined, and what information must the 
employee report?

    (a) Dependents in disability cases are defined in Sec. 10.405. 
While the employee has one or more dependents, the employee's basic 
compensation for wage loss or for permanent impairment shall be 
augmented as provided in 5 U.S.C. 8110. (The rules for death claims are 
found in Sec. 10.414.)
    (b) An employee who is receiving augmented compensation on account 
of dependents must advise OWCP immediately of any change in the number 
or status of dependents. The employee should also promptly refund to 
OWCP any amounts received on account of augmented compensation after the 
right to receive augmented compensation has ceased. Any difference 
between actual entitlement and the amount already paid beyond the date 
entitlement ended is an overpayment of compensation and may be recovered 
pursuant to 5 U.S.C. 8129 and other relevant statutes.
    (c) An employee who is receiving augmented compensation shall be 
periodically required to submit a statement as to any dependents, or to 
submit supporting documents such as birth or marriage certificates or 
court orders, to determine if he or she is still entitled to augmented 
compensation.



Sec. 10.536  What is the penalty for failing to submit a report of 
dependents?

    If an employee fails to submit a requested statement or supporting 
document within 30 days of the date of the request, OWCP will suspend 
his or her right to augmented compensation until OWCP receives the 
requested statement or supporting document. At that time, OWCP will 
reinstate augmented compensation retroactive to the date of suspension, 
provided that the employee is entitled to receive augmented 
compensation.



Sec. 10.537  What reports are needed when compensation payments continue 
for children over age 18?

    (a) Compensation payable on behalf of a child that would otherwise 
end when the child reaches 18 years of age will continue if and for so 
long as he or she is not married and is either a student as defined in 5 
U.S.C. 8101(17), or physically or mentally incapable of self-support.
    (b) At least twice each year, OWCP will ask an employee who receives 
compensation based on the student status of a child to provide proof of 
continuing entitlement to such compensation, including certification of 
school enrollment.
    (c) Likewise, at least twice each year, OWCP will ask an employee 
who receives compensation based on a child's physical or mental 
inability to support himself or herself to submit a medical report 
verifying that the child's medical condition persists and that it 
continues to preclude self-support.
    (d) If an employee fails to submit proof within 30 days of the date 
of the request, OWCP will suspend the employee's right to compensation 
until the requested information is received. At that time OWCP will 
reinstate compensation retroactive to the date of suspension, provided 
the employee is entitled to such compensation.

                Reduction and Termination of Compensation



Sec. 10.540  When and how is compensation reduced or terminated?

    (a) Except as provided in paragraphs (b) and (c) of this section, 
where the

[[Page 47]]

evidence establishes that compensation should be either reduced or 
terminated, OWCP will provide the beneficiary with written notice of the 
proposed action and give him or her 30 days to submit relevant evidence 
or argument to support entitlement to continued payment of compensation. 
This notice will include a description of the reasons for the proposed 
action and a copy of the specific evidence upon which OWCP is basing its 
determination. Payment of compensation will continue until any evidence 
or argument submitted has been reviewed and an appropriate decision has 
been issued, or until 30 days have elapsed if no additional evidence or 
argument is submitted.
    (b) OWCP will not provide such written notice when the beneficiary 
has no reasonable basis to expect that payment of compensation will 
continue. For example, when a claim has been made for a specific period 
of time and that specific period expires, no written notice will be 
given. Written notice will also not be given when a beneficiary dies, 
when OWCP either reduces or terminates compensation upon an employee's 
return to work, when OWCP terminates only medical benefits after a 
physician indicates that further medical treatment is not necessary or 
has ended, or when OWCP denies payment for a particular medical expense.
    (c) OWCP will also not provide such written notice when compensation 
is terminated, suspended or forfeited due to one of the following: A 
beneficiary's conviction for fraud in connection with a claim under the 
FECA; a beneficiary's incarceration based on any felony conviction; an 
employee's failure to report earnings from employment or self-
employment; an employee's failure or refusal to either continue 
performing suitable work or to accept an offer of suitable work; or an 
employee's refusal to undergo or obstruction of a directed medical 
examination or treatment for substance abuse.



Sec. 10.541  What action will OWCP take after issuing written notice 
of its intention to reduce or terminate compensation?

    (a) If the beneficiary submits evidence or argument prior to the 
issuance of the decision, OWCP will evaluate it in light of the proposed 
action and undertake such further development as it may deem 
appropriate, if any. Evidence or argument which is repetitious, 
cumulative, or irrelevant will not require any further development. If 
the beneficiary does not respond within 30 days of the written notice, 
OWCP will issue a decision consistent with its prior notice. OWCP will 
not grant any request for an extension of this 30-day period.
    (b) Evidence or argument which refutes the evidence upon which the 
proposed action was based will result in the continued payment of 
compensation. If the beneficiary submits evidence or argument which 
fails to refute the evidence upon which the proposed action was based 
but which requires further development, OWCP will not provide the 
beneficiary with another notice of its proposed action upon completion 
of such development. Once any further development of the evidence is 
completed, OWCP will either continue payment or issue a decision 
consistent with its prior notice.



                        Subpart G_Appeals Process



Sec. 10.600  How can final decisions of OWCP be reviewed?

    There are three methods for reviewing a formal decision of the OWCP 
(Sec. Sec. 10.125-10.127 discuss how decisions are made). These methods 
are: reconsideration by the district office; a hearing before an OWCP 
hearing representative; and appeal to the Employees' Compensation 
Appeals Board (ECAB). For each method there are time limitations and 
other restrictions which may apply, and not all options are available 
for all decisions, so the employee should consult the requirements set 
forth below. Further rules governing appeals to the ECAB are found at 
part 501 of this title.

[[Page 48]]

              Reconsiderations and Reviews by the Director



Sec. 10.605  What is reconsideration?

    The FECA provides that the Director may review an award for or 
against compensation upon application by an employee (or his or her 
representative) who receives an adverse decision. The employee shall 
exercise this right through a request to the district office. The 
request, along with the supporting statements and evidence, is called 
the ``application for reconsideration.''



Sec. 10.606  How does a claimant request reconsideration?

    (a) An employee (or representative) seeking reconsideration should 
send the application for reconsideration to the address as instructed by 
OWCP in the final decision.
    (b) The application for reconsideration, including all supporting 
documents, must:
    (1) Be submitted in writing;
    (2) Set forth arguments and contain evidence that either:
    (i) Shows that OWCP erroneously applied or interpreted a specific 
point of law;
    (ii) Advances a relevant legal argument not previously considered by 
OWCP; or
    (iii) Constitutes relevant and pertinent new evidence not previously 
considered by OWCP.



Sec. 10.607  What is the time limit for requesting reconsideration?

    (a) An application for reconsideration must be sent within one year 
of the date of the OWCP decision for which review is sought. If 
submitted by mail, the application will be deemed timely if postmarked 
by the U.S. Postal Service within the time period allowed. If there is 
no such postmark, or it is not legible, other evidence such as (but not 
limited to) certified mail receipts, certificate of service, and 
affidavits, may be used to establish the mailing date.
    (b) OWCP will consider an untimely application for reconsideration 
only if the application demonstrates clear evidence of error on the part 
of OWCP in its most recent merit decision. The application must 
establish, on its face, that such decision was erroneous.
    (c) The year in which a claimant has to timely request 
reconsideration shall not include any period subsequent to an OWCP 
decision for which the claimant can establish through probative medical 
evidence that he or she is unable to communicate in any way and that his 
or her testimony is necessary in order to obtain modification of the 
decision.



Sec. 10.608  How does OWCP decide whether to grant or deny the request 
for reconsideration?

    (a) A timely request for reconsideration may be granted if OWCP 
determines that the employee has presented evidence and/or argument that 
meets at least one of the standards described in Sec. 10.606(b)(2). If 
reconsideration is granted, the case is reopened and the case is 
reviewed on its merits (see Sec. 10.609).
    (b) Where the request is timely but fails to meet at least one of 
the standards described in Sec. 10.606(b)(2), or where the request is 
untimely and fails to present any clear evidence of error, OWCP will 
deny the application for reconsideration without reopening the case for 
a review on the merits. A decision denying an application for 
reconsideration cannot be the subject of another application for 
reconsideration. The only review for this type of non-merit decision is 
an appeal to the ECAB (see Sec. 10.625), and OWCP will not entertain a 
request for reconsideration or a hearing on this decision denying 
reconsideration.



Sec. 10.609  How does OWCP decide whether new evidence requires 
modification of the prior decision?

    When application for reconsideration is granted, OWCP will review 
the decision for which reconsideration is sought on the merits and 
determine whether the new evidence or argument requires modification of 
the prior decision.
    (a) After OWCP decides to grant reconsideration, but before 
undertaking the review, OWCP will send a copy of the reconsideration 
application to the employer, which will have 20 days from the date sent 
to comment or submit

[[Page 49]]

relevant documents. OWCP will provide any such comments to the employee, 
who will have 20 days from the date the comments are sent to him or her 
within which to comment. If no comments are received from the employer, 
OWCP will proceed with the merit review of the case.
    (b) A claims examiner who did not participate in making the 
contested decision will conduct the merit review of the claim. When all 
evidence has been reviewed, OWCP will issue a new merit decision, based 
on all the evidence in the record. A copy of the decision will be 
provided to the agency.
    (c) An employee dissatisfied with this new merit decision may again 
request reconsideration under this subpart or appeal to the ECAB. An 
employee may not request a hearing on this decision.



Sec. 10.610  What is a review by the Director?

    The FECA specifies that an award for or against payment of 
compensation may be reviewed at any time on the Director's own motion. 
Such review may be made without regard to whether there is new evidence 
or information. If the Director determines that a review of the award is 
warranted (including, but not limited to circumstances indicating a 
mistake of fact or law or changed conditions), the Director (at any time 
and on the basis of existing evidence) may modify, rescind, decrease or 
increase compensation previously awarded, or award compensation 
previously denied. A review on the Director's own motion is not subject 
to a request or petition and none shall be entertained.
    (a) The decision whether or not to review an award under this 
section is solely within the discretion of the Director. The Director's 
exercise of this discretion is not subject to review by the ECAB, nor 
can it be the subject of a reconsideration or hearing request.
    (b) Where the Director reviews an award on his or her own motion, 
any resulting decision is subject as appropriate to reconsideration, a 
hearing and/or appeal to the ECAB. Jurisdiction on review or on appeal 
to ECAB is limited to a review of the merits of the resulting decision. 
The Director's determination to review the award is not reviewable.

                                Hearings



Sec. 10.615  What is a hearing?

    A hearing is a review of an adverse decision by a hearing 
representative. Initially, the claimant can choose between two formats: 
An oral hearing or a review of the written record. At the discretion of 
the hearing representative, an oral hearing may be conducted by 
telephone or teleconference. In addition to the evidence of record, the 
employee may submit new evidence to the hearing representative.



Sec. 10.616  How does a claimant obtain a hearing?

    (a) A claimant, injured on or after July 4, 1966, who has received a 
final adverse decision by the district office may obtain a hearing by 
writing to the address specified in the decision. The hearing request 
must be sent within 30 days (as determined by postmark or other 
carrier's date marking) of the date of the decision for which a hearing 
is sought. The claimant must not have previously submitted a 
reconsideration request (whether or not it was granted) on the same 
decision.
    (b) The claimant may specify the type of hearing desired when making 
the original hearing request. If the request does not specify a format, 
OWCP will schedule an oral hearing. The claimant can request a change in 
the format of the hearing by making a written request to the Branch of 
Hearings and Review. OWCP will grant a request received by the Branch of 
Hearings and Review within 30 days of: The date OWCP acknowledges the 
initial hearing request, or the date OWCP issues a notice setting a date 
for an oral hearing, in cases where the initial request was for, or was 
treated as a request for, an oral hearing. A request received after 
those dates will be subject to OWCP's discretion. The decision to grant 
or deny a change of format is not reviewable.



Sec. 10.617  How is an oral hearing conducted?

    (a) The hearing representative retains complete discretion to set 
the

[[Page 50]]

time and place of the hearing, including the amount of time allotted for 
the hearing, considering the issues to be resolved.
    (b) Unless otherwise directed in writing by the claimant, the 
hearing representative will mail a notice of the time and place of the 
oral hearing to the claimant and any representative at least 30 days 
before the scheduled date. The employer will also be mailed a notice at 
least 30 days before the scheduled date.
    (c) The hearing is an informal process, and the hearing 
representative is not bound by common law or statutory rules of 
evidence, by technical or formal rules of procedure or by section 5 of 
the Administrative Procedure Act, but the hearing representative may 
conduct the hearing in such manner as to best ascertain the rights of 
the claimant. During the hearing process, the claimant may state his or 
her arguments and present new written evidence in support of the claim.
    (d) Testimony at oral hearings is recorded, then transcribed and 
placed in the record. Oral testimony shall be made under oath.
    (e) OWCP will furnish a transcript of the oral hearing to the 
claimant and the employer, who have 20 days from the date it is sent to 
comment. Any comments received from the employer shall be sent to the 
claimant, who will be given an additional 20 days to comment from the 
date OWCP sends any agency comments.
    (f) The hearing remains open for the submittal of additional 
evidence until 30 days after the hearing is held, unless the hearing 
representative, in his or her sole discretion, grants an extension. Only 
one such extension may be granted. A copy of the decision will be mailed 
to the claimant's last known address, to any representative, and to the 
employer.
    (g) The hearing representative determines the conduct of the oral 
hearing and may terminate the hearing at any time he or she determines 
that all relevant evidence has been obtained, or because of misbehavior 
on the part of the claimant and/or representative at or near the place 
of the oral presentation.



Sec. 10.618  How is a review of the written record conducted?

    (a) The hearing representative will review the official record and 
any additional evidence submitted by the claimant and by the agency. The 
hearing representative may also conduct whatever investigation is deemed 
necessary. New evidence and arguments are to be submitted at any time up 
to the time specified by OWCP, but they should be submitted as soon as 
possible to avoid delaying the hearing process.
    (b) The claimant should submit, with his or her application for 
review, all evidence or argument that he or she wants to present to the 
hearing representative. A copy of all pertinent material will be sent to 
the employer, which will have 20 days from the date it is sent to 
comment. (Medical evidence is not considered ``pertinent'' for review 
and comment by the agency, and it will therefore not be furnished to the 
agency. OWCP has sole responsibility for evaluating medical evidence.) 
The employer shall send any comments to the claimant, who will have 20 
more days from the date of the agency's certificate of service to 
comment.



Sec. 10.619  May subpoenas be issued for witnesses and documents?

    A claimant may request a subpoena, but the decision to grant or deny 
such a request is within the discretion of the hearing representative. 
The hearing representative may issue subpoenas for the attendance and 
testimony of witnesses, and for the production of books, records, 
correspondence, papers or other relevant documents. Subpoenas are issued 
for documents only if they are relevant and cannot be obtained by other 
means, and for witnesses only where oral testimony is the best way to 
ascertain the facts.
    (a) A claimant may request a subpoena only as part of the hearings 
process, and no subpoena will be issued under any other part of the 
claims process. To request a subpoena, the requestor must:
    (1) Submit the request in writing and send it to the hearing 
representative as early as possible but no later than 60 days (as 
evidenced by postmark, electronic marker or other objective date

[[Page 51]]

mark) after the date of the original hearing request.
    (2) Explain why the testimony or evidence is directly relevant to 
the issues at hand, and a subpoena is the best method or opportunity to 
obtain such evidence because there are no other means by which the 
documents or testimony could have been obtained.
    (b) No subpoena will be issued for attendance of employees of OWCP 
acting in their official capacities as decision-makers or policy 
administrators. For hearings taking the form of a review of the written 
record, no subpoena for the appearance of witnesses will be considered.
    (c) The hearing representative issues the subpoena under his or her 
own name. It may be served in person or by certified mail, return 
receipt requested, addressed to the person to be served at his or her 
last known principal place of business or residence. A decision to deny 
a subpoena can only be appealed as part of an appeal of any adverse 
decision which results from the hearing.



Sec. 10.620  Who pays the costs associated with subpoenas?

    (a) Witnesses who are not employees or former employees of the 
Federal Government shall be paid the same fees and mileage as paid for 
like services in the District Court of the United States where the 
subpoena is returnable, except that expert witnesses shall be paid a fee 
not to exceed the local customary fee for such services.
    (b) Where OWCP asked that the witness submit evidence into the case 
record or asked that the witness attend, OWCP shall pay the fees and 
mileage. Where the claimant requested the subpoena, and where the 
witness submitted evidence into the record at the request of the 
claimant, the claimant shall pay the fees and mileage.



Sec. 10.621  What is the employer's role when an oral hearing has 
been requested?

    (a) The employer may send one (or more, where appropriate) 
representative(s) to observe the proceeding, but the agency 
representative cannot give testimony or argument or otherwise 
participate in the hearing, except where the claimant or the hearing 
representative specifically asks the agency representative to testify.
    (b) The hearing representative may deny a request by the claimant 
that the agency representative testify where the claimant cannot show 
that the testimony would be relevant or where the agency representative 
does not have the appropriate level of knowledge to provide such 
evidence at the hearing. The employer may also comment on the hearing 
transcript, as described in Sec. 10.617(e).



Sec. 10.622  May a claimant withdraw a request for or postpone a hearing?

    (a) The claimant and/or representative may withdraw the hearing 
request at any time up to and including the day the hearing is held, or 
the decision issued. Withdrawing the hearing request means the record is 
returned to the jurisdiction of the district office and no further 
requests for a hearing on the underlying decision will be considered.
    (b) OWCP will entertain any reasonable request for scheduling the 
oral hearing, but such requests should be made at the time of the 
original application for hearing. Scheduling is at the sole discretion 
of the hearing representative, and is not reviewable. Once the oral 
hearing is scheduled and OWCP has mailed appropriate written notice to 
the claimant, the oral hearing cannot be postponed at the claimant's 
request for any reason except those stated in paragraph (c) of this 
section, unless the hearing representative can reschedule the hearing on 
the same docket (that is, during the same hearing trip). When the 
request to postpone a scheduled hearing does not meet the test of 
paragraph (c) of this section and cannot be accommodated on the docket, 
no further opportunity for an oral hearing will be provided. Instead, 
the hearing will take the form of a review of the written record and a 
decision issued accordingly. In the alternative, a teleconference may be 
substituted for the oral hearing at the discretion of the hearing 
representative.
    (c) Where the claimant is hospitalized for a reason which is not 
elective, or where the death of the claimant's

[[Page 52]]

parent, spouse, or child prevents attendance at the hearing, a 
postponement may be granted upon proper documentation.

       Review by the Employees' Compensation Appeals Board (ECAB)



Sec. 10.625  What kinds of decisions may be appealed?

    Only final decisions of OWCP may be appealed to the ECAB. However, 
certain types of final decisions, described in this part as not subject 
to further review, cannot be appealed to the ECAB. Decisions that are 
not appealable to the ECAB include: Decisions concerning the amounts 
payable for medical services, decisions concerning exclusion and 
reinstatement of medical providers, decisions by the Director to review 
an award on his or her own motion, and denials of subpoenas independent 
of the appeal of the underlying decision. In appeals before the ECAB, 
attorneys from the Office of the Solicitor of Labor shall represent 
OWCP.



Sec. 10.626  Who has jurisdiction of cases on appeal to the ECAB?

    While a case is on appeal to the ECAB, OWCP has no jurisdiction over 
the claim with respect to issues which directly relate to the issue or 
issues on appeal. The OWCP continues to administer the claim and retains 
jurisdiction over issues unrelated to the issue or issues on appeal and 
issues which arise after the appeal as a result of ongoing 
administration of the case. Such issues would include, for example, the 
ability to terminate benefits where an individual returns to work while 
an appeal is pending at the ECAB.



                      Subpart H_Special Provisions

                             Representation



Sec. 10.700  May a claimant designate a representative?

    (a) The claims process under the FECA is informal. Unlike many 
workers' compensation laws, the employer is not a party to the claim, 
and OWCP acts as an impartial evaluator of the evidence. Nevertheless, a 
claimant may appoint one individual to represent his or her interests, 
but the appointment must be in writing.
    (b) There can be only one representative at any one time, so after 
one representative has been properly appointed, OWCP will not recognize 
another individual as representative until the claimant withdraws the 
authorization of the first individual. In addition, OWCP will recognize 
only certain types of individuals (see Sec. 10.701).
    (c) A properly appointed representative who is recognized by OWCP 
may make a request or give direction to OWCP regarding the claims 
process, including a hearing. This authority includes presenting or 
eliciting evidence, making arguments on facts or the law, and obtaining 
information from the case file, to the same extent as the claimant. Any 
notice requirement contained in this part or the FECA is fully satisfied 
if served on the representative, and has the same force and effect as if 
sent to the claimant.



Sec. 10.701  Who may serve as a representative?

    A claimant may authorize any individual to represent him or her in 
regard to a claim under the FECA, unless that individual's service as a 
representative would violate any applicable provision of law (such as 18 
U.S.C. 205 and 208). A Federal employee may act as a representative 
only:
    (a) On behalf of immediate family members, defined as a spouse, 
children, parents, and siblings of the representative, provided no fee 
or gratuity is charged; or
    (b) While acting as a union representative, defined as any 
officially sanctioned union official, and no fee or gratuity is charged.



Sec. 10.702  How are fees for services paid?

    A representative may charge the claimant a fee and other costs 
associated with the representation before OWCP. The claimant is solely 
responsible for paying the fee and other charges. The claimant will not 
be reimbursed by OWCP, nor is OWCP in any way liable for the amount of 
the fee.
    Administrative costs (mailing, copying, messenger services, travel 
and the

[[Page 53]]

like, but not including secretarial services, paralegal and other 
activities) need not be approved before the representative collects 
them. Before any fee for services can be collected, however, the fee 
must be approved by the Secretary. (Collecting a fee without this 
approval may constitute a misdemeanor under 18 U.S.C. 292.)



Sec. 10.703  How are fee applications approved?

    (a) Fee Application. (1) The representative must submit the fee 
application to the district office and/or the Branch of Hearings and 
Review, according to where the work for which the fee is charged was 
performed. The application shall contain the following:
    (i) An itemized statement showing the representative's hourly rate, 
the number of hours worked and specifically identifying the work 
performed and a total amount charged for the representation (excluding 
administrative costs).
    (ii) A statement of agreement or disagreement with the amount 
charged, signed by the claimant. The statement must also acknowledge 
that the claimant is aware that he or she must pay the fees and that 
OWCP is not responsible for paying the fee or other costs.
    (2) An incomplete application will be returned with no further 
comment.
    (b) Approval where there is no dispute. Where a fee application is 
accompanied by a signed statement indicating the claimant's agreement 
with the fee as described in paragraph (a)(1)(ii) of this section, the 
application is deemed approved.
    (c) Disputed requests. (1) Where the claimant disagrees with the 
amount of the fee, as indicated in the statement accompanying the 
submittal, OWCP will evaluate the objection and decide whether or not to 
approve the request. OWCP will provide a copy of the request to the 
claimant and ask him or her to submit any further information in support 
of the objection within 15 days from the date the request is forwarded. 
After that period has passed, OWCP will evaluate the information 
received to determine whether the amount of the fee is substantially in 
excess of the value of services received by looking at the following 
factors:
    (i) Usefulness of the representative's services;
    (ii) The nature and complexity of the claim;
    (iii) The actual time spent on development and presentation of the 
claim; and
    (iv) Customary local charges for similar services.
    (2) Where the claimant disputes the representative's request and 
files an objection with OWCP, an appealable decision will be issued.

                          Third Party Liability



Sec. 10.705  When must an employee or other FECA beneficiary take 
action against a third party?

    (a) If an injury or death for which benefits are payable under the 
FECA is caused, wholly or partially, by someone other than a Federal 
employee acting within the scope of his or her employment, the claimant 
can be required to take action against that third party.
    (b) The Office of the Solicitor of Labor (SOL) is hereby delegated 
authority to administer the subrogation aspects of certain FECA claims 
for OWCP. Either OWCP or SOL can require a FECA beneficiary to assign 
his or her claim for damages to the United States or to prosecute the 
claim in his or her own name.



Sec. 10.706  How will a beneficiary know if OWCP or SOL has determined 
that action against a third party is required?

    When OWCP determines that an employee or other FECA beneficiary must 
take action against a third party, it will notify the employee or 
beneficiary in writing. If the case is transferred to SOL, a second 
notification may be issued.



Sec. 10.707  What must a FECA beneficiary who is required to take action 
against a third party do to satisfy the requirement that the claim be 
``prosecuted''?

    At a minimum, a FECA beneficiary must do the following:
    (a) Seek damages for the injury or death from the third party, 
either through an attorney or on his or her own behalf;

[[Page 54]]

    (b) Either initiate a lawsuit within the appropriate statute of 
limitations period or obtain a written release of this obligation from 
OWCP or SOL unless recovery is possible through a negotiated settlement 
prior to filing suit;
    (c) Refuse to settle or dismiss the case for any amount less than 
the amount necessary to repay OWCP's refundable disbursements, as 
defined in Sec. 10.714, without receiving permission from OWCP or SOL;
    (d) Provide periodic status updates and other relevant information 
in response to requests from OWCP or SOL;
    (e) Submit detailed information about the amount recovered and the 
costs of the suit on a ``Statement of Recovery'' form approved by OWCP; 
and
    (f) Pay any required refund.



Sec. 10.708  Can a FECA beneficiary who refuses to comply with a request 
to assign a claim to the United States or to prosecute the claim in his 
or her own name be penalized?

    When a FECA beneficiary refuses a request to either assign a claim 
or prosecute a claim in his or her own name, OWCP may determine that he 
or she has forfeited his or her right to all past or future compensation 
for the injury with respect to which the request is made. Alternatively, 
OWCP may also suspend the FECA beneficiary's compensation payments until 
he or she complies with the request.



Sec. 10.709  What happens if a beneficiary directed by OWCP or SOL to 
take action against a third party does not believe that a claim can be 
successfully prosecuted at a reasonable cost?

    If a beneficiary consults an attorney and is informed that a suit 
for damages against a third party for the injury or death for which 
benefits are payable is unlikely to prevail or that the costs of such a 
suit are not justified by the potential recovery, he or she should 
request that OWCP or SOL release him or her from the obligation to 
proceed. This request should be in writing and provide evidence of the 
attorney's opinion. If OWCP or SOL agrees, the beneficiary will not be 
required to take further action against the third party.



Sec. 10.710  Under what circumstances must a recovery of money or 
other property in connection with an injury or death for which 
benefits are payable under the FECA be reported to OWCP or SOL?

    Any person who has filed a FECA claim that has been accepted by OWCP 
(whether or not compensation has been paid), or who has received FECA 
benefits in connection with a claim filed by another, is required to 
notify OWCP or SOL of the receipt of money or other property as a result 
of a settlement or judgment in connection with the circumstances of that 
claim. This includes an injured employee, and in the case of a claim 
involving the death of an employee, a spouse, children or other 
dependents entitled to receive survivor's benefits. OWCP or SOL should 
be notified in writing within 30 days of the receipt of such money or 
other property or the acceptance of the FECA claim, whichever occurs 
later.



Sec. 10.711  How much of any settlement or judgment must be paid to 
the United States?

    The statute permits a FECA beneficiary to retain, as a minimum, one-
fifth of the net amount of money or property remaining after a 
reasonable attorney's fee and the costs of litigation have been deducted 
from the third-party recovery. The United States shares in the 
litigation expense by allowing the beneficiary to retain, at the time of 
distribution, an amount equivalent to a reasonable attorney's fee 
proportionate to the refund due the United States. After the refund owed 
to the United States is calculated, the FECA beneficiary retains any 
surplus remaining, and this amount is credited, dollar for dollar, 
against future compensation for the same injury, as defined in Sec. 
10.719. OWCP will resume the payment of compensation only after the FECA 
beneficiary has been awarded compensation which exceeds the amount of 
the surplus.
    (a) The refund to the United States is calculated as follows, using 
the Statement of Recovery form approved by OWCP:
    (1) Determine the gross recovery as set forth in Sec. 10.712;

[[Page 55]]

    (2) Subtract the amount of attorney's fees actually paid, but not 
more than the maximum amount of attorney's fees considered by OWCP or 
SOL to be reasonable, from the gross recovery (Subtotal A);
    (3) Subtract the costs of litigation, as allowed by OWCP or SOL 
(Subtotal B);
    (4) Subtract one fifth of Subtotal B from Subtotal B (Subtotal C);
    (5) Compare Subtotal C and the refundable disbursements as defined 
in Sec. 10.714. Subtotal D is the lower of the two amounts.
    (6) Multiply Subtotal D by a percentage that is determined by 
dividing the gross recovery into the amount of attorney's fees actually 
paid, but not more than the maximum amount of attorney's fees considered 
by OWCP or SOL to be reasonable, to determine the Government's allowance 
for attorney's fees, and subtract this amount from Subtotal D.
    (b) The credit against future benefits (also referred to as the 
surplus) is calculated as follows:
    (1) If Subtotal C, as calculated according to paragraph (a)(4) of 
this section, is less than the refundable disbursements, as defined in 
Sec. 10.714, there is no credit to be applied against future benefits;
    (2) If Subtotal C is greater than the refundable disbursements, the 
credit against future benefits (or surplus) amount is determined by 
subtracting the refundable disbursements from Subtotal C.
    (c) An example of how these calculations are made follows. In this 
example, a Federal employee sues another party for causing injuries for 
which the employee has received $22,000 in benefits under the FECA, 
subject to refund. The suit is settled and the injured employee receives 
$100,000, all of which was for his injury. The injured worker paid 
attorney's fees of $25,000 and costs for the litigation of $3,000.

(1) Gross recovery...........................................   $100,000
    Attorney's fees..........................................    -25,000
                                                              ----------
(2) Subtotal A...............................................     75,000
(3) Costs of suit............................................     -3,000
                                                              ----------
  Subtotal B.................................................     72,000
  One-fifth of Subtotal B....................................    -14,400
                                                              ----------
(4) Subtotal C...............................................     57,600
  Refundable Disbursements...................................     22,000
(5) Subtotal D (lower of Subtotal C or refundable                 22,000
 disbursements)..............................................
(6) Government's allowance for attorney's fees [25,000 /          -5,500
 100,000) x 22,000] (attorney's fees divided by gross
 recovery then multiplied by Subtotal D).....................
                                                              ----------
  Refund to the United States................................     16,500
(7) Credit against future benefits [57,600 - 22,000]              35,600
 (Subtotal C minus refundable disbursements).................
 



Sec. 10.712  What amounts are included in the gross recovery?

    (a) When a settlement or judgment is paid to, or for, one 
individual, the entire amount, except for the portion representing 
damage to real or personal property, is reported as the gross recovery. 
If a settlement or judgment is paid to or for more than one individual 
or in more than one capacity, such as a joint payment to a husband and 
wife for personal injury and loss of consortium or a payment to a spouse 
representing both loss of consortium and wrongful death, the gross 
recovery to be reported is the amount allocated to the injured employee. 
If a judge or jury specifies the percentage of a contested verdict 
attributable to each of several plaintiffs, OWCP or SOL will accept that 
division.
    (b) In any other case, where a judgment or settlement is paid to or 
on behalf of more than one individual, OWCP or SOL will determine the 
appropriate amount of the FECA beneficiary's gross recovery and advise 
the beneficiary of its determination. FECA beneficiaries may accept 
OWCP's or SOL's determination or demonstrate good cause for a different 
allocation. Whether to accept a specific allocation is at the discretion 
of SOL or OWCP.



Sec. 10.713  How is a structured settlement (that is, a settlement 
providing for receipt of funds over a specified period of time) treated 
for purposes of reporting the gross recovery?

    In this situation, the gross recovery to be reported is the present 
value of the right to receive all of the payments included in the 
structured settlement, allocated in the case of multiple recipients in 
the same manner as single payment recoveries.

[[Page 56]]



Sec. 10.714  What amounts are included in the refundable disbursements?

    The refundable disbursements of a specific claim consist of the 
total money paid by OWCP from the Employees' Compensation Fund with 
respect to that claim to or on behalf of a FECA beneficiary, less 
charges for any medical file review (i.e., the physician does not 
examine the employee) done at the request of OWCP. Charges for medical 
examinations also may be subtracted if the FECA beneficiary establishes 
that the examinations were required to be made available to the employee 
under a statute other than the FECA by the employing agency or at the 
employing agency's cost.



Sec. 10.715  Is a beneficiary required to pay interest on the amount 
of the refund due to the United States?

    If the refund due to the United States is not submitted within 30 
days of receiving a request for payment from SOL or OWCP, interest shall 
accrue on the refund due to the United States from the date of the 
request. The rate of interest assessed shall be the rate of the current 
value of funds to the United States Treasury as published in the Federal 
Register (as of the date the request for payment is sent). Waiver of the 
collection of interest shall be in accordance with the provisions of the 
Department of Labor regulations on Federal Claims Collection governing 
waiver of interest, 29 CFR 20.61.



Sec. 10.716  If the required refund is not paid within 30 days of the 
request for repayment, can it be collected from payments due under the FECA?

    If the required refund is not paid within 30 days of the request for 
payment, OWCP can, in its discretion, collect the refund by withholding 
all or part of any payments currently payable to the beneficiary under 
the FECA with respect to any injury. The waiver provisions of Sec. Sec. 
10.432 through 10.440 do not apply to such determinations.



Sec. 10.717  Is a settlement or judgment received as a result of 
allegations of medical malpractice in treating an injury covered 
by the FECA a gross recovery that must be reported to OWCP or SOL?

    Since an injury caused by medical malpractice in treating an injury 
covered by the FECA is also an injury covered under the FECA, any 
recovery in a suit alleging such an injury is treated as a gross 
recovery that must be reported to OWCP or SOL.



Sec. 10.718  Are payments to a beneficiary as a result of an insurance 
policy which the beneficiary has purchased a gross recovery that must 
be reported to OWCP or SOL?

    Since payments received by a FECA beneficiary pursuant to an 
insurance policy purchased by someone other than a liable third party 
are not payments in satisfaction of liability for causing an injury 
covered by the FECA, they are not considered a gross recovery covered by 
section 8132 that requires filing a Statement of Recovery and paying any 
required refund.



Sec. 10.719  If a settlement or judgment is received for more than one wound or medical 

condition, can the refundable disbursements paid on a single FECA claim be attributed 
to different conditions for purposes of calculating the refund or credit owed to the United States?

    (a) All wounds, diseases or other medical conditions accepted by 
OWCP in connection with a single claim are treated as the same injury 
for the purpose of computing any required refund and any credit against 
future benefits in connection with the receipt of a recovery from a 
third party, except that an injury caused by medical malpractice in 
treating an injury covered under the FECA will be treated as a separate 
injury for purposes of section 8132.
    (b) If an injury covered under the FECA is caused under 
circumstances creating a legal liability in more than one person, other 
than the United States, to pay damages, OWCP or SOL will determine 
whether recoveries received from one or more third parties

[[Page 57]]

should be attributed to separate conditions for which compensation is 
payable in connection with a single FECA claim. If such an attribution 
is both practicable and equitable, as determined by OWCP or SOL, in its 
discretion, the conditions will be treated as separate injuries for 
purposes of calculating the refund and credit owed to the United States 
under section 8132.

                     Federal Grand and Petit Jurors



Sec. 10.725  When is a Federal grand or petit juror covered under the FECA?

    (a) Federal grand and petit jurors are covered under the FECA when 
they are in performance of duty as a juror, which includes that time 
when a juror is:
    (1) In attendance at court pursuant to a summons;
    (2) In deliberation;
    (3) Sequestered by order of a judge; or
    (4) At a site, by order of the court, for the taking of a view.
    (b) A juror is not considered to be in the performance of duty while 
traveling to or from home in connection with the activities enumerated 
in paragraphs (a) (1) through (4) of this section.



Sec. 10.726  When does a juror's entitlement to disability compensation 
begin?

    Pursuant to 28 U.S.C. 1877, entitlement to disability compensation 
does not commence until the day after the date of termination of service 
as a juror.



Sec. 10.727  What is the pay rate of jurors for compensation purposes?

    For the purpose of computing compensation payable for disability or 
death, a juror is deemed to receive pay at the minimum rate for Grade 
GS-2 of the General Schedule unless his or her actual pay as an 
``employee'' of the United States while serving on court leave is 
higher, in which case the pay rate for compensation purposes is 
determined in accordance with 5 U.S.C. 8114.

                         Peace Corps Volunteers



Sec. 10.730  What are the conditions of coverage for Peace Corps 
volunteers and volunteer leaders injured while serving outside the 
United States?

    (a) Any injury sustained by a volunteer or volunteer leader while he 
or she is located abroad shall be presumed to have been sustained in the 
performance of duty, and any illness contracted during such time shall 
be presumed to be proximately caused by the employment. However, this 
presumption will be rebutted by evidence that:
    (1) The injury or illness was caused by the claimant's willful 
misconduct, intent to bring about the injury or death of self or 
another, or was proximately caused by the intoxication by alcohol or 
illegal drugs of the injured claimant; or
    (2) The illness is shown to have pre-existed the period of service 
abroad; or
    (3) The injury or illness claimed is a manifestation of symptoms of, 
or consequent to, a pre-existing congenital defect or abnormality.
    (b) If the presumption that an injury or illness was sustained in 
the performance of duty is rebutted as provided by paragraph (a) of this 
section, the claimant has the burden of proving by the submittal of 
substantial and probative evidence that such injury or illness was 
sustained in the performance of duty with the Peace Corps.
    (c) If an injury or illness, or episode thereof, comes within one of 
the exceptions described in paragraph (a) (2) or (3) of this section, 
the claimant may nonetheless be entitled to compensation. This will be 
so provided he or she meets the burden of proving by the submittal of 
substantial, probative and rationalized medical evidence that the 
illness or injury was proximately caused by factors or conditions of 
Peace Corps service, or that it was materially aggravated, accelerated 
or precipitated by factors of Peace Corps service.



Sec. 10.731  What is the pay rate of Peace Corps volunteers and volunteer 
leaders for compensation purposes?

    The pay rate for these claimants is defined as the pay rate in 
effect on the date following separation, provided

[[Page 58]]

that the rate equals or exceeds the pay rate on the date of injury. It 
is defined in accordance with 5 U.S.C. 8142(a), not 8101(4).

                  Non-Federal Law Enforcement Officers



Sec. 10.735  When is a non-Federal law enforcement officer (LEO) covered 
under the FECA?

    (a) A law enforcement officer (officer) includes an employee of a 
State or local Government, the Governments of U.S. possessions and 
territories, or an employee of the United States pensioned or 
pensionable under sections 521-535 of Title 4, D.C. Code, whose 
functions include the activities listed in 5 U.S.C. 8191.
    (b) Benefits are available to officers who are not ``employees'' 
under 5 U.S.C. 8101, and who are determined in the discretion of OWCP to 
have been engaged in the activities listed in 5 U.S.C. 8191 with respect 
to the enforcement of crimes against the United States. Individuals who 
only perform administrative functions in support of officers are not 
considered officers.
    (c) Except as provided by 5 U.S.C. 8191 and 8192 and elsewhere in 
this part, the provisions of the FECA and of subparts A, B, and D 
through I of this part apply to officers.



Sec. 10.736  What are the time limits for filing a LEO claim?

    OWCP must receive a claim for benefits under 5 U.S.C. 8191 within 
five years after the injury or death. This five-year limitation is not 
subject to waiver. The tolling provisions of 5 U.S.C. 8122(d) do not 
apply to these claims.



Sec. 10.737  How is a LEO claim filed, and who can file a LEO claim?

    A claim for injury or occupational disease should be filed on Form 
CA-721; a death claim should be filed on Form CA-722. All claims should 
be submitted to the officer's employer for completion and forwarding to 
OWCP. A claim may be filed by the officer, the officer's survivor, or 
any person or association authorized to act on behalf of an officer or 
an officer's survivors.



Sec. 10.738  Under what circumstances are benefits payable in LEO claims?

    (a) Benefits are payable when an officer is injured while 
apprehending, or attempting to apprehend, an individual for the 
commission of a Federal crime. However, either an actual Federal crime 
must be in progress or have been committed, or objective evidence (of 
which the officer is aware at the time of injury) must exist that a 
potential Federal crime was in progress or had already been committed. 
The actual or potential Federal crime must be an integral part of the 
criminal activity toward which the officer's actions are directed. The 
fact that an injury to an officer is related in some way to the 
commission of a Federal crime does not necessarily bring the injury 
within the coverage of the FECA. The FECA is not intended to cover 
officers who are merely enforcing local laws.
    (b) For benefits to be payable when an officer is injured 
preventing, or attempting to prevent, a Federal crime, there must be 
objective evidence that a Federal crime is about to be committed. An 
officer's belief, unsupported by objective evidence, that he or she is 
acting to prevent the commission of a Federal crime will not result in 
coverage. Moreover, the officer's subjective intent, as measured by all 
available evidence (including the officer's own statements and 
testimony, if available), must have been directed toward the prevention 
of a Federal crime. In this context, an officer's own statements and 
testimony are relevant to, but do not control, the determination of 
coverage.



Sec. 10.739  What kind of objective evidence of a potential Federal crime 
must exist for coverage to be extended?

    Based on the facts available at the time of the event, the officer 
must have an awareness of sufficient information which would lead a 
reasonable officer, under the circumstances, to conclude that a Federal 
crime was in progress, or was about to occur. This awareness need not 
extend to the precise particulars of the crime (the section of Title 18, 
United States Code, for example), but there must be sufficient

[[Page 59]]

evidence that the officer was in fact engaged in actual or attempted 
apprehension of a Federal criminal or prevention of a Federal crime.



Sec. 10.740  In what situations will OWCP automatically presume that a 
law enforcement officer is covered by the FECA?

    (a) Where an officer is detailed by a competent State or local 
authority to assist a Federal law enforcement authority in the 
protection of the President of the United States, or any other person 
actually provided or entitled to U.S. Secret Service protection, 
coverage will be extended.
    (b) Coverage for officers of the U.S. Park Police and those officers 
of the Uniformed Division of the U.S. Secret Service who participate in 
the District of Columbia Retirement System is adjudicated under the 
principles set forth in paragraph (a) of this section, and does not 
extend to numerous tangential activities of law enforcement (for 
example, reporting to work, changing clothes). However, officers of the 
Non-Uniformed Division of the U.S. Secret Service who participate in the 
District of Columbia Retirement System are covered under the FECA during 
the performance of all official duties.



Sec. 10.741  How are benefits calculated in LEO claims?

    (a) Except for continuation of pay, eligible officers and survivors 
are entitled to the same benefits as if the officer had been an employee 
under 5 U.S.C. 8101. However, such benefits may be reduced or adjusted 
as OWCP in its discretion may deem appropriate to reflect comparable 
benefits which the officer or survivor received or would have been 
entitled to receive by virtue of the officer's employment.
    (b) For the purpose of this section, a comparable benefit includes 
any benefit that the officer or survivor is entitled to receive because 
of the officer's employment, including pension and disability funds, 
State workers' compensation payments, Public Safety Officers' Benefits 
Act payments, and State and local lump-sum payments. Health benefits 
coverage and proceeds of life insurance policies purchased by the 
employer are not considered to be comparable benefits.
    (c) The FECA provides that, where an officer receives comparable 
benefits, compensation benefits are to be reduced proportionally in a 
manner that reflects the relative percentage contribution of the officer 
and the officer's employer to the fund which is the source of the 
comparable benefit. Where the source of the comparable benefit is a 
retirement or other system which is not fully funded, the calculation of 
the amount of the reduction will be based on a per capita comparison 
between the contribution by the employer and the contribution by all 
covered officers during the year prior to the officer's injury or death.
    (d) The non-receipt of compensation during a period where a dual 
benefit (such as a lump-sum payment on the death of an officer) is being 
offset against compensation entitlement does not result in an adjustment 
of the respective benefit percentages of remaining beneficiaries because 
of a cessation of compensation under 5 U.S.C. 8133(c).



               Subpart I_Information for Medical Providers

                        Medical Records and Bills



Sec. 10.800  What kind of medical records must providers keep?

    Agency medical officers, private physicians and hospitals are 
required to keep records of all cases treated by them under the FECA so 
they can supply OWCP with a history of the injury, a description of the 
nature and extent of injury, the results of any diagnostic studies 
performed, the nature of the treatment rendered and the degree of any 
impairment and/or disability arising from the injury.



Sec. 10.801  How are medical bills to be submitted?

    (a) All charges for medical and surgical treatment, appliances or 
supplies furnished to injured employees, except for treatment and 
supplies provided by nursing homes, shall be supported by medical 
evidence as provided in Sec. 10.800. The physician or provider shall 
itemize the charges on the standard Health Insurance Claim Form, HCFA 
1500 or

[[Page 60]]

OWCP 1500, (for professional charges), the UB-92 (for hospitals), the 
Universal Claim Form (for pharmacies), or other form as warranted, and 
submit the form promptly to OWCP.
    (b) The provider shall identify each service performed using the 
Physician's Current Procedural Terminology (CPT) code, the Health Care 
Financing Administration Common Procedure Coding System (HCPCS) code, 
the National Drug Code (NDC), or the Revenue Center Code (RCC), with a 
brief narrative description. Where no code is applicable, a detailed 
description of services performed should be provided.
    (c) The provider shall also state each diagnosed condition and 
furnish the corresponding diagnostic code using the ``International 
Classification of Disease, 9th Edition, Clinical Modification'' (ICD-9-
CM), or as revised. A separate bill shall be submitted when the employee 
is discharged from treatment or monthly, if treatment for the work-
related condition is necessary for more than 30 days.
    (1)(i) Hospitals shall submit charges for medical and surgical 
treatment or supplies promptly to OWCP on the Uniform Bill (UB-92). The 
provider shall identify each outpatient radiology service, outpatient 
pathology service and physical therapy service performed, using HCPCS/
CPT codes with a brief narrative description. The charge for each 
individual service, or the total charge for all identical services, 
should also appear in the UB-92.
    (ii) Other outpatient hospital services for which HCPCS/CPT codes 
exist shall also be coded individually using the coding scheme noted in 
this paragraph. Services for which there are no HCPCS/CPT codes 
available can be presented using the RCCs described in the ``National 
Uniform Billing Data Elements Specifications'', current edition. The 
provider shall also furnish the diagnostic code using the ICD-9-CM. If 
the outpatient hospital services include surgical and/or invasive 
procedures, the provider shall code each procedure using the proper CPT/
HCPCS codes and furnishing the corresponding diagnostic codes using the 
ICD-9-CM.
    (2) Pharmacies shall itemize charges for prescription medications, 
appliances, or supplies on the Universal Claim Form and submit them 
promptly to OWCP. Bills for prescription medications must include the 
NDC assigned to the product, the generic or trade name of the drug 
provided, the prescription number, the quantity provided, and the date 
the prescription was filled.
    (3) Nursing homes shall itemize charges for appliances, supplies or 
services on the provider's billhead stationery and submit them promptly 
to OWCP.
    (d) By submitting a bill and/or accepting payment, the provider 
signifies that the service for which reimbursement is sought was 
performed as described and was necessary. In addition, the provider 
thereby agrees to comply with all regulations set forth in this subpart 
concerning the rendering of treatment and/or the process for seeking 
reimbursement for medical services, including the limitation imposed on 
the amount to be paid for such services.
    (e) In summary, bills submitted by providers must: be itemized on 
the Health Insurance Claim Form (for physicians), the UB-92 (for 
hospitals), or the Universal Claim Form (for pharmacies); contain the 
signature or signature stamp of the provider; and identify the 
procedures using HCPCS/CPT codes, RCCs, or NDCs. Otherwise, OWCP may 
return the bill to the provider for correction and resubmission.



Sec. 10.802  How should an employee prepare and submit requests for 
reimbursement for medical expenses, transportation costs, loss of wages, 
and incidental expenses?

    (a) If an employee has paid bills for medical, surgical or dental 
services, supplies or appliances due to an injury sustained in the 
performance of duty, he or she may submit an itemized bill on the Health 
Insurance Claim Form, HCFA 1500 or OWCP 1500, together with a medical 
report as provided in Sec. 10.800, to OWCP for consideration.
    (1) The provider of such service shall state each diagnosed 
condition and furnish the applicable ICD-9-CM code and identify each 
service performed using the applicable HCPCS/CPT code, with a brief 
narrative description of the service performed, or, where no code is 
applicable, a detailed description of that service.

[[Page 61]]

    (2) The bill must be accompanied by evidence that the provider 
received payment for the service from the employee and a statement of 
the amount paid. Acceptable evidence that payment was received includes, 
but is not limited to, a signed statement by the provider, a mechanical 
stamp or other device showing receipt of payment, a copy of the 
employee's canceled check (both front and back) or a copy of the 
employee's credit card receipt.
    (b) If services were provided by a hospital, pharmacy or nursing 
home, the employee should submit the bill in accordance with the 
provisions of Sec. 10.801(a). Any request for reimbursement must be 
accompanied by evidence, as described in paragraph (a) of this section, 
that the provider received payment for the service from the employee and 
a statement of the amount paid.
    (c) OWCP may waive the requirements of paragraphs (a) and (b) of 
this section if extensive delays in the filing or the adjudication of a 
claim make it unusually difficult for the employee to obtain the 
required information.
    (d) OWCP will not accept copies of bills for reimbursement unless 
they bear the original signature of the provider, with evidence of 
payment. Payment for medical and surgical treatment, appliances or 
supplies shall in general be no greater than the maximum allowable 
charge for such service determined by the Director, as set forth in 
Sec. 10.805.
    (e) An employee will be only partially reimbursed for a medical 
expense if the amount he or she paid to a provider for the service 
exceeds the maximum allowable charge set by the Director's schedule. If 
this happens, OWCP shall advise the employee of the maximum allowable 
charge for the service in question and of his or her responsibility to 
ask the provider to refund to the employee, or credit to the employee's 
account, the amount he or she paid which exceeds the maximum allowable 
charge. The provider may request reconsideration of the fee 
determination as set forth in Sec. 10.812.
    (f) If the provider fails to make appropriate refund to the 
employee, or to credit the employee's account, within 60 days after the 
employee requests a refund of any excess amount, or the date of a 
subsequent reconsideration decision which continues to disallow all or a 
portion of the appealed amount, OWCP shall initiate exclusion procedures 
as provided by Sec. 10.815.
    (g) If the provider does not refund to the employee or credit to his 
or her account the amount of money paid in excess of the charge which 
OWCP allows, the employee should submit documentation of the attempt to 
obtain such refund or credit to OWCP. OWCP may make reasonable 
reimbursement to the employee after reviewing the facts and 
circumstances of the case.



Sec. 10.803  What are the time limitations on OWCP's payment of bills?

    OWCP will pay providers and reimburse employees promptly for all 
bills received on an approved form and in a timely manner. However, no 
bill will be paid for expenses incurred if the bill is submitted more 
than one year beyond the end of the calendar year in which the expense 
was incurred or the service or supply was provided, or more than one 
year beyond the end of the calendar year in which the claim was first 
accepted as compensable by OWCP, whichever is later.

                          Medical Fee Schedule



Sec. 10.805  What services are covered by the OWCP fee schedule?

    (a) Payment for medical and other health services furnished by 
physicians, hospitals and other providers for work-related injuries 
shall not exceed a maximum allowable charge for such service as 
determined by the Director, except as provided in this section.
    (b) The schedule of maximum allowable charges does not apply to 
charges for services provided in nursing homes, but it does apply to 
charges for treatment furnished in a nursing home by a physician or 
other medical professional.
    (c) The schedule of maximum allowable charges also does not apply to 
charges for appliances, supplies, services or treatment furnished by 
medical facilities of the U.S. Public Health Service or the Departments 
of the Army, Navy, Air Force and Veterans Affairs.

[[Page 62]]



Sec. 10.806  How are the maximum fees defined?

    For professional medical services, the Director shall maintain a 
schedule of maximum allowable fees for procedures performed in a given 
locality. The schedule shall consist of: An assignment of a value to 
procedures identified by Health Care Financing Administration Common 
Procedure Coding System/Current Procedural Terminology (HCPCS/CPT) code 
which represents the relative skill, effort, risk and time required to 
perform the procedure, as compared to other procedures of the same 
general class; an index based on a relative value scale that considers 
skill, labor, overhead, malpractice insurance and other related costs; 
and a monetary value assignment (conversion factor) for one unit of 
value in each of the categories of service.



Sec. 10.807  How are payments for particular services calculated?

    Payment for a procedure identified by a HCPCS/CPT code shall not 
exceed the amount derived by multiplying the relative values for that 
procedure by the geographic indices for services in that area and by the 
dollar amount assigned to one unit in that category of service.
    (a) The ``locality'' which serves as a basis for the determination 
of average cost is defined by the Bureau of Census Metropolitan 
Statistical Areas. The Director shall base the determination of the 
relative per capita cost of medical care in a locality using information 
about enrollment and medical cost per county, provided by the Health 
Care Financing Administration (HCFA).
    (b) The Director shall assign the relative value units (RVUs) 
published by HCFA to all services for which HCFA has made assignments, 
using the most recent revision. Where there are no RVUs assigned to a 
procedure, the Director may develop and assign any RVUs that he or she 
considers appropriate. The geographic adjustment factor shall be that 
designated by Geographic Practice Cost Indices for Metropolitan 
Statistical Areas as devised for HCFA and as updated or revised by HCFA 
from time to time. The Director will devise conversion factors for each 
category of service, and in doing so may adapt HCFA conversion factors 
as appropriate using OWCP's processing experience and internal data.
    (c) For example, if the unit values for a particular surgical 
procedure are 2.48 for physician's work (W), 3.63 for practice expense 
(PE), and 0.48 for malpractice insurance (M), and the dollar value 
assigned to one unit in that category of service (surgery) is $61.20, 
then the maximum allowable charge for one performance of that procedure 
is the product of the three RVUs times the corresponding geographical 
indices for the locality times the conversion factor. If the geographic 
indices for the locality are 0.988(W), 0.948 (PE), and 1.174 (M), then 
the maximum payment calculation is:

[(2.48)(0.988) + (3.63)(0.948) + (0.48)(1.174)] x $61.20
[2.45 + 3.44 + .56] x $61.20
6.45 x $61.20 = $394.74



Sec. 10.808  Does the fee schedule apply to every kind of procedure?

    Where the time, effort and skill required to perform a particular 
procedure vary widely from one occasion to the next, the Director may 
choose not to assign a relative value to that procedure. In this case 
the allowable charge for the procedure will be set individually based on 
consideration of a detailed medical report and other evidence. At its 
discretion, OWCP may set fees without regard to schedule limits for 
specially authorized consultant examinations, for examinations performed 
under 5 U.S.C. 8123, and for other specially authorized services.



Sec. 10.809  How are payments for medicinal drugs determined?

    Payment for medicinal drugs prescribed by physicians shall not 
exceed the amount derived by multiplying the average wholesale price of 
the medication by the quantity or amount provided, plus a dispensing 
fee.
    (a) All prescription medications identified by National Drug Code 
(NDC) will be assigned an average wholesale price representing the 
product's nationally recognized wholesale price as determined by surveys 
of manufacturers and wholesalers. The Director will establish the 
dispensing fee.

[[Page 63]]

    (b) The NDCs, the average wholesale prices, and the dispensing fee 
shall be reviewed from time to time and updated as necessary.



Sec. 10.810  How are payments for inpatient medical services determined?

    (a) OWCP will pay for inpatient medical services according to pre-
determined, condition-specific rates based on the Prospective Payment 
System (PPS) devised by HCFA (42 CFR parts 412, 413, 424, 485, and 489). 
Using this system, payment is derived by multiplying the diagnosis-
related group (DRG) weight assigned to the hospital discharge by the 
provider-specific factors.
    (1) All hospital discharges will be classified according to the DRGs 
prescribed by the HCFA in the form of the DRG Grouper software program. 
On this list, each DRG represents the average resources necessary to 
provide care in a case in that DRG relative to the national average of 
resources consumed per case.
    (2) The provider-specific factors will be provided by HCFA in the 
form of their PPS Pricer software program. The software takes into 
consideration the type of facility, census division, actual geographic 
location (MSA) of the hospital, case mix cost per discharge, number of 
hospital beds, intern/beds ratio, operating cost to charge ratio, and 
other factors used by HCFA to determine the specific rate for a hospital 
discharge under their PPS. The Director may devise price adjustment 
factors as appropriate using OWCP's processing experience and internal 
data.
    (3) OWCP will base payments to facilities excluded from HCFA's PPS 
on consideration of detailed medical reports and other evidence.
    (4) The Director shall review the pre-determined hospital rates at 
least once a year, and may adjust any or all components when he or she 
deems it necessary or appropriate.
    (b) The Director shall review the schedule of fees at least once a 
year, and may adjust the schedule or any of its components when he or 
she deems it necessary or appropriate.



Sec. 10.811  When and how are fees reduced?

    (a) OWCP shall accept a provider's designation of the code to 
identify a billed procedure or service if the code is consistent with 
medical reports and other evidence. Where no code is supplied, OWCP may 
determine the code based on the narrative description of the procedure 
on the billing form and in associated medical reports. OWCP will pay no 
more than the maximum allowable fee for that procedure.
    (b) If the charge submitted for a service supplied to an injured 
employee exceeds the maximum amount determined to be reasonable 
according to the schedule, OWCP shall pay the amount allowed by the 
schedule for that service and shall notify the provider in writing that 
payment was reduced for that service in accordance with the schedule. 
OWCP shall also notify the provider of the method for requesting 
reconsideration of the balance of the charge.



Sec. 10.812  If OWCP reduces a fee, may a provider request 
reconsideration of the reduction?

    (a) A physician or other provider whose charge for service is only 
partially paid because it exceeds a maximum allowable amount set by the 
Director may, within 30 days, request reconsideration of the fee 
determination.
    (1) The provider should make such a request to the OWCP district 
office with jurisdiction over the employee's claim. The request must be 
accompanied by documentary evidence that the procedure performed was 
incorrectly identified by the original code, that the presence of a 
severe or concomitant medical condition made treatment especially 
difficult, or that the provider possessed unusual qualifications. In 
itself, board-certification in a specialty is not sufficient evidence of 
unusual qualifications to justify an exception. These are the only three 
circumstances which will justify reevaluation of the paid amount.
    (2) A list of OWCP district offices and their respective areas of 
jurisdiction is available upon request from the U.S. Department of 
Labor, Office of Workers' Compensation Programs, Washington, DC 20210, 
or from the Internet

[[Page 64]]

at www.dol.gov./dol/esa/owcp.htm. Within 30 days of receiving the 
request for reconsideration, the OWCP district office shall respond in 
writing stating whether or not an additional amount will be allowed as 
reasonable, considering the evidence submitted.
    (b) If the OWCP district office issues a decision which continues to 
disallow a contested amount, the provider may apply to the Regional 
Director of the region with jurisdiction over the OWCP district office. 
The application must be filed within 30 days of the date of such 
decision, and it may be accompanied by additional evidence. Within 60 
days of receipt of such application, the Regional Director shall issue a 
decision in writing stating whether or not an additional amount will be 
allowed as reasonable, considering the evidence submitted. This decision 
shall be final, and shall not be subject to further review.



Sec. 10.813  If OWCP reduces a fee, may a provider bill the claimant 
for the balance?

    A provider whose fee for service is partially paid by OWCP as a 
result of the application of its fee schedule or other tests for 
reasonableness in accordance with this part shall not request 
reimbursement from the employee for additional amounts.
    (a) Where a provider's fee for a particular service or procedure is 
lower to the general public than as provided by the schedule of maximum 
allowable charges, the provider shall bill at the lower rate. A fee for 
a particular service or procedure which is higher than the provider's 
fee to the general public for that same service or procedure will be 
considered a charge ``substantially in excess of such provider's 
customary charges'' for the purposes of Sec. 10.815(d).
    (b) A provider whose fee for service is partially paid by OWCP as 
the result of the application of the schedule of maximum allowable 
charges and who collects or attempts to collect from the employee, 
either directly or through a collection agent, any amount in excess of 
the charge allowed by OWCP, and who does not cease such action or make 
appropriate refund to the employee within 60 days of the date of the 
decision of OWCP, shall be subject to the exclusion procedures provided 
by Sec. 10.815(h).

                         Exclusion of Providers



Sec. 10.815  What are the grounds for excluding a provider from payment 
under the FECA?

    A physician, hospital, or provider of medical services or supplies 
shall be excluded from payment under the FECA if such physician, 
hospital or provider has:
    (a) Been convicted under any criminal statute of fraudulent 
activities in connection with any Federal or State program for which 
payments are made to providers for similar medical, surgical or hospital 
services, appliances or supplies;
    (b) Been excluded or suspended, or has resigned in lieu of exclusion 
or suspension, from participation in any Federal or State program 
referred to in paragraph (a) of this section;
    (c) Knowingly made, or caused to be made, any false statement or 
misrepresentation of a material fact in connection with a determination 
of the right to reimbursement under the FECA, or in connection with a 
request for payment;
    (d) Submitted, or caused to be submitted, three or more bills or 
requests for payment within a twelve-month period under this subpart 
containing charges which the Director finds to be substantially in 
excess of such provider's customary charges, unless the Director finds 
there is good cause for the bills or requests containing such charges;
    (e) Knowingly failed to timely reimburse employees for treatment, 
services or supplies furnished under this subpart and paid for by OWCP;
    (f) Failed, neglected or refused on three or more occasions during a 
12-month period to submit full and accurate medical reports, or to 
respond to requests by OWCP for additional reports or information, as 
required by the FECA and Sec. 10.800;
    (g) Knowingly furnished treatment, services or supplies which are 
substantially in excess of the employee's needs, or of a quality which 
fails to meet professionally recognized standards; or

[[Page 65]]

    (h) Collected or attempted to collect from the employee, either 
directly or through a collection agent, an amount in excess of the 
charge allowed by OWCP for the procedure performed, and has failed or 
refused to make appropriate refund to the employee, or to cease such 
collection attempts, within 60 days of the date of the decision of OWCP.



Sec. 10.816  What will cause OWCP to automatically exclude a physician 
or other provider of medical services and supplies?

    (a) OWCP shall automatically exclude a physician, hospital, or 
provider of medical services or supplies who has been convicted of a 
crime described in Sec. 10.815(a), or has been excluded or suspended, 
or has resigned in lieu of exclusion or suspension, from participation 
in any program as described in Sec. 10.815(b).
    (b) The exclusion applies to participating in the program and to 
seeking payment under the FECA for services performed after the date of 
the entry of the judgment of conviction or order of exclusion, 
suspension or resignation, as the case may be, by the court or agency 
concerned. Proof of the conviction, exclusion, suspension or resignation 
may consist of a copy thereof authenticated by the seal of the court or 
agency concerned.



Sec. 10.817  When are OWCP's exclusion procedures initiated?

    Upon receipt of information indicating that a physician, hospital or 
provider of medical services or supplies (hereinafter the provider) has 
engaged in activities enumerated in paragraphs (c) through (h) of Sec. 
10.815, the Regional Director, after completion of inquiries he or she 
deems appropriate, may initiate procedures to exclude the provider from 
participation in the FECA program. For the purposes of this section, 
``Regional Director'' may include any officer designated to act on his 
or her behalf.



Sec. 10.818  How is a provider notified of OWCP's intent to exclude him 
or her?

    The Regional Director shall initiate the exclusion process by 
sending the provider a letter, by certified mail and with return receipt 
requested, which shall contain the following:
    (a) A concise statement of the grounds upon which exclusion shall be 
based;
    (b) A summary of the information, with supporting documentation, 
upon which the Regional Director has relied in reaching an initial 
decision that exclusion proceedings should begin;
    (c) An invitation to the provider to:
    (1) Resign voluntarily from participation in the FECA program 
without admitting or denying the allegations presented in the letter; or
    (2) Request that the decision on exclusion be based upon the 
existing record and any additional documentary information the provider 
may wish to furnish;
    (d) A notice of the provider's right, in the event of an adverse 
ruling by the Regional Director, to request a formal hearing before an 
administrative law judge;
    (e) A notice that should the provider fail to answer (as described 
in Sec. 10.819) the letter of intent within 30 calendar days of 
receipt, the Regional Director may deem the allegations made therein to 
be true and may order exclusion of the provider without conducting any 
further proceedings; and
    (f) The name and address of the OWCP representative who shall be 
responsible for receiving the answer from the provider.



Sec. 10.819  What requirements must the provider's reply and OWCP's 
decision meet?

    (a) The provider's answer shall be in writing and shall include an 
answer to OWCP's invitation to resign voluntarily. If the provider does 
not offer to resign, he or she shall request that a determination be 
made upon the existing record and any additional information provided.
    (b) Should the provider fail to answer the letter of intent within 
30 calendar days of receipt, the Regional Director may deem the 
allegations made therein to be true and may order exclusion of the 
provider.
    (c) By arrangement with the official representative, the provider 
may inspect or request copies of information

[[Page 66]]

in the record at any time prior to the Regional Director's decision.
    (d) The Regional Director shall issue his or her decision in 
writing, and shall send a copy of the decision to the provider by 
certified mail, return receipt requested. The decision shall advise the 
provider of his or her right to request, within 30 days of the date of 
the adverse decision, a formal hearing before an administrative law 
judge under the procedures set forth in Sec. 10.820. The filing of a 
request for a hearing within the time specified shall stay the 
effectiveness of the decision to exclude.



Sec. 10.820  How can an excluded provider request a hearing?

    A request for a hearing shall be sent to the official representative 
named under Sec. 10.818(f) and shall contain:
    (a) A concise notice of the issues on which the provider desires to 
give evidence at the hearing;
    (b) Any request for a more definite statement by OWCP;
    (c) Any request for the presentation of oral argument or evidence; 
and
    (d) Any request for a certification of questions concerning 
professional medical standards, medical ethics or medical regulation for 
an advisory opinion from a competent recognized professional 
organization or Federal, State or local regulatory body.



Sec. 10.821  How are hearings assigned and scheduled?

    (a) If the designated OWCP representative receives a timely request 
for hearing, the OWCP representative shall refer the matter to the Chief 
Administrative Law Judge of the Department of Labor, who shall assign it 
for an expedited hearing. The administrative law judge assigned to the 
matter shall consider the request for hearing, act on all requests 
therein, and issue a Notice of Hearing and Hearing Schedule for the 
conduct of the hearing. A copy of the hearing notice shall be served on 
the provider by certified mail, return receipt requested. The Notice of 
Hearing and Hearing Schedule shall include:
    (1) A ruling on each item raised in the request for hearing;
    (2) A schedule for the prompt disposition of all preliminary 
matters, including requests for more definite statements and for the 
certification of questions to advisory bodies; and
    (3) A scheduled hearing date not less than 30 days after the date 
the schedule is issued, and not less than 15 days after the scheduled 
conclusion of preliminary matters, provided that the specific time and 
place of the hearing may be set on 10 days' notice.
    (b) The purpose of the designation of issues is to provide for an 
effective hearing process. The provider is entitled to be heard on any 
matter placed in issue by his or her response to the Notice of Intent to 
Exclude, and may designate ``all issues'' for purposes of hearing. 
However, a specific designation of issues is required if the provider 
wishes to interpose affirmative defenses, or request the issuance of 
subpoenas or the certification of questions for an advisory opinion.



Sec. 10.822  How are subpoenas or advisory opinions obtained?

    (a) The provider may apply to the administrative law judge for the 
issuance of subpoenas upon a showing of good cause therefor.
    (b) A certification of a request for an advisory opinion concerning 
professional medical standards, medical ethics or medical regulation to 
a competent recognized or professional organization or Federal, State or 
local regulatory agency may be made:
    (1) As to an issue properly designated by the provider, in the sound 
discretion of the administrative law judge, provided that the request 
will not unduly delay the proceedings;
    (2) By OWCP on its own motion either before or after the institution 
of proceedings, and the results thereof shall be made available to the 
provider at the time that proceedings are instituted or, if after the 
proceedings are instituted, within a reasonable time after receipt. The 
opinion, if rendered by the organization or agency, is advisory only and 
not binding on the administrative law judge.



Sec. 10.823  How will the administrative law judge conduct the hearing 
and issue the recommended decision?

    (a) To the extent appropriate, proceedings before the administrative 
law

[[Page 67]]

judge shall be governed by 29 CFR part 18.
    (b) The administrative law judge shall receive such relevant 
evidence as may be adduced at the hearing. Evidence shall be presented 
under oath, orally or in the form of written statements. The 
administrative law judge shall consider the Notice and Response, 
including all pertinent documents accompanying them, and may also 
consider any evidence which refers to the provider or to any claim with 
respect to which the provider has provided medical services, hospital 
services, or medical services and supplies, and such other evidence as 
the administrative law judge may determine to be necessary or useful in 
evaluating the matter.
    (c) All hearings shall be recorded and the original of the complete 
transcript shall become a permanent part of the official record of the 
proceedings.
    (d) Pursuant to 5 U.S.C. 8126, the administrative law judge may:
    (1) Issue subpoenas for and compel the attendance of witnesses 
within a radius of 100 miles;
    (2) Administer oaths;
    (3) Examine witnesses; and
    (4) Require the production of books, papers, documents, and other 
evidence with respect to the proceedings.
    (e) At the conclusion of the hearing, the administrative law judge 
shall issue a written decision and cause it to be served on all parties 
to the proceeding, their representatives and the Director.



Sec. 10.824  How can a party request review by the Director of the 
administrative law judge's recommended decision?

    (a) Any party adversely affected or aggrieved by the decision of the 
administrative law judge may file a petition for discretionary review 
with the Director within 30 days after issuance of such decision. The 
administrative law judge's decision, however, shall be effective on the 
date issued and shall not be stayed except upon order of the Director.
    (b) Review by the Director shall not be a matter of right but of the 
sound discretion of the Director.
    (c) Petitions for discretionary review shall be filed only upon one 
or more of the following grounds:
    (1) A finding or conclusion of material fact is not supported by 
substantial evidence;
    (2) A necessary legal conclusion is erroneous;
    (3) The decision is contrary to law or to the duly promulgated rules 
or decisions of the Director;
    (4) A substantial question of law, policy, or discretion is 
involved; or
    (5) A prejudicial error of procedure was committed.
    (d) Each issue shall be separately numbered and plainly and 
concisely stated, and shall be supported by detailed citations to the 
record when assignments of error are based on the record, and by 
statutes, regulations or principal authorities relied upon. Except for 
good cause shown, no assignment of error by any party shall rely on any 
question of fact or law upon which the administrative law judge had not 
been afforded an opportunity to pass.
    (e) A statement in opposition to the petition for discretionary 
review may be filed, but such filing shall in no way delay action on the 
petition.
    (f) If a petition is granted, review shall be limited to the 
questions raised by the petition.
    (g) A petition not granted within 20 days after receipt of the 
petition is deemed denied.
    (h) The decision of the Director shall be final with respect to the 
provider's participation in the program, and shall not be subject to 
further review by any court or agency.



Sec. 10.825  What are the effects of exclusion?

    (a) OWCP shall give notice of the exclusion of a physician, hospital 
or provider of medical services or supplies to:
    (1) All OWCP district offices;
    (2) All Federal employers;
    (3) The HCFA;
    (4) The State or local authority responsible for licensing or 
certifying the excluded party; and
    (5) All employees who are known to have had treatment, services or 
supplies from the excluded provider within

[[Page 68]]

the six-month period immediately preceding the order of exclusion.
    (b) Notwithstanding any exclusion of a physician, hospital, or 
provider of medical services or supplies under this subpart, OWCP shall 
not refuse an employee reimbursement for any otherwise reimbursable 
medical treatment, service or supply if:
    (1) Such treatment, service or supply was rendered in an emergency 
by an excluded physician; or
    (2) The employee could not reasonably have been expected to have 
known of such exclusion.
    (c) An employee who is notified that his or her attending physician 
has been excluded shall have a new right to select a qualified 
physician.



Sec. 10.826  How can an excluded provider be reinstated?

    (a) If a physician, hospital, or provider of medical services or 
supplies has been automatically excluded pursuant to Sec. 10.816, the 
provider excluded will automatically be reinstated upon notice to OWCP 
that the conviction or exclusion which formed the basis of the automatic 
exclusion has been reversed or withdrawn. However, an automatic 
reinstatement shall not preclude OWCP from instituting exclusion 
proceedings based upon the underlying facts of the matter.
    (b) A physician, hospital, or provider of medical services or 
supplies excluded from participation as a result of an order issued 
pursuant to this subpart may apply for reinstatement one year after the 
entry of the order of exclusion, unless the order expressly provides for 
a shorter period. An application for reinstatement shall be addressed to 
the Director for Federal Employees' Compensation, and shall contain a 
concise statement of the basis for the application. The application 
should be accompanied by supporting documents and affidavits.
    (c) A request for reinstatement may be accompanied by a request for 
oral argument. Oral argument will be allowed only in unusual 
circumstances where it will materially aid the decision process.
    (d) The Director for Federal Employees' Compensation shall order 
reinstatement only in instances where such reinstatement is clearly 
consistent with the goal of this subpart to protect the FECA program 
against fraud and abuse. To satisfy this requirement the provider must 
provide reasonable assurances that the basis for the exclusion will not 
be repeated.



PART 25_Compensation for Disability and Death of Noncitizen Federal 
Employees Outside the United States--Table of Contents




                      Subpart A_General Provisions

Sec.
25.1 How are claims of Federal employees who are neither citizens nor 
          residents adjudicated?
25.2 In general, what is the Director's policy regarding such claims?
25.3 What is the authority to settle and pay such claims?
25.4 What type of evidence is required to establish a claim under this 
          part?
25.5 What special rules does OWCP apply to claims of third and fourth 
          country nationals?
25.6 How does OWCP adjudicate claims of non-citizen residents of 
          possessions?

             Subpart B_The Special Schedule of Compensation

25.100 How is compensation for disability paid?
25.101 How is compensation for death paid?
25.102 What general provisions does OWCP apply to the Special Schedule?

      Subpart C_Extensions of the Special Schedule of Compensation

25.200 How is the Special Schedule applied for employees in the Republic 
          of the Philippines?
25.201 How is the Special Schedule applied for employees in Australia?
25.202 How is the Special Schedule applied for Japanese seamen?
25.203 How is the Special Schedule applied to non-resident aliens in the 
          Territory of Guam?

    Authority: 5 U.S.C. 301, 8137, 8145 and 8149; 1946 Reorganization 
Plan No. 2, sec. 3, 3 CFR 1943-1948 Comp., p. 1064; 60 Stat. 1095; 
Reorganization Plan No. 19 of 1950, sec. 1, 3 CFR 1943-1953 Comp., p. 
1010; 64 Stat. 1271; Secretary's Order 5-96, 62 FR 107.

    Source: 63 FR 65340, Nov. 25, 1998, unless otherwise noted.

[[Page 69]]



                      Subpart A_General Provisions



Sec. 25.1  How are claims of Federal employees who are neither citizens 
nor residents adjudicated?

    This part describes how OWCP pays compensation under the FECA to 
employees of the United States who are neither citizens nor residents of 
the United States, any territory or Canada, as well as to any dependents 
of such employees. It has been determined that the compensation provided 
under the FECA is substantially disproportionate to the compensation for 
disability or death which is payable in similar cases under local law, 
regulation, custom or otherwise, in areas outside the United States, any 
territory or Canada. Therefore, with respect to the claims of such 
employees whose injury (or injury resulting in death) has occurred 
subsequent to December 7, 1941, or may occur, the regulations in this 
part shall apply.



Sec. 25.2  In general, what is the Director's policy regarding such 
claims?

    (a) Pursuant to 5 U.S.C. 8137, the benefit features of local 
workers' compensation laws, or provisions in the nature of workers' 
compensation, in effect in areas outside the United States, any 
territory or Canada shall, effective as of December 7, 1941 and as 
recognized by the Director, be adopted and apply in the cases of 
employees of the United States who are neither citizens nor residents of 
the United States, any territory or Canada, unless a special schedule of 
compensation for injury or death has been established under this part 
for the particular locality, or for a class of employees in the 
particular locality.
    (b) The benefit provisions adopted under paragraph (a) of this 
section are those dealing with money payments for injury and death 
(including medical benefits), as well as those dealing with services and 
purposes forming an integral part of the local plan, provided they are 
of a kind or character similar to services and purposes authorized by 
the FECA.
    (1) Procedural provisions, designations of classes of beneficiaries 
in death cases, limitations (except those affecting amounts of benefit 
payments), and any other provisions not directly affecting the amounts 
of the benefit payments, in such local plans, shall not apply, but in 
lieu thereof the pertinent provisions of the FECA shall apply, unless 
modified in this section.
    (2) However, the Director may at any time modify, limit or 
redesignate the class or classes of beneficiaries entitled to death 
benefits, including the designation of persons, representatives or 
groups entitled to payment under local statute or custom whether or not 
included in the classes of beneficiaries otherwise specified by this 
subchapter.
    (c) Compensation in all cases of such employees paid and closed 
prior to January 4, 1999 shall be deemed compromised and paid under 5 
U.S.C. 8137. In all other cases, compensation may be adjusted to conform 
with the regulations in this part, or the beneficiary may by compromise 
or agreement with the Director have compensation continued on the basis 
of a previous adjustment of the claim.
    (d) Persons employed in a country or area having no well-defined 
workers' compensation benefits structure shall be accorded the benefits 
provided--either by local law or special schedule--in a nearby country 
as determined by the Director. In selecting the benefit structure to be 
applied, equity and administrative ease will be given consideration, as 
well as local custom.
    (e) Compensation for disability and death of non-citizens outside 
the United States under this part, whether paid under local law or 
special schedule, shall in no event exceed that generally payable under 
the FECA.



Sec. 25.3  What is the authority to settle and pay such claims?

    In addition to the authority to receive, process and pay claims, 
when delegated such representative or agency receiving delegation of 
authority shall, in respect to cases adjudicated under this part, and 
when so authorized by the Director, have authority to make lump-sum 
awards (in the manner prescribed by 5 U.S.C. 8135) whenever such 
authorized representative shall deem such settlement to be for the best 
interest of the United States, and to compromise and pay claims for any 
benefits provided for under this part,

[[Page 70]]

including claims in which there is a dispute as to questions of fact or 
law. The Director shall, in instructions to the particular 
representative concerned, establish such procedures in respect to action 
under this section as he or she may deem necessary, and may specify the 
scope of any administrative review of such action.



Sec. 25.4  What type of evidence is required to establish a claim under 
this part?

    Claims of employees of the United States who are neither citizens 
nor residents of the United States, any territory or Canada, if 
otherwise compensable, shall be approved only upon evidence of the 
following nature without regard to the date of injury or death for which 
claim is made:
    (a) Appropriate certification by the Federal employing 
establishment; or
    (b) An armed service's casualty or medical record; or
    (c) Verification of the employment and casualty by military 
personnel; or
    (d) Recommendation of an armed service's ``Claim Service'' based on 
investigations conducted by it.



Sec. 25.5  What special rules does OWCP apply to claims of third and 
fourth country nationals?

    (a) Definitions. A ``third country national'' is a person who is 
neither a citizen nor resident of the United States who is hired by the 
United States in the person's country of citizenship or residence for 
employment in another foreign country, or in a possession or territory 
of the United States. A ``fourth country national'' is a person who is 
neither a citizen nor resident of either the country of hire or the 
place of employment, but who otherwise meets the definition of third 
country national. ``Benefits applicable to local hires'' are the 
benefits provided in this part by local law or special schedule, as 
determined by the Director. With respect to a United States territory or 
possession, ``local law'' means only the law of the particular territory 
or possession.
    (b) Benefits payable. Third and fourth country nationals shall be 
paid the benefits applicable to local hires in the country of hire or 
the place of employment, whichever benefits are greater, provided that 
all benefits payable on account of one injury must be paid under the 
same benefit structure.
    (1) Where no well-defined workers' compensation benefits structure 
is provided in either the country of hire or the place of employment, 
the provisions of Sec. 25.2(d) shall apply.
    (2) Where equitable considerations as determined by the Director so 
warrant, a fourth country national may be awarded benefits applicable to 
local hires in his or her home country.



Sec. 25.6  How does OWCP adjudicate claims of non-citizen residents of 
possessions?

    An employee who is a bona fide permanent resident of any United 
States possession, territory, commonwealth or trust territory will 
receive the full benefits of the FECA, as amended, except that the 
application of the minimum benefit provisions provided therein shall be 
governed by the restrictions set forth in 5 U.S.C. 8138.



             Subpart B_The Special Schedule of Compensation



Sec. 25.100  How is compensation for disability paid?

    Compensation for disability shall be paid to the employee as 
follows:
    (a) Permanent total disability. In cases of permanent total 
disability, 66\2/3\ percent of the monthly pay during the period of such 
disability.
    (b) Temporary total disability. In cases of temporary total 
disability, 66\2/3\ percent of the monthly pay during the period of such 
disability.
    (c) Permanent partial disability. In cases of permanent partial 
disability, 66\2/3\ percent of the monthly pay, for the following losses 
and periods:
    (1) Arm lost: 280 weeks' compensation.
    (2) Leg lost: 248 weeks' compensation.
    (3) Hand lost: 212 weeks' compensation.
    (4) Foot lost: 173 weeks' compensation.
    (5) Eye lost: 140 weeks' compensation.
    (6) Thumb lost: 51 weeks' compensation.
    (7) First finger lost: 28 weeks' compensation.

[[Page 71]]

    (8) Great toe lost: 26 weeks' compensation.
    (9) Second finger lost: 18 weeks' compensation.
    (10) Third finger lost: 17 weeks' compensation.
    (11) Toe, other than great toe, lost: 8 weeks' compensation.
    (12) Fourth finger lost: 7 weeks' compensation.
    (13) Loss of hearing: One ear, 52 weeks' compensation; both ears, 
200 weeks' compensation.
    (14) Phalanges: Compensation for loss of more than one phalanx of a 
digit shall be the same as for the loss of the entire digit. 
Compensation for loss of the first phalanx shall be one-half of the 
compensation for the loss of the entire digit.
    (15) Amputated arm or leg: Compensation for an arm or a leg, if 
amputated at or above the elbow or the knee, shall be the same as for 
the loss of the arm or leg; but, if amputated between the elbow and the 
wrist, or between the knee and the ankle, the compensation shall be the 
same as for the loss of the hand or the foot.
    (16) Binocular vision or percent of vision: Compensation for loss of 
binocular vision, or for 80 percent or more of the vision of an eye 
shall be the same as for the loss of the eye.
    (17) Two or more digits: Compensation for loss of two or more 
digits, one or more phalanges of two or more digits of a hand or foot 
may be proportioned to the loss of use of the hand or foot occasioned 
thereby, but shall not exceed the compensation for the loss of a hand or 
a foot.
    (18) Total loss of use: Compensation for a permanent total loss of 
use of a member shall be the same as for loss of the member.
    (19) Partial loss or partial loss of use: Compensation for permanent 
partial loss or loss of use of a member may be for proportionate loss of 
use of the member.
    (20) Consecutive awards: In any case in which there shall be a loss 
or loss of use of more than one member or parts of more than one member 
set forth in paragraphs (c) (1) through (19) of this section, but not 
amounting to permanent total disability, the award of compensation shall 
be for the loss or loss of use of each such member or part thereof, 
which awards shall run consecutively, except that where the injury 
affects only two or more digits of the same hand or foot, paragraph 
(c)(17) of this section shall apply.
    (21) Other cases: In all other cases within this class of disability 
the compensation during the continuance of disability shall be that 
proportion of compensation for permanent total disability, as determined 
under paragraph (a) of this section, which is equal in percentage to the 
degree or percentage of physical impairment caused by the disability.
    (22) Compensation under paragraphs (c) (1) through (21) of this 
section for permanent partial disability shall be in addition to any 
compensation for temporary total or temporary partial disability under 
this section, and awards for temporary total, temporary partial, and 
permanent partial disability shall run consecutively.
    (d) Temporary partial disability. In cases of temporary partial 
disability, during the period of disability, that proportion of 
compensation for temporary total disability, as determined under 
paragraph (b) of this section, which is equal in percentage to the 
degree or percentage of physical impairment caused by the disability.



Sec. 25.101  How is compensation for death paid?

    If the disability causes death, the compensation shall be payable in 
the amount and to or for the benefit of the following persons:
    (a) To the undertaker or person entitled to reimbursement, 
reasonable funeral expenses not exceeding $200.
    (b) To the surviving spouse, if there is no child, 35 percent of the 
monthly pay until his or her death or remarriage.
    (c) To the surviving spouse, if there is a child, the compensation 
payable under paragraph (b) of this section, and in addition thereto 10 
percent of the monthly wage for each child, not to exceed a total of 
66\2/3\ percent for such surviving spouse and children. If a child has a 
guardian other than the surviving spouse, the compensation payable on 
account of such child shall

[[Page 72]]

be paid to such guardian. The compensation of any child shall cease when 
he or she dies, marries or reaches the age of 18 years, or if over such 
age and incapable of self-support, becomes capable of self-support.
    (d) To the children, if there is no surviving spouse, 25 percent of 
the monthly pay for one child and 10 percent thereof for each additional 
child, not to exceed a total of 66\2/3\ percent thereof, divided among 
such children share and share alike. The compensation of each child 
shall be paid until he or she dies, marries or reaches the age of 18, or 
if over such age and incapable of self-support, becomes capable of self-
support. The compensation of a child under legal age shall be paid to 
its guardian, if there is one, otherwise to the person having the 
custody or care of such child, for such child, as the Director in his or 
her discretion shall determine.
    (e) To the parents, if one is wholly dependent for support upon the 
deceased employee at the time of his or her death and the other is not 
dependent to any extent, 25 percent of the monthly pay; if both are 
wholly dependent, 20 percent thereof to each; if one is or both are 
partly dependent, a proportionate amount in the discretion of the 
Director. The compensation to a parent or parents in the percentages 
specified shall be paid if there is no surviving spouse or child, but if 
there is a surviving spouse or child, there shall be paid so much of 
such percentages for a parent or parents as, when added to the total of 
the percentages of the surviving spouse and children, will not exceed a 
total of 66\2/3\ percent of the monthly pay.
    (f) To the brothers, sisters, grandparents and grandchildren, if one 
is wholly dependent upon the deceased employee for support at the time 
of his or her death, 20 percent of the monthly pay to such dependent; if 
more than one are wholly dependent, 30 percent of such pay, divided 
among such dependents share and share alike; if there is no one of them 
wholly dependent, but one or more are partly dependent, 10 percent of 
such pay divided among such dependents share and share alike. The 
compensation to such beneficiaries shall be paid if there is no 
surviving spouse, child or dependent parent. If there is a surviving 
spouse, child or dependent parent, there shall be paid so much of the 
above percentages as, when added to the total of the percentages payable 
to the surviving spouse, children and dependent parents, will not exceed 
a total of 66\2/3\ percent of such pay.
    (g) The compensation of each beneficiary under paragraphs (e) and 
(f) of this section shall be paid until he or she, if a parent or 
grandparent, dies, marries or ceases to be dependent, or, if a brother, 
sister or grandchild, dies, marries or reaches the age of 18 years, or 
if over such age and incapable of self-support, becomes capable of self-
support. The compensation of a brother, sister or grandchild under legal 
age shall be paid to his or her guardian, if there is one, otherwise to 
the person having the custody or care of such person, for such person, 
as the Director in his or her discretion shall determine.
    (h) Upon the cessation of any person's compensation for death under 
this subpart, the compensation of any remaining person entitled to 
continuing compensation in the same case shall be adjusted, so that the 
continuing compensation shall be at the same rate such person would have 
received had no award been made to the person whose compensation ceased.
    (i) In cases where there are two or more classes of persons entitled 
to compensation for death under this subpart, and the apportionment of 
such compensation as provided in this section would result in injustice, 
the Director may in his or her discretion modify the apportionments to 
meet the requirements of the case.



Sec. 25.102  What general provisions does OWCP apply to the Special 
Schedule?

    (a) The definitions of terms in the FECA, as amended, shall apply to 
terms used in this subpart.
    (b) The provisions of the FECA, unless modified by this subpart or 
otherwise inapplicable, shall be applied whenever possible in the 
application of this subpart.
    (c) The provisions of the regulations for the administration of the 
FECA, as amended or supplemented from time to time by instructions 
applicable to this

[[Page 73]]

subpart, shall apply in the administration of compensation under this 
subpart, whenever they can reasonably be applied.



      Subpart C_Extensions of the Special Schedule of Compensation



Sec. 25.200  How is the Special Schedule applied for employees in the 
Republic of the Philippines?

    (a) Modified special schedule of compensation. Except for injury or 
death of direct-hire employees of the U.S. Military Forces covered by 
the Philippine Medical Care Program and the Employees' Compensation 
Program pursuant to the agreement signed by the United States and the 
Republic of the Philippines on March 10, 1982 who are also members of 
the Philippine Social Security System, the special schedule of 
compensation established in subpart B of this part shall apply, with the 
modifications or additions specified in paragraphs (b) through (k) of 
this section, in the Republic of the Philippines, to injury or death 
occurring on or after July 1, 1968, with the following limitations:
    (1) Temporary disability. Benefits for payments accruing on and 
after July 1, 1969, for injuries causing temporary disability and which 
occurred on and after July 1, 1968, shall be payable at the rates in the 
special schedule as modified in this section.
    (2) Permanent disability and death. Benefits for injuries occurring 
on and after July 1, 1968, which cause permanent disability or death, 
shall be payable at the rates specified in the special schedule as 
modified in this section for all awards not paid in full before July 1, 
1969, and any award paid in full prior to July 1, 1969: Provided, that 
application for adjustment is made, and the adjustment will result in 
additional benefits of at least $10. In the case of injuries or death 
occurring on or after December 8, 1941 and prior to July 1, 1968, the 
special schedule as modified in this section may be applied to 
prospective awards for permanent disability or death, provided that the 
monthly and aggregate maximum provisions in effect at the time of injury 
or death shall prevail. These maxima are $50 and $4,000, respectively.
    (b) Death benefits. 400 weeks' compensation at two-thirds of the 
weekly wage rate, shared equally by the eligible survivors in the same 
class.
    (c) Death beneficiaries. Benefits are payable to the survivors in 
the following order of priority (all beneficiaries in the highest 
applicable classes are entitled to share equally):
    (1) Surviving spouse and unmarried children under 18, or over 18 and 
totally incapable of self-support.
    (2) Dependent parents.
    (3) Dependent grandparents.
    (4) Dependent grandchildren, brothers and sisters who are unmarried 
and under 18, or over 18 and totally incapable of self-support.
    (d) Burial allowance. 14 weeks' wages or $400, whichever is less, 
payable to the eligible survivor(s), regardless of the actual expense. 
If there is no eligible survivor, actual burial expenses may be paid or 
reimbursed, in an amount not to exceed what would be paid to an eligible 
survivor.
    (e) Permanent total disability. 400 weeks' compensation at two-
thirds of the weekly wage rate.
    (f) Permanent partial disability. Where applicable, the compensation 
provided in paragraphs (c) (1) through (19) of Sec. 25.100, subject to 
an aggregate limitation of 400 weeks' compensation. In all other cases, 
provided for permanent total disability that proportion of the 
compensation (paragraph (e) of this section) which is equivalent to the 
degree or percentage of physical impairment caused by the disability.
    (g) Temporary partial disability. Two-thirds of the weekly loss of 
wage-earning capacity.
    (h) Compensation period for temporary disability. Compensation for 
temporary disability is payable for a maximum period of 80 weeks.
    (i) Maximum compensation. The total aggregate compensation payable 
in any case, for injury or death or both, shall not exceed $8,000, 
exclusive of medical costs and burial allowance. The weekly rate of 
compensation for disability or death shall not exceed $35.
    (j) Method of payment. Only compensation for temporary disability

[[Page 74]]

shall be payable periodically. Compensation for permanent disability and 
death shall be payable in full at the time the extent of entitlement is 
established.
    (k) Exceptions. The Director in his or her discretion may make 
exceptions to the regulations in this section by:
    (1) Reapportioning death benefits, for the sake of equity.
    (2) Excluding from consideration potential death beneficiaries who 
are not available to receive payment.
    (3) Paying compensation for permanent disability or death on a 
periodic basis, where this method of payment is considered to be in the 
best interest of the beneficiary.



Sec. 25.201  How is the Special Schedule applied for employees in 
Australia?

    (a) The special schedule of compensation established by subpart B of 
this part shall apply in Australia with the modifications or additions 
specified in paragraph (b) of this section, as of December 8, 1941, in 
all cases of injury (or death from injury) which occurred between 
December 8, 1941 and December 31, 1961, inclusive, and shall be applied 
retrospectively in all such cases of injury (or death from injury). 
Compensation in all such cases pending as of July 15, 1946, shall be 
readjusted accordingly, with credit taken in the amount of compensation 
paid prior to such date. Refund of compensation shall not be required if 
the amount of compensation paid in any such case, otherwise than through 
fraud, misrepresentation or mistake, and prior to July 15, 1946, exceeds 
the amount provided for under this paragraph, and such case shall be 
deemed compromised and paid under 5 U.S.C. 8137.
    (b) The total aggregate compensation payable in any case under 
paragraph (a) of this section, for injury or death or both, shall not 
exceed the sum of $4,000, exclusive of medical costs. The maximum 
monthly rate of compensation in any such case shall not exceed the sum 
of $50.
    (c) The benefit amounts payable under the provisions of the 
Commonwealth Employees' Compensation Act of 1930-1964, Australia, shall 
apply as of January 1, 1962, in Australia, as the exclusive measure of 
compensation in cases of injury (or death from injury) according on and 
after January 1, 1962, and shall be applied retrospectively in all such 
cases, occurring on and after such date: Provided, that the compensation 
payable under the provisions of this paragraph shall in no event exceed 
that payable under the FECA.



Sec. 25.202  How is the Special Schedule applied for Japanese seamen?

    (a) The special schedule of compensation established by subpart B of 
this part shall apply as of November 1, 1971, with the modifications or 
additions specified in paragraphs (b) through (i) of this section, to 
injuries sustained outside the continental United States or Canada by 
direct-hire Japanese seamen who are neither citizens nor residents of 
the United States or Canada and who are employed by the Military Sealift 
Command in Japan.
    (b) Temporary total disability. Weekly compensation shall be paid at 
75 percent of the weekly wage rate.
    (c) Temporary partial disability. Weekly compensation shall be paid 
at 75 percent of the weekly loss of wage-earning capacity.
    (d) Permanent total disability. Compensation shall be paid in a lump 
sum equivalent to 360 weeks' wages.
    (e) Permanent partial disability. (1) The provisions of Sec. 25.100 
shall apply to the types of permanent partial disability listed in 
paragraphs (c) (1) through (19) of that section: Provided that weekly 
compensation shall be paid at 75 percent of the weekly wage rate and 
that the number of weeks allowed for specified losses shall be changed 
as follows:
    (i) Arm lost: 312 weeks.
    (ii) Leg lost: 288 weeks.
    (iii) Hand lost: 244 weeks.
    (iv) Foot lost: 205 weeks.
    (v) Eye lost: 160 weeks.
    (vi) Thumb lost: 75 weeks.
    (vii) First finger lost: 46 weeks.
    (viii) Second finger lost: 30 weeks.
    (ix) Third finger lost: 25 weeks.
    (x) Fourth finger lost: 15 weeks.
    (xi) Great toe lost: 38 weeks.
    (xii) Toe, other than great toe lost: 16 weeks.
    (2) In all other cases, that proportion of the compensation provided 
for permanent total disability in paragraph (d) of this section which is 
equivalent

[[Page 75]]

to the degree or percentage of physical impairment caused by the injury.
    (f) Death. If there are two or more eligible survivors, compensation 
equivalent to 360 weeks' wages shall be paid to the survivors, share and 
share alike. If there is only one eligible survivor, compensation 
equivalent to 300 weeks' wages shall be paid. The following survivors 
are eligible for death benefits:
    (1) Spouse who lived with or was dependent upon the employee.
    (2) Unmarried children under 21 who lived with or were dependent 
upon the employee.
    (3) Adult children who were dependent upon the employee by reason of 
physical or mental disability.
    (4) Dependent parents, grandparents and grandchildren.
    (g) Burial allowance. $1,000 payable to the eligible survivor(s), 
regardless of actual expenses. If there are no eligible survivors, 
actual expenses may be paid or reimbursed, up to $1,000.
    (h) Method of payment. Only compensation for temporary disability 
shall be payable periodically, as entitlement accrues. Compensation for 
permanent disability and death shall be payable in a lump sum.
    (i) Maxima. In all cases, the maximum weekly benefit shall be $130. 
Also, except in cases of permanent total disability and death, the 
aggregate maximum compensation payable for any injury shall be $40,000.
    (j) Prior injury. In cases where injury or death occurred prior to 
November 1, 1971, benefits will be paid in accordance with regulations 
promulgated, contained in 20 CFR parts 1-399, edition revised as of 
January 1, 1971.



Sec. 25.203  How is the Special Schedule applied to non-resident aliens 
in the Territory of Guam?

    (a) The special schedule of compensation established by subpart B of 
this part shall apply, with the modifications or additions specified in 
paragraphs (b) through (k) of this section, to injury or death occurring 
on or after July 1, 1971 in the Territory of Guam to non-resident alien 
employees recruited in foreign countries for employment by the military 
departments in the Territory of Guam. However, the Director may, in his 
or her discretion, adopt the benefit features and provisions of local 
workers' compensation law as provided in subpart A of this part, or 
substitute the special schedule in subpart B of this part or other 
modifications of the special schedule in this subpart C, if such 
adoption or substitution would be to the advantage of the employee or 
his or her beneficiary. This schedule shall not apply to any employee 
who becomes a permanent resident in the Territory of Guam prior to the 
date of his or her injury or death.
    (b) Death benefits. 400 weeks' compensation at two-thirds of the 
weekly wage rate, shared equally by the eligible survivors in the same 
class.
    (c) Death beneficiaries. Beneficiaries of death benefits shall be 
determined in accordance with the laws or customs of the country of 
recruitment.
    (d) Burial allowance. 14 weeks' wages or $400, whichever is less, 
payable to the eligible survivor(s), regardless of the actual expense. 
If there is no eligible survivor, actual burial expenses may be paid or 
reimbursed, in an amount not to exceed what would be paid to an eligible 
survivor.
    (e) Permanent total disability. 400 weeks' compensation at two-
thirds of the weekly wage rate.
    (f) Permanent partial disability. Where applicable, the compensation 
provided in paragraphs (c) (1) through (19) of Sec. 25.100, subject to 
an aggregate limitation of 400 weeks' compensation. In all other cases, 
that proportion of the compensation provided for permanent total 
disability (paragraph (e) of this section) which is equivalent to the 
degree or percentage of physical impairment caused by the disability.
    (g) Temporary partial disability. Two-thirds of the weekly loss of 
wage-earning capacity.
    (h) Compensation period for temporary disability. Compensation for 
temporary disability is payable for a maximum period of 80 weeks.
    (i) Maximum compensation. The total aggregate compensation payable 
in any case, for injury or death or both, shall not exceed $24,000, 
exclusive of medical costs and burial allowance. The weekly rate of 
compensation for disability or death shall not exceed $70.

[[Page 76]]

    (j) Method of payment. Compensation for temporary disability shall 
be payable periodically. Compensation for permanent disability and death 
shall be payable in full at the time the extent of entitlement is 
established.
    (k) Exceptions. The Director may in his or her discretion make 
exception to the regulations in this section by:
    (1) Reapportioning death benefits for the sake of equity.
    (2) Excluding from consideration potential beneficiaries of a 
deceased employee who are not available to receive payment.
    (3) Paying compensation for permanent disability or death on a 
periodic basis, where this method of payment is considered to be in the 
best interest of the employee or his or her beneficiary(ies).

[[Page 77]]



SUBCHAPTER C_ENERGY EMPLOYEES OCCUPATIONAL ILLNESS COMPENSATION PROGRAM 
                               ACT OF 2000





PART 30_CLAIMS FOR COMPENSATION UNDER THE ENERGY EMPLOYEES OCCUPATIONAL 
ILLNESS COMPENSATION PROGRAM ACT OF 2000, AS AMENDED--Table of Contents




                      Subpart A_General Provisions

                              Introduction

Sec.
30.0 What are the provisions of the EEOICPA, in general?
30.1 What rules govern the administration of the EEOICPA and this 
          chapter?
30.2 In general, how have the tasks associated with the administration 
          of the EEOICPA claims process been assigned?
30.3 What do these regulations contain?

                               Definitions

30.5 What are the definitions used in this part?

                     Information in Program Records

30.10 Are all OWCP records relating to claims filed under the EEOICPA 
          considered confidential?
30.11 Who maintains custody and control of claim records?
30.12 What process is used by a person who wants to obtain copies of or 
          amend EEOICPA claim records?

                          Rights and Penalties

30.15 May EEOICPA benefits be assigned, transferred or garnished?
30.16 What penalties may be imposed in connection with a claim under the 
          Act?
30.17 Is a beneficiary who defrauds the government in connection with a 
          claim for EEOICPA benefits still entitled to those benefits?

     Subpart B_Filing Claims; Evidence and Burden of Proof; Special 
                  Procedures for Certain Cancer Claims

                Filing Claims for Benefits Under EEOICPA

30.100 In general, how does an employee file an initial claim for 
          benefits?
30.101 In general, how is a survivor's claim filed?
30.102 In general, how does an employee file a claim for additional 
          impairment or wage-loss under Part E of EEOICPA?
30.103 How does a claimant make sure that OWCP has the evidence 
          necessary to process the claim?

                   Verification of Alleged Employment

30.105 What must DOE do after an employee or survivor files a claim?
30.106 Can OWCP request employment verification from other sources?

                      Evidence and Burden of Proof

30.110 Who is entitled to compensation under the Act?
30.111 What is the claimant's responsibility with respect to burden of 
          proof, production of documents, presumptions, and affidavits?
30.112 What kind of evidence is needed to establish covered employment 
          and how will that evidence be evaluated?
30.113 What are the requirements for written medical documentation, 
          contemporaneous records, and other records or documents?
30.114 What kind of evidence is needed to establish a covered medical 
          condition and how will that evidence be evaluated?

         Special Procedures for Certain Radiogenic Cancer Claims

30.115 For those radiogenic cancer claims that do not seek benefits 
          under Part B of the Act pursuant to the Special Exposure 
          Cohort provisions, what will OWCP do once it determines that 
          an employee contracted cancer?

                     Subpart C_Eligibility Criteria

                           General Provisions

30.200 What is the scope of this subpart?

 Eligibility Criteria for Claims Relating to Covered Beryllium Illness 
                         Under Part B of EEOICPA

30.205 What are the criteria for eligibility for benefits relating to 
          beryllium illnesses covered under Part B of EEOICPA?
30.206 How does a claimant prove that the employee was a ``covered 
          beryllium employee'' exposed to beryllium dust, particles or 
          vapor in the performance of duty?
30.207 How does a claimant prove a diagnosis of a beryllium disease 
          covered under Part B?

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  Eligibility Criteria for Claims Relating to Radiogenic Cancer Under 
                        Parts B and E of EEOICPA

30.210 What are the criteria for eligibility for benefits relating to 
          radiogenic cancer?
30.211 How does a claimant establish that the employee has or had 
          contracted cancer?
30.212 How does a claimant establish that the employee contracted cancer 
          after beginning employment at a DOE facility, an atomic 
          weapons employer facility or a RECA section 5 facility?
30.213 How does a claimant establish that the radiogenic cancer was at 
          least as likely as not related to employment at the DOE 
          facility, the atomic weapons employer facility, or the RECA 
          section 5 facility?
30.214 How does a claimant establish that the employee is a member of 
          the Special Exposure Cohort?
30.215 How does a claimant establish that the employee has sustained an 
          injury, illness, impairment or disease as a consequence of a 
          diagnosed cancer?

Eligibility Criteria for Claims Relating to Chronic Silicosis Under Part 
                              B of EEOICPA

30.220 What are the criteria for eligibility for benefits relating to 
          chronic silicosis?
30.221 How does a claimant prove exposure to silica in the performance 
          of duty?
30.222 How does a claimant establish that the employee has been 
          diagnosed with chronic silicosis or has sustained a 
          consequential injury, illness, impairment or disease?

   Eligibility Criteria for Certain Uranium Employees Under Part B of 
                                 EEOICPA

30.225 What are the criteria for eligibility for benefits under Part B 
          of EEOICPA for certain uranium employees?
30.226 How does a claimant establish that a covered uranium employee has 
          sustained a consequential injury, illness, impairment or 
          disease?

      Eligibility Criteria for Other Claims Under Part E of EEOICPA

30.230 What are the criteria necessary to establish that an employee 
          contracted a covered illness under Part E of EEOICPA?
30.231 How does a claimant prove employment-related exposure to a toxic 
          substance at a DOE facility or a RECA section 5 facility?
30.232 How does a claimant establish that the employee has been 
          diagnosed with a covered illness, or sustained an injury, 
          illness, impairment or disease as a consequence of a covered 
          illness?

                     Subpart D_Adjudicatory Process

30.300 What process will OWCP use to decide claims for entitlement and 
          to provide for administrative review of those decisions?
30.301 May subpoenas be issued for witnesses and documents in connection 
          with a claim under Part B of EEOICPA?
30.302 Who pays the costs associated with subpoenas?
30.303 What information may OWCP request in connection with a claim 
          under Part E of EEOICPA?

                     Recommended Decisions on Claims

30.305 How does OWCP determine entitlement to EEOICPA compensation?
30.306 What does the recommended decision contain?
30.307 To whom is the recommended decision sent?

                 Hearings and Final Decisions on Claims

30.310 What must the claimant do if he or she objects to the recommended 
          decision or wants to request a hearing?
30.311 What happens if the claimant does not object to the recommended 
          decision or request a hearing within 60 days?
30.312 What will the FAB do if the claimant objects to the recommended 
          decision but does not request a hearing?
30.313 How is a review of the written record conducted?
30.314 How is a hearing conducted?
30.315 May a claimant postpone a hearing?
30.316 How does the FAB issue a final decision on a claim?
30.317 Can the FAB request a further response from the claimant or 
          return a claim to the district office?
30.318 Can the FAB consider objections to HHS's reconstruction of a 
          radiation dose or to the guidelines OWCP uses to determine if 
          a claimed cancer was at least as likely as not related to 
          employment?
30.319 May a claimant request reconsideration of a final decision of the 
          FAB?

                            Reopening Claims

30.320 Can a claim be reopened after the FAB has issued a final 
          decision?

                 Subpart E_Medical and Related Benefits

                  Medical Treatment and Related Issues

30.400 What are the basic rules for obtaining medical treatment?
30.401 What are the special rules for the services of chiropractors?
30.402 What are the special rules for the services of clinical 
          psychologists?
30.403 Will OWCP pay for the services of an attendant?
30.404 Will OWCP pay for transportation to obtain medical treatment?

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30.405 After selecting a treating physician, may an employee choose to 
          be treated by another physician instead?
30.406 Are there any exceptions to these procedures for obtaining 
          medical care?

                      Directed Medical Examinations

30.410 Can OWCP require an employee to be examined by another physician?
30.411 What happens if the opinion of the physician selected by OWCP 
          differs from the opinion of the physician selected by the 
          employee?
30.412 Who pays for second opinion and referee examinations?

                             Medical Reports

30.415 What are the requirements for medical reports?
30.416 How and when should medical reports be submitted?
30.417 What additional medical information may OWCP require to support 
          continuing payment of benefits?

                              Medical Bills

30.420 How should medical bills and reimbursement requests be submitted?
30.421 What are the time frames for submitting bills and reimbursement 
          requests?
30.422 If an employee is only partially reimbursed for a medical 
          expense, must the provider refund the balance of the amount 
          paid to the employee?

         Subpart F_Survivors; Payments and Offsets; Overpayments

                                Survivors

30.500 What special statutory definitions apply to survivors under 
          EEOICPA?
30.501 What order of precedence will OWCP use to determine which 
          survivors are entitled to receive compensation under EEOICPA?
30.502 When is entitlement for survivors determined for purposes of 
          EEOICPA?

            Payment of Claims and Offset for Certain Payments

30.505 What procedures will OWCP follow before it pays any compensation?
30.506 To whom and in what manner will OWCP pay compensation?
30.507 What compensation will be provided to covered Part B employees 
          who only establish beryllium sensitivity under Part B of 
          EEOICPA?
30.508 What is beryllium sensitivity monitoring?
30.509 Under what circumstances may a survivor claiming under Part E of 
          the Act choose to receive the benefits that would otherwise be 
          payable to a covered Part E employee who is deceased?

                              Overpayments

30.510 How does OWCP notify an individual of a payment made on a claim?
30.511 What is an ``overpayment'' for purposes of EEOICPA?
30.512 What does OWCP do when an overpayment is identified?
30.513 Under what circumstances may OWCP waive recovery of an 
          overpayment?
30.514 If OWCP finds that the recipient of an overpayment was not at 
          fault, what criteria are used to decide whether to waive 
          recovery of it?
30.515 Is a recipient responsible for an overpayment that resulted from 
          an error made by OWCP?
30.516 Under what circumstances would recovery of an overpayment defeat 
          the purpose of the Act?
30.517 Under what circumstances would recovery of an overpayment be 
          against equity and good conscience?
30.518 Can OWCP require the recipient of the overpayment to submit 
          additional financial information?
30.519 How does OWCP communicate its final decision concerning recovery 
          of an overpayment?
30.520 How are overpayments collected?

                      Subpart G_Special Provisions

                             Representation

30.600 May a claimant designate a representative?
30.601 Who may serve as a representative?
30.602 Who is responsible for paying the representative's fee?
30.603 Are there any limitations on what the representative may charge 
          the claimant for his or her services?

                          Third Party Liability

30.605 What rights does the United States have upon payment of 
          compensation under EEOICPA?
30.606 Under what circumstances must a recovery of money or other 
          property in connection with an illness for which benefits are 
          payable under EEOICPA be reported to OWCP?
30.607 How is a structured settlement (that is, a settlement providing 
          for receipt of funds over a specified period of time) treated 
          for purposes of reporting the recovery?
30.608 How does the United States calculate the amount to which it is 
          subrogated?
30.609 Is a settlement or judgment received as a result of allegations 
          of medical malpractice in treating an illness covered by 
          EEOICPA a recovery that must be reported to OWCP?
30.610 Are payments to a covered Part B employee, a covered Part E 
          employee or

[[Page 80]]

          an eligible surviving beneficiary as a result of an insurance 
          policy which the employee or eligible surviving beneficiary 
          has purchased a recovery that must be reported to OWCP?
30.611 If a settlement or judgment is received for more than one medical 
          condition, can the amount paid on a single EEOICPA claim be 
          attributed to different conditions for purposes of calculating 
          the amount to which the United States is subrogated?

   Effect of Tort Suits Against Beryllium Vendors and Atomic Weapons 
                                Employers

30.615 What type of tort suits filed against beryllium vendors or atomic 
          weapons employers may disqualify certain claimants from 
          receiving benefits under Part B of EEOICPA?
30.616 What happens if this type of tort suit was filed prior to October 
          30, 2000?
30.617 What happens if this type of tort suit was filed during the 
          period from October 30, 2000 through December 28, 2001?
30.618 What happens if this type of tort suit was filed after December 
          28, 2001?
30.619 Do all the parties to this type of tort suit have to take these 
          actions?
30.620 How will OWCP ascertain whether a claimant filed this type of 
          tort suit and if he or she has been disqualified from 
          receiving any benefits under Part B of EEOICPA?

    Coordination of Part E Benefits With State Workers' Compensation 
                                Benefits

30.625 What does ``coordination of benefits'' mean under Part E of 
          EEOICPA?
30.626 How will OWCP coordinate compensation payable under Part E of 
          EEOICPA with benefits from state workers' compensation 
          programs?
30.627 Under what circumstances will OWCP waive the statutory 
          requirement to coordinate these benefits?

               Subpart H_Information for Medical Providers

                        Medical Records and Bills

30.700 What kind of medical records must providers keep?
30.701 How are medical bills to be submitted?
30.702 How should an employee prepare and submit requests for 
          reimbursement for medical expenses, transportation costs, loss 
          of wages, and incidental expenses?
30.703 What are the time limitations on OWCP's payment of bills?

                          Medical Fee Schedule

30.705 What services are covered by the OWCP fee schedule?
30.706 How are the maximum fees defined?
30.707 How are payments for particular services calculated?
30.708 Does the fee schedule apply to every kind of procedure?
30.709 How are payments for medicinal drugs determined?
30.710 How are payments for inpatient medical services determined?
30.711 When and how are fees reduced?
30.712 If OWCP reduces a fee, may a provider request reconsideration of 
          the reduction?
30.713 If OWCP reduces a fee, may a provider bill the employee for the 
          balance?

                         Exclusion of Providers

30.715 What are the grounds for excluding a provider for payment under 
          this part?
30.716 What will cause OWCP to automatically exclude a physician or 
          other provider of medical services and supplies?
30.717 When are OWCP's exclusion procedures initiated?
30.718 How is a provider notified of OWCP's intent to exclude him or 
          her?
30.719 What requirements must the provider's reply and OWCP's decision 
          meet?
30.720 How can an excluded provider request a hearing?
30.721 How are hearings assigned and scheduled?
30.722 How are subpoenas or advisory opinions obtained?
30.723 How will the administrative law judge conduct the hearing and 
          issue the recommended decision?
30.724 How can a party request review by OWCP of the administrative law 
          judge's recommended decision?
30.725 What are the effects of non-automatic exclusion?
30.726 How can an excluded provider be reinstated?

       Subpart I_Wage-Loss Determinations Under Part E of EEOICPA

                           General Provisions

30.800 What types of wage-loss are compensable under Part E of EEOICPA?
30.801 What special definitions does OWCP use in connection with Part E 
          wage-loss determinations?

                          Evidence of Wage-Loss

30.805 What evidence does OWCP use to determine a covered Part E 
          employee's average annual wage and whether he or she 
          experienced compensable wage-loss under Part E of EEOICPA?
30.806 May a claimant submit factual evidence in support of a different 
          determination of average annual wage and/or wage-loss than 
          that found by OWCP?

[[Page 81]]

      Determinations of Average Annual Wage and Percentages of Loss

30.810 How will OWCP calculate the average annual wage of a covered Part 
          E employee?
30.811 How will OWCP calculate the duration and extent of a covered Part 
          E employee's initial period of compensable wage-loss?
30.812 May a covered Part E employee claim for subsequent periods of 
          compensable wage-loss?

    Special Rules for Certain Survivor Claims Under Part E of EEOICPA

30.815 Are there special rules that OWCP will use to determine the 
          extent of a deceased covered Part E employee's compensable 
          wage-loss?

          Subpart J_Impairment Benefits Under Part E of EEOICPA

                           General Provisions

30.900 Who can receive impairment benefits under Part E of EEOICPA?
30.901 How does OWCP determine the extent of an employee's impairment 
          that is due to a covered illness contracted through exposure 
          to a toxic substance at a DOE facility or a RECA section 5 
          facility, as appropriate?
30.902 How will OWCP calculate the amount of the award of impairment 
          benefits that is payable under Part E?

                     Medical Evidence of Impairment

30.905 How may an impairment evaluation be obtained?
30.906 Who will pay for an impairment evaluation?
30.907 Can an impairment evaluation obtained by OWCP be challenged prior 
          to issuance of the recommended decision?
30.908 How will the FAB evaluate new medical evidence submitted to 
          challenge the impairment determination in the recommended 
          decision?

                       Ratable Medical Impairments

30.910 Will an impairment that cannot be assigned a numerical percentage 
          using the AMA's Guides be included in the impairment rating?
30.911 Does maximum medical improvement always have to be reached for an 
          impairment to be included in the impairment rating?
30.912 Can a covered Part E employee receive benefits for additional 
          impairment following an award of such benefits by OWCP?

    Authority: 5 U.S.C. 301; 31 U.S.C. 3716 and 3717; 42 U.S.C. 7384d, 
7384t, 7384u and 7385s-10; Executive Order 13179, 65 FR 77487, 3 CFR, 
2000 Comp., p. 321; Secretary of Labor's Order No. 4-2001, 66 FR 29656.

    Source: 70 FR 33605, June 8, 2005, unless otherwise noted.



                      Subpart A_General Provisions

                              Introduction



Sec. 30.0  What are the provisions of the EEOICPA, in general?

    Part B of the Energy Employees Occupational Illness Compensation 
Program Act of 2000, as amended (EEOICPA or Act), 42 U.S.C. 7384 et 
seq., provides for the payment of compensation benefits to covered Part 
B employees and, where applicable, survivors of such employees, of the 
United States Department of Energy (DOE), its predecessor agencies and 
certain of its contractors and subcontractors. Part B also provides for 
the payment of supplemental compensation benefits to other covered Part 
B employees who have already been found eligible for benefits under 
section 5 of the Radiation Exposure Compensation Act, as amended (RECA), 
42 U.S.C. 2210 note, and where applicable, survivors of such persons. 
Part E of the Act provides for the payment of compensation benefits to 
covered Part E employees and, where applicable, survivors of such 
employees. The regulations in this part describe the rules governing 
filing, processing, and paying claims for benefits under both Part B and 
Part E of EEOICPA.
    (a) Part B of EEOICPA provides for the payment of either lump-sum 
monetary compensation for the disability of a covered Part B employee 
due to an occupational illness or for monitoring for beryllium 
sensitivity, as well as for medical and related benefits for such 
illness. Part B also provides for the payment of monetary compensation 
for the disability of a covered Part B employee to specified survivors 
if the employee is deceased at the time of payment.
    (b) Part E of EEOICPA provides for the payment of monetary 
compensation for the established wage-loss and/or impairment of a 
covered Part E employee due to a covered illness, and for medical and 
related benefits for such covered illness. Part E also provides for

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the payment of monetary compensation for the death (and established 
wage-loss, where applicable) of a covered Part E employee to specified 
survivors if the covered Part E employee is deceased at the time of 
payment.
    (c) All types of benefits and conditions of eligibility listed in 
this section are subject to the provisions of EEOICPA and this part.



Sec. 30.1  What rules govern the administration of the EEOICPA and 
this chapter?

    In accordance with EEOICPA, Executive Order 13179 and Secretary's 
Order No. 4-2001, the primary responsibility for administering the Act, 
except for those activities assigned to the Secretary of Health and 
Human Services, the Secretary of Energy and the Attorney General, has 
been delegated to the Assistant Secretary of Labor for Employment 
Standards. The Assistant Secretary, in turn, has delegated the 
responsibility for administering the Act to the Director of the Office 
of Workers' Compensation Programs (OWCP). Except as otherwise provided 
by law, the Director of OWCP and his or her designees have the exclusive 
authority to administer, interpret and enforce the provisions of the 
Act.



Sec. 30.2  In general, how have the tasks associated with the 
administration of the EEOICPA claims process been assigned?

    (a) In E.O. 13179, the President assigned the tasks associated with 
administration of the EEOICPA claims process among the Secretaries of 
Labor, Health and Human Services and Energy, and the Attorney General. 
In light of the fact that the Secretary of Labor has been assigned 
primary responsibility for administering the EEOICPA, almost the entire 
claims process is within the exclusive control of OWCP. This means that 
all claimants file their claims with OWCP, and OWCP is responsible for 
granting or denying compensation under the Act (see Sec. Sec. 30.100 
through 30.102). OWCP also provides assistance to claimants and 
potential claimants by providing information regarding eligibility and 
other program requirements, including information on completing claim 
forms and the types and availability of medical testing and diagnostic 
services related to occupational illnesses under Part B of the Act and 
covered illnesses under Part E of the Act. In addition, OWCP provides an 
administrative review process for claimants who disagree with its 
recommended and final adverse decisions on claims of entitlement (see 
Sec. Sec. 30.300 through 30.320).
    (b) However, HHS has exclusive control of the portion of the claims 
process under which it provides reconstructed doses for certain 
radiogenic cancer claims (see Sec. 30.115). HHS also has exclusive 
control of the process for designating classes of employees to be added 
to the Special Exposure Cohort under Part B of the Act, and has 
promulgated regulations governing that process at 42 CFR part 83. 
Finally, HHS has promulgated regulations at 42 CFR part 81 that set out 
guidelines that OWCP follows when it assesses the compensability of an 
employee's radiogenic cancer (see Sec. 30.213). DOE and DOJ must, among 
other things, notify potential claimants and submit evidence that OWCP 
deems necessary for its adjudication of claims under EEOICPA (see 
Sec. Sec. 30.105, 30.112, 30.206, 30.212 and 30.221).



Sec. 30.3  What do these regulations contain?

    This part 30 sets forth the regulations governing administration of 
all claims that are filed with OWCP, except to the extent specified in 
certain provisions. Its provisions are intended to assist persons 
seeking benefits under EEOICPA, as well as personnel in the various 
federal agencies and DOL who process claims filed under EEOICPA or who 
perform administrative functions with respect to EEOICPA. The various 
subparts of this part contain the following:
    (a) Subpart A: The general statutory and administrative framework 
for processing claims under both Parts B and E of EEOICPA. It contains a 
statement of purpose and scope, together with definitions of terms, 
information regarding the disclosure of OWCP records, and a description 
of rights and penalties involving EEOICPA claims, including convictions 
for fraud.
    (b) Subpart B: The rules for filing claims for entitlement under

[[Page 83]]

EEOICPA. It also addresses general standards regarding necessary 
evidence and the burden of proof, descriptions of basic forms and 
special procedures for certain cancer claims.
    (c) Subpart C: The eligibility criteria for occupational illnesses 
and covered illnesses compensable under Parts B and E of EEOICPA.
    (d) Subpart D: The rules governing the adjudication process leading 
to recommended and final decisions on claims for entitlement filed under 
Parts B and E of EEOICPA. It also describes the hearing and reopening 
processes.
    (e) Subpart E: The rules governing medical care, second opinion and 
referee medical examinations directed by OWCP as part of its 
adjudication of entitlement, and medical reports and records in general. 
It also addresses the kinds of medical treatment that may be authorized 
and how medical bills are paid.
    (f) Subpart F: The rules relating to the payment of monetary 
compensation available under Parts B and E of EEOICPA. It includes 
provisions on medical monitoring for beryllium sensitivity, on the 
identification, processing and recovery of overpayments of compensation, 
and on the maximum aggregate amount of compensation payable under Part 
E.
    (g) Subpart G: The rules concerning the representation of claimants 
in connection with the administrative adjudication of claims before 
OWCP, subrogation of the United States, the effect of tort suits against 
beryllium vendors and atomic weapons employers, and the coordination of 
benefits under Part E of EEOICPA with state workers' compensation 
benefits for the same covered illness.
    (h) Subpart H: Information for medical providers. It includes rules 
for medical reports, medical bills, and the OWCP medical fee schedule, 
as well as the provisions for exclusion of medical providers.
    (i) Subpart I: The rules relating to the adjudication of alleged 
periods of wage-loss of covered Part E employees. It also includes 
provisions on the use by OWCP of Social Security Administration earnings 
information and certain medical evidence to establish compensable wage-
loss.
    (j) Subpart J: The rules relating to the adjudication of alleged 
impairment due to the exposure of covered Part E employees to toxic 
substances. It includes provisions relating to the medical evaluation of 
ratable impairments, the rating of progressive conditions, 
apportionment, and qualifications of physicians.

                               Definitions



Sec. 30.5  What are the definitions used in this part?

    (a) Act or EEOICPA means the Energy Employees Occupational Illness 
Compensation Program Act of 2000, as amended (42 U.S.C. 7384 et seq.).
    (b) Atomic weapon means any device utilizing atomic energy, 
exclusive of the means for transporting or propelling the device (where 
such means is a separable and divisible part of the device), the 
principle purpose of which is for use as, or for development of, a 
weapon, a weapon prototype, or a weapon test device.
    (c) Atomic weapons employee means:
    (1) An individual employed by an atomic weapons employer during a 
period when the employer was processing or producing, for the use by the 
United States, material that emitted radiation and was used in the 
production of an atomic weapon, excluding uranium mining and milling; or
    (2)(i) An individual employed at a facility that the National 
Institute for Occupational Safety and Health reported had a potential 
for significant residual contamination outside of the period described 
in paragraph (c)(1) of this section;
    (ii) By the atomic weapons employer that owned the facility referred 
to in paragraph (c)(2)(i) of this section, or a subsequent owner or 
operator of such facility; and
    (iii) During a period reported by the National Institute for 
Occupational Safety and Health (NIOSH), in its report dated October 2003 
and titled ``Report on Residual Radioactive and Beryllium Contamination 
at Atomic Weapons Employer Facilities and Beryllium Vendor Facilities,'' 
or any update to that report, to have a potential

[[Page 84]]

for significant residual radioactive contamination.
    (d) Atomic weapons employer means any entity, other than the United 
States, that:
    (1) Processed or produced, for use by the United States, material 
that emitted radiation and was used in the production of an atomic 
weapon, excluding uranium mining and milling; and
    (2) Is designated by the Secretary of Energy as an atomic weapons 
employer for purposes of the compensation program.
    (e) Atomic weapons employer facility means any facility, owned by an 
atomic weapons employer, that:
    (1) Is or was used to process or produce, for use by the United 
States, material that emitted radiation and was used in the production 
of an atomic weapon, excluding uranium mining or milling; and
    (2) Is designated as such in the list periodically published in the 
Federal Register by DOE.
    (f) Attorney General means the Attorney General of the United States 
or the United States Department of Justice (DOJ).
    (g) Benefit or Compensation means the money the Department pays to 
or on behalf of either a covered Part B employee under Part B, or a 
covered Part E employee under Part E, from the Energy Employees 
Occupational Illness Compensation Fund. However, the term 
``compensation'' used in section 7385f(b) of EEOICPA (restricting 
entitlement to only one payment of compensation under Part B) means only 
the payments specified in section 7384s(a)(1) and in section 7384u(a). 
Except as used in section 7385f(b), these two terms also include any 
other amounts paid out of the Fund for such things as medical treatment, 
monitoring, examinations, services, appliances and supplies as well as 
for transportation and expenses incident to the securing of such medical 
treatment, monitoring, examinations, services, appliances, and supplies.
    (h) Beryllium sensitization or sensitivity means that the individual 
has an abnormal beryllium lymphocyte proliferation test (LPT) performed 
on either blood or lung lavage cells.
    (i) Beryllium vendor means the specific corporations and named 
predecessor corporations listed in section 7384l(6) of the Act and any 
of the facilities designated as such in the list periodically published 
in the Federal Register by DOE.
    (j) Chronic silicosis means a non-malignant lung disease if:
    (1) The initial occupational exposure to silica dust preceded the 
onset of silicosis by at least 10 years; and
    (2) A written diagnosis of silicosis is made by a medical doctor and 
is accompanied by:
    (i) A chest radiograph, interpreted by an individual certified by 
the National Institute for Occupational Safety and Health as a B reader, 
classifying the existence of pneumoconioses of category 1/0 or higher; 
or
    (ii) Results from a computer assisted tomograph or other imaging 
technique that are consistent with silicosis; or
    (iii) Lung biopsy findings consistent with silicosis.
    (k) Claim means a written assertion to OWCP of an individual's 
entitlement to benefits under EEOICPA, submitted in a manner authorized 
by this part.
    (l) Claimant means the individual who is alleged to satisfy the 
criteria for compensation under the Act.
    (m) Compensation fund or fund means the fund established on the 
books of the Treasury for payment of benefits and compensation under the 
Act.
    (n) Contemporaneous record means any document created at or around 
the time of the event that is recorded in the document.
    (o) Covered beryllium illness means any of the following:
    (1) Beryllium sensitivity as established by an abnormal LPT 
performed on either blood or lung lavage cells.
    (2) Established chronic beryllium disease (see Sec. 30.207(c)).
    (3) Any injury, illness, impairment, or disability sustained as a 
consequence of a covered beryllium illness referred to in paragraphs 
(o)(1) or (2) of this section.
    (p) Covered Part E employee means, under Part E of the Act, a 
Department of Energy contractor employee or a RECA section 5 uranium 
worker who has been determined by OWCP to have

[[Page 85]]

contracted a covered illness (see paragraph (r) of this section) through 
exposure at a Department of Energy facility or a RECA section 5 
facility, as appropriate.
    (q) Covered Part B employee means, under Part B of the Act, a 
covered beryllium employee (see Sec. 30.205), a covered employee with 
cancer (see Sec. 30.210(a)), a covered employee with chronic silicosis 
(see Sec. 30.220), or a covered uranium employee (see paragraph (s) of 
this section).
    (r) Covered illness means, under Part E of the Act relating to 
exposures at a DOE facility or a RECA section 5 facility, an illness or 
death resulting from exposure to a toxic substance.
    (s) Covered uranium employee means, under Part B of the Act, an 
individual who has been determined by DOJ to be entitled to an award 
under section 5 of the RECA, whether or not the individual was the 
employee or the deceased employee's survivor.
    (t) Current or former employee as defined in 5 U.S.C. 8101(1) as 
used in Sec. 30.205(a)(1) means an individual who fits within one of 
the following listed groups:
    (1) A civil officer or employee in any branch of the Government of 
the United States, including an officer or employee of an 
instrumentality wholly owned by the United States;
    (2) An individual rendering personal service to the United States 
similar to the service of a civil officer or employee of the United 
States, without pay or for nominal pay, when a statute authorizes the 
acceptance or use of the service, or authorizes payment of travel or 
other expenses of the individual;
    (3) An individual, other than an independent contractor or 
individual employed by an independent contractor, employed on the 
Menominee Indian Reservation in Wisconsin in operations conducted under 
a statute relating to tribal timber and logging operations on that 
reservation;
    (4) An individual appointed to a position on the office staff of a 
former President; or
    (5) An individual selected and serving as a Federal petit or grand 
juror.
    (u) Department means the United States Department of Labor (DOL).
    (v) Department of Energy or DOE includes the predecessor agencies of 
the DOE, including the Manhattan Engineering District.
    (w) Department of Energy contractor employee means any of the 
following:
    (1) An individual who is or was in residence at a DOE facility as a 
researcher for one or more periods aggregating at least 24 months.
    (2) An individual who is or was employed at a DOE facility by:
    (i) An entity that contracted with the DOE to provide management and 
operating, management and integration, or environmental remediation at 
the facility; or
    (ii) A contractor or subcontractor that provided services, including 
construction and maintenance, at the facility.
    (x)(1) Department of Energy facility means, as determined by the 
Director of OWCP, any building, structure, or premise, including the 
grounds upon which such building, structure, or premise is located:
    (i) In which operations are, or have been, conducted by, or on 
behalf of, the DOE (except for buildings, structures, premises, grounds, 
or operations covered by E.O. 12344, dated February 1, 1982, pertaining 
to the Naval Nuclear Propulsion Program); and
    (ii) With regard to which the DOE has or had:
    (A) A proprietary interest; or
    (B) Entered into a contract with an entity to provide management and 
operation, management and integration, environmental remediation 
services, construction, or maintenance services.
    (2) DOL hereby adopts the list of facilities established by the 
Department of Energy that is in effect on the date of the publication of 
this Interim Final Rule. DOL will periodically update this list as it 
deems appropriate in its sole discretion by publishing a revised list of 
covered facilities in the Federal Register.
    (y) Disability means, for purposes of determining entitlement to 
payment of Part B benefits under section 7384s(a)(1) of the Act, having 
been determined by OWCP to have or have had established chronic 
beryllium disease, cancer, or chronic silicosis.

[[Page 86]]

    (z) Eligible surviving beneficiary means any individual who is 
entitled under sections 7384s(e), 7384u(e), or 7385s-3(c) and (d) of the 
Act to receive a payment on behalf of a deceased covered Part B employee 
or a deceased covered Part E employee.
    (aa) Employee means either a current or former employee.
    (bb) Occupational illness means, under Part B of the Act, a covered 
beryllium illness, cancer sustained in the performance of duty as 
defined in Sec. 30.210(a), specified cancer, chronic silicosis, or an 
illness for which DOJ has awarded compensation under section 5 of RECA.
    (cc) OWCP means the Office of Workers' Compensation Programs, United 
States Department of Labor. One of the four divisions of OWCP is the 
Division of Energy Employees Occupational Illness Compensation.
    (dd) Physician includes surgeons, podiatrists, dentists, clinical 
psychologists, optometrists, chiropractors, and osteopathic 
practitioners within the scope of their practice as defined by state 
law. The term ``physician'' includes chiropractors only to the extent 
that their reimbursable services are limited to treatment consisting of 
manual manipulation of the spine to correct a subluxation as 
demonstrated by x-ray to exist.
    (ee) Qualified physician means any physician who has not been 
excluded under the provisions of subpart H of this part. Except as 
otherwise provided by regulation, a qualified physician shall be deemed 
to be designated or approved by OWCP.
    (ff) Specified cancer (as defined in section 4(b)(2) of RECA and in 
the EEOICPA) means:
    (1) Leukemia (other than chronic lymphocytic leukemia) provided that 
the onset of the disease was at least 2 years after first exposure;
    (2) Lung cancer (other than in situ lung cancer that is discovered 
during or after a post-mortem exam);
    (3) Bone cancer;
    (4) Renal cancers; or
    (5) The following diseases, provided onset was at least 5 years 
after first exposure:
    (i) Multiple myeloma;
    (ii) Lymphomas (other than Hodgkin's disease); and
    (iii) Primary cancer of the:
    (A) Thyroid;
    (B) Male or female breast;
    (C) Esophagus;
    (D) Stomach;
    (E) Pharynx;
    (F) Small intestine;
    (G) Pancreas;
    (H) Bile ducts;
    (I) Gall bladder;
    (J) Salivary gland;
    (K) Urinary bladder;
    (L) Brain;
    (M) Colon;
    (N) Ovary; or
    (O) Liver (except if cirrhosis or hepatitis B is indicated).
    (6) The specified diseases designated in this section mean the 
physiological condition or conditions that are recognized by the 
National Cancer Institute under those names or nomenclature, or under 
any previously accepted or commonly used names or nomenclature.
    (gg) Survivor means:
    (1) For claims under Part B of the Act, and subject to paragraph 
(gg)(3) of this section, a surviving spouse, child, parent, grandchild 
and grandparent of a deceased covered Part B employee.
    (2) For claims under Part E of the Act, and subject to paragraph 
(gg)(3) of this section, a surviving spouse and child of a deceased 
covered Part E employee.
    (3) Those individuals listed in paragraphs (gg)(1) and (gg)(2) of 
this section do not include any individuals not living as of the time 
OWCP makes a lump-sum payment or payments to an eligible surviving 
beneficiary or beneficiaries.
    (hh) Time of injury means:
    (1) In regard to a claim arising out of exposure to beryllium or 
silica, the last date on which a covered Part B employee was exposed to 
such substance in the performance of duty in accordance with sections 
7384n(a) or 7384r(c) of the Act; or
    (2) In regard to a claim arising out of exposure to radiation under 
Part B, the last date on which a covered Part B employee was exposed to 
radiation in the performance of duty in accordance with section 7384n(b) 
of the Act or, in

[[Page 87]]

the case of a member of the Special Exposure Cohort, the last date on 
which the member of the Special Exposure Cohort was employed at the 
Department of Energy facility or the atomic weapons employer facility at 
which the member was exposed to radiation; or
    (3) In regard to a claim arising out of exposure to a toxic 
substance, the last date on which a covered Part E employee was employed 
at the Department of Energy facility or RECA section 5 facility, as 
appropriate, at which the exposure took place.
    (ii) Toxic substance means any material that has the potential to 
cause illness or death because of its radioactive, chemical, or 
biological nature.
    (jj) Workday means a single workshift whether or not it occurred on 
more than one calendar day.

                     Information in Program Records



Sec. 30.10  Are all OWCP records relating to claims filed under the 
EEOICPA considered confidential?

    All OWCP records relating to claims for benefits under the EEOICPA 
are considered confidential and may not be released, inspected, copied 
or otherwise disclosed except as provided in the Freedom of Information 
Act and the Privacy Act of 1974.



Sec. 30.11  Who maintains custody and control of claim records?

    All OWCP records relating to claims for benefits filed under the Act 
are covered by the Privacy Act system of records entitled DOL/ESA-49 
(Office of Workers' Compensation Programs, Energy Employees Occupational 
Illness Compensation Program Act File). This system of records is 
maintained by and under the control of OWCP, and, as such, all records 
covered by DOL/ESA-49 are official records of OWCP. The protection, 
release, inspection and copying of records covered by DOL/ESA-49 shall 
be accomplished in accordance with the rules, guidelines and provisions 
of this part, as well as those contained in 29 CFR parts 70 and 71, and 
with the notice of the system of records and routine uses published in 
the Federal Register. All questions relating to access, disclosure, and/
or amendment of claims records maintained by OWCP are to be resolved in 
accordance with this section.



Sec. 30.12  What process is used by a person who wants to obtain copies 
of or amend EEOICPA claim records?

    (a) A claimant seeking copies of his or her official EEOICPA file 
should address a request to the District Director of the OWCP district 
office having custody of the file.
    (b) Any request to amend a record covered by DOL/ESA-49 should be 
directed to the district office having custody of the official file.
    (c) Any administrative appeal taken from a denial issued by OWCP 
under this section shall be filed with the Solicitor of Labor in 
accordance with 29 CFR 71.7 and 71.9.

                          Rights and Penalties



Sec. 30.15  May EEOICPA benefits be assigned, transferred or garnished?

    (a) Pursuant to section 7385f(a) of the Act, no claim for EEOICPA 
benefits may be assigned or transferred.
    (b) Provisions of the Social Security Act (42 U.S.C. 659) and 
regulations issued by the Office of Personnel Management at 5 CFR part 
581 permit the garnishment of payments of EEOICPA monetary benefits to 
collect overdue alimony and child support. A request to garnish a 
payment for either of these purposes should be submitted to the district 
office that is handling the EEOICPA claim, and must be accompanied by a 
copy of the pertinent state agency or court order.



Sec. 30.16  What penalties may be imposed in connection with a claim 
under the Act?

    (a) Other statutory provisions make it a crime to file a false or 
fraudulent claim or statement with the federal government in connection 
with a claim under the Act. Included among these provisions is 18 U.S.C. 
1001. Enforcement of criminal provisions that may apply to claims under 
the Act is within the jurisdiction of the Department of Justice.
    (b) In addition, administrative proceedings may be initiated under 
the Program Fraud Civil Remedies Act of 1986 (PFCRA), 31 U.S.C. 3801 et 
seq., to impose civil penalties and assessments

[[Page 88]]

against persons or entities who make, submit or present, or cause to be 
made, submitted or presented, false, fictitious or fraudulent claims or 
written statements to OWCP in connection with a claim under EEOICPA. The 
Department's regulations implementing PFCRA are found at 29 CFR part 22.



Sec. 30.17  Is a beneficiary who defrauds the government in connection 
with a claim for EEOICPA benefits still entitled to those benefits?

    When a beneficiary either pleads guilty to or is found guilty on 
either Federal or State criminal charges of defrauding the federal or a 
state government in connection with a claim for benefits under the Act 
or any other federal or state workers' compensation law, the beneficiary 
forfeits (effective the date either the guilty plea is accepted or a 
verdict of guilty is returned after trial) any entitlement to any 
further benefits for any injury, illness or death covered by this part 
for which the time of injury was on or before the date of such guilty 
plea or verdict. Any subsequent change in or recurrence of the 
beneficiary's medical condition does not affect termination of 
entitlement under this section.



     Subpart B_Filing Claims; Evidence and Burden of Proof; Special 
                  Procedures for Certain Cancer Claims

                Filing Claims for Benefits Under EEOICPA



Sec. 30.100  In general, how does an employee file an initial claim for 
benefits?

    (a) To claim benefits under EEOICPA, an employee must file a claim 
in writing. Form EE-1 should be used for this purpose, but any written 
communication that requests benefits under EEOICPA will be considered a 
claim. It will, however, be necessary for an employee to submit a Form 
EE-1 for OWCP to fully develop the claim. Copies of Form EE-1 may be 
obtained from OWCP or on the Internet at www.dol.gov/esa/regs/ 
compliance/owcp/eeoicp/main.htm. The employee's claim must be filed with 
OWCP, but another person may do so on the employee's behalf.
    (b) The employee may choose, at his or her own option, to file for 
benefits for only certain conditions that are potentially compensable 
under the Act (e.g., the employee may not want to claim for an 
occupational illness or a covered illness for which a payment has been 
received that would necessitate an offset of EEOICPA benefits under the 
provisions of Sec. 30.505(b)). The employee may withdraw his or her 
claim by so requesting in writing to OWCP at any time before OWCP 
determines his or her eligibility for benefits.
    (c) Except as provided in paragraph (d) of this section, a claim is 
considered to be ``filed'' on the date that the employee mails his or 
her claim to OWCP, as determined by postmark, or on the date that the 
claim is received by OWCP, whichever is the earliest determinable date. 
However, in no event will a claim under Part B of EEOICPA be considered 
to be ``filed'' earlier than July 31, 2001, nor will a claim under Part 
E of EEOICPA be considered to be ``filed'' earlier than October 30, 
2000.
    (1) The employee, or the person filing the claim on behalf of the 
employee, shall affirm that the information provided on the Form EE-1 is 
true, and must inform OWCP of any subsequent changes to that 
information.
    (2) Except for a covered uranium employee filing a claim under Part 
B of the Act, the employee is responsible for submitting with his or her 
claim, or arranging for the submission of, medical evidence to OWCP that 
establishes that he or she sustained an occupational illness and/or a 
covered illness. This required medical evidence is described in Sec. 
30.114 and does not refer to mere recitations of symptoms the employee 
experienced that the employee believes indicate that he or she sustained 
an occupational illness or a covered illness.
    (d) For those claims under Part E of EEOICPA that were originally 
filed with DOE as claims for assistance under former section 7385o of 
EEOICPA (which was repealed on October 28, 2004), a claim is considered 
to be ``filed'' on the date that the employee mailed his or her claim to 
DOE, as determined by postmark, or on the date that the claim was 
received by DOE,

[[Page 89]]

whichever is the earliest determinable date. However, in no event will a 
claim referred to in this paragraph be considered to be ``filed'' 
earlier than October 30, 2000.



Sec. 30.101  In general, how is a survivor's claim filed?

    (a) A survivor of an employee who sustained an occupational illness 
or a covered illness must file a claim for compensation in writing. Form 
EE-2 should be used for this purpose, but any written communication that 
requests survivor benefits under the Act will be considered a claim. It 
will, however, be necessary for a survivor to submit a Form EE-2 for 
OWCP to fully develop the claim. Copies of Form EE-2 may be obtained 
from OWCP or on the Internet at www.dol.gov/esa/regs/compliance/owcp/
eeoicp/main.htm. The survivor's claim must be filed with OWCP, but 
another person may do so on the survivor's behalf. Although only one 
survivor needs to file a claim under this section to initiate the 
development process, OWCP will distribute any monetary benefits payable 
on the claim among all eligible surviving beneficiaries who have filed 
claims with OWCP.
    (b) A survivor may choose, at his or her own option, to file for 
benefits for only certain conditions that are potentially compensable 
under the Act (e.g., the survivor may not want to claim for an 
occupational illness or a covered illness for which a payment has been 
received that would necessitate an offset of EEOICPA benefits under the 
provisions of Sec. 30.505(b)). The survivor may withdraw his or her 
claim by so requesting in writing to OWCP at any time before OWCP 
determines his or her eligibility for benefits.
    (c) A survivor must be alive to receive any payment under the 
EEOICPA; there is no vested right to such payment.
    (d) Except as provided in paragraph (e) of this section, a 
survivor's claim is considered to be ``filed'' on the date that the 
survivor mails his or her claim to OWCP, as determined by postmark, or 
the date that the claim is received by OWCP, whichever is the earliest 
determinable date. However, in no event will a survivor's claim under 
Part B of the Act be considered to be ``filed'' earlier than July 31, 
2001, nor will a survivor's claim under Part E of the Act be considered 
to be ``filed'' earlier than October 30, 2000.
    (1) The survivor, or the person filing the claim on behalf of the 
survivor, shall affirm that the information provided on the Form EE-2 is 
true, and must inform OWCP of any subsequent changes to that 
information.
    (2) Except for the survivor of a covered uranium employee claiming 
under Part B of the Act, the survivor is responsible for submitting, or 
arranging for the submission of, evidence to OWCP that establishes that 
the employee upon whom the survivor's claim is based was eligible for 
such benefits, including medical evidence that establishes that the 
employee sustained an occupational illness or a covered illness. This 
required medical evidence is described in Sec. 30.114 and does not 
refer to mere recitations by the survivor of symptoms the employee 
experienced that the survivor believes indicate that the employee 
sustained an occupational illness or a covered illness.
    (e) For those claims under Part E of EEOICPA that were originally 
filed with DOE as claims for assistance under former section 7385o of 
EEOICPA (which was repealed on October 28, 2004), a claim is considered 
to be ``filed'' on the date that the survivor mailed his or her claim to 
DOE, as determined by postmark, or on the date that the claim was 
received by DOE, whichever is the earliest determinable date. However, 
in no event will a claim referred to in this paragraph be considered to 
be ``filed'' earlier than October 30, 2000.
    (f) A spouse or a child of a deceased DOE contractor employee or 
RECA section 5 uranium worker, who is not a covered spouse or covered 
child under Part E, may submit a written request to OWCP for a 
determination of whether that deceased DOE contractor employee or RECA 
section 5 uranium worker contracted a covered illness under section 
7385s-4(d) of EEOICPA.
    (1) Any such request submitted pursuant to paragraph (f) of this 
section will not be considered a survivor's claim for benefits under 
Part E of the Act.

[[Page 90]]

    (2) As part of its consideration of any request submitted pursuant 
to paragraph (f) of this section, OWCP will apply the eligibility 
criteria in Sec. Sec. 30.230 and 30.231. However, the adjudicatory 
procedures contained in subpart D of this part will not apply to OWCP's 
consideration of such a request, and OWCP's response to the request will 
not constitute a final agency decision on entitlement to any benefits 
under EEOICPA.



Sec. 30.102  In general, how does an employee file a claim for additional 
impairment or wage-loss under Part E of EEOICPA?

    (a) An employee previously awarded impairment benefits by OWCP may 
file a claim for additional impairment benefits. Such claim must be 
based on an increase in the employee's minimum impairment rating 
attributable to the covered illness or illnesses from the impairment 
rating that formed the basis for the last award of such benefits by 
OWCP. OWCP will only adjudicate claims for such an increased rating that 
are filed at least two years from the date of the last award of 
impairment benefits. However, OWCP will not wait two years before it 
will adjudicate a claim for additional impairment that is based on an 
allegation that the employee sustained a new covered illness.
    (b) An employee previously awarded wage-loss benefits by OWCP may be 
eligible for additional wage-loss benefits for periods of wage-loss that 
were not addressed in a prior claim only if the employee had not reached 
his or her Social Security retirement age at the time of the prior 
award. OWCP will adjudicate claims filed on a yearly basis in connection 
with each succeeding calendar year for which qualifying wage-loss under 
Part E is alleged, as well as claims that aggregate calendar years for 
which qualifying wage-loss is alleged.
    (c) Employees should use Form EE-10 to claim for additional 
impairment or wage-loss benefits under Part E of EEOICPA.
    (1) The employee, or the person filing the claim on behalf of the 
employee, shall affirm that the information provided on Form EE-10 is 
true, and must inform OWCP of any subsequent changes to that 
information.
    (2) The employee is responsible for submitting with any claim filed 
under this section, or arranging for the submission of, factual and 
medical evidence establishing that he or she experienced another 
calendar year of qualifying wage-loss, and/or medical evidence 
establishing that he or she has an increased minimum impairment rating, 
as appropriate.



Sec. 30.103  How does a claimant make sure that OWCP has the evidence 
necessary to process the claim?

    (a) Claims and certain required submissions should be made on forms 
prescribed by OWCP. Persons submitting forms shall not modify these 
forms or use substitute forms.

------------------------------------------------------------------------
            Form No.                              Title
------------------------------------------------------------------------
(1) EE-1.......................  Claim for Benefits Under the Energy
                                  Employees Occupational Illness
                                  Compensation Program Act.
(2) EE-2.......................  Claim for Survivor Benefits Under the
                                  Energy Employees Occupational Illness
                                  Compensation Program Act.
(3) EE-3.......................  Employment History for a Claim Under
                                  the Energy Employees Occupational
                                  Illness Compensation Program Act.
(4) EE-4.......................  Employment History Affidavit for a
                                  Claim Under the Energy Employees
                                  Occupational Illness Compensation
                                  Program Act.
------------------------------------------------------------------------

    (b) Copies of the forms listed in this section are available for 
public inspection at the Office of Workers' Compensation Programs, 
Employment Standards Administration, U.S. Department of Labor, 
Washington, DC 20210. They may also be obtained from OWCP district 
offices and on the Internet at http://www.dol.gov/esa/regs/compliance/
owcp/eeoicp/main.htm.

                   Verification of Alleged Employment



Sec. 30.105  What must DOE do after an employee or survivor files a 
claim?

    (a) After it receives a claim for benefits described in Sec. Sec. 
30.100 or 30.101, OWCP may request that DOE verify the employment 
history provided by the claimant. Upon receipt of such a request, DOE 
will complete Form EE-5 as soon as possible and transmit the completed 
form to OWCP. On this form, DOE will certify either that it concurs with 
the employment history

[[Page 91]]

provided by the claimant, that it disagrees with such history, or that 
it can neither concur nor disagree after making a reasonable search of 
its records and also making a reasonable effort to locate pertinent 
records not already in its possession.
    (b) Claims for additional impairment or wage-loss benefits under 
Part E of the Act described in Sec. 30.102 will not require any 
verification of employment by DOE, since OWCP will have made any 
required findings on this particular issue when it adjudicated the 
employee's initial claim for benefits.



Sec. 30.106  Can OWCP request employment verification from other sources?

    (a) For most claims filed under EEOICPA, DOE has access to 
sufficient factual information to enable it to fulfill its obligations 
described in Sec. 30.105(a). However, in instances where it lacks such 
information, DOE may arrange for other entities to provide OWCP with the 
information necessary to verify an employment history submitted as part 
of a claim. These other entities may consist of either current or former 
DOE contractors and subcontractors, atomic weapons employers, beryllium 
vendors, or other entities with access to relevant employment 
information.
    (b) On its own initiative, OWCP may also arrange for entities other 
than DOE to perform the employment verification duties described in 
Sec. 30.105(a).

                      Evidence and Burden of Proof



Sec. 30.110  Who is entitled to compensation under the Act?

    (a) Under Part B of EEOICPA, compensation is payable to the 
following covered Part B employees, or their survivors:
    (1) A ``covered beryllium employee'' (as described in Sec. 
30.205(a)) with a covered beryllium illness (as defined in Sec. 
30.5(o)) who was exposed to beryllium in the performance of duty (in 
accordance with Sec. 30.206).
    (2) A ``covered Part B employee with cancer'' (as described in Sec. 
30.210(a)).
    (3) A ``covered Part B employee with chronic silicosis'' (as 
described in Sec. 30.220).
    (4) A ``covered uranium employee'' (as defined in Sec. 30.5(s)).
    (b) Under Part E of EEOICPA, compensation is payable to a ``covered 
Part E employee'' (as defined in Sec. 30.5(p)), or his or her 
survivors.
    (c) Any claim that does not meet all of the criteria for at least 
one of these categories, as set forth in the regulations in this part, 
must be denied.
    (d) All claims for benefits under the Act must comply with the 
claims procedures and requirements set forth in subpart B of this part 
before any payment can be made from the Fund.



Sec. 30.111  What is the claimant's responsibility with respect to 
burden of proof, production of documents, presumptions, and affidavits?

    (a) Except where otherwise provided in the Act and these 
regulations, the claimant bears the burden of proving by a preponderance 
of the evidence the existence of each and every criterion necessary to 
establish eligibility under any compensable claim category set forth in 
Sec. 30.110. Proof by a preponderance of the evidence means that it is 
more likely than not that the proposition to be proved is true. Subject 
to the exceptions expressly provided in the Act and the regulations in 
this part, the claimant also bears the burden of providing to OWCP all 
written medical documentation, contemporaneous records, or other records 
and documents necessary to establish any and all criteria for benefits 
set forth in these regulations.
    (b) In the event that the claim lacks required information or 
supporting documentation, OWCP will notify the claimant of the 
deficiencies and provide him or her an opportunity for correction of the 
deficiencies.
    (c) Written affidavits or declarations, subject to penalty for 
perjury, by the employee, survivor or any other person, will be accepted 
as evidence of employment history and survivor relationship for purposes 
of establishing eligibility and may be relied on in determining whether 
a claim meets the requirements of the Act for benefits if, and only if, 
such person attests that due diligence was used to obtain records in 
support of the claim, but that no records exist.

[[Page 92]]

    (d) A claimant will not be entitled to any presumption otherwise 
provided for in these regulations if substantial evidence exists that 
rebuts the existence of the fact that is the subject of the presumption. 
Substantial evidence means such relevant evidence as a reasonable mind 
might accept as adequate to support a conclusion. When such evidence 
exists, the claimant shall be notified and afforded the opportunity to 
submit additional written medical documentation or records.



Sec. 30.112  What kind of evidence is needed to establish covered 
employment and how will that evidence be evaluated?

    (a) Evidence of covered employment may include: Employment records; 
pay stubs; tax returns; Social Security records; and written affidavits 
or declarations, subject to penalty of perjury, by the employee, 
survivor or any other person. However, no one document is required to 
establish covered employment and a claimant is not required to submit 
all of the evidence listed above. A claimant may submit other evidence 
not listed above to establish covered employment. To be acceptable as 
evidence, all documents and records must be legible. OWCP will accept 
photocopies, certified copies, and original documents and records.
    (b) Pursuant to Sec. 30.105, DOE shall certify that it concurs with 
the employment information provided by the claimant, that it disagrees 
with the information provided by the claimant, or, after a reasonable 
search of its records and a reasonable effort to locate pertinent 
records not already in its possession, it can neither concur nor 
disagree with the information provided by the claimant.
    (1) If DOE certifies that it concurs with the employment information 
provided by the claimant, then the criterion for covered employment will 
be established.
    (2) If DOE certifies that it disagrees with the information provided 
by the claimant or that after a reasonable search of its records and a 
reasonable effort to locate pertinent records not already in its 
possession it can neither concur nor disagree with the information 
provided by the claimant, OWCP will evaluate the evidence submitted by 
the claimant to determine whether the claimant has established covered 
employment by a preponderance of the evidence. OWCP may request 
additional evidence from the claimant to demonstrate that the claimant 
has met the criterion for covered employment. Nothing in this section 
shall be construed to limit OWCP's ability to require additional 
documentation.
    (3) If the only evidence of covered employment is a self-serving 
affidavit and DOE either disagrees with the assertion of covered 
employment or cannot concur or disagree with the assertion of covered 
employment, then OWCP may reject the claim based upon a lack of evidence 
of covered employment.



Sec. 30.113  What are the requirements for written medical 
documentation, contemporaneous records, and other records or documents?

    (a) All written medical documentation, contemporaneous records, and 
other records or documents submitted by an employee or his or her 
survivor to prove any criteria provided for in these regulations must be 
legible. OWCP will accept photocopies, certified copies, and original 
documents and records.
    (b) To establish eligibility, the employee or his or her survivor 
may be required to provide, where appropriate, additional 
contemporaneous records to the extent they exist or an authorization to 
release additional contemporaneous records or a statement by the 
custodian(s) of the record(s) certifying that the requested record(s) no 
longer exist. Nothing in this section shall be construed to limit OWCP's 
ability to require additional documentation.
    (c) If a claimant submits a certified statement, by a person with 
knowledge of the facts, that the medical records containing a diagnosis 
and date of diagnosis of a covered medical condition no longer exist, 
then OWCP may consider other evidence to establish a diagnosis and date 
of diagnosis of a covered medical condition. However, if the certified 
statement is a self-serving document, OWCP may reject the claim based 
upon a lack of evidence of a covered medical condition.

[[Page 93]]



Sec. 30.114  What kind of evidence is needed to establish a covered 
medical condition and how will that evidence be evaluated?

    (a) Evidence of a covered medical condition may include: a 
physician's report, laboratory reports, hospital records, death 
certificates, x-rays, magnetic resonance images or reports, computer 
axial tomography or other imaging reports, lymphocyte proliferation 
testings, beryllium patch tests, pulmonary function or exercise testing 
results, pathology reports including biopsy results and other medical 
records. A claimant is not required to submit all of the evidence listed 
in this paragraph. A claimant may submit other evidence that is not 
listed in this paragraph to establish a covered medical condition. 
Nothing in this section shall be construed to limit OWCP's ability to 
require additional documentation.
    (b) The medical evidence submitted will be used to establish the 
diagnosis and the date of diagnosis of the covered medical condition.
    (1) For covered beryllium illnesses, additional medical evidence, as 
set forth in Sec. 30.207, is required to establish a beryllium illness.
    (2) For chronic silicosis, additional medical evidence, as set forth 
in Sec. 30.222, is required to establish chronic silicosis.
    (3) For consequential injuries, illnesses, impairments or diseases, 
the claimant must also submit a physician's fully rationalized medical 
report showing a causal relationship between the resulting injury, 
illness, impairment or disease and the covered medical condition.
    (c) OWCP will evaluate the medical evidence in accordance with 
recognized and accepted diagnostic criteria used by physicians to 
determine whether the claimant has established the medical condition for 
which compensation is sought in accordance with the requirements of the 
Act.

         Special Procedures for Certain Radiogenic Cancer Claims



Sec. 30.115  For those radiogenic cancer claims that do not seek benefits 
under Part B of the Act pursuant to the Special Exposure Cohort provisions, 
what will OWCP do once it determines that an employee contracted cancer?

    (a) Other than claims for a non-radiogenic cancer listed by HHS at 
42 CFR 81.30, or claims seeking benefits under Part E of the Act that 
have previously been accepted under section 7384u of the Act, or claims 
previously accepted under Part B pursuant to the Special Exposure Cohort 
provisions, OWCP will forward the claim package (including, but not 
limited to, Forms EE-1, EE-2, EE-3, EE-4 and EE-5, as appropriate) to 
HHS for dose reconstruction. At that point in time, development of the 
claim by OWCP may be suspended.
    (1) This package will include OWCP's initial findings in regard to 
the diagnosis and date of diagnosis of the employee, as well as any 
employment history compiled by OWCP (including information such as dates 
and locations worked, and job titles). The package, however, will not 
constitute either a recommended or final decision by OWCP on the claim.
    (2) HHS will then reconstruct the radiation dose of the employee, 
after such further development of the employment history as it may deem 
necessary, and provide OWCP, DOE and the claimant with the final dose 
reconstruction report. The final dose reconstruction record will be 
delivered to OWCP with the final dose reconstruction report and to the 
claimant upon request.
    (b) Following its receipt of the reconstructed dose from HHS, OWCP 
will resume its adjudication of the cancer claim and consider whether 
the claimant has met the eligibility criteria set forth in subpart C of 
this part. However, during the period before it receives a reconstructed 
dose from HHS, OWCP may continue to develop other aspects of a claim, to 
the extent that it deems such development to be appropriate.

[[Page 94]]



                     Subpart C_Eligibility Criteria

                           General Provisions



Sec. 30.200  What is the scope of this subpart?

    The regulations in this subpart describe the criteria for 
eligibility for benefits for claims under Part B of EEOICPA relating to 
covered beryllium illness under sections 7384l, 7384n, 7384s and 7384t 
of the Act; for cancer under sections 7384l, 7384n, 7384q and 7384t of 
the Act; for chronic silicosis under sections 7384l, 7384r, 7384s and 
7384t of the Act; and for claims relating to covered uranium employees 
under sections 7384t and 7384u of the Act. These regulations also 
describe the criteria for eligibility for benefits for claims under Part 
E of EEOICPA relating to covered illnesses under sections 7385s-4 and 
7385s-5 of the Act. This subpart describes the type and extent of 
evidence that will be necessary to establish the criteria for 
eligibility for compensation for these illnesses.

 Eligibility Criteria for Claims Relating to Covered Beryllium Illness 
                         Under Part B of EEOICPA



Sec. 30.205  What are the criteria for eligibility for benefits 
relating to beryllium illnesses covered under Part B of EEOICPA?

    To establish eligibility for benefits under this section, the 
claimant must establish the criteria set forth in both paragraphs (a) 
and (b) of this section:
    (a) The employee is a covered beryllium employee only if the 
criteria in paragraphs (a)(1) and (a)(3) of this section, or (a)(2) and 
(a)(3) of this section, are established:
    (1) The employee is a ``current or former employee as defined in 5 
U.S.C. 8101(1)'' (see Sec. 30.5(t) of this part) who may have been 
exposed to beryllium at a DOE facility or at a facility owned, operated, 
or occupied by a beryllium vendor; or
    (2) The employee is a current or former civilian employee of:
    (i) Any entity that contracted with the DOE to provide management 
and operation, management and integration, or environmental remediation 
of a DOE facility; or
    (ii) Any contractor or subcontractor that provided services, 
including construction and maintenance, at such a facility; or
    (iii) A beryllium vendor, or of a contractor or subcontractor of a 
beryllium vendor, during a period when the vendor was engaged in 
activities related to the production or processing of beryllium for sale 
to, or use by, the DOE, including periods during which environmental 
remediation of a vendor's facility was undertaken pursuant to a contract 
between the vendor and DOE; and
    (3) The civilian employee was exposed to beryllium in the 
performance of duty by establishing that he or she was, during a period 
when beryllium dust, particles, or vapor may have been present at such a 
facility:
    (i) Employed at a DOE facility (as defined in Sec. 30.5(x) of this 
part); or
    (ii) Present at a DOE facility, or at a facility owned, operated, or 
occupied by a beryllium vendor, because of his or her employment by the 
United States, a beryllium vendor, a contractor or subcontractor of a 
beryllium vendor, or a contractor or subcontractor of the DOE. Under 
this paragraph, exposure to beryllium in the performance of duty can be 
established whether or not the beryllium that may have been present at 
such facility was produced or processed for sale to, or use by, DOE.
    (b) The employee has one of the following:
    (1) Beryllium sensitivity as established by an abnormal beryllium 
LPT performed on either blood or lung lavage cells.
    (2) Established chronic beryllium disease.
    (3) Any injury, illness, impairment, or disability sustained as a 
consequence of the conditions specified in paragraphs (b)(1) and (2) of 
this section.



Sec. 30.206  How does a claimant prove that the employee was a 
``covered beryllium employee'' exposed to beryllium dust, particles 
or vapor in the performance of duty?

    (a) Proof of employment at or physical presence at a DOE facility, 
or a facility owned, operated, or occupied by a beryllium vendor, 
because of employment by the United States, a beryllium

[[Page 95]]

vendor, or a contractor or subcontractor of a beryllium vendor during a 
period when beryllium dust, particles, or vapor may have been present at 
such a facility, may be made by the submission of any trustworthy 
records that, on their face or in conjunction with other such records, 
establish that the employee was employed or present at a covered 
facility and the time period of such employment or presence.
    (b) If the evidence shows that exposure occurred while the employee 
was employed or present at a facility during a time frame that is 
outside the relevant time frame indicated for that facility by DOE, OWCP 
may request that DOE provide additional information on the facility. 
OWCP will determine whether the evidence of record supports enlarging 
the relevant time frame for that facility.
    (c) If the evidence shows that exposure occurred while the employee 
was employed or present at a facility that would have to be designated 
by DOE as a beryllium vendor under section 7384m of the Act to be a 
covered facility, and that the facility has not been so designated, OWCP 
will deny the claim on the ground that the facility is not a covered 
facility.
    (d) Records from the following sources may be considered as evidence 
for purposes of establishing employment or presence at a covered 
facility:
    (1) Records or documents created by any federal government agency 
(including verified information submitted for security clearance), any 
tribal government, or any state, county, city or local government 
office, agency, department, board or other entity, or other public 
agency or office.
    (2) Records or documents created by any vendor, processor, or 
producer of beryllium or related products designated as a beryllium 
vendor by the DOE in accordance with section 7384m of the Act.
    (3) Records or documents created as a by product of any regularly 
conducted business activity or by an entity that acted as a contractor 
or subcontractor to the DOE.



Sec. 30.207  How does a claimant prove a diagnosis of a beryllium 
disease covered under Part B?

    (a) Written medical documentation is required in all cases to prove 
that the employee developed a covered beryllium illness. Proof that the 
employee developed a covered beryllium illness must be made by using the 
procedures outlined in paragraphs (b), (c), or (d) of this section.
    (b) Beryllium sensitivity or sensitization is established with an 
abnormal LPT performed on either blood or lung lavage cells.
    (c) Chronic beryllium disease is established in the following 
manner:
    (1) For diagnoses on or after January 1, 1993, beryllium sensitivity 
(as established in accordance with paragraph (b) of this section), 
together with lung pathology consistent with chronic beryllium disease, 
including the following:
    (i) A lung biopsy showing granulomas or a lymphocytic process 
consistent with chronic beryllium disease;
    (ii) A computerized axial tomography scan showing changes consistent 
with chronic beryllium disease; or
    (iii) Pulmonary function or exercise testing showing pulmonary 
deficits consistent with chronic beryllium disease.
    (2) For diagnoses before January 1, 1993, the presence of the 
following:
    (i) Occupational or environmental history, or epidemiologic evidence 
of beryllium exposure; and
    (ii) Any three of the following criteria:
    (A) Characteristic chest radiographic (or computed tomography (CT)) 
abnormalities.
    (B) Restrictive or obstructive lung physiology testing or diffusing 
lung capacity defect.
    (C) Lung pathology consistent with chronic beryllium disease.
    (D) Clinical course consistent with a chronic respiratory disorder.
    (E) Immunologic tests showing beryllium sensitivity (skin patch test 
or beryllium blood test preferred).
    (d) An injury, illness, impairment or disability sustained as a 
consequence of beryllium sensitivity or established chronic beryllium 
disease must be established with a fully rationalized medical report by 
a physician that

[[Page 96]]

shows the relationship between the injury, illness, impairment or 
disability and the beryllium sensitivity or established chronic 
beryllium disease. Neither the fact that the injury, illness, impairment 
or disability manifests itself after a diagnosis of beryllium 
sensitivity or established chronic beryllium disease, nor the belief of 
the claimant that the injury, illness, impairment or disability was 
caused by the beryllium sensitivity or established chronic beryllium 
disease, is sufficient in itself to prove a causal relationship.

  Eligibility Criteria for Claims Relating to Radiogenic Cancer Under 
                        Parts B and E of EEOICPA



Sec. 30.210  What are the criteria for eligibility for benefits relating 
to radiogenic cancer?

    (a) To establish eligibility for benefits for radiogenic cancer 
under Part B of EEOICPA, an employee or his or her survivor must show 
that:
    (1) The employee has been diagnosed with one of the forms of cancer 
specified in Sec. 30.5(ff) of this part; and
    (i) Is a member of the Special Exposure Cohort (as described in 
Sec. 30.214(a) of this subpart) who, as a civilian DOE employee or 
civilian DOE contractor employee, contracted the specified cancer after 
beginning employment at a DOE facility; or
    (ii) Is a member of the Special Exposure Cohort (as described in 
Sec. 30.214(a) of this subpart) who, as a civilian atomic weapons 
employee, contracted the specified cancer after beginning employment at 
an atomic weapons employer facility (as defined in Sec. 30.5(e)); or
    (2) The employee has been diagnosed with cancer; and
    (i)(A) Is/was a civilian DOE employee who contracted that cancer 
after beginning employment at a DOE facility; or
    (B) Is/was a civilian DOE contractor employee who contracted that 
cancer after beginning employment at a DOE facility; or
    (C) Is/was a civilian atomic weapons employee who contracted that 
cancer after beginning employment at an atomic weapons employer 
facility; and
    (ii) The cancer was at least as likely as not related to the 
employment at the DOE facility or atomic weapons employer facility; or
    (3) The employee has been diagnosed with an injury, illness, 
impairment or disease that arose as a consequence of the accepted 
cancer.
    (b)(1) To establish eligibility for benefits for radiogenic cancer 
under Part E of EEOICPA, an employee or his or her survivor must show 
that:
    (i) The employee has been diagnosed with cancer; and
    (A) Is/was a civilian DOE contractor employee or a civilian RECA 
section 5 uranium worker who contracted that cancer after beginning 
employment at a DOE facility or a RECA section 5 facility; and
    (B) The cancer was at least as likely as not related to exposure to 
a toxic substance of a radioactive nature at a DOE facility or a RECA 
section 5 facility; and
    (C) It is at least as likely as not that the exposure to such toxic 
substance(s) was related to employment at a DOE facility or a RECA 
section 5 facility; or
    (ii) The employee has been diagnosed with an injury, illness, 
impairment or disease that arose as a consequence of the accepted 
cancer.
    (2) Eligibility for benefits for radiogenic cancer under Part E in a 
claim that has previously been accepted under Part B pursuant to the 
Special Exposure Cohort provisions is described in Sec. 30.230(a).



Sec. 30.211  How does a claimant establish that the employee has or 
had contracted cancer?

    A claimant establishes that the employee has or had contracted a 
specified cancer (as defined in Sec. 30.5(ff)) or other cancer with 
medical evidence that sets forth an explicit diagnosis of cancer and the 
date on which that diagnosis was first made.



Sec. 30.212  How does a claimant establish that the employee contracted 
cancer after beginning employment at a DOE facility, an atomic weapons 
employer facility or a RECA section 5 facility?

    (a) Proof of employment by the DOE or a DOE contractor at a DOE 
facility, or by an atomic weapons employer at

[[Page 97]]

an atomic weapons employer facility, or at a RECA section 5 facility, 
may be made by the submission of any trustworthy records that, on their 
face or in conjunction with other such records, establish that the 
employee was so employed and the time period(s) of such employment.
    (b)(1) Except as provided in paragraph (b)(2) of this section, if 
the evidence shows that exposure occurred while the employee was 
employed at a facility during a time frame that is outside the relevant 
period indicated for that facility by DOE, OWCP may request that DOE 
provide additional information on the facility. OWCP will determine 
whether the evidence of record supports enlarging the relevant period 
for that facility.
    (2) OWCP may choose not to request that DOE provide additional 
information on an atomic weapons employer facility that NIOSH reported 
had a potential for significant residual radiation contamination in its 
report dated October 2003 and titled ``Report on Residual Radioactive 
and Beryllium Contamination at Atomic Weapons Employer Facilities and 
Beryllium Vendor Facilities,'' or any update to that report, if the 
evidence referred to in paragraph (a) of this section establishes that 
the employee was employed at that facility during a period when NIOSH 
reported that it had a potential for significant residual radiation 
contamination.
    (c) If the evidence shows that exposure occurred while the employee 
was employed by an employer that would have to be designated by DOE as 
an atomic weapons employer under section 7384l(4) of the Act to be a 
covered employer, and that the employer has not been so designated, OWCP 
will deny the claim on the ground that the employer is not a covered 
atomic weapons employer.
    (d) Records from the following sources may be considered as evidence 
for purposes of establishing employment or presence at a covered 
facility:
    (1) Records or documents created by any federal government agency 
(including verified information submitted for security clearance), any 
tribal government, or any state, county, city or local government 
office, agency, department, board or other entity, or other public 
agency or office.
    (2) Records or documents created as a byproduct of any regularly 
conducted business activity or by an entity that acted as a contractor 
or subcontractor to the DOE.



Sec. 30.213  How does a claimant establish that the radiogenic cancer 
was at least as likely as not related to employment at the DOE facility, 
the atomic weapons employer facility, or the RECA section 5 facility?

    (a) HHS, with the advice of the Advisory Board on Radiation and 
Worker Health, has issued regulatory guidelines at 42 CFR part 81 that 
OWCP uses to determine whether radiogenic cancers claimed under Parts B 
and E of EEOICPA were at least as likely as not related to employment at 
a DOE facility, an atomic weapons employer facility, or a RECA section 5 
facility, as appropriate. Persons should consult HHS's regulations for 
information regarding the factual evidence that will be considered by 
OWCP, in addition to the employee's radiation dose reconstruction that 
will be provided to OWCP by HHS, in making this particular factual 
determination.
    (b) HHS's regulations satisfy the legal requirements in section 
7384n(c) of the Act, which also sets out OWCP's obligation to use them 
in its adjudication of claims for radiogenic cancer filed under Part B 
of the Act, and provide the factual basis for OWCP to determine if the 
``probability of causation'' (PoC) that an employee's cancer was 
sustained in the performance of duty is 50% or greater (i.e., it is ``at 
least as likely as not'' causally related to employment), as required 
under section 7384n(b).
    (c) OWCP also uses HHS's regulations when it makes the determination 
required by section 7385s-4(c)(1)(A) of the Act, since those regulations 
provide the factual basis for OWCP to determine if ``it is at least as 
likely as not'' that exposure to radiation at a DOE facility or RECA 
section 5 facility, as appropriate, was a significant factor in 
aggravating, contributing to, or causing the employee's radiogenic 
cancer claimed under Part E of EEOICPA. For cancer claims under Part E, 
if the PoC

[[Page 98]]

is less than 50% and the claimant alleges that the employee was exposed 
to additional toxic substances, OWCP will determine if the claim is 
otherwise compensable pursuant to Sec. 30.230(d) of this part.



Sec. 30.214  How does a claimant establish that the employee is a 
member of the Special Exposure Cohort?

    (a) For purposes of establishing eligibility as a member of the 
Special Exposure Cohort (SEC) under Sec. 30.210(a)(1), the employee 
must have been a DOE employee, a DOE contractor employee, or an atomic 
weapons employee who meets any of the following requirements:
    (1) The employee was so employed for a number of workdays 
aggregating at least 250 workdays before February 1, 1992, at a gaseous 
diffusion plant located in Paducah, Kentucky; Portsmouth, Ohio; or Oak 
Ridge, Tennessee; and during such employment:
    (i) Was monitored through the use of dosimetry badges for exposure 
at the plant of the external parts of the employee's body to radiation; 
or
    (ii) Worked in a job that had exposures comparable to a job that is 
or was monitored through the use of dosimetry badges.
    (2) The employee was so employed before January 1, 1974, by DOE or a 
DOE contractor or subcontractor on Amchitka Island, Alaska, and was 
exposed to ionizing radiation in the performance of duty related to the 
Long Shot, Milrow, or Cannikin underground nuclear tests.
    (3) The employee is a member of a group or class of employees 
subsequently designated as additional members of the SEC by HHS.
    (b) For purposes of satisfying the 250 workday requirement of 
paragraph (a)(1) of this section, the claimant may aggregate the days of 
service at more than one gaseous diffusion plant.
    (c) Proof of employment by the DOE or a DOE contractor, or an atomic 
weapons employer, for the requisite time periods set forth in paragraph 
(a) of this section, may be made by the submission of any trustworthy 
records that, on their face or in conjunction with other such records, 
establish that the employee was so employed and the time period(s) of 
such employment. If the evidence shows that exposure occurred while the 
employee was employed by an employer that would have to be designated by 
DOE as an atomic weapons employer under section 7384l(4) of the Act to 
be a covered employer, and that the employer has not been so designated, 
OWCP will deny the claim on the ground that the employer is not a 
covered atomic weapons employer.
    (d) Records from the following sources may be considered as evidence 
for purposes of establishing employment or presence at a covered 
facility:
    (1) Records or documents created by any federal government agency 
(including verified information submitted for security clearance), any 
tribal government, or any state, county, city or local government 
office, agency, department, board or other entity, or other public 
agency or office.
    (2) Records or documents created as a byproduct of any regularly 
conducted business activity or by an entity that acted as a contractor 
or subcontractor to the DOE.



Sec. 30.215  How does a claimant establish that the employee has 
sustained an injury, illness, impairment or disease as a consequence 
of a diagnosed cancer?

    An injury, illness, impairment or disease sustained as a consequence 
of a diagnosed cancer covered by the provisions of Sec. 30.210 must be 
established with a fully rationalized medical report by a physician that 
shows the relationship between the injury, illness, impairment or 
disease and the cancer. Neither the fact that the injury, illness, 
impairment or disease manifests itself after a diagnosis of a cancer, 
nor the belief of the claimant that the injury, illness, impairment or 
disease was caused by the cancer, is sufficient in itself to prove a 
causal relationship.

Eligibility Criteria for Claims Relating to Chronic Silicosis Under Part 
                              B of EEOICPA



Sec. 30.220  What are the criteria for eligibility for benefits relating 
to chronic silicosis?

    To establish eligibility for benefits for chronic silicosis under 
Part B of

[[Page 99]]

EEOICPA, an employee or his or her survivor must show that:
    (a) The employee is a civilian DOE employee, or a civilian DOE 
contractor employee, who was present for a number of workdays 
aggregating at least 250 workdays during the mining of tunnels at a DOE 
facility (as defined in Sec. 30.5(x)) located in Nevada or Alaska for 
tests or experiments related to an atomic weapon, and has been diagnosed 
with chronic silicosis (as defined in Sec. 30.5(j)); or
    (b) The employee has been diagnosed with an injury, illness, 
impairment or disease that arose as a consequence of the accepted 
chronic silicosis.



Sec. 30.221  How does a claimant prove exposure to silica in the 
performance of duty?

    (a) Proof of the employee's employment and presence for the 
requisite days during the mining of tunnels at a DOE facility located in 
Nevada or Alaska for tests or experiments related to an atomic weapon 
may be made by the submission of any trustworthy records that, on their 
face or in conjunction with other such records, establish that the 
employee was so employed and present at these sites and the time 
period(s) of such employment and presence.
    (b) If the evidence shows that exposure occurred while the employee 
was employed and present at a facility during a time frame that is 
outside the relevant time frame indicated for that facility by DOE, OWCP 
may request that DOE provide additional information on the facility. 
OWCP will determine whether the evidence of record supports enlarging 
the relevant time frame for that facility.
    (c) Records from the following sources may be considered as evidence 
for purposes of establishing proof of employment or presence at a 
covered facility:
    (1) Records or documents created by any federal government agency 
(including verified information submitted for security clearance), any 
tribal government, or any state, county, city or local government 
office, agency, department, board or other entity, or other public 
agency or office.
    (2) Records or documents created as a byproduct of any regularly 
conducted business activity or by an entity that acted as a contractor 
or subcontractor to the DOE.
    (d) For purposes of satisfying the 250 workday requirement of Sec. 
30.220(a), the claimant may aggregate the days of service at more than 
one qualifying site.



Sec. 30.222  How does a claimant establish that the employee has been 
diagnosed with chronic silicosis or has sustained a consequential injury, 
illness, impairment or disease?

    (a) A written diagnosis of the employee's chronic silicosis (as 
defined in Sec. 30.5(j)) shall be made by a medical doctor and 
accompanied by one of the following:
    (1) A chest radiograph, interpreted by an individual certified by 
NIOSH as a B reader, classifying the existence of pneumoconioses of 
category 1/0 or higher; or
    (2) Results from a computer assisted tomograph or other imaging 
technique that are consistent with silicosis; or
    (3) Lung biopsy findings consistent with silicosis.
    (b) An injury, illness, impairment or disease sustained as a 
consequence of accepted chronic silicosis covered by the provisions of 
Sec. 30.220(a) must be established with a fully rationalized medical 
report by a physician that shows the relationship between the injury, 
illness, impairment or disease and the accepted chronic silicosis. 
Neither the fact that the injury, illness, impairment or disease 
manifests itself after a diagnosis of accepted chronic silicosis, nor 
the belief of the claimant that the injury, illness, impairment or 
disease was caused by the accepted chronic silicosis, is sufficient in 
itself to prove a causal relationship.

   Eligibility Criteria for Certain Uranium Employees Under Part B of 
                                 EEOICPA



Sec. 30.225  What are the criteria for eligibility for benefits under 
Part B of EEOICPA for certain uranium employees?

    In order to be eligible for benefits under this section, the 
claimant must establish the criteria set forth in either

[[Page 100]]

paragraph (a) or paragraph (b) of this section:
    (a) The Attorney General has determined that the claimant is a 
covered uranium employee who is entitled to payment of $100,000 as 
compensation due under section 5 of RECA for a claim made under that 
statute (there is, however, no requirement that the claimant or 
surviving eligible beneficiary has actually received payment pursuant to 
RECA). If a deceased employee's survivor has been determined to be 
entitled to such an award, his or her survivor(s), if any, will only be 
entitled to EEOICPA compensation in accordance with section 7384u(e) of 
the Act.
    (b) The covered uranium employee has been diagnosed with an injury, 
illness, impairment or disease that arose as a consequence of the 
medical condition for which he or she was determined to be entitled to 
payment of $100,000 as compensation due under section 5 of RECA.



Sec. 30.226  How does a claimant establish that a covered uranium 
employee has sustained a consequential injury, illness, impairment 
or disease?

    An injury, illness, impairment or disease sustained as a consequence 
of a medical condition covered by the provisions of Sec. 30.225(a) must 
be established with a fully rationalized medical report by a physician 
that shows the relationship between the injury, illness, impairment or 
disease and the accepted medical condition. Neither the fact that the 
injury, illness, impairment or disease manifests itself after a 
diagnosis of a medical condition covered by the provisions of Sec. 
30.225(a), nor the belief of the claimant that the injury, illness, 
impairment or disease was caused by such a condition, is sufficient in 
itself to prove a causal relationship.

      Eligibility Criteria for Other Claims Under Part E of EEOICPA



Sec. 30.230  What are the criteria necessary to establish that an 
employee contracted a covered illness under Part E of EEOICPA?

    To establish that an employee contracted a covered illness under 
Part E of the Act, the employee, or his or her survivor, must show one 
of the following:
    (a) That OWCP has determined under Part B of EEOICPA that the 
employee is a Department of Energy contractor employee as defined in 
Sec. 30.5(w), and that he or she has been awarded compensation under 
that Part of the Act for an occupational illness;
    (b) That the Attorney General has determined that the employee is 
entitled to payment of $100,000 as compensation due under section 5 of 
RECA for a claim made under that statute (however, if a deceased 
employee's survivor has been determined to be entitled to such an award, 
his or her survivor(s), if any, will only be entitled to benefits under 
Part E of EEOICPA in accordance with section 7385s-3 of the Act);
    (c) That the Secretary of Energy has accepted a positive 
determination of a Physicians Panel that the employee sustained an 
illness or died due to exposure to a toxic substance at a DOE facility 
under former section 7385o of EEOICPA, or that the Secretary of Energy 
has found significant evidence contrary to a negative determination of a 
Physicians Panel; or
    (d)(1) That the employee is a Department of Energy contractor 
employee as defined in Sec. 30.5(w), or an individual who was employed 
in a uranium mine or mill located in Colorado, New Mexico, Arizona, 
Wyoming, South Dakota, Washington, Utah, Idaho, North Dakota, Oregon or 
Texas at any time during the period from January 1, 1942 through 
December 31, 1971, or was employed in the transport of uranium ore or 
vanadium-uranium ore from such a mine or mill during that same period, 
and that he or she:
    (i) Has been diagnosed with an illness; and
    (ii) That it is at least as likely as not that exposure to a toxic 
substance at a Department of Energy facility or at a RECA section 5 
facility, as appropriate, was a significant factor in aggravating, 
contributing to, or causing the illness; and
    (iii) That it is at least as likely as not that the exposure to such 
toxic substance was related to employment at a Department of Energy 
facility or a RECA section 5 facility, as appropriate.

[[Page 101]]

    (2) In making the determination under paragraph (d)(1)(ii) of this 
section, OWCP will consider:
    (i) The nature, frequency and duration of exposure of the covered 
employee to the substance alleged to be toxic;
    (ii) Evidence of the carcinogenic or pathogenic properties of the 
alleged toxic substance to which the employee was exposed;
    (iii) An opinion of a qualified physician with expertise in 
treating, diagnosing or researching the illness claimed to be caused or 
aggravated by the alleged exposure; and
    (iv) Any other evidence that OWCP determines to have demonstrated 
relevance to the relation between a particular toxic substance and the 
claimed illness.



Sec. 30.231  How does a claimant prove employment-related exposure to 
a toxic substance at a DOE facility or a RECA section 5 facility?

    To establish employment-related exposure to a toxic substance at a 
Department of Energy facility or RECA section 5 facility as required by 
Sec. 30.230(d), an employee, or his or her survivor(s), must prove that 
the employee was employed at such facility and that he or she was 
exposed to a toxic substance in the course of that employment.
    (a) Proof of employment may be established by any trustworthy 
records that, on their face or in conjunction with other such records, 
establish that the employee was so employed and the time period(s) of 
such employment.
    (b) Proof of exposure to a toxic substance may be established by the 
submission of any appropriate document or information that is evidence 
that such substance was present at the facility in which the employee 
was employed and that the employee came into contact with such 
substance.



Sec. 30.232  How does a claimant establish that the employee has been 
diagnosed with a covered illness, or sustained an injury, illness, 
impairment or disease as a consequence of a covered illness?

    (a) To establish that the employee has been diagnosed with a covered 
illness as required by Sec. 30.230(d), the employee, or his or her 
survivor(s), must provide the following:
    (1) The name and address of any licensed physician who is the source 
of a diagnosis based upon documented medical information that the 
employee has or had an illness and that the illness may have resulted 
from exposure to a toxic substance while the employee was employed at a 
DOE facility or a RECA section 5 facility, as appropriate, and, to the 
extent practicable, a copy of the diagnosis and a summary of the 
information upon which the diagnosis is based; and
    (2) A signed medical release, authorizing the release of any 
diagnosis, medical opinion and medical records documenting the diagnosis 
or opinion that the employee has or had an illness and that the illness 
may have resulted from exposure to a toxic substance while the employee 
was employed at a DOE facility or RECA section 5 facility, as 
appropriate; and
    (3) To the extent practicable and appropriate, an occupational 
history obtained by a physician, an occupational health professional, or 
a DOE-sponsored Former Worker Program (if such an occupational history 
is not reasonably available or is inadequate, and such history is deemed 
by OWCP to be needed for the fair adjudication of the claim, then OWCP 
may assist the claimant in developing this history); and
    (4) Any other information or materials deemed by OWCP to be 
necessary to provide reasonable evidence that the employee has or had an 
illness that may have arisen from exposure to a toxic substance while 
employed at a DOE facility or RECA section 5 facility, as appropriate.
    (b) The employee, or his or her survivor(s), may also submit to OWCP 
other evidence not described in paragraph (a) of this section showing 
that the employee has or had an illness that resulted from an exposure 
to a toxic substance during the course of employment at either a DOE 
facility or a RECA section 5 facility, as appropriate.
    (c) An injury, illness, impairment or disease sustained as a 
consequence of a covered illness (as defined in Sec. 30.5(r)) must be 
established with a fully rationalized medical report by a physician

[[Page 102]]

that shows the relationship between the injury, illness, impairment or 
disease and the covered illness. Neither the fact that the injury, 
illness, impairment or disease manifests itself after a diagnosis of a 
covered illness, nor the belief of the claimant that the injury, 
illness, impairment or disease was caused by the covered illness, is 
sufficient in itself to prove a causal relationship.



                     Subpart D_Adjudicatory Process



Sec. 30.300  What process will OWCP use to decide claims for entitlement 
and to provide for administrative review of those decisions?

    OWCP district offices will issue recommended decisions with respect 
to claims for entitlement under Part B and/or Part E of EEOICPA that are 
filed pursuant to the regulations set forth in subpart B of this part. 
In circumstances where a claim is made for more than one benefit 
available under Part B and/or Part E of the Act, OWCP may issue a 
recommended decision on only part of that particular claim in order to 
adjudicate that portion of the claim as quickly as possible. Should this 
occur, OWCP will issue one or more recommended decisions on the deferred 
portions of the claim when the adjudication of those portions is 
completed. All recommended decisions granting and/or denying benefits 
under Part B and/or Part E of the Act will be forwarded to the Final 
Adjudication Branch (FAB). Claimants will be given an opportunity to 
object to all or part of the recommended decision before the FAB. The 
FAB will consider objections filed by a claimant and conduct a hearing, 
if requested to do so by the claimant, before issuing a final decision 
on the claim for entitlement.



Sec. 30.301  May subpoenas be issued for witnesses and documents in 
connection with a claim under Part B of EEOICPA?

    (a) In connection with the adjudication of a claim under Part B of 
EEOICPA, an OWCP district office and/or a FAB reviewer may, at their own 
initiative, issue subpoenas for the attendance and testimony of 
witnesses, and for the production of books, electronic records, 
correspondence, papers or other relevant documents. Subpoenas will only 
be issued for documents if they are relevant and cannot be obtained by 
other means, and for witnesses only where oral testimony is the best way 
to ascertain the facts.
    (b) A claimant may also request a subpoena in connection with his or 
her claim under Part B of the Act, but such request may only be made to 
a FAB reviewer. No subpoenas will be issued at the request of the 
claimant under any other portion of the claims process. The decision to 
grant or deny such request is within the discretion of the FAB reviewer. 
To request a subpoena under this section, the requestor must:
    (1) Submit the request in writing and send it to the FAB reviewer as 
early as possible, but no later than 30 days (as evidenced by postmark, 
electronic marker or other objective date mark) after the date of the 
original hearing request;
    (2) Explain why the testimony or evidence is directly relevant and 
material to the issues in the case; and
    (3) Establish that a subpoena is the best method or opportunity to 
obtain such evidence because there are no other means by which the 
documents or testimony could have been obtained.
    (c) No subpoena will be issued for attendance of employees of OWCP 
acting in their official capacities as decision-makers or policy 
administrators. For hearings taking the form of a review of the written 
record, no subpoena for the appearance of witnesses will be considered.
    (d) The FAB reviewer will issue the subpoena under his or her own 
name. It may be served in person or by certified mail, return receipt 
requested, addressed to the person to be served at his or her last known 
principal place of business or residence. A decision to deny a subpoena 
requested by a claimant can only be challenged as part of a request for 
reconsideration of any adverse decision of the FAB which results from 
the hearing.



Sec. 30.302  Who pays the costs associated with subpoenas?

    (a) Witnesses who are not employees or former employees of the 
federal government shall be paid the same fees

[[Page 103]]

and mileage as paid for like services in the District Court of the 
United States where the subpoena is returnable, except that expert 
witnesses shall be paid a fee not to exceed the local customary fee for 
such services.
    (b) Where OWCP asked that the witness submit evidence into the case 
record or asked that the witness attend, OWCP shall pay the fees and 
mileage. Where the claimant asked for the subpoena, and where the 
witness submitted evidence into the record at the request of the 
claimant, the claimant shall pay the fees and mileage.



Sec. 30.303  What information may OWCP request in connection with a claim 
under Part E of EEOICPA?

    At any time during the course of development of a claim for benefits 
under Part E, OWCP may determine that it needs relevant information to 
adjudicate the claim. When this occurs, and at the request of OWCP, DOE 
and/or any contractor who employed a Department of Energy contractor 
employee must provide to OWCP information or documents in response to 
the request in connection with a claim under Part E of EEOICPA.
    (a) The party to whom the request is made must respond to OWCP 
within 60 days of the request with either:
    (1) The requested information or documents; or
    (2) A sworn statement that a good faith search for the requested 
information or documents was conducted, and that the information or 
documents could not be located.
    (b) DOE and/or the DOE contractor who employed a Department of 
Energy contractor employee must query third parties under its control to 
acquire the requested information or documents.
    (c) In providing the requested information or documents, DOE and/or 
the DOE contractor who employed a DOE contractor employee must preserve 
the current organization of the requested information or documents, and 
must provide such description and indexing of the requested information 
or documents as OWCP considers appropriate to facilitate their use by 
OWCP.
    (d) Information or document requests may include, but are not 
limited to, requests for records, files and other data, whether paper, 
electronic, imaged or otherwise, developed, acquired or maintained by 
DOE or the DOE contractor who employed a DOE contractor employee. Such 
information or documents may include records, files and data on facility 
industrial hygiene, employment of individuals or groups, exposure and 
medical records, and claims applications.

                     Recommended Decisions on Claims



Sec. 30.305  How does OWCP determine entitlement to EEOICPA compensation?

    (a) In reaching a recommended decision with respect to EEOICPA 
compensation, OWCP considers the claim presented by the claimant, the 
factual and medical evidence of record, the dose reconstruction report 
calculated by HHS (if any), any report submitted by DOE and the results 
of such investigation as OWCP may deem necessary.
    (b) The OWCP claims staff applies the law, the regulations and its 
procedures when it evaluates the medical evidence and the facts as 
reported or obtained upon investigation.



Sec. 30.306  What does the recommended decision contain?

    The recommended decision shall contain findings of fact and 
conclusions of law. The recommended decision may accept or reject the 
claim in its entirety, or it may accept or reject a portion of the claim 
presented. It is accompanied by a notice of the claimant's right to file 
objections with, and request a hearing before, the FAB.



Sec. 30.307  To whom is the recommended decision sent?

    (a) A copy of the recommended decision will be mailed to the 
claimant's last known address. However, if the claimant has a designated 
representative before OWCP, the copy of the recommended decision will be 
mailed to the representative. Notification to either the claimant or the 
representative will be considered notification to both parties.
    (b) At the same time it issues a recommended decision on a claim, 
the OWCP district office will forward the record of such claim to the 
FAB. Any new evidence submitted to the district

[[Page 104]]

office following the issuance of the recommended decision will also be 
forwarded to the FAB for consideration.

                 Hearings and Final Decisions on Claims



Sec. 30.310  What must the claimant do if he or she objects to the 
recommended decision or wants to request a hearing?

    (a) Within 60 days from the date the recommended decision is issued, 
the claimant must state, in writing, whether he or she objects to any of 
the findings of fact and/or conclusions of law contained in such 
decision, including HHS's reconstruction of the radiation dose to which 
the employee was exposed (if any), and whether a hearing is desired. 
This written statement should be filed with the FAB at the address 
indicated in the notice accompanying the recommended decision.
    (b) For purposes of determining whether the written statement 
referred to in paragraph (a) of this section has been timely filed with 
the FAB, the statement will be considered to be ``filed'' on the date 
that the claimant mails it to the FAB, as determined by postmark, or on 
the date that such written statement is actually received by the FAB, 
whichever is the earliest determinable date.



Sec. 30.311  What happens if the claimant does not object to the 
recommended decision or request a hearing within 60 days?

    (a) If the claimant does not file a written statement that objects 
to the recommended decision and/or requests a hearing within the period 
of time allotted in Sec. 30.310, the FAB may issue a final decision 
accepting the recommendation of the district office as provided in Sec. 
30.316.
    (b) If the recommended decision accepts all or part of a claim for 
compensation, the FAB may issue a final decision at any time after 
receiving written notice from the claimant that he or she waives any 
objection to all or part of the recommended decision.



Sec. 30.312  What will the FAB do if the claimant objects to the 
recommended decision but does not request a hearing?

    If the claimant files a written statement that objects to the 
recommended decision within the period of time allotted in Sec. 30.310 
but does not request a hearing, the FAB will consider any objections by 
means of a review of the written record. If the claimant only objects to 
part of the recommended decision, the FAB may issue a final decision 
accepting the remaining part of the recommendation of the district 
office without first reviewing the written record (see Sec. 30.316).



Sec. 30.313  How is a review of the written record conducted?

    (a) The FAB reviewer will consider the written record forwarded by 
the district office and any additional evidence and/or argument 
submitted by the claimant. The reviewer may also conduct whatever 
investigation is deemed necessary.
    (b) The claimant should submit, with his or her written statement 
that objects to the recommended decision, all evidence or argument that 
he or she wants to present to the reviewer. However, evidence or 
argument may be submitted at any time up to the date specified by the 
reviewer for the submission of such evidence or argument.
    (c) Any objection that is not presented to the FAB reviewer, 
including any objection to HHS's reconstruction of the radiation dose to 
which the employee was exposed (if any), whether or not the pertinent 
issue was previously presented to the district office, is deemed waived 
for all purposes.



Sec. 30.314  How is a hearing conducted?

    (a) The FAB reviewer retains complete discretion to set the time and 
place of the hearing, including the amount of time allotted for the 
hearing, considering the issues to be resolved. At the discretion of the 
reviewer, the hearing may be conducted by telephone or teleconference. 
As part of the hearing process, the FAB reviewer will consider the 
written record forwarded by the district office and any additional 
evidence and/or argument

[[Page 105]]

submitted by the claimant. The reviewer may also conduct whatever 
investigation is deemed necessary.
    (1) The FAB reviewer will try to set the hearing at a place that is 
within commuting distance of the claimant's residence, but will not be 
able to do so in all cases. Therefore, for reasons of economy, the 
claimant may be required to travel a roundtrip distance of up to 200 
miles to attend the hearing.
    (2) In unusual circumstances, the FAB reviewer may set a place for 
the hearing that is more than 200 miles roundtrip from the claimant's 
residence. However, in that situation, OWCP will reimburse the claimant 
for reasonable and necessary travel expenses incurred to attend the 
hearing if he or she submits a written reimbursement request that 
documents such expenses.
    (b) Unless otherwise directed in writing by the claimant, the FAB 
reviewer will mail a notice of the time and place of the hearing to the 
claimant and any representative at least 30 days before the scheduled 
hearing date. If the claimant only objects to part of the recommended 
decision, the FAB reviewer may issue a final decision accepting the 
remaining part of the recommendation of the district office without 
first holding a hearing (see Sec. 30.316). Any objection that is not 
presented to the FAB reviewer, including any objection to HHS's 
reconstruction of the radiation dose to which the employee was exposed 
(if any), whether or not the pertinent issue was previously presented to 
the district office, is deemed waived for all purposes.
    (c) The hearing is an informal process, and the reviewer is not 
bound by common law or statutory rules of evidence, or by technical or 
formal rules of procedure. The reviewer may conduct the hearing in such 
manner as to best ascertain the rights of the claimant. During the 
hearing process, the claimant may state his or her arguments and present 
new written evidence and/or testimony in support of the claim.
    (d) Testimony at hearings is recorded, then transcribed and placed 
in the record. Oral testimony shall be made under oath.
    (e) The FAB reviewer will furnish a transcript of the hearing to the 
claimant, who has 20 days from the date it is sent to submit any 
comments to the reviewer.
    (f) The claimant will have 30 days after the hearing is held to 
submit additional evidence or argument, unless the reviewer, in his or 
her sole discretion, grants an extension. Only one such extension may be 
granted.
    (g) The reviewer determines the conduct of the hearing and may 
terminate the hearing at any time he or she determines that all relevant 
evidence has been obtained, or because of misbehavior on the part of the 
claimant and/or representative at or near the place of the oral 
presentation.



Sec. 30.315  May a claimant postpone a hearing?

    (a) The FAB will entertain any reasonable request for scheduling the 
time and place of the hearing, but such requests should be made at the 
time that the hearing is requested. Scheduling is at the discretion of 
the FAB, and is not reviewable. In most instances, once the hearing has 
been scheduled and appropriate written notice has been mailed, it cannot 
be postponed at the claimant's request for any reason except those 
stated in paragraph (b) of this section, unless the FAB reviewer can 
reschedule the hearing on the same docket (that is, during the same 
hearing trip). If a request to postpone a scheduled hearing does not 
meet one of the tests of paragraph (b) of this section and cannot be 
accommodated on the same docket, no further opportunity for a hearing 
will be provided. Instead, the FAB will consider the claimant's 
objections by means of a review of the written record. In the 
alternative, a teleconference may be substituted for the hearing at the 
discretion of the reviewer.
    (b) Where the claimant has a medical reason that prevents attendance 
at the hearing, or where the death or illness of the claimant's parent, 
spouse, or child prevents the claimant from attending the hearing as 
scheduled, a postponement may be granted in the discretion of the FAB if 
the claimant provides at least 24 hours notice and a reasonable 
explanation supporting his

[[Page 106]]

or her inability to attend the scheduled hearing.
    (c) At any time after requesting a hearing, the claimant can request 
a change to a review of the written record by making a written request 
to the FAB. Once such a change is made, no further opportunity for a 
hearing will be provided.



Sec. 30.316  How does the FAB issue a final decision on a claim?

    (a) If the claimant does not file a written statement that objects 
to the recommended decision and/or requests a hearing within the period 
of time allotted in Sec. 30.310, or if the claimant waives any 
objections to all or part of the recommended decision, the FAB may issue 
a final decision accepting the recommendation of the district office, 
either in whole or in part (see Sec. Sec. 30.311, 30.312 and 
30.314(b)).
    (b) If the claimant objects to all or part of the recommended 
decision, the FAB reviewer will issue a final decision on the claim 
after either the hearing or the review of the written record, and after 
completing such further development of the case as he or she may deem 
necessary.
    (c) Any recommended decision (or part thereof) that is pending 
either a hearing or a review of the written record for more than one 
year from the date the FAB received the written statement that objected 
to the recommended decision and/or requested a hearing shall be 
considered a final decision of the FAB on the one-year anniversary of 
such date. Any recommended decision described in Sec. 30.311 that is 
pending at the FAB for more than one year from the date that the period 
of time described in Sec. 30.310 expired shall be considered a final 
decision of the FAB on the one-year anniversary of such date.
    (d) The decision of the FAB, whether issued pursuant to paragraph 
(a), (b) or (c) of this section, shall be final upon the date of 
issuance of such decision, unless a timely request for reconsideration 
under Sec. 30.319 has been filed.
    (e) A copy of the final decision of the FAB will be mailed to the 
claimant's last known address. However, if the claimant has a designated 
representative before OWCP, the copy of the final decision will be 
mailed to the representative. Notification to either the claimant or the 
representative will be considered notification to both parties.



Sec. 30.317  Can the FAB request a further response from the claimant 
or return a claim to the district office?

    At any time before the issuance of its final decision, the FAB may 
request that the claimant submit additional evidence or argument, or 
return the claim to the district office for further development and/or 
issuance of a new recommended decision without issuing a final decision, 
whether or not requested to do so by the claimant.



Sec. 30.318  Can the FAB consider objections to HHS's reconstruction 
of a radiation dose or to the guidelines OWCP uses to determine if a 
claimed cancer was at least as likely as not related to employment?

    (a) If the claimant objects to HHS's reconstruction of the radiation 
dose to which the employee was exposed, the FAB will evaluate the 
factual findings upon which HHS based its dose reconstruction. If these 
factual findings do not appear to be supported by substantial evidence, 
the claim will be returned to the district office for referral to HHS 
for further consideration.
    (b) The methodology used by HHS in arriving at reasonable estimates 
of the radiation doses received by an employee, established by 
regulations issued by HHS at 42 CFR part 82, is binding on the FAB. The 
FAB reviewer may determine, however, that objections concerning the 
application of that methodology should be considered by HHS and may 
return the case to the district office for referral to HHS for such 
consideration.
    (c) The methodology that OWCP uses to determine if a claimed cancer 
was at least as likely as not related to employment at a DOE facility, 
an atomic weapons employer facility, or a RECA section 5 facility, 
established by regulations issued by HHS at 42 CFR part 81, is also 
binding on the FAB (see Sec. 30.213). However, since OWCP applies this 
methodology when it makes these determinations, the FAB reviewer may 
consider objections to the manner in which OWCP applied HHS's regulatory 
guidelines.

[[Page 107]]



Sec. 30.319  May a claimant request reconsideration of a final decision 
of the FAB?

    (a) A claimant may request reconsideration of a final decision of 
the FAB by filing a written request with the FAB within 30 days from the 
date of issuance of such decision. If a timely request for 
reconsideration is made, the decision in question will no longer be 
considered ``final'' under Sec. 30.316(d).
    (b) For purposes of determining whether the written request referred 
to in paragraph (a) of this section has been timely filed with the FAB, 
the request will be considered to be ``filed'' on the date that the 
claimant mails it to the FAB, as determined by postmark, or on the date 
that such written request is actually received by the FAB, whichever is 
the earliest determinable date.
    (c) A hearing is not available as part of the reconsideration 
process. If the FAB grants the request for reconsideration, it will 
consider the written record of the claim again and issue a new final 
decision on the claim. A new final decision that is issued after the FAB 
grants a request for reconsideration will be ``final'' upon the date of 
issuance of such new decision.
    (1) Instead of issuing a new final decision after granting a request 
for reconsideration, the FAB may return the claim to the district office 
for further development as provided in Sec. 30.317.
    (2) If the FAB denies the request for reconsideration, the FAB 
decision that formed the basis for the request will be considered 
``final'' upon the date the request is denied, and no further requests 
for reconsideration of that particular final decision of the FAB will be 
entertained.
    (d) A claimant may not seek judicial review of a decision on his or 
her claim under EEOICPA until OWCP's decision on the claim is final 
pursuant to either Sec. 30.316(d) (for claims in which no request for 
reconsideration was filed with the FAB) or paragraph (c) of this section 
(for claims in which a request for reconsideration was filed with the 
FAB).

                            Reopening Claims



Sec. 30.320  Can a claim be reopened after the FAB has issued a final 
decision?

    (a) At any time after the FAB has issued a final decision pursuant 
to Sec. 30.316, and without regard to whether new evidence or 
information is presented or obtained, the Director for Energy Employees 
Occupational Illness Compensation may reopen a claim and return it to 
the FAB for issuance of a new final decision, or to the district office 
for such further development as may be necessary, to be followed by a 
new recommended decision. The Director may also vacate any other type of 
decision issued by the FAB.
    (b) At any time after the FAB has issued a final decision pursuant 
to Sec. 30.316, a claimant may file a written request that the Director 
for Energy Employees Occupational Illness Compensation reopen his or her 
claim, provided that the claimant also submits new evidence of either 
covered employment or exposure to a toxic substance, or identifies 
either a change in the PoC guidelines, a change in the dose 
reconstruction methods or an addition of a class of employees to the 
Special Exposure Cohort.
    (1) If the Director concludes that the evidence submitted or matter 
identified in support of the claimant's request is material to the 
claim, the Director will reopen the claim and return it to the district 
office for such further development as may be necessary, to be followed 
by a new recommended decision.
    (2) New evidence of a medical condition described in subpart C of 
these regulations is not sufficient to support a written request to 
reopen a claim for such a condition under paragraph (b) of this section.
    (c) The decision whether or not to reopen a claim under this section 
is solely within the discretion of the Director for Energy Employees 
Occupational Illness Compensation and is not reviewable. If the Director 
reopens a claim pursuant to paragraphs (a) or (b) of this section and 
returns it to the district office, the resulting new recommended 
decision will be subject to the adjudicatory process described in

[[Page 108]]

this subpart. However, neither the district office nor the FAB can 
consider any objection concerning the Director's decision to reopen a 
claim under this section.



                 Subpart E_Medical and Related Benefits

                  Medical Treatment and Related Issues



Sec. 30.400  What are the basic rules for obtaining medical treatment?

    (a) A covered Part B employee or a covered Part E employee who fits 
into at least one of the compensable claim categories described in 
subpart C of this part is entitled to receive all medical services, 
appliances or supplies that a qualified physician prescribes or 
recommends and that OWCP considers necessary to treat his or her 
occupational illness or covered illness, retroactive to the date the 
claim for benefits for that occupational illness or covered illness 
under Part B or Part E of EEOICPA was filed. The employee need not be 
disabled to receive such treatment. When a survivor receives payment, 
OWCP will pay for such treatment if the employee died before the claim 
was paid. If there is any doubt as to whether a specific service, 
appliance or supply is necessary to treat the occupational illness or 
covered illness, the employee should consult OWCP prior to obtaining it.
    (b) The decision of OWCP that medical benefits provided under 
paragraph (a) of this section are not necessary to treat an occupational 
illness or covered illness is final when issued and is not subject to 
the adjudicatory process described in subpart D of this part.
    (c) Any qualified physician or qualified hospital may provide 
medical services, appliances and supplies to the covered Part B employee 
or the covered Part E employee. A qualified provider of medical support 
services may also furnish appropriate services, appliances, and 
supplies. OWCP may apply a test of cost-effectiveness when it decides if 
appliances and supplies are necessary to treat an occupational illness 
or covered illness. With respect to prescribed medications, OWCP may 
require the use of generic equivalents where they are available.



Sec. 30.401  What are the special rules for the services of 
chiropractors?

    (a) The services of chiropractors that may be reimbursed by OWCP are 
limited to treatment to correct a spinal subluxation. The costs of 
physical and related laboratory tests performed by or required by a 
chiropractor to diagnose such a subluxation are also payable.
    (b) A diagnosis of spinal subluxation as demonstrated by x-ray to 
exist must appear in the chiropractor's report before OWCP can consider 
payment of a chiropractor's bill.
    (c) A chiropractor may interpret his or her x-rays to the same 
extent as any other physician. To be given any weight, the medical 
report must state that x-rays support the finding of spinal subluxation. 
OWCP will not necessarily require submission of the x-ray, or a report 
of the x-ray, but the report must be available for submission on 
request.
    (d) A chiropractor may also provide services in the nature of 
physical therapy under the direction of a qualified physician.



Sec. 30.402  What are the special rules for the services of clinical 
psychologists?

    A clinical psychologist may serve as a physician within the scope of 
his or her practice as defined by state law. Therefore, a clinical 
psychologist may not serve as a physician for conditions that include a 
physical component unless the applicable state law allows clinical 
psychologists to treat physical conditions. A clinical psychologist may 
also perform testing, evaluation, and other services under the direction 
of a qualified physician.



Sec. 30.403  Will OWCP pay for the services of an attendant?

    OWCP will authorize payment for personal care services under section 
7384t of the Act, whether or not such care includes medical services, so 
long as the personal care services have been determined to be medically 
necessary and are provided by a home health

[[Page 109]]

aide, licensed practical nurse, or similarly trained individual. The 
decision of OWCP that personal care services are not medically necessary 
is final when issued and is not subject to the adjudicatory process 
described in subpart D of this part.



Sec. 30.404  Will OWCP pay for transportation to obtain medical 
treatment?

    (a) The employee is entitled to reimbursement for reasonable and 
necessary expenses, including transportation, incident to obtaining 
authorized medical services, appliances or supplies. To determine what 
is a reasonable distance to travel, OWCP will consider the availability 
of services, the employee's condition, and the means of transportation. 
Generally, a roundtrip distance of up to 200 miles is considered a 
reasonable distance to travel.
    (b) If travel of more than 200 miles is contemplated, or air 
transportation or overnight accommodations will be needed, the employee 
must submit a written request to OWCP for prior authorization with 
information describing the circumstances and necessity for such travel 
expenses. OWCP will approve the request if it determines that the travel 
expenses are reasonable and necessary, and are incident to obtaining 
authorized medical services, appliances or supplies. Requests for travel 
expenses that are often approved include those resulting from referrals 
to a specialist for further medical treatment, and those involving air 
transportation of an employee who lives in a remote geographical area 
with limited local medical services.
    (c) The decision of OWCP that requested travel expenses are either 
not reasonable or necessary, or are not incident to obtaining authorized 
medical services, appliances or supplies, is final when issued and is 
not subject to the adjudicatory process described in subpart D of this 
part.
    (d) The standard form designated for medical travel refund requests 
is Form OWCP-957 and must be used to seek reimbursement under this 
section. This form can be obtained from OWCP.



Sec. 30.405  After selecting a treating physician, may an employee 
choose to be treated by another physician instead?

    (a) OWCP will provide the employee with an opportunity to designate 
a treating physician when it accepts the claim. When the physician 
originally selected to provide treatment for an occupational illness or 
a covered illness refers the employee to a specialist for further 
medical care, the employee need not consult OWCP for approval. In all 
other instances, however, the employee must submit a written request to 
OWCP with his or her reasons for desiring a change of physician.
    (b) OWCP will approve the request if it determines that the reasons 
submitted are sufficient. Requests that are often approved include those 
for transfer of care from a general practitioner to a physician who 
specializes in treating the occupational illnesses or covered illnesses 
covered by EEOICPA, or the need for a new physician when an employee has 
moved.
    (c) The decision of OWCP that insufficient reasons for a change of 
physician have been submitted is final when issued and is not subject to 
the adjudicatory process described in subpart D of this part.



Sec. 30.406  Are there any exceptions to these procedures for obtaining 
medical care?

    In cases involving emergencies or unusual circumstances, OWCP may 
authorize treatment in a manner other than as stated in this subpart.

                      Directed Medical Examinations



Sec. 30.410  Can OWCP require an employee to be examined by another 
physician?

    (a) OWCP sometimes needs a second opinion from a medical specialist. 
The employee must submit to examination by a qualified physician as 
often and at such times and places as OWCP considers reasonably 
necessary. Also, OWCP may send a case file for second opinion review 
where an actual examination is not needed, or where the employee is 
deceased.
    (b) If the initial examination is disrupted by someone accompanying 
the employee, OWCP will schedule another

[[Page 110]]

examination with a different qualified physician. The employee will not 
be entitled to have anyone else present at the subsequent examination 
unless OWCP decides that exceptional circumstances exist. For example, 
where a hearing-impaired employee needs an interpreter, the presence of 
an interpreter would be allowed.



Sec. 30.411  What happens if the opinion of the physician selected by 
OWCP differs from the opinion of the physician selected by the employee?

    (a) If one medical opinion holds more probative value than the 
other, OWCP will base its determination of coverage on the medical 
opinion with the greatest probative value. A difference in medical 
opinion sufficient to be considered a conflict only occurs when two 
reports of virtually equal weight and rationale reach opposing 
conclusions.
    (b) If a conflict exists between the medical opinion of the 
employee's physician and the medical opinion of a second opinion 
physician, an OWCP medical adviser or consultant, or a physician 
submitting an impairment evaluation that meets the criteria set out in 
Sec. 30.905 of this part, OWCP shall appoint a third physician to make 
an examination. This is called a referee examination. OWCP will select a 
physician who is qualified in the appropriate specialty and who has had 
no prior connection with the case. Also, a case file may be sent for 
referee medical review where there is no need for an actual examination, 
or where the employee is deceased.
    (c) If the initial referee examination is disrupted by someone 
accompanying the employee, OWCP will schedule another examination with a 
different qualified physician. The employee will not be entitled to have 
anyone else present at the subsequent referee examination unless OWCP 
decides that exceptional circumstances exist. For example, where a 
hearing-impaired employee needs an interpreter, the presence of an 
interpreter would be allowed.



Sec. 30.412  Who pays for second opinion and referee examinations?

    OWCP will pay second opinion and referee medical specialists 
directly. OWCP will also reimburse the employee for all necessary and 
reasonable expenses incident to such an examination, including 
transportation costs and actual wages the employee lost for the time 
needed to submit to an examination required by OWCP.

                             Medical Reports



Sec. 30.415  What are the requirements for medical reports?

    In general, medical reports from the employee's attending physician 
should include the following:
    (a) Dates of examination and treatment;
    (b) History given by the employee;
    (c) Physical findings;
    (d) Results of diagnostic tests;
    (e) Diagnosis;
    (f) Course of treatment;
    (g) A description of any other conditions found due to the claimed 
occupational illness or covered illness;
    (h) The treatment given or recommended for the claimed occupational 
illness or covered illness; and
    (i) All other material findings.



Sec. 30.416  How and when should medical reports be submitted?

    (a) The initial medical report (and any subsequent reports) should 
be made in narrative form on the physician's letterhead stationery. The 
physician should use Form EE-7 as a guide for the preparation of his or 
her initial medical report in support of a claim under Part B and/or 
Part E of EEOICPA. The report should bear the physician's signature or 
signature stamp. OWCP may require an original signature on the report.
    (b) The report shall be submitted directly to OWCP as soon as 
possible after medical examination or treatment is received, either by 
the employee or the physician.



Sec. 30.417  What additional medical information may OWCP require to 
support continuing payment of benefits?

    In all cases requiring hospital treatment or prolonged care, OWCP 
will request detailed narrative reports from the attending physician at 
periodic intervals. The physician will be asked to describe continuing 
medical treatment

[[Page 111]]

for the occupational illness or covered illness accepted by OWCP, a 
prognosis, and the physician's opinion as to the continuing causal 
relationship between the need for additional treatment and the 
occupational illness or covered illness.

                              Medical Bills



Sec. 30.420  How should medical bills and reimbursement requests be 
submitted?

    Usually, medical providers submit their bills directly for 
processing. The rules for submitting and processing provider bills and 
reimbursement requests are stated in subpart H of this part. An employee 
requesting reimbursement for out-of-pocket medical expenses must submit 
a Form OWCP-915 and meet the requirements described in Sec. 30.702.



Sec. 30.421  What are the time frames for submitting bills and 
reimbursement requests?

    To be considered for payment, bills and reimbursement requests must 
be submitted by the end of the calendar year after the year when the 
expense was incurred, or by the end of the calendar year after the year 
when OWCP first accepted the claim as compensable under subpart D of 
this part, whichever is later.



Sec. 30.422  If an employee is only partially reimbursed for a medical 
expense, must the provider refund the balance of the amount paid to the 
employee?

    (a) The OWCP fee schedule sets maximum limits on the amounts payable 
for many services. The employee may be only partially reimbursed for 
out-of-pocket medical expenses because the amount he or she paid to the 
medical provider for a service exceeds the maximum allowable charge set 
by the OWCP fee schedule.
    (b) If this happens, the employee will be advised of the maximum 
allowable charge for the service in question and of his or her 
responsibility to ask the provider to refund to the employee, or credit 
to the employee's account, the amount he or she paid that exceeds the 
maximum allowable charge. The provider that the employee paid, but not 
the employee, may request reconsideration of the fee determination as 
set forth in Sec. 30.712.
    (c) If the provider does not refund to the employee or credit to his 
or her account the amount of money paid in excess of the charge that 
OWCP allows, the employee should submit documentation of the attempt to 
obtain such refund or credit to OWCP. OWCP may authorize reasonable 
reimbursement to the employee after reviewing the facts and 
circumstances of the case.



         Subpart F_Survivors; Payments and Offsets; Overpayments

                                Survivors



Sec. 30.500  What special statutory definitions apply to survivors under 
EEOICPA?

    (a) For the purposes of paying compensation to survivors under both 
Parts B and E of EEOICPA, OWCP will use the following definitions:
    (1) Surviving spouse means the wife or husband of a deceased covered 
Part B employee or deceased covered Part E employee who was married to 
that individual for the 365 consecutive days immediately prior to the 
death of that individual.
    (2) Child or children includes a recognized natural child of a 
deceased covered Part B employee or deceased covered Part E employee, a 
stepchild who lived with that individual in a regular parent-child 
relationship, and an adopted child of that individual. However, to be a 
``covered'' child under Part E only, such child must have been, as of 
the date of the deceased covered Part E employee's death, either under 
the age of 18 years, or under the age of 23 years and a full-time 
student who was continuously enrolled in one or more educational 
institutions since attaining the age of 18 years, or any age and 
incapable of self-support.
    (b) For the purposes of paying compensation to survivors only under 
Part B of EEOICPA, OWCP will use the following additional definitions:
    (1) Parent includes fathers and mothers of a deceased covered Part B 
employee through adoption.

[[Page 112]]

    (2) Grandchild means a child of a child of a deceased covered Part B 
employee.
    (3) Grandparent means a parent of a parent of a deceased covered 
Part B employee.



Sec. 30.501  What order of precedence will OWCP use to determine which 
survivors are entitled to receive compensation under EEOICPA?

    (a) Under Part B of the Act, if OWCP determines that a survivor or 
survivors are entitled to receive compensation under EEOICPA because a 
covered Part B employee who would otherwise have been entitled to 
benefits is deceased, that compensation will be disbursed as follows, 
subject to the qualifications set forth in Sec. 30.5(gg)(3):
    (1) If there is a surviving spouse, the compensation shall be paid 
to that individual.
    (2) If there is no surviving spouse, the compensation shall be paid 
in equal shares to all children of the deceased covered Part B employee.
    (3) If there is no surviving spouse and no children, the 
compensation shall be paid in equal shares to the parents of the 
deceased covered Part B employee.
    (4) If there is no surviving spouse, no children and no parents, the 
compensation shall be paid in equal shares to all grandchildren of the 
deceased covered Part B employee.
    (5) If there is no surviving spouse, no children, no parents and no 
grandchildren, the compensation shall be paid in equal shares to the 
grandparents of the deceased covered Part B employee.
    (6) Notwithstanding paragraphs (a)(1) through (a)(5) of this 
section, if there is a surviving spouse and at least one child of the 
deceased covered Part B employee who is a minor at the time of payment 
and who is not a recognized natural child or adopted child of such 
surviving spouse, half of the compensation shall be paid to the 
surviving spouse, and the other half of the compensation shall be paid 
in equal shares to each child of the deceased covered Part B employee 
who is a minor at the time of payment.
    (b) Under Part E of the Act, if OWCP determines that a survivor or 
survivors are entitled to receive compensation under EEOICPA because a 
covered Part E employee who would otherwise have been entitled to 
benefits is deceased, that compensation will be disbursed as follows, 
subject to the qualifications set forth in Sec. 30.5(gg)(3):
    (1) If there is a surviving spouse, the compensation shall be paid 
to that individual.
    (2) If there is no surviving spouse, the compensation shall be paid 
in equal shares to all ``covered'' children of the deceased covered Part 
E employee.
    (3) Notwithstanding paragraphs (b)(1) and (b)(2) of this section, if 
there is a surviving spouse and at least one ``covered'' child of the 
deceased covered Part E employee who is living at the time of payment 
and who is not a recognized natural child or adopted child of such 
surviving spouse, then half of such payment shall be made to such 
surviving spouse, and the other half of such payment shall be made in 
equal shares to each ``covered'' child of the employee who is living at 
the time of payment.



Sec. 30.502  When is entitlement for survivors determined for purposes 
of EEOICPA?

    Entitlement to any lump-sum payment for survivors under EEOICPA, 
other than for ``covered'' children under Part E, will be determined as 
of the time OWCP makes such a payment. As noted in Sec. 30.500(a)(2), a 
child of a deceased Part E employee will only qualify as a ``covered'' 
child of that individual if he or she satisfied one of the additional 
statutory criteria for a ``covered'' child as of the date of the 
deceased Part E employee's death.

            Payment of Claims and Offset for Certain Payments



Sec. 30.505  What procedures will OWCP follow before it pays any 
compensation?

    (a) In cases involving the approval of a claim, whether in whole or 
in part, OWCP shall take all necessary steps to determine the amount of 
any offset or coordination of EEOICPA benefits before paying any 
benefits, and to verify the identity of the covered Part B employee, the 
covered Part E employee, or the eligible surviving beneficiary or 
beneficiaries. To perform these tasks,

[[Page 113]]

OWCP may conduct any investigation, require any claimant to provide or 
execute any affidavit, record or document, or authorize the release of 
any information as OWCP deems necessary to ensure that the compensation 
payment is made in the correct amount and to the correct person or 
persons. OWCP shall also require every claimant under Part B of the Act 
to execute and provide any necessary affidavit described in Sec. 
30.620. Should a claimant fail or refuse to execute an affidavit or 
release of information, or fail or refuse to provide a requested 
document or record or to provide access to information, such failure or 
refusal may be deemed to be a rejection of the payment, unless the 
claimant does not have and cannot obtain the legal authority to provide, 
release, or authorize access to the required information, records, or 
documents.
    (b) To determine the amount of any offset, OWCP shall require the 
covered Part B employee, covered Part E employee or each eligible 
surviving beneficiary filing a claim under this part to execute and 
provide an affidavit (or declaration made under oath on Form EE-1 or EE-
2) reporting the amount of any payment made pursuant to a final judgment 
or settlement in litigation seeking damages for any occupational illness 
or covered illness for which benefits are payable under EEOICPA. Even if 
someone other than the covered Part B employee or the covered Part E 
employee receives a payment pursuant to a final judgment or settlement 
in litigation seeking damages for any occupational illness or covered 
illness for which benefits are payable under EEOICPA (e.g., the 
surviving spouse of a deceased covered Part B employee or a deceased 
covered Part E employee), the receipt of any such payment must be 
reported since it may constitute a payment solely for an occupational 
illness or covered illness for which benefits are payable under EEOICPA.
    (1) For the purposes of this paragraph (b) only, ``litigation 
seeking damages'' refers to any request or demand for money by the 
covered Part B employee or the covered Part E employee, or by another 
individual if the covered Part B employee or the covered Part E employee 
is deceased, made or sought in a civil action or in anticipation of the 
filing of a civil action, for any occupational illness or covered 
illness for which benefits are payable under EEOICPA. This term does not 
also include any request or demand for money made or sought pursuant to 
a life insurance or health insurance contract, or any request or demand 
for money made or sought by an individual other than the covered Part B 
employee or the covered Part E employee in that individual's own right 
(e.g., a spouse's claim for loss of consortium), or any request or 
demand for money made or sought by the covered Part B employee or the 
covered Part E employee (or the estate of a deceased covered Part B 
employee or deceased covered Part E employee) not for any occupational 
illness or covered illness for which benefits are payable under the 
EEOICPA (e.g., a covered Part B employee's or a covered Part E 
employee's claim for damage to real or personal property).
    (2) If a payment has been made pursuant to a final judgment or 
settlement in litigation seeking damages, OWCP shall subtract a portion 
of the dollar amount of such payment from the benefit payments to be 
made under EEOICPA. OWCP will calculate the amount to be subtracted from 
the benefit payments in the following manner:
    (i) OWCP will first determine the value of the payment made pursuant 
to either a final judgment or settlement in litigation seeking damages 
by adding the dollar amount of any monetary damages (excluding 
contingent awards) and any medical expenses for treatment provided on or 
after the date the covered Part B employee or the covered Part E 
employee filed a claim for EEOICPA benefits that were paid for under the 
final judgment or settlement. In the event that these payments include a 
``structured'' settlement (where a party makes an initial cash payment 
and also arranges, usually through the purchase of an annuity, for 
payments in the future), OWCP will usually accept the cost of the 
annuity to the purchaser as the dollar amount of the right to receive 
the future payments.
    (ii) OWCP will then make certain deductions from the above dollar 
amount to arrive at the dollar amount to be

[[Page 114]]

subtracted from any unpaid EEOICPA benefits. Allowable deductions 
consist of attorney's fees OWCP deems reasonable, and itemized costs of 
suit (out-of-pocket expenditures not part of the normal overhead of a 
law firm's operation like filing fees, travel expenses, witness fees, 
and court reporter costs for transcripts) provided that adequate 
supporting documentation is submitted to OWCP.
    (iii) The EEOICPA benefits that will be reduced will consist of any 
unpaid lump-sum payments payable in the future and medical benefits 
payable in the future. In those cases where it has not yet paid EEOICPA 
benefits, OWCP will reduce such benefits on a dollar-for-dollar basis, 
beginning with the lump-sum payments first. If the amount to be 
subtracted exceeds the lump-sum payments, OWCP will reduce ongoing 
EEOICPA medical benefits payable in the future by the amount of any 
remaining surplus. This means that OWCP will apply the amount it would 
otherwise pay to reimburse the covered Part B employee or the covered 
Part E employee for any ongoing EEOICPA medical treatment to the 
remaining surplus until it is absorbed. In addition to this reduction of 
ongoing EEOICPA medical benefits, OWCP will not be the first payer for 
any medical expenses that are the responsibility of another party (who 
will instead be the first payer) as part of a final judgment or 
settlement in litigation seeking damages.
    (3) The above reduction of EEOICPA benefits will not occur if an 
EEOICPA claimant has had his or her workers' compensation benefits or 
award under section 5 of RECA reduced by the full amount of a payment 
made pursuant to a final judgment or settlement in litigation seeking 
damages. The above reduction will also not occur if an EEOICPA 
claimant's prior payment of EEOICPA benefits was offset to reflect the 
full amount of a payment made pursuant to a final judgment or settlement 
in litigation seeking damages. In those situations, OWCP will not reduce 
currently payable EEOICPA benefits by the same amount (but will reduce 
those benefits by the amount of any surplus final judgment or settlement 
payment that remains).
    (c) Except as provided in Sec. 30.506(b), when OWCP has verified 
the identity of every claimant who is entitled to the compensation 
payment, or to a share of the compensation payment, and has determined 
the correct amount of the payment or the share of the payment, OWCP 
shall notify every claimant, every duly appointed guardian or 
conservator of a claimant, or every person with power of attorney for a 
claimant, and require such person or persons to complete a Form EN-20 
providing payment information. Such form shall be signed and returned to 
OWCP within sixty days of the date of the form or within such greater 
period as may be allowed by OWCP. Failure to sign and return the form 
within the required time may be deemed to be a rejection of the payment. 
If the claimant dies before the payment is received, the person who 
receives the payment shall return it to OWCP for redetermination of the 
correct disbursement of the payment. No payment shall be made until OWCP 
has made a determination concerning the survivors related to a 
respective claim for benefits.
    (d) The total amount of compensation (other than medical benefits) 
under Part E that can be paid to all claimants as a result of the 
exposure of a covered Part E employee shall not be more than $250,000 in 
any circumstances.



Sec. 30.506  To whom and in what manner will OWCP pay compensation?

    (a) Except with respect to claims under Part B of the Act for 
beryllium sensitivity, payment shall be made to the covered Part B 
employee or the covered Part E employee, to the duly appointed guardian 
or conservator of that individual, or to the person with power of 
attorney for that individual, unless the covered Part B employee or 
covered Part E employee is deceased at the time of the payment. In all 
cases involving a deceased covered Part B employee or deceased covered 
Part E employee, payment shall be made to the eligible surviving 
beneficiary or beneficiaries, to the duly appointed guardian or 
conservator of the eligible surviving beneficiary or beneficiaries,

[[Page 115]]

or to every person with power of attorney for an eligible surviving 
beneficiary, in accordance with the terms and conditions specified in 
sections 7384s(e), 7384u(e), and 7385s-3(c) and (d) of EEOICPA.
    (b) Under Part B of the Act, compensation for any consequential 
injury, illness, impairment or disease is limited to payment of medical 
benefits for that injury, illness, impairment or disease. Under Part E 
of the Act, compensation for any consequential injury, illness, 
impairment or disease consists of medical benefits for that injury, 
illness, impairment or disease, as well as any additional monetary 
benefits that are consistent with the terms of Sec. 30.505(d).
    (c) Rejected compensation payments, or shares of compensation 
payments, shall not be distributed to other eligible surviving 
beneficiaries, but shall be returned to the Fund.
    (d) No covered Part B employee may receive more than one lump-sum 
payment under Part B of EEOICPA for any occupational illnesses he or she 
contracted. However, any individual, including a covered Part B employee 
who has received a lump-sum payment for his or her own occupational 
illness or illnesses, may receive one lump-sum payment for each deceased 
covered Part B employee for whom he or she qualifies as an eligible 
surviving beneficiary under Part B of the Act.



Sec. 30.507  What compensation will be provided to covered Part B 
employees who only establish beryllium sensitivity under Part B of EEOICPA?

    The establishment of beryllium sensitivity does not entitle a 
covered Part B employee, or the eligible surviving beneficiary or 
beneficiaries of a deceased covered Part B employee, to any lump-sum 
payment provided for under Part B. Instead, a covered Part B employee 
whose sole accepted occupational illness is beryllium sensitivity shall 
receive beryllium sensitivity monitoring, as well as medical benefits 
for the treatment of this occupational illness in accordance with Sec. 
30.400.



Sec. 30.508  What is beryllium sensitivity monitoring?

    Beryllium sensitivity monitoring shall consist of medical 
examinations to confirm and monitor the extent and nature of a covered 
Part B employee's beryllium sensitivity. Monitoring shall also include 
regular medical examinations, with diagnostic testing, to determine if 
the covered Part B employee has established chronic beryllium disease.



Sec. 30.509  Under what circumstances may a survivor claiming under 
Part E of the Act choose to receive the benefits that would otherwise 
be payable to a covered Part E employee who is deceased?

    (a) If a covered Part E employee dies after filing a claim but 
before monetary benefits are paid under Part E of the Act, and his or 
her death is from a cause other than a covered illness, his or her 
survivor can choose to receive either the survivor benefits payable on 
account of the death of that covered Part E employee, or the monetary 
benefits that would otherwise have been payable to the covered Part E 
employee.
    (b) For the purposes of this section only, a death ``from a cause 
other than a covered illness'' refers only to a death that was solely 
caused by a non-covered illness or illnesses. Therefore, the choice 
referred to in paragraph (a) of this section will not be available if a 
covered illness contributed to the death of the covered Part E employee 
in any manner. In those instances, survivor benefits will still be 
payable to the claimant, but he or she cannot choose to receive the 
monetary benefits that would have otherwise been payable to the deceased 
covered Part E employee in lieu of survivor benefits.
    (c) OWCP only makes impairment determinations based on rationalized 
medical evidence in the case file that is sufficiently detailed and 
meets the various requirements for the many different types of 
impairment determinations possible under the AMA's Guides. Therefore, 
OWCP will only make an impairment determination for a deceased covered 
Part E employee pursuant to this section if the medical evidence of 
record is sufficient to satisfy

[[Page 116]]

the pertinent requirements in the AMA's Guides and subpart J of this 
part.

                              Overpayments



Sec. 30.510  How does OWCP notify an individual of a payment made on 
a claim?

    (a) In addition to providing narrative descriptions to recipients of 
benefits paid or payable, OWCP includes on each check a clear indication 
of the reason the payment is being made. For payments sent by electronic 
funds transfer, a notification of the date and amount of payment appears 
on the statement from the recipient's financial institution.
    (b) By these means, OWCP puts the recipient on notice that a payment 
was made and the amount of the payment. If the amount received differs 
from the amount indicated on the written notice or bank statement, the 
recipient is responsible for notifying OWCP of the difference. Absent 
affirmative evidence to the contrary, the recipient will be presumed to 
have received the notice of payment, whether mailed or transmitted 
electronically.



Sec. 30.511  What is an ``overpayment'' for purposes of EEOICPA?

    An ``overpayment'' is any amount of compensation paid under sections 
7384s, 7384t, 7384u, 7385s-2 or 7385s-3 of the EEOICPA to a recipient 
that constitutes, as of the time OWCP makes such payment:
    (a) Payment where no amount is payable under this part; or
    (b) Payment in excess of the correct amount determined by OWCP.



Sec. 30.512  What does OWCP do when an overpayment is identified?

    Before seeking to recover an overpayment or adjust benefits, OWCP 
will advise the recipient of the overpayment in writing that:
    (a) The overpayment exists, and the amount of overpayment;
    (b) A preliminary finding shows either that the recipient was or was 
not at fault in the creation of the overpayment;
    (c) He or she has the right to inspect and copy OWCP records 
relating to the overpayment; and
    (d) He or she has the right to present written evidence which 
challenges the fact or amount of the overpayment, and/or challenges the 
preliminary finding that he or she was at fault in the creation of the 
overpayment. He or she may also request that recovery of the overpayment 
be waived. Any submission of evidence or request that recovery of the 
overpayment be waived must be presented to OWCP within 30 days of the 
date of the written notice of overpayment.



Sec. 30.513  Under what circumstances may OWCP waive recovery of an 
overpayment?

    (a) OWCP may consider waiving recovery of an overpayment only if the 
recipient was not at fault in accepting or creating the overpayment. 
Recipients of benefits paid under EEOICPA are responsible for taking all 
reasonable measures to ensure that payments received from OWCP are 
proper. The recipient must show good faith and exercise a high degree of 
care in reporting events which may affect entitlement to or the amount 
of benefits. A recipient who has done any of the following will be found 
to be at fault with respect to creating an overpayment:
    (1) Made an incorrect statement as to a material fact which he or 
she knew or should have known to be incorrect; or
    (2) Failed to provide information which he or she knew or should 
have known to be material; or
    (3) Accepted a payment which he or she knew or should have known to 
be incorrect. (This provision applies only to the overpaid individual.)
    (b) Whether or not OWCP determines that a recipient was at fault 
with respect to the creation of an overpayment depends on the 
circumstances surrounding the overpayment. The degree of care expected 
may vary with the complexity of those circumstances and the recipient's 
capacity to realize that he or she is being overpaid.

[[Page 117]]



Sec. 30.514  If OWCP finds that the recipient of an overpayment was not 
at fault, what criteria are used to decide whether to waive recovery of it?

    If OWCP finds that the recipient of an overpayment was not at fault, 
repayment will still be required unless:
    (a) Adjustment or recovery of the overpayment would defeat the 
purpose of the Act (see Sec. 30.516); or
    (b) Adjustment or recovery of the overpayment would be against 
equity and good conscience (see Sec. 30.517).



Sec. 30.515  Is a recipient responsible for an overpayment that resulted 
from an error made by OWCP?

    (a) The fact that OWCP may have erred in making the overpayment does 
not by itself relieve the recipient of the overpayment from liability 
for repayment if the recipient also was at fault in accepting the 
overpayment.
    (b) However, OWCP may find that the recipient was not at fault if 
failure to report an event affecting compensation benefits, or 
acceptance of an incorrect payment, occurred because:
    (1) The recipient relied on misinformation given in writing by OWCP 
regarding the interpretation of a pertinent provision of EEOICPA or this 
part; or
    (2) OWCP erred in calculating either the percentage of impairment or 
wage-loss under Part E of EEOICPA.



Sec. 30.516  Under what circumstances would recovery of an overpayment 
defeat the purpose of the Act?

    Recovery of an overpayment will defeat the purpose of the Act if 
such recovery would cause hardship to the recipient because:
    (a) The recipient from whom OWCP seeks recovery needs substantially 
all of his or her current income to meet current ordinary and necessary 
living expenses; and
    (b) The recipient's assets do not exceed two months' expenditures as 
determined by OWCP using the Bureau of Labor Statistics Consumer 
Expenditure Survey tables.



Sec. 30.517  Under what circumstances would recovery of an overpayment 
be against equity and good conscience?

    (a) Recovery of an overpayment is considered to be against equity 
and good conscience when the recipient would experience severe financial 
hardship in attempting to repay the debt.
    (b) Recovery of an overpayment is also considered to be against 
equity and good conscience when the recipient, in reliance on such 
payments or on notice that such payments would be made, gives up a 
valuable right or changes his or her position for the worse. In making 
such a decision, OWCP does not consider the recipient's current ability 
to repay the overpayment.
    (1) To establish that a valuable right has been relinquished, it 
must be shown that the right was in fact valuable, that it cannot be 
regained, and that the action was based chiefly or solely in reliance on 
the payments or on the notice of payment. Gratuitous transfers of funds 
to other individuals are not considered relinquishments of valuable 
rights.
    (2) To establish that a recipient's position has changed for the 
worse, it must be shown that the decision made would not otherwise have 
been made but for the receipt of benefits, and that this decision 
resulted in a loss.



Sec. 30.518  Can OWCP require the recipient of the overpayment to 
submit additional financial information?

    (a) The recipient of the overpayment is responsible for providing 
information about income, expenses and assets as specified by OWCP. This 
information is needed to determine whether or not recovery of an 
overpayment would defeat the purpose of the Act, or would be against 
equity and good conscience. This information will also be used to 
determine the repayment schedule, if necessary.
    (b) Failure to submit this requested information within 30 days of 
the request shall result in denial of waiver, and no further request for 
waiver shall be considered until the requested information is furnished.

[[Page 118]]



Sec. 30.519  How does OWCP communicate its final decision concerning 
recovery of an overpayment?

    (a) After considering any written documentation or argument 
submitted to OWCP within the 30-day period set out in Sec. 30.512(d), 
OWCP will issue a final decision on the overpayment. OWCP will send a 
copy of the final decision to the individual from whom recovery is 
sought and his or her representative, if any.
    (b) The provisions of subpart D of this part do not apply to any 
decision regarding the recovery of an overpayment.



Sec. 30.520  How are overpayments collected?

    (a) When an overpayment has been made to a recipient who is entitled 
to further payments, the recipient shall refund to OWCP the amount of 
the overpayment as soon as the error is discovered or his or her 
attention is called to same. If no refund is made, OWCP shall recover 
the overpayment by reducing any further lump-sum payments due currently 
or in the future, taking into account the financial circumstances of the 
recipient, and any other relevant factors, so as to minimize any 
hardship. Should the recipient die before collection has been completed, 
further collection shall be made by decreasing later payments, if any, 
payable under EEOICPA with respect to the underlying occupational 
illness or covered illness.
    (b) When an overpayment has been made to a recipient and OWCP is 
unable to recover the overpayment by reducing compensation due 
currently, the recipient shall refund to OWCP the amount of the 
overpayment as soon as the error is discovered or his or her attention 
is called to same. The overpayment is subject to the provisions of the 
Federal Claims Collection Act of 1966, as amended (31 U.S.C. 3701 et 
seq.), and may be reported to the Internal Revenue Service as income. If 
the recipient fails to make such refund, OWCP may recover the 
overpayment through any available means, including offset of salary, 
annuity benefits, or other Federal payments, including tax refunds as 
authorized by the Tax Refund Offset Program, or referral of the debt to 
a collection agency or to the Department of Justice.



                      Subpart G_Special Provisions

                             Representation



Sec. 30.600  May a claimant designate a representative?

    (a) The claims process under this part is informal, and OWCP acts as 
an impartial evaluator of the evidence. A claimant need not be 
represented to file a claim or receive a payment. Nevertheless, a 
claimant may appoint one individual to represent his or her interests, 
but the appointment must be in writing.
    (b) There can be only one representative at any one time, so after 
one representative has been properly appointed, OWCP will not recognize 
another individual as a representative until the claimant withdraws the 
authorization of the first individual. In addition, OWCP will recognize 
only certain types of individuals (see Sec. 30.601).
    (c) A properly appointed representative who is recognized by OWCP 
may make a request or give direction to OWCP regarding the claims 
process, including a hearing. This authority includes presenting or 
eliciting evidence, making arguments on facts or the law, and obtaining 
information from the case file, to the same extent as the claimant.
    (1) Any notice requirement contained in this part or EEOICPA is 
fully satisfied if served on the representative, and has the same force 
and effect as if sent to the claimant.
    (2) A representative does not have authority to complete and sign 
the Form EN-20, described in Sec. 30.505(c), which collects information 
necessary for issuance of a compensation payment.



Sec. 30.601  Who may serve as a representative?

    A claimant may authorize any individual to represent him or her in 
regard to a claim under EEOICPA, unless that individual's service as a 
representative would violate any applicable provision of law (such as 18 
U.S.C. 205 and 208). A federal employee may act as a representative 
only:

[[Page 119]]

    (a) On behalf of immediate family members, defined as a spouse, 
children, parents, and siblings of the representative, provided no fee 
or gratuity is charged; or
    (b) While acting as a union representative, defined as any 
officially sanctioned union official, and no fee or gratuity is charged.



Sec. 30.602  Who is responsible for paying the representative's fee?

    A representative may charge the claimant a fee for services and for 
costs associated with the representation before OWCP. The claimant is 
solely responsible for paying the fee and other costs. OWCP will not 
reimburse the claimant, nor is it in any way liable for the amount of 
the fee and costs.



Sec. 30.603  Are there any limitations on what the representative may 
charge the claimant for his or her services?

    (a) Notwithstanding any contract, the representative may not 
receive, for services rendered in connection with a claim pending before 
OWCP, more than the percentages of the lump-sum payment made to the 
claimant set out in paragraph (b) of this section.
    (b) The percentages referred to in paragraph (a) of this section 
are:
    (1) 2 percent for the filing of an initial claim with OWCP, provided 
that the representative was retained prior to the filing of the initial 
claim; plus
    (2) 10 percent of the difference between the lump-sum payment made 
to the claimant and the amount proposed in the recommended decision with 
respect to objections to a recommended decision.
    (c)(1) Any representative who violates this section shall be fined 
not more than $5,000.
    (2) The authority to prosecute violations of this limitation lies 
with the Department of Justice.
    (d) The fee limitations described in this section shall not apply 
with respect to representative services that are rendered in connection 
with a petition filed with a U.S. District Court seeking review of an 
OWCP decision that is final pursuant to Sec. 30.316(d), or with respect 
to any subsequent appeal in such a proceeding.

                          Third Party Liability



Sec. 30.605  What rights does the United States have upon payment of 
compensation under EEOICPA?

    If an occupational illness or covered illness for which compensation 
is payable under EEOICPA is caused, wholly or partially, by someone 
other than a federal employee acting within the scope of his or her 
employment, a DOE contractor or subcontractor, a beryllium vendor or 
atomic weapons employer, the United States is subrogated for the full 
amount of any payment of compensation under EEOICPA to any right or 
claim that the individual to whom the payment was made may have against 
any person or entity on account of such occupational illness or covered 
illness.



Sec. 30.606  Under what circumstances must a recovery of money or 
other property in connection with an illness for which benefits are 
payable under EEOICPA be reported to OWCP?

    Any person who has filed an EEOICPA claim that has been accepted by 
OWCP (whether or not compensation has been paid), or who has received 
EEOICPA benefits in connection with a claim filed by another, is 
required to notify OWCP of the receipt of money or other property as a 
result of a settlement or judgment in connection with the circumstances 
of that claim.



Sec. 30.607  How is a structured settlement (that is, a settlement 
providing for receipt of funds over a specified period of time) treated 
for purposes of reporting the recovery?

    In this situation, the recovery to be reported is the present value 
of the right to receive all of the payments included in the structured 
settlement, allocated in the case of multiple recipients in the same 
manner as single payment recoveries.



Sec. 30.608  How does the United States calculate the amount to which 
it is subrogated?

    The subrogated amount of a specific claim consists of the total 
money paid by OWCP from the Energy Employees Occupational Illness 
Compensation

[[Page 120]]

Fund with respect to that claim to or on behalf of a covered Part B 
employee, a covered Part E employee or an eligible surviving 
beneficiary, less charges for any medical file review (i.e., the 
physician did not examine the employee) done at the request of OWCP. 
Charges for medical examinations also may be subtracted if the covered 
Part B employee, covered Part E employee or an eligible surviving 
beneficiary establishes that the examinations were required to be made 
available to the covered Part B employee or covered Part E employee 
under a statute other than EEOICPA.



Sec. 30.609  Is a settlement or judgment received as a result of 
allegations of medical malpractice in treating an illness covered 
by EEOICPA a recovery that must be reported to OWCP?

    Since an injury caused by medical malpractice in treating an 
occupational illness or covered illness compensable under EEOICPA is 
also covered under EEOICPA, any recovery in a suit alleging such an 
injury is treated as a recovery that must be reported to OWCP.



Sec. 30.610  Are payments to a covered Part B employee, a covered Part E employee 

or an eligible surviving beneficiary as a result of an insurance policy which the 
employee or eligible surviving beneficiary has purchased a recovery that must be reported to OWCP?

    Since payments received by a covered Part B employee, a covered Part 
E employee or an eligible surviving beneficiary pursuant to an insurance 
policy purchased by someone other than a liable third party are not 
payments in satisfaction of liability for causing an occupational 
illness or covered illness compensable under the Act, they are not 
considered a recovery that must be reported to OWCP.



Sec. 30.611  If a settlement or judgment is received for more than one medical 
condition, can the amount paid on a single EEOICPA claim be attributed to different 
conditions for purposes of calculating the amount to which the United States is subrogated?

    (a) All medical conditions accepted by OWCP in connection with a 
single claim are treated as the same illness for the purpose of 
computing the amount which the United States is entitled to offset in 
connection with the receipt of a recovery from a third party, except 
that an injury caused by medical malpractice in treating an illness 
covered under EEOICPA will be treated as a separate injury.
    (b) If an illness covered under EEOICPA is caused under 
circumstances creating a legal liability in more than one person, other 
than the United States, a DOE contractor or subcontractor, a beryllium 
vendor or an atomic weapons employer, to pay damages, OWCP will 
determine whether recoveries received from one or more third parties 
should be attributed to separate conditions for which compensation is 
payable in connection with a single EEOICPA claim. If such an 
attribution is both practicable and equitable, as determined by OWCP, in 
its discretion, the conditions will be treated as separate injuries for 
purposes of calculating the amount to which the United States is 
subrogated.

   Effect of Tort Suits Against Beryllium Vendors and Atomic Weapons 
                                Employers



Sec. 30.615  What type of tort suits filed against beryllium vendors or 
atomic weapons employers may disqualify certain claimants from receiving 
benefits under Part B of EEOICPA?

    (a) A tort suit (other than an administrative or judicial proceeding 
for workers' compensation) that includes a claim arising out of a 
covered Part B employee's employment-related exposure to beryllium or 
radiation, filed against a beryllium vendor or an atomic weapons 
employer, by a covered Part B employee or an eligible surviving 
beneficiary or beneficiaries of a deceased covered Part B employee, will 
disqualify that otherwise eligible individual or individuals from 
receiving benefits under Part B of EEOICPA unless such claim is 
terminated in accordance with the requirements of Sec. Sec. 30.616 
through 30.619.
    (b) The term ``claim arising out of a covered Part B employee's 
employment-related exposure to beryllium or radiation'' used in 
paragraph (a) of this

[[Page 121]]

section includes a claim that is derivative of a covered Part B 
employee's employment-related exposure to beryllium or radiation, such 
as a claim for loss of consortium raised by a covered Part B employee's 
spouse.
    (c) If all claims arising out of a covered Part B employee's 
employment-related exposure to beryllium or radiation are terminated in 
accordance with the requirements of Sec. Sec. 30.616 through 30.619 of 
these regulations, proceeding with the remaining portion of the tort 
suit filed against a beryllium vendor or an atomic weapons employer will 
not disqualify an otherwise eligible individual or individuals from 
receiving benefits under Part B of EEOICPA.



Sec. 30.616  What happens if this type of tort suit was filed prior 
to October 30, 2000?

    (a) If a tort suit described in Sec. 30.615 was filed prior to 
October 30, 2000, the claimant or claimants will not be disqualified 
from receiving any EEOICPA benefits to which they may be found entitled 
if the tort suit was terminated in any manner prior to December 28, 
2001.
    (b) If a tort suit described in Sec. 30.615 was filed prior to 
October 30, 2000 and was pending as of December 28, 2001, the claimant 
or claimants will be disqualified from receiving any benefits under Part 
B of EEOICPA unless they dismissed all claims arising out of a covered 
Part B employee's employment-related exposure to beryllium or radiation 
that were included in the tort suit prior to December 31, 2003.



Sec. 30.617  What happens if this type of tort suit was filed during 
the period from October 30, 2000 through December 28, 2001?

    (a) If a tort suit described in Sec. 30.615 was filed during the 
period from October 30, 2000 through December 28, 2001, the claimant or 
claimants will be disqualified from receiving any benefits under Part B 
of EEOICPA unless they dismiss all claims arising out of a covered Part 
B employee's employment-related exposure to beryllium or radiation that 
are included in the tort suit on or before the last permissible date 
described in paragraph (b) of this section.
    (b) The last permissible date is the later of:
    (1) April 30, 2003; or
    (2) The date that is 30 months after the date the claimant or 
claimants first became aware that an illness of the covered Part B 
employee may be connected to his or her exposure to beryllium or 
radiation covered by EEOICPA. For purposes of determining when this 30-
month period begins, ``the date the claimant or claimants first became 
aware'' will be deemed to be the date they received either a 
reconstructed dose from HHS, or a diagnosis of a covered beryllium 
illness, as applicable.



Sec. 30.618  What happens if this type of tort suit was filed after 
December 28, 2001?

    (a) If a tort suit described in Sec. 30.615 was filed after 
December 28, 2001, the claimant or claimants will be disqualified from 
receiving any benefits under Part B of EEOICPA if a judgment is entered 
against them.
    (b) If a tort suit described in Sec. 30.615 was filed after 
December 28, 2001 and a judgment has not yet been entered against the 
claimant or claimants, they will also be disqualified from receiving any 
benefits under Part B of EEOICPA unless, prior to entry of any judgment, 
they dismiss all claims arising out of a covered Part B employee's 
employment-related exposure to beryllium or radiation that are included 
in the tort suit on or before the last permissible date described in 
paragraph (c) of this section.
    (c) The last permissible date is the later of:
    (1) April 30, 2003; or
    (2) The date that is 30 months after the date the claimant or 
claimants first became aware that an illness of the covered Part B 
employee may be connected to his or her exposure to beryllium or 
radiation covered by EEOICPA. For purposes of determining when this 30-
month period begins, ``the date the claimant or claimants first became 
aware'' will be deemed to be the date they received either a 
reconstructed dose from HHS, or a diagnosis of a covered beryllium 
illness, as applicable.

[[Page 122]]



Sec. 30.619  Do all the parties to this type of tort suit have to take 
these actions?

    The type of tort suits described in Sec. 30.615 may be filed by 
more than one individual, each with a different cause of action. For 
example, a tort suit may be filed against a beryllium vendor by both a 
covered Part B employee and his or her spouse, with the covered Part B 
employee claiming for chronic beryllium disease and the spouse claiming 
for loss of consortium due to the covered Part B employee's exposure to 
beryllium. However, since the spouse of a living covered Part B employee 
could not be an eligible surviving beneficiary under Part B of EEOICPA, 
the spouse would not have to comply with the termination requirements of 
Sec. Sec. 30.616 through 30.618. A similar result would occur if a tort 
suit were filed by both the spouse of a deceased covered Part B employee 
and other family members (such as children of the deceased covered part 
B employee). In this case, the spouse would be the only eligible 
surviving beneficiary of the deceased covered Part B employee under Part 
B of the EEOICPA because the other family members could not be eligible 
for benefits while he or she was alive. As a result, the spouse would be 
the only party to the tort suit who would have to comply with the 
termination requirements of Sec. Sec. 30.616 through 30.618.



Sec. 30.620  How will OWCP ascertain whether a claimant filed this 
type of tort suit and if he or she has been disqualified from receiving 
any benefits under Part B of EEOICPA?

    Prior to authorizing payment on a claim under Part B of EEOICPA, 
OWCP will require each claimant to execute and provide an affidavit 
stating if he or she filed a tort suit (other than an administrative or 
judicial proceeding for workers' compensation) against either a 
beryllium vendor or an atomic weapons employer that included a claim 
arising out of a covered Part B employee's employment-related exposure 
to beryllium or radiation, and if so, the current status of such tort 
suit. OWCP may also require the submission of any supporting evidence 
necessary to confirm the particulars of any affidavit provided under 
this section.

    Coordination of Part E Benefits With State Workers' Compensation 
                                Benefits



Sec. 30.625  What does ``coordination of benefits'' mean under Part 
E of EEOICPA?

    In general, ``coordination of benefits'' under Part E of the Act 
occurs when compensation to be received under Part E is reduced by OWCP, 
pursuant to section 7385s-11 of EEOICPA, to reflect certain benefits the 
beneficiary receives under a state workers' compensation program for the 
same covered illness.



Sec. 30.626  How will OWCP coordinate compensation payable under Part 
E of EEOICPA with benefits from state workers' compensation programs?

    (a) OWCP will reduce the compensation payable under Part E by the 
amount of benefits the claimant receives from a state workers' 
compensation program by reason of the same covered illness, after 
deducting the reasonable costs to the claimant of obtaining those 
benefits.
    (b) To determine the amount of any reduction of EEOICPA 
compensation, OWCP shall require the covered Part E employee or each 
eligible surviving beneficiary filing a claim under Part E to execute 
and provide an affidavit reporting the amount of any benefit received 
pursuant to a claim filed in a state workers' compensation program for 
the same covered illness.
    (c) If a covered Part E employee or a survivor of such employee 
receives benefits through a state workers' compensation program pursuant 
to a claim for the same covered illness, OWCP shall reduce a portion of 
the dollar amount of such state workers' benefit from the compensation 
payable under Part E. OWCP will calculate the net amount of the state 
workers' compensation benefit amount to be subtracted from the 
compensation payment under Part E in the following manner:
    (1) OWCP will first determine the dollar value of the benefits 
received by that individual from a state workers'

[[Page 123]]

compensation program by including all benefits, other than medical and 
vocational rehabilitation benefits, received for the same covered 
illness or injury sustained as a consequence of a covered illness.
    (2) OWCP will then make certain deductions from the above dollar 
benefit received under a state workers' compensation program to arrive 
at the dollar amount that will be subtracted from any compensation 
payable under Part E of EEOICPA.
    (i) Allowable deductions consist of reasonable costs in obtaining 
state workers' compensation benefits incurred by that individual, 
including but not limited to attorney's fees OWCP deems reasonable and 
itemized costs of suit (out-of-pocket expenditures not part of the 
normal overhead of a law firm's operation like filing, travel expenses, 
witness fees, and court reporter costs for transcripts), provided that 
adequate supporting documentation is submitted to OWCP for its 
consideration.
    (ii) The EEOICPA benefits that will be reduced will consist of any 
unpaid monetary payments payable in the future and medical benefits 
payable in the future. In those cases where it has not yet paid EEOICPA 
benefits under Part E, OWCP will reduce such benefits on a dollar-for-
dollar basis, beginning with the current monetary payments first. If the 
amount to be subtracted exceeds the monetary payments currently payable, 
OWCP will reduce ongoing EEOICPA medical benefits payable in the future 
by the amount of any remaining surplus. This means that OWCP will apply 
the amount it would otherwise pay to reimburse the covered Part E 
employee for any ongoing EEOICPA medical treatment to the remaining 
surplus until it is absorbed (or until further monetary benefits become 
payable that are sufficient to absorb the surplus).
    (3) The above coordination of benefits will not occur if the 
beneficiary under a state workers' compensation program receives state 
workers' compensation benefits for both a covered and a non-covered 
illness arising out of and in the course of the same work-related 
incident.



Sec. 30.627  Under what circumstances will OWCP waive the statutory 
requirement to coordinate these benefits?

    A waiver to the requirement to coordinate Part E benefits with 
benefits paid under a state workers' compensation program may be granted 
if OWCP determines that the administrative costs and burdens of 
coordinating benefits in a particular case or class of cases justifies 
the waiver. This decision is exclusively within the discretion of OWCP.



               Subpart H_Information for Medical Providers

                        Medical Records and Bills



Sec. 30.700  What kinds of medical records must providers keep?

    Federal government medical officers, private physicians and 
hospitals are required to keep records of all cases treated by them 
under EEOICPA so they can supply OWCP with a history of the claimed 
occupational illness or covered illness, a description of the nature and 
extent of the claimed occupational illness or covered illness, the 
results of any diagnostic studies performed, and the nature of the 
treatment rendered. This requirement terminates after a provider has 
supplied OWCP with the above-noted information, and otherwise terminates 
ten years after the record was created.



Sec. 30.701  How are medical bills to be submitted?

    (a) All charges for medical and surgical treatment, appliances or 
supplies furnished to employees, except for treatment and supplies 
provided by nursing homes, shall be supported by medical evidence as 
provided in Sec. 30.700. The physician or provider shall itemize the 
charges on Form OWCP-1500 or CMS-1500 (for professional charges), Form 
OWCP-92 or UB-92 (for hospitals), an electronic or paper-based bill that 
includes required data elements (for pharmacies), or other form as 
warranted, and submit the form or bill promptly for processing.
    (b) The provider shall identify each service performed using the 
Physician's Current Procedural Terminology

[[Page 124]]

(CPT) code, the Healthcare Common Procedure Coding System (HCPCS) code, 
the National Drug Code (NDC) number, or the Revenue Center Code (RCC), 
with a brief narrative description. Where no code is applicable, a 
detailed description of services performed should be provided.
    (c) For professional charges billed on Form OWCP-1500 or CMS-1500, 
the provider shall also state each diagnosed condition and furnish the 
corresponding diagnostic code using the ``International Classification 
of Disease, 9th Edition, Clinical Modification'' (ICD-9-CM), or as 
revised. A separate bill shall be submitted when the employee is 
discharged from treatment or monthly, if treatment for the occupational 
illness is necessary for more than 30 days.
    (1)(i) Hospitals shall submit charges for medical and surgical 
treatment or supplies promptly on Form OWCP-92 or UB-92. The provider 
shall identify each outpatient radiology service, outpatient pathology 
service and physical therapy service performed, using HCPCS/CPT codes 
with a brief narrative description. The charge for each individual 
service, or the total charge for all identical services, should also 
appear on the form.
    (ii) Other outpatient hospital services for which HCPCS/CPT codes 
exist shall also be coded individually using the coding scheme noted in 
this section. Services for which there are no HCPCS/CPT codes available 
can be presented using the RCCs described in the ``National Uniform 
Billing Data Elements Specifications,'' current edition. The provider 
shall also furnish the diagnostic code using the ICD-9-CM. If the 
outpatient hospital services include surgical and/or invasive 
procedures, the provider shall code each procedure using the proper 
HCPCS/CPT codes and furnishing the corresponding diagnostic codes using 
the ICD-9-CM.
    (2) Pharmacies shall itemize charges for prescription medications, 
appliances, or supplies on electronic or paper-based bills and submit 
them promptly for processing. Bills for prescription medications must 
include all required data elements, including the NDC number assigned to 
the product, the generic or trade name of the drug provided, the 
prescription number, the quantity provided, and the date the 
prescription was filled.
    (3) Nursing homes shall itemize charges for appliances, supplies or 
services on the provider's billhead stationery and submit them promptly 
for processing.
    (d) By submitting a bill and/or accepting payment, the provider 
signifies that the service for which payment is sought was performed as 
described and was necessary. In addition, the provider thereby agrees to 
comply with all regulations set forth in this subpart concerning the 
rendering of treatment and/or the process for seeking payment for 
medical services, including the limitation imposed on the amount to be 
paid for such services.
    (e) In summary, bills submitted by providers must: be itemized on 
Form OWCP-1500 or CMS-1500 (for physicians), Form OWCP-92 or UB-92 (for 
hospitals), or an electronic or paper-based bill that includes required 
data elements (for pharmacies); contain the signature or signature stamp 
of the provider; and identify the procedures using HCPCS/CPT codes, 
RCCs, or NDC numbers. Otherwise, the bill may be returned to the 
provider for correction and resubmission. The decision of OWCP whether 
to pay a provider's bill is final when issued and is not subject to the 
adjudicatory process described in subpart D of this part.



Sec. 30.702  How should an employee prepare and submit requests for 
reimbursement for medical expenses, transportation costs, loss of 
wages, and incidental expenses?

    (a) If an employee has paid bills for medical, surgical or other 
services, supplies or appliances provided by a professional due to an 
occupational illness or a covered illness, he or she must submit a 
request for reimbursement on Form OWCP-915, together with an itemized 
bill on Form OWCP-1500 or CMS-1500 prepared by the provider and a 
medical report as provided in Sec. 30.700, for consideration.
    (1) The provider of such service shall state each diagnosed 
condition and furnish the applicable ICD-9-CM code and identify each 
service performed using the applicable HCPCS/CPT code, with a

[[Page 125]]

brief narrative description of the service performed, or, where no code 
is applicable, a detailed description of that service.
    (2) The reimbursement request must be accompanied by evidence that 
the provider received payment for the service from the employee and a 
statement of the amount paid. Acceptable evidence that payment was 
received includes, but is not limited to, a signed statement by the 
provider, a mechanical stamp or other device showing receipt of payment, 
a copy of the employee's canceled check (both front and back) or a copy 
of the employee's credit card receipt.
    (b) If a hospital, pharmacy or nursing home provided services for 
which the employee paid, the employee must also use Form OWCP-915 to 
request reimbursement and should submit the request in accordance with 
the provisions of Sec. 30.701(a). Any such request for reimbursement 
must be accompanied by evidence, as described in paragraph (a)(2) of 
this section, that the provider received payment for the service from 
the employee and a statement of the amount paid.
    (c) The requirements of paragraphs (a) and (b) of this section may 
be waived if extensive delays in the filing or the adjudication of a 
claim make it unusually difficult for the employee to obtain the 
required information.
    (d) Copies of bills submitted for reimbursement will not be accepted 
unless they bear the original signature of the provider and evidence of 
payment. Payment for medical and surgical treatment, appliances or 
supplies shall in general be no greater than the maximum allowable 
charge for such service determined by OWCP, as set forth in Sec. 
30.705. The decision of OWCP whether to reimburse an employee for out-
of-pocket medical expenses, and the amount of any reimbursement, is 
final when issued and is not subject to the adjudicatory process 
described in subpart D of this part.
    (e) An employee will be only partially reimbursed for a medical 
expense if the amount he or she paid to a provider for the service 
exceeds the maximum allowable charge set by OWCP's schedule. If this 
happens, the employee will be advised of the maximum allowable charge 
for the service in question and of his or her responsibility to ask the 
provider to refund to the employee, or credit to the employee's account, 
the amount he or she paid which exceeds the maximum allowable charge. 
The provider that the employee paid, but not the employee, may request 
reconsideration of the fee determination as set forth in Sec. 30.712.
    (f) If the provider fails to make appropriate refund to the 
employee, or to credit the employee's account, within 60 days after the 
employee requests a refund of any excess amount, or the date of a 
subsequent reconsideration decision which continues to disallow all or a 
portion of the disputed amount, OWCP will initiate exclusion procedures 
as provided by Sec. 30.715.
    (g) If the provider does not refund to the employee or credit to his 
or her account the amount of money paid in excess of the allowed charge, 
the employee should submit documentation of the attempt to obtain such 
refund or credit to OWCP. OWCP may authorize reasonable reimbursement to 
the employee after reviewing the facts and circumstances of the case.



Sec. 30.703  What are the time limitations on OWCP's payment of bills?

    OWCP will pay providers and reimburse employees promptly for all 
bills received on an approved form and in a timely manner. However, no 
bill will be paid for expenses incurred if the bill is submitted more 
than one year beyond the end of the calendar year in which the expense 
was incurred or the service or supply was provided, or more than one 
year beyond the end of the calendar year in which the claim was first 
accepted as compensable by OWCP, whichever is later.

                          Medical Fee Schedule



Sec. 30.705  What services are covered by the OWCP fee schedule?

    (a) Payment for medical and other health services furnished by 
physicians, hospitals and other providers for occupational illnesses or 
covered illnesses shall not exceed a maximum allowable charge for such 
service as determined by OWCP, except as provided in this section.

[[Page 126]]

    (b) The schedule of maximum allowable charges does not apply to 
charges for services provided in nursing homes, but it does apply to 
charges for treatment furnished in a nursing home by a physician or 
other medical professional.
    (c) The schedule of maximum allowable charges also does not apply to 
charges for appliances, supplies, services or treatment furnished by 
medical facilities of the U.S. Public Health Service or the Departments 
of the Army, Navy, Air Force and Veterans Affairs.



Sec. 30.706  How are the maximum fees defined?

    For professional medical services, OWCP shall maintain a schedule of 
maximum allowable fees for procedures performed in a given locality. The 
schedule shall consist of: an assignment of a value to procedures 
identified by HCPCS/CPT code which represents the relative skill, 
effort, risk and time required to perform the procedure, as compared to 
other procedures of the same general class; an index based on a relative 
value scale that considers skill, labor, overhead, malpractice insurance 
and other related costs; and a monetary value assignment (conversion 
factor) for one unit of value in each of the categories of service.



Sec. 30.707  How are payments for particular services calculated?

    Payment for a procedure identified by a HCPCS/CPT code shall not 
exceed the amount derived by multiplying the relative values for that 
procedure by the geographic indices for services in that area and by the 
dollar amount assigned to one unit in that category of service.
    (a) The ``locality'' which serves as a basis for the determination 
of average cost is defined by the Bureau of Census Metropolitan 
Statistical Areas. OWCP shall base the determination of the relative per 
capita cost of medical care in a locality using information about 
enrollment and medical cost per county, provided by the Centers for 
Medicare and Medicaid Services (CMS).
    (b) OWCP shall assign the relative value units (RVUs) published by 
CMS to all services for which CMS has made assignments, using the most 
recent revision. Where there are no RVUs assigned to a procedure, OWCP 
may develop and assign any RVUs considered appropriate. The geographic 
adjustment factor shall be that designated by Geographic Practice Cost 
Indices for Metropolitan Statistical Areas as devised for CMS and as 
updated or revised by CMS from time to time. OWCP will devise conversion 
factors for each category of service, and in doing so may adapt CMS 
conversion factors as appropriate using OWCP's processing experience and 
internal data.
    (c) For example, if the unit values for a particular surgical 
procedure are 2.48 for physician's work (W), 3.63 for practice expense 
(PE), and 0.48 for malpractice insurance (M), and the dollar value 
assigned to one unit in that category of service (surgery) is $61.20, 
then the maximum allowable charge for one performance of that procedure 
is the product of the three RVUs times the corresponding geographical 
indices for the locality times the conversion factor. If the geographic 
indices for the locality are 0.988(W), 0.948 (PE), and 1.174 (M), then 
the maximum payment calculation is:

[(2.48)(0.988) + (3.63)(0.948) + (0.48)(1.174)] x $61.20
2.45 + 3.44 + .56] x $61.20
6.45 x $61.20 = $394.74



Sec. 30.708  Does the fee schedule apply to every kind of procedure?

    Where the time, effort and skill required to perform a particular 
procedure vary widely from one occasion to the next, OWCP may choose not 
to assign a relative value to that procedure. In this case the allowable 
charge for the procedure will be set individually based on consideration 
of a detailed medical report and other evidence. At its discretion, OWCP 
may set fees without regard to schedule limits for specially authorized 
consultant examinations, for directed medical examinations, and for 
other specially authorized services.



Sec. 30.709  How are payments for medicinal drugs determined?

    Payment for medicinal drugs prescribed by physicians shall not 
exceed

[[Page 127]]

the amount derived by multiplying the average wholesale price of the 
medication by the quantity or amount provided, plus a dispensing fee.
    (a) All prescription medications identified by NDC number will be 
assigned an average wholesale price representing the product's 
nationally recognized wholesale price as determined by surveys of 
manufacturers and wholesalers. OWCP will establish the dispensing fee.
    (b) The NDC numbers, the average wholesale prices, and the 
dispensing fee shall be reviewed from time to time and updated as 
necessary.



Sec. 30.710  How are payments for inpatient medical services determined?

    (a) OWCP will pay for inpatient medical services according to pre-
determined, condition-specific rates based on the Prospective Payment 
System (PPS) devised by CMS (42 CFR parts 412, 413, 424, 485, and 489). 
Using this system, payment is derived by multiplying the diagnosis-
related group (DRG) weight assigned to the hospital discharge by the 
provider-specific factors.
    (1) All hospital discharges will be classified according to the DRGs 
prescribed by CMS in the form of the DRG Grouper software program. On 
this list, each DRG represents the average resources necessary to 
provide care in a case in that DRG relative to the national average of 
resources consumed per case.
    (2) The provider-specific factors will be provided by CMS in the 
form of their PPS Pricer software program. The software takes into 
consideration the type of facility, census division, actual geographic 
location of the hospital, case mix cost per discharge, number of 
hospital beds, intern/beds ratio, operating cost to charge ratio, and 
other factors used by CMS to determine the specific rate for a hospital 
discharge under their PPS. OWCP may devise price adjustment factors as 
appropriate using OWCP's processing experience and internal data.
    (3) OWCP will base payments to facilities excluded from CMS's PPS on 
consideration of detailed medical reports and other evidence.
    (4) OWCP shall review the pre-determined hospital rates at least 
once a year, and may adjust any or all components when OWCP deems it 
necessary or appropriate.
    (b) OWCP shall review the schedule of fees at least once a year, and 
may adjust the schedule or any of its components when OWCP deems it 
necessary or appropriate.



Sec. 30.711  When and how are fees reduced?

    (a) OWCP shall accept a provider's designation of the code to 
identify a billed procedure or service if the code is consistent with 
medical reports and other evidence. Where no code is supplied, OWCP may 
determine the code based on the narrative description of the procedure 
on the billing form and in associated medical reports. OWCP will pay no 
more than the maximum allowable fee for that procedure.
    (b) If the charge submitted for a service supplied to an employee 
exceeds the maximum amount determined to be reasonable according to the 
schedule, OWCP shall pay the amount allowed by the schedule for that 
service and shall notify the provider in writing that payment was 
reduced for that service in accordance with the schedule. OWCP shall 
also notify the provider of the method for requesting reconsideration of 
the balance of the charge. The decision of OWCP to pay less than the 
charged amount is final when issued and is not subject to the 
adjudicatory process described in subpart D of this part.



Sec. 30.712  If OWCP reduces a fee, may a provider request 
reconsideration of the reduction?

    (a) A physician or other provider whose charge for service is only 
partially paid because it exceeds a maximum allowable amount set by OWCP 
may, within 30 days, request reconsideration of the fee determination.
    (1) Any such request will be considered by the district office with 
jurisdiction over the employee's claim. The request must be accompanied 
by documentary evidence that the procedure performed was either 
incorrectly identified by the original code, that the presence of a 
severe or concomitant

[[Page 128]]

medical condition made treatment especially difficult, or that the 
provider possessed unusual qualifications. In itself, board 
certification in a specialty is not sufficient evidence of unusual 
qualifications to justify a charge in excess of the maximum allowable 
amount set by OWCP. These are the only three circumstances that will 
justify reevaluation of the paid amount.
    (2) A list of district offices and their respective areas of 
jurisdiction is available upon request from the U.S. Department of 
Labor, Office of Workers' Compensation Programs, Washington, DC 20210, 
or on the Internet at http://www.dol.gov/esa/regs/compliance/owcp/
eeoicp/main.htm. Within 30 days of receiving the request for 
reconsideration, the district office shall respond in writing stating 
whether or not an additional amount will be allowed as reasonable, 
considering the evidence submitted.
    (b) If the district office issues a decision that continues to 
disallow a contested amount, the provider may apply to the Regional 
Director of the region with jurisdiction over the district office. The 
application must be filed within 30 days of the date of such decision, 
and it may be accompanied by additional evidence. Within 60 days of 
receipt of such application, the Regional Director shall issue a 
decision in writing stating whether or not an additional amount will be 
allowed as reasonable, considering the evidence submitted.



Sec. 30.713  If OWCP reduces a fee, may a provider bill the employee 
for the balance?

    A provider whose fee for service is partially paid by OWCP as a 
result of the application of its fee schedule or other tests for 
reasonableness in accordance with this part shall not request payment 
from the employee for the unpaid amount of the provider's bill.
    (a) Where a provider's fee for a particular service or procedure is 
lower to the general public than as provided by the schedule of maximum 
allowable charges, the provider shall bill at the lower rate. A fee for 
a particular service or procedure which is higher than the provider's 
fee to the general public for that same service or procedure will be 
considered a charge ``substantially in excess of such provider's 
customary charges'' for the purposes of Sec. 30.715(d).
    (b) A provider whose fee for service is partially paid by OWCP as 
the result of the application of the schedule of maximum allowable 
charges and who collects or attempts to collect from the employee, 
either directly or through a collection agent, any amount in excess of 
the charge allowed by OWCP, and who does not cease such action or make 
appropriate refund to the employee within 60 days of the date of the 
decision of OWCP, shall be subject to the exclusion procedures provided 
by Sec. 30.715(h).

                         Exclusion of Providers



Sec. 30.715  What are the grounds for excluding a provider from payment 
under this part?

    A physician, hospital, or provider of medical services or supplies 
shall be excluded from payment under this part if such physician, 
hospital or provider has:
    (a) Been convicted under any criminal statute of fraudulent 
activities in connection with any federal or state program for which 
payments are made to providers for similar medical, surgical or hospital 
services, appliances or supplies;
    (b) Been excluded or suspended, or has resigned in lieu of exclusion 
or suspension, from participation in any federal or state program 
referred to in paragraph (a) of this section;
    (c) Knowingly made, or caused to be made, any false statement or 
misrepresentation of a material fact in connection with a determination 
of the right to reimbursement under this part, or in connection with a 
request for payment;
    (d) Submitted, or caused to be submitted, three or more bills or 
requests for payment within a 12-month period under this subpart 
containing charges which OWCP finds to be substantially in excess of 
such provider's customary charges, unless OWCP finds there is good cause 
for the bills or requests containing such charges;
    (e) Knowingly failed to timely reimburse employees for treatment, 
services or supplies furnished under this subpart and paid for by OWCP;

[[Page 129]]

    (f) Failed, neglected or refused on three or more occasions during a 
12-month period to submit full and accurate medical reports, or to 
respond to requests by OWCP for additional reports or information, as 
required by Sec. 30.700 of this part;
    (g) Knowingly furnished treatment, services or supplies which are 
substantially in excess of the employee's needs, or of a quality which 
fails to meet professionally recognized standards; or
    (h) Collected or attempted to collect from the employee, either 
directly or through a collection agent, an amount in excess of the 
charge allowed by OWCP for the procedure performed, and has failed or 
refused to make appropriate refund to the employee, or to cease such 
collection attempts, within 60 days of the date of the decision of OWCP.



Sec. 30.716  What will cause OWCP to automatically exclude a physician 
or other provider of medical services and supplies?

    (a) OWCP shall automatically exclude a physician, hospital, or 
provider of medical services or supplies who:
    (1) Has been convicted of a crime described in Sec. 30.715(a); or
    (2) Has been excluded or suspended, or has resigned in lieu of 
exclusion or suspension, from participation in any federal or state 
program for which payments are made to providers for similar medical, 
surgical or hospital services, appliances or supplies.
    (b) The exclusion applies to participating in the program and to 
seeking payment under this part for services performed after the date of 
the entry of the judgment of conviction or order of exclusion, 
suspension or resignation, as the case may be, by the court or agency 
concerned. Proof of the conviction, exclusion, suspension or resignation 
may consist of a copy thereof authenticated by the seal of the court or 
agency concerned.



Sec. 30.717  When are OWCP's exclusion procedures initiated?

    Upon receipt of information indicating that a physician, hospital or 
provider of medical services or supplies (hereinafter the provider) has 
engaged in activities enumerated in paragraphs (c) through (h) of Sec. 
30.715, the Regional Director, after completion of inquiries he or she 
deems appropriate, may initiate procedures to exclude the provider from 
participation in the EEOICPA program. For the purposes of these 
procedures, ``Regional Director'' may include any officer designated to 
act on his or her behalf.



Sec. 30.718  How is a provider notified of OWCP's intent to exclude him 
or her?

    The Regional Director shall initiate the exclusion process by 
sending the provider a letter, by certified mail and with return receipt 
requested, which shall contain the following:
    (a) A concise statement of the grounds upon which exclusion shall be 
based;
    (b) A summary of the information, with supporting documentation, 
upon which the Regional Director has relied in reaching an initial 
decision that exclusion proceedings should begin;
    (c) An invitation to the provider to:
    (1) Resign voluntarily from participation in the EEOICPA program 
without admitting or denying the allegations presented in the letter; or
    (2) Request that the decision on exclusion be based upon the 
existing record and any additional documentary information the provider 
may wish to furnish;
    (d) A notice of the provider's right, in the event of an adverse 
ruling by the Regional Director, to request a formal hearing before an 
administrative law judge;
    (e) A notice that should the provider fail to answer (as described 
in Sec. 30.719) the letter of intent within 30 calendar days of 
receipt, the Regional Director may deem the allegations made therein to 
be true and may order exclusion of the provider without conducting any 
further proceedings; and
    (f) The name and address of the OWCP representative who shall be 
responsible for receiving the answer from the provider.

[[Page 130]]



Sec. 30.719  What requirements must the provider's reply and OWCP's 
decision meet?

    (a) The provider's answer shall be in writing and shall include an 
answer to OWCP's invitation to resign voluntarily. If the provider does 
not offer to resign, he or she shall request that a determination be 
made upon the existing record and any additional information provided.
    (b) Should the provider fail to answer the letter of intent within 
30 calendar days of receipt, the Regional Director may deem the 
allegations made therein to be true and may order exclusion of the 
provider.
    (c) By arrangement with the OWCP representative, the provider may 
inspect or request copies of information in the record at any time prior 
to the Regional Director's decision.
    (d) The Regional Director shall issue his or her decision in 
writing, and shall send a copy of the decision to the provider by 
certified mail, return receipt requested. The decision shall advise the 
provider of his or her right to request, within 30 days of the date of 
the adverse decision, a formal hearing before an administrative law 
judge under the procedures set forth in Sec. 30.720. The filing of a 
request for a hearing within the time specified shall stay the 
effectiveness of the decision to exclude.



Sec. 30.720  How can an excluded provider request a hearing?

    A request for a hearing shall be sent to the OWCP representative 
named pursuant to Sec. 30.718(f) and shall contain:
    (a) A concise notice of the issues on which the provider desires to 
give evidence at the hearing;
    (b) Any request for a more definite statement by OWCP;
    (c) Any request for the presentation of oral argument or evidence; 
and
    (d) Any request for a certification of questions concerning 
professional medical standards, medical ethics or medical regulation for 
an advisory opinion from a competent recognized professional 
organization or federal, state or local regulatory body.



Sec. 30.721  How are hearings assigned and scheduled?

    (a) If the designated OWCP representative receives a timely request 
for hearing, the OWCP representative shall refer the matter to the Chief 
Administrative Law Judge of the Department of Labor, who shall assign it 
for an expedited hearing. The administrative law judge assigned to the 
matter shall consider the request for hearing, act on all requests 
therein, and issue a Notice of Hearing and Hearing Schedule for the 
conduct of the hearing. A copy of the hearing notice shall be served on 
the provider by certified mail, return receipt requested. The Notice of 
Hearing and Hearing Schedule shall include:
    (1) A ruling on each item raised in the request for hearing;
    (2) A schedule for the prompt disposition of all preliminary 
matters, including requests for more definite statements and for the 
certification of questions to advisory bodies; and
    (3) A scheduled hearing date not less than 30 days after the date 
the schedule is issued, and not less than 15 days after the scheduled 
conclusion of preliminary matters, provided that the specific time and 
place of the hearing may be set on 10 days' notice.
    (b) The purpose of the designation of issues is to provide for an 
effective hearing process. The provider is entitled to be heard on any 
matter placed in issue by his or her response to the Notice of Intent to 
Exclude, and may designate ``all issues'' for purposes of hearing. 
However, a specific designation of issues is required if the provider 
wishes to interpose affirmative defenses or request the certification of 
questions for an advisory opinion.



Sec. 30.722  How are subpoenas or advisory opinions obtained?

    (a) In exclusion proceedings involving medical services provided 
under Part B of the Act only, the provider may apply to the 
administrative law judge for the issuance of subpoenas upon a showing of 
good cause therefore.

[[Page 131]]

    (b) A certification of a request for an advisory opinion concerning 
professional medical standards, medical ethics or medical regulation to 
a competent recognized or professional organization or federal, state or 
local regulatory agency may be made:
    (1) As to an issue properly designated by the provider, in the sound 
discretion of the administrative law judge, provided that the request 
will not unduly delay the proceedings;
    (2) By OWCP on its own motion either before or after the institution 
of proceedings, and the results thereof shall be made available to the 
provider at the time that proceedings are instituted or, if after the 
proceedings are instituted, within a reasonable time after receipt. The 
opinion, if rendered by the organization or agency, is advisory only and 
not binding on the administrative law judge.



Sec. 30.723  How will the administrative law judge conduct the hearing 
and issue the recommended decision?

    (a) To the extent appropriate, proceedings before the administrative 
law judge shall be governed by 29 CFR part 18.
    (b) The administrative law judge shall receive such relevant 
evidence as may be adduced at the hearing. Evidence shall be presented 
under oath, orally or in the form of written statements. The 
administrative law judge shall consider the Notice and Response, 
including all pertinent documents accompanying them, and may also 
consider any evidence which refers to the provider or to any claim with 
respect to which the provider has provided medical services, hospital 
services, or medical services and supplies, and such other evidence as 
the administrative law judge may determine to be necessary or useful in 
evaluating the matter.
    (c) All hearings shall be recorded and the original of the complete 
transcript shall become a permanent part of the official record of the 
proceedings.
    (d) In conjunction with the hearing, the administrative law judge 
may:
    (1) Administer oaths; and
    (2) Examine witnesses.
    (e) At the conclusion of the hearing, the administrative law judge 
shall issue a written decision and cause it to be served on all parties 
to the proceeding, their representatives and OWCP.



Sec. 30.724  How can a party request review by OWCP of the administrative 
law judge's recommended decision?

    (a) Any party adversely affected or aggrieved by the decision of the 
administrative law judge may file a petition for discretionary review 
with the Director for Energy Employees Occupational Illness Compensation 
within 30 days after issuance of such decision. The administrative law 
judge's decision, however, shall be effective on the date issued and 
shall not be stayed except upon order of the Director.
    (b) Review by the Director for Energy Employees Occupational Illness 
Compensation shall not be a matter of right but of the sound discretion 
of the Director.
    (c) Petitions for discretionary review shall be filed only upon one 
or more of the following grounds:
    (1) A finding or conclusion of material fact is not supported by 
substantial evidence;
    (2) A necessary legal conclusion is erroneous;
    (3) The decision is contrary to law or to the duly promulgated rules 
or decisions of OWCP;
    (4) A substantial question of law, policy, or discretion is 
involved; or
    (5) A prejudicial error of procedure was committed.
    (d) Each issue shall be separately numbered and plainly and 
concisely stated, and shall be supported by detailed citations to the 
record when assignments of error are based on the record, and by 
statutes, regulations or principal authorities relied upon. Except for 
good cause shown, no assignment of error by any party shall rely on any 
question of fact or law upon which the administrative law judge had not 
been afforded an opportunity to pass.
    (e) A statement in opposition to the petition for discretionary 
review may be filed, but such filing shall in no way delay action on the 
petition.
    (f) If a petition is granted, review shall be limited to the 
questions raised by the petition.

[[Page 132]]

    (g) A petition not granted within 20 days after receipt of the 
petition is deemed denied.



Sec. 30.725  What are the effects of non-automatic exclusion?

    (a) OWCP shall give notice of the exclusion of a physician, hospital 
or provider of medical services or supplies to:
    (1) All OWCP district offices;
    (2) CMS; and
    (3) All employees who are known to have had treatment, services or 
supplies from the excluded provider within the six-month period 
immediately preceding the order of exclusion.
    (b) Notwithstanding any exclusion of a physician, hospital, or 
provider of medical services or supplies under this subpart, OWCP shall 
not refuse an employee reimbursement for any otherwise reimbursable 
medical treatment, service or supply if:
    (1) Such treatment, service or supply was rendered in an emergency 
by an excluded physician; or
    (2) The employee could not reasonably have been expected to know of 
such exclusion.
    (c) An employee who is notified that his or her attending physician 
has been excluded shall have a new right to select a qualified 
physician.



Sec. 30.726  How can an excluded provider be reinstated?

    (a) If a physician, hospital, or provider of medical services or 
supplies has been automatically excluded pursuant to Sec. 30.716, the 
provider excluded will automatically be reinstated upon notice to OWCP 
that the conviction or exclusion which formed the basis of the automatic 
exclusion has been reversed or withdrawn. However, an automatic 
reinstatement shall not preclude OWCP from instituting exclusion 
proceedings based upon the underlying facts of the matter.
    (b) A physician, hospital, or provider of medical services or 
supplies excluded from participation as a result of an order issued 
pursuant to this subpart may apply for reinstatement one year after the 
entry of the order of exclusion, unless the order expressly provides for 
a shorter period. An application for reinstatement shall be addressed to 
the Director for Energy Employees Occupational Illness Compensation, and 
shall contain a concise statement of the basis for the application. The 
application should be accompanied by supporting documents and 
affidavits.
    (c) A request for reinstatement may be accompanied by a request for 
oral argument. Oral argument will be allowed only in unusual 
circumstances where it will materially aid the decision process.
    (d) The Director for Energy Employees Occupational Illness 
Compensation shall order reinstatement only in instances where such 
reinstatement is clearly consistent with the goal of this subpart to 
protect the EEOICPA program against fraud and abuse. To satisfy this 
requirement the provider must provide reasonable assurances that the 
basis for the exclusion will not be repeated.



       Subpart I_Wage-Loss Determinations Under Part E of EEOICPA

                           General Provisions



Sec. 30.800  What types of wage-loss are compensable under Part E of 
EEOICPA?

    Years of wage-loss occurring prior to normal retirement age that are 
the result of a covered illness contracted by a covered Part E employee 
through work-related exposure to a toxic substance at a Department of 
Energy facility or a RECA section 5 facility, as appropriate, may be 
compensable under Part E of the Act. Whether years of wage-loss are 
compensable depends on determinations with respect to:
    (a) The average annual wage of the employee as determined by OWCP in 
accordance with Sec. 30.810;
    (b) The percentage of his or her average annual wage that the 
employee was able to earn during the calendar year(s) in question as 
determined by OWCP in accordance with Sec. 30.811; and
    (c) Whether the employee's inability to earn at least as much as his 
or her average annual wage was due to a covered illness as defined in 
Sec. 30.5(r).

[[Page 133]]



Sec. 30.801  What special definitions does OWCP use in connection with 
Part E wage-loss determinations?

    For the purposes of paying compensation based on wage-loss under 
Part E of the Act, OWCP will apply the following definitions:
    (a) Average annual wage means four times the average quarterly wages 
of a covered Part E employee for the 12 quarters preceding the quarter 
during which he or she first experienced wage-loss due to exposure to a 
toxic substance at a DOE facility or RECA section 5 facility, excluding 
any quarters during which the employee was unemployed. Because being 
``retired'' is not equivalent to being ``unemployed,'' quarters during 
which an employee had no wages because he or she was retired will not be 
excluded from this calculation.
    (b) Normal retirement age means the age at which a covered Part E 
employee first became eligible for unreduced retirement benefits under 
the Old-Age, Survivors and Disability Insurance (OASDI) provisions of 
the Social Security Act. In general, persons born during or before 1937 
are eligible for unreduced OASDI retirement benefits at age 65, and that 
age increases in monthly increments until it reaches 67, which is the 
age at which persons born during or after 1960 become eligible for 
unreduced OASDI retirement benefits.
    (c) Quarter means the three-month period January through March, 
April through June, July through September, or October through December.
    (d) Quarter during which the employee was unemployed means any 
quarter during which the covered Part E employee had $700 (in constant 
2005 dollars) or less in wages unless the quarter is one during which 
the employee was retired.
    (e) Year of wage-loss means a calendar year during which the covered 
Part E employee's earnings were less than his or her average annual 
wage, after such earnings have been adjusted using the Consumer Price 
Index for All Urban Consumers (CPI-U), as produced by the Bureau of 
Labor Statistics, to reflect their value in the year during which the 
employee first experienced wage-loss due to exposure to a toxic 
substance at a DOE facility or RECA section 5 facility.

                          Evidence of Wage-Loss



Sec. 30.805  What evidence does OWCP use to determine a covered Part 
E employee's average annual wage and whether he or she experienced 
compensable wage-loss under Part E of EEOICPA?

    (a) OWCP may rely on quarterly wages information reported to the 
Social Security Administration to establish a covered Part E employee's 
presumed average annual wage (see Sec. 30.810) and the duration and 
extent of any years of wage-loss that are compensable under Part E of 
the Act (see Sec. 30.811). OWCP may also rely on other probative 
evidence of a covered Part E employee's wages, and may ask the claimant 
for additional evidence necessary to make this determination, if 
necessary.
    (b) OWCP also requires the submission of rationalized medical 
evidence of sufficient probative value to establish that the period of 
wage-loss at issue is causally related to the covered Part E employee's 
covered illness.



Sec. 30.806  May a claimant submit factual evidence in support of a 
different determination of average annual wage and/or wage-loss than 
that found by OWCP?

    A claimant who disagrees with the evidence OWCP has obtained under 
Sec. 30.805(a) and alleges a different average annual wage for the 
covered Part E employee, or that there was a greater duration or extent 
of wage-loss, may submit records that were produced in the ordinary 
course of business due to the employee's employment to rebut that 
evidence, to the extent that such records are determined to be authentic 
by OWCP by a preponderance of the evidence. The average annual wage and/
or wage-loss of the covered Part E employee will then be determined by 
OWCP in the exercise of its discretion.

      Determinations of Average Annual Wage and Percentages of Loss



Sec. 30.810  How will OWCP calculate the average annual wage of a 
covered Part E employee?

    To calculate the average annual wage of a covered Part E employee as 
defined in Sec. 30.801(a), OWCP will:

[[Page 134]]

    (a) Aggregate the wages for the twelve quarters that preceded the 
quarter during which the covered Part E employee first experienced wage-
loss due to exposure to a toxic substance at a DOE facility or a RECA 
section 5 facility, excluding any quarter during which the employee was 
unemployed;
    (b) Add any additional wages earned by the employee during those 
same quarters as evidenced by records described in Sec. Sec. 30.805(a) 
and 30.806;
    (c) Divide the sum of paragraphs (a) and (b) of this section by 12 
less the number of quarters during which the employee was unemployed; 
and
    (d) Multiply this figure by four to calculate the covered Part E 
employee's average annual wage.



Sec. 30.811  How will OWCP calculate the duration and extent of a 
covered Part E employee's initial period of compensable wage-loss?

    (a) To determine the initial calendar years of wage-loss, OWCP will 
use the evidence it receives under Sec. Sec. 30.805 and 30.806 to 
determine the quarter in which a covered Part E employee first sustained 
wage-loss due to exposure to a toxic substance while engaged in 
employment at a DOE facility or a RECA section 5 facility, as 
appropriate.
    (b) OWCP will then compare the calendar-year wages for that 
employee, as adjusted, with the average annual wage determined under 
Sec. 30.810 for each calendar year beginning with the calendar year 
that includes the quarter in which the wage-loss commenced, and 
concluding with the last calendar year of wage-loss prior to the 
submission of the claim or the calendar year in which the employee 
reached normal retirement age (as defined in Sec. 30.801(b), whichever 
occurred first.
    (c) OWCP will then aggregate separately the number of calendar years 
of wage-loss in which the employee's wages, as adjusted, did not exceed 
50 percent of the average annual wage determined under Sec. 30.810, and 
the number of calendar years of wage-loss in which the employee's wages, 
as adjusted, exceeded 50 percent of such average annual wage, but did 
not exceed 75 percent of such average annual wage.
    (d) For each calendar year of wage-loss determined under paragraph 
(c) of this section during which the employee's wages did not exceed 50 
percent of his or her average annual wage, OWCP will pay the employee 
$15,000 as compensation for wage-loss. For each calendar year of wage-
loss determined under paragraph (c) of this section during which the 
employee's calendar-year wages exceeded 50 percent of his or her average 
annual wage but did not exceed 75 percent of such average annual wage, 
OWCP will pay the employee $10,000 as compensation for wage-loss.



Sec. 30.812  May a covered Part E employee claim for subsequent periods 
of compensable wage-loss?

    A covered Part E employee previously awarded compensation for wage-
loss under Sec. 30.811 may file for additional compensation for wage-
loss suffered by the employee during periods subsequent to a period for 
which a wage-loss claim for the employee has already been adjudicated by 
OWCP. However, no compensation for wage-loss shall be awarded for any 
period following the year during which the covered Part E employee 
attained normal retirement age for purposes of the Social Security Act 
as described in Sec. 30.801(b).

    Special Rules for Certain Survivor Claims Under Part E of EEOICPA



Sec. 30.815  Are there special rules that OWCP will use to determine 
the extent of a deceased covered Part E employee's compensable wage-loss?

    (a) For purposes of adjudicating a claim of a survivor of a deceased 
covered Part E employee only, OWCP will presume that such employee 
experienced wage-loss for each calendar year subsequent to the calendar 
year of his or her death through and including the calendar year in 
which the employee would have reached normal retirement age under the 
Social Security Act. During these particular calendar years, OWCP will 
also presume that the deceased covered Part E employee's subsequent 
calendar-year wages did not exceed 50 percent of his or her average 
annual wage as determined under Sec. 30.810.
    (b) Except as provided in paragraph (a) of this section, OWCP will 
calculate the wage-loss of a deceased covered

[[Page 135]]

Part E employee in conformance with the provisions of Sec. Sec. 30.800 
through 30.811.
    (c) If OWCP determines that a deceased covered Part E employee had 
an aggregate of not less than ten calendar years of adjusted earnings 
that did not exceed 50 percent of his or her average annual earnings, it 
will pay the eligible surviving beneficiary(s) additional compensation 
(the basic survivor award payable under section 7385s-3(a)(1) is 
$125,000) in the amount of $25,000 pursuant to section 7385s-3(a)(2) of 
the Act. In the alternative, if OWCP determines that the aggregate 
number of such years is not less than 20 years, it will pay the eligible 
surviving beneficiary(s) additional compensation in the amount of 
$50,000 pursuant to section 7385s-3(a)(3).



          Subpart J_Impairment Benefits Under Part E of EEOICPA

                           General Provisions



Sec. 30.900  Who can receive impairment benefits under Part E of EEOICPA?

    In order to receive impairment benefits under Part E, the employee 
must show that:
    (a) He or she is a covered Part E employee who has been determined 
to have contracted a covered illness through exposure to a toxic 
substance at a DOE facility or a RECA section 5 facility, as 
appropriate, pursuant to either Sec. Sec. 30.210 through 30.215 or 
Sec. Sec. 30.230 through 30.232 of these regulations; and
    (b) He or she has been determined to have an impairment, pursuant to 
the regulations set out in this subpart, that is the result of the 
covered illness referred to in paragraph (a) of this section.



Sec. 30.901  How does OWCP determine the extent of an employee's impairment 
that is due to a covered illness contracted through exposure to a toxic 
substance at a DOE facility or a RECA section 5 facility, as appropriate?

    (a) OWCP will determine the amount of impairment benefits to which 
an employee is entitled based on one or more impairment evaluations 
submitted by physicians. An impairment evaluation shall contain the 
physician's opinion of:
    (1) The extent of whole person impairment of all organs and body 
functions of the employee that are compromised or otherwise affected by 
the employee's covered illness or illnesses, which shall be referred to 
as a ``minimum impairment rating''; and
    (2) the extent of such impairment attributable to an employee's 
covered illness or illnesses.
    (b) The minimum impairment rating shall be determined in accordance 
with the current edition of the American Medical Association's Guides to 
the Evaluation of Permanent Impairment (AMA's Guides). In making 
impairment benefit determinations, OWCP will only consider medical 
reports from physicians who are certified by the relevant medical board 
and who satisfy any additional criteria determined by OWCP to be 
necessary to qualify to perform impairment evaluations under Part E, 
including any specific training in use of the AMA's Guides, specific 
training and experience related to particular conditions and other 
objective factors.
    (c) OWCP will establish criteria based upon objective factors such 
as training and certification that must be met by physicians preparing 
impairment evaluations in order for an impairment evaluation to be 
considered in determining an impairment award. Such criteria shall be 
made available to claimants and the public by OWCP.
    (d) If one or more percentage points of the minimum impairment 
rating are found by OWCP to be the result of a covered illness, the 
employee is entitled to an award of impairment benefits.



Sec. 30.902  How will OWCP calculate the amount of the award of 
impairment benefits that is payable under Part E?

    OWCP will multiply the percentage points of the minimum impairment 
rating that are the result of the employee's covered illness or 
illnesses by $2,500 to calculate the amount of the award.

[[Page 136]]

                     Medical Evidence of Impairment



Sec. 30.905  How may an impairment evaluation be obtained?

    (a) Except as provided in paragraph (b) of this section, OWCP may 
request that an employee undergo an evaluation of his or her impairment 
that specifies the percentage points that are the result of the 
employee's covered illness or illnesses. To be of any probative value, 
such evaluation must be performed by a physician who meets the criteria 
OWCP has identified for physicians performing impairment evaluations for 
the pertinent covered illness or illnesses in accordance with the AMA's 
Guides.
    (b) In lieu of submitting an evaluation requested by OWCP under 
paragraph (a) of this section, an employee may obtain an impairment 
evaluation at his own initiative and submit it to OWCP for 
consideration. Such an evaluation will be deemed to have sufficient 
probative value to be considered in the adjudication of impairment 
benefits by OWCP only if:
    (1) It was performed by a physician who meets the criteria 
identified by OWCP for the covered illness or illnesses in question;
    (2) It was performed no more than one year before the date that it 
was received by OWCP; and
    (3) It conforms to all applicable requirements set out in this part.



Sec. 30.906  Who will pay for an impairment evaluation?

    (a) OWCP will pay for one impairment evaluation obtained by an 
employee if it meets the criteria set out in Sec. 30.905(b), unless it 
was performed by a physician prior to the date that the claim for Part E 
benefits is filed, or obtained for a claim in which OWCP finds that the 
employee did not contract a covered illness. At its discretion, OWCP may 
direct that the employee undergo additional evaluations at its expense. 
OWCP will pay for any such additional evaluations and will reimburse the 
employee for any reasonable and necessary costs incident to the 
evaluations, as described in Sec. Sec. 30.404 and 30.412 of this part.
    (b) Except for one impairment evaluation obtained pursuant to Sec. 
30.905(b) and meeting the criteria set out in Sec. 30.905(b)(1), (2) 
and (3), the employee must pay for any impairment evaluations not 
directed by OWCP.



Sec. 30.907  Can an impairment evaluation obtained by OWCP be challenged 
prior to issuance of the recommended decision?

    (a) An employee may submit arguments challenging an impairment 
evaluation, and/or additional medical evidence of impairment, before the 
district office issues a recommended decision on his or her claim. 
However, the district office will not consider an additional impairment 
evaluation, even if it differs from the impairment evaluation obtained 
under Sec. Sec. 30.905 or 30.906, if it does not meet the criteria 
listed in Sec. 30.905(b)(1), (2) and (3).
    (b) If the district office obtains an additional impairment 
evaluation that differs from the impairment evaluation obtained under 
Sec. Sec. 30.905 or 30.906, the district office will base its 
recommended determinations regarding impairment upon the evidence it 
considers to have the greatest probative value, after evaluating all 
relevant evidence of impairment in the record, including evidence from 
directed medical examinations that it deems necessary pursuant to 
Sec. Sec. 30.410 and 30.411 of this part.



Sec. 30.908  How will the FAB evaluate new medical evidence submitted 
to challenge the impairment determination in the recommended decision?

    (a) If an employee submits an additional impairment evaluation that 
differs from the impairment evaluation relied upon by the district 
office, the FAB will not consider the additional impairment evaluation 
if it does not meet the criteria listed in Sec. 30.905(b)(1), (2) and 
(3).
    (b) The employee shall bear the burden of proving that the 
additional impairment evaluation submitted is more probative than the 
evaluation relied upon by the district office to determine the 
employee's recommended minimum impairment rating and the percentage 
points of such rating that are the result of the employee's covered 
illness or illnesses.

[[Page 137]]

    (c) If an employee submits an additional impairment evaluation that 
differs from the impairment evaluation relied upon by the district 
office, the FAB will review all relevant evidence of impairment in the 
record, and will base its determinations regarding impairment upon the 
evidence it considers to be most probative. The FAB will determine the 
minimum impairment rating and the percentage points of the rating that 
are the result of the employee's covered illness or illnesses after it 
has evaluated all relevant evidence and argument in the record.

                       Ratable Medical Impairments



Sec. 30.910  Will an impairment that cannot be assigned a numerical 
percentage using the AMA's Guides be included in the impairment rating?

    (a) An impairment that cannot be assigned a numerical impairment 
percentage using the AMA's Guides will not be included in the employee's 
impairment rating.
    (b) A mental impairment that does not originate from a documented 
physical dysfunction of the nervous system, and cannot be assigned a 
numerical percentage using the AMA's Guides, will not be included in the 
impairment rating for the employee. Mental impairments that are due to 
documented physical dysfunctions of the nervous system can be assigned 
numerical percentages using the AMA's Guides and will be included in the 
rating.



Sec. 30.911  Does maximum medical improvement always have to be reached 
for an impairment to be included in the impairment rating?

    (a) An impairment that is the result of a covered illness will be 
included in the employee's impairment rating determined by OWCP under 
Sec. 30.901 only if OWCP concludes that the impairment has reached 
maximum medical improvement, which means that it is well-stabilized and 
unlikely to change substantially with or without medical treatment.
    (b) Notwithstanding paragraph (a) of this section, if OWCP finds 
that an employee's covered illness is in the terminal stages, based upon 
probative medical evidence, an impairment that results from such covered 
illness will be included in the impairment rating for the employee even 
if it has not reached maximum medical improvement.



Sec. 30.912  Can a covered Part E employee receive benefits for 
additional impairment following an award of such benefits by OWCP?

    A covered Part E employee previously awarded impairment benefits by 
OWCP may file a claim for additional impairment benefits. Such claim 
must be based on an increase in the impairment rating that is the result 
of the covered illness or illnesses from the impairment rating that 
formed the basis for the last award of such benefits by OWCP. OWCP will 
only adjudicate claims for such an increased rating that are filed at 
least two years from the date of the last award of impairment benefits. 
However, OWCP will not wait two years before it will adjudicate a claim 
for additional impairment that is based on an allegation that the 
employee sustained a new covered illness.



                       SUBCHAPTERS D-E [RESERVED]



[[Page 138]]



   SUBCHAPTER F_COMPENSATION FOR INJURY, DISABILITY, DEATH, OR ENEMY 
      DETENTION OF EMPLOYEES OF CONTRACTORS WITH THE UNITED STATES





PART 61_CLAIMS FOR COMPENSATION UNDER THE WAR HAZARDS COMPENSATION ACT, 
AS AMENDED--Table of Contents




                      Subpart A_General Provisions

Sec.
61.1 Statutory provisions.
61.2 Administration of the Act and this chapter.
61.3 Purpose and scope of this part.
61.4 Definitions and use of terms.

                   Subpart B_Reimbursement of Carriers

61.100 General reimbursement provisions.
61.101 Filing a request for reimbursement.
61.102 Disposition of reimbursement requests.
61.103 Examination of records of carrier.
61.104 Reimbursement of claims expense.
61.105 Direct payment of benefits.

         Subpart C_Compensation for Injury, Disability or Death

61.200 Entitlement to benefits.
61.201 Filing of notice and claim.
61.202 Time limitations for filing notice and claim.
61.203 Limitations on and deductions from benefits.
61.204 Furnishing of medical treatment.
61.205 Burial expense.
61.206 Reports by employees and dependents.

                      Subpart D_Detention Benefits

61.300 Payment of detention benefits.
61.301 Filing a claim for detention benefits.
61.302 Time limitations for filing a claim for detention benefits.
61.303 Determination of detention status.
61.304 Limitations on and deductions from detention benefits.
61.305 Responsibilities of dependents receiving detention benefits.
61.306 Transportation of persons released from detention and return of 
          employees.
61.307 Transportation of recovered bodies of missing persons.

                   Subpart E_Miscellaneous Provisions

61.400 Custody of records relating to claims under the War Hazards 
          Compensation Act.
61.401 Confidentiality of records.
61.402 Protection, release, inspection and copying of records.
61.403 Approval of claims for legal and other services.
61.404 Assignments; creditors.

    Authority: 1950 Reorg. Plan No. 19, sec. 1, 3 CFR, 1949-1953 Comp., 
p. 1010, 64 Stat. 1271; 5 U.S.C. 8145, 8149; 42 U.S.C. 1704, 1706; 
Secretary's Order 7-87, 52 FR 48466; Employment Standards Order 78-1, 43 
FR 51469.

    Source: 53 FR 3679, Feb. 8, 1988, unless otherwise noted.



                      Subpart A_General Provisions



Sec. 61.1  Statutory provisions

    (a) The War Hazards Compensation Act, as amended (42 U.S.C. 1701 et 
seq.) provides for reimbursement of workers' compensation benefits paid 
under the Defense Base Act (42 U.S.C. 1651 et seq.), or under other 
workers' compensation laws as described in Sec. 61.100(a), for injury 
or death causally related to a war-risk hazard.
    (b) If no benefits are payable under the Defense Base Act or other 
applicable workers' compensation law, compensation is paid to the 
employee or survivors for the war-risk injury or death of--
    (1) Any person subject to workers' compensation coverage under the 
Defense Base Act;
    (2) Any person engaged by the United States under a contract for his 
or her personal services outside the continental United States;
    (3) Any person subject to workers' compensation coverage under the 
Nonappropriated Fund Instrumentalities Act (5 U.S.C. 8171 et seq.);
    (4) Any person engaged for personal services outside the continental 
United States under a contract approved and financed by the United 
States under the Mutual Security Act of 1954, as amended (other than 
title II of chapter II unless the Secretary of Labor, upon the 
recommendation of the head of any department or other agency of the U.S. 
Government, determines a contract financed under a successor provision 
of

[[Page 139]]

any successor Act should be covered by this subchapter), except that in 
cases where the United States is not a formal party to contracts 
approved and financed under the Mutual Security Act of 1954, as amended, 
the Secretary, upon the recommendation of the head of any department or 
agency of the United States, may waive the application of the Act; or
    (5) Any person engaged for personal services outside the continental 
United States by an American employer providing welfare or similar 
services for the benefit of the Armed Forces under appropriate 
authorization by the Secretary of Defense.
    (c) The Act also provides for payment of detention benefits to an 
employee specified in paragraph (a) of this section who--
    (1) If found to be missing from his or her place of employment under 
circumstances supporting a reasonable inference that the absence is due 
to the belligerent action of a hostile force or person;
    (2) Is known to have been taken by a hostile force or person as a 
prisoner or hostage; or
    (3) Is not returned to his or her home or to the place of employment 
due to the failure of the United States or its contractor to furnish 
transportation.



Sec. 61.2  Administration of the Act and this chapter.

    (a) Pursuant to 42 U.S.C. 1706, Secretary of Labor's Order 6-84, (49 
FR 32473), and Employment Standards Order 78-1, (43 FR 51469), the 
responsibility for administration of the Act has been delegated to the 
Director, Office of Workers' Compensation Programs.
    (b) In administering the provisions of the Act, the Director may 
enter into agreements or cooperative working arrangements with other 
agencies of the United States or of any State (including the District of 
Columbia, Puerto Rico, and the Virgin Islands) or political subdivisions 
thereof, and with other public agencies and private persons, agencies, 
or institutions within and outside the United States. The Director may 
also contract with insurance carriers for the use of their service 
facilities to process claims filed under the Act



Sec. 61.3  Purpose and scope of this part.

    (a) This part 61 sets forth the rules applicable to the filing, 
processing, and payment of claims for reimbursement and workers' 
compensation benefits under the provisions of the War Hazards 
Compensation Act, as amended. The provisions of this part are intended 
to afford guidance and assistance to any person, insurance carrier, 
self-insured employer, or compensation fund seeking benefits under the 
Act, as well as to personnel within the Department of Labor who 
administer the Act.
    (b) Subpart A describes the statutory and administrative framework 
within which claims under the Act are processed, contains a statement of 
purpose and scope, and defines terms used in the administration of the 
Act.
    (c) Subpart B describes the procedure by which an insurance carrier, 
self-insured employer, or compensation fund shall file a claim for 
reimbursement under section 104 of the Act, and describes the procedures 
for processing a claim for reimbursement and transferring a case for 
direct payment by the Department of Labor.
    (d) Subpart C contains the rules governing the filing and processing 
of a claim for injury, disability or death benefits under section 101(a) 
of the Act.
    (e) Subpart D contains provisions relating to claims for detention 
benefits under section 101(b) of the Act.
    (f) Subpart E contains miscellaneous provisions concerning 
disclosure of program information, approval of claims for legal 
services, and assignment of claim.



Sec. 61.4  Definitions and use of terms.

    For the purpose of this part--
    (a) The Act means the War Hazards Compensation Act, 42 U.S.C. 1701 
et seq., as amended.
    (b) Office or OWCP means the Office of Workers' Compensation 
Programs, Employment Standards Administration, United States Department 
of Labor.
    (c) Contractor with the United States includes any contractor, 
subcontractor or subordinate subcontractor.

[[Page 140]]

    (d) Carrier means any payer of benefits for which reimbursement is 
requested under the Act, and includes insurance carriers, self-insured 
employers and compensation funds.
    (e) War-risk hazard means any hazard arising during a war in which 
the United States is engaged; during an armed conflict in which the 
United States is engaged, whether or not war has been declared; or 
during a war or armed conflict between military forces of any origin, 
occurring within any country in which a person covered by the Act is 
serving; from--
    (1) The discharge of any missile (including liquids and gas) or the 
use of any weapon, explosive, or other noxious thing by a hostile force 
or person or in combating an attack or an imagined attack by a hostile 
force or person;
    (2) Action of a hostile force or person, including rebellion or 
insurrection against the United States or any of its allies;
    (3) The discharge or explosion of munitions intended for use in 
connection with a war or armed conflict with a hostile force or person 
(except with respect to employees of a manufacturer, processor, or 
transporter of munitions during the manufacture, processing, or 
transporting of munitions, or while stored on the premises of the 
manufacturer, processor, or transporter);
    (4) The collision of vessels in convoy or the operation of vessels 
or aircraft without running lights or without other customary peacetime 
aids to navigation; or
    (5) The operation of vessels or aircraft in a zone of hostilities or 
engaged in war activities.
    (f) Hostile force or person means any nation, any subject of a 
foreign nation, or any other person serving a foreign nation--
    (1) Engaged in a war against the United States or any of its allies;
    (2) Engaged in armed conflict, whether or not war has been declared, 
against the United States or any of its allies; or
    (3) Engaged in a war or armed conflict between military forces of 
any origin in any country in which a person covered by the Act is 
serving.
    (g) Allies means any nation with which the United States is engaged 
in a common military effort or with which the United States has entered 
into a common defensive military alliance.
    (h) War activities includes activities directly relating to military 
operations.
    (i) Continental United States means the States and the District of 
Columbia.
    (j) Injury means injury resulting from a war-risk hazard, as defined 
in this section, whether or not such injury occurred in the course of 
the person's employment, and includes any disease proximately resulting 
from a war-risk hazard.
    (k) Death means death resulting from an injury, as defined in this 
section.
    (l) The terms compensation, physician, and medical, surgical, and 
hospital services and supplies when used in subparts D and E are 
construed and applied as defined in the Federal Employees' Compensation 
Act, as amended (5 U.S.C. 8101 et seq.).
    (m) The terms disability, wages, child, grandchild, brother, sister, 
parent, widow, widower, student, adoption or adopted are construed and 
applied as defined in the Longshore and Harbor Workers' Compensation 
Act, as amended (35 U.S.C. 901 et seq.).



                   Subpart B_Reimbursement of Carriers



Sec. 61.100  General reimbursement provisions.

    (a) The Office shall reimburse any carrier that pays benefits under 
the Defense Base Act or other applicable workers' compensation law due 
to the injury, disability or death of any person specified in Sec. 
61.1(a), if the injury or death for which the benefits are paid arose 
from a war-risk hazard. The amount to be reimbursed includes disability 
and death payments, funeral and burial expenses, medical expenses, and 
the reasonable and necessary claims expense incurred in processing the 
request.
    (b) The Office shall not provide reimbursement in any case in which 
an additional premium for war-risk hazard was charged, or in which the 
carrier

[[Page 141]]

has been reimbursed, paid, or compensated for the loss for which 
reimbursement is requested.
    (c) Reimbursement under this section with respect to benefits shall 
be limited to the amounts which will discharge the liability of the 
carrier under the applicable workers' compensation law.



Sec. 61.101  Filing a request for reimbursement.

    (a) A carrier or employer may file a request for reimbursement. The 
request shall be submitted to the U.S. Department of Labor, Office of 
Workers' Compensation Programs, Branch of Special Claims, P.O. Box 
37117, Washington, DC 20013-7117;
    (b) Each request for reimbursement shall include documentation 
itemizing the payments for which reimbursement is claimed. The 
documentation shall be sufficient to establish the purpose of the 
payment, the name of the payee, the date(s) for which payment was made, 
and the amount of the payment. Copies of any medical reports and bills 
related to medical examination or treatment for which reimbursement is 
claimed shall also be submitted. If the carrier cannot provide copies of 
the payment drafts or receipts, the Office may accept a certified 
listing of payments which includes payee name, description of services 
rendered, date of services rendered, amount paid, date paid check or 
draft number, and signature of certifier.
    (c) When filing an initial request for reimbursement under the Act, 
the carrier shall submit copies of all available documents related to 
the workers' compensation case, including--
    (1) Notice and claim forms;
    (2) Statements of the employee or employer;
    (3) Medical reports;
    (4) Compensation orders; and
    (5) Proof of liability (e.g., insurance policy or other 
documentation).



Sec. 61.102  Disposition of reimbursement requests.

    (a) If the Office finds that insufficient or inadequate information 
has been submitted with the claim, the carrier shall be asked to submit 
further information. Failure to supply the requested information may 
result in disallowance of items not adequately supported as properly 
reimbursable.
    (b) The Office shall not withhold payment of an approved part of a 
reimbursement request because of denial of another part of the 
reimbursement request.
    (c) The Office shall regard awards, decisions and approved 
settlement agreements under the Defense Base Act or other applicable 
workers' compensation law, that have become final, as establishing prima 
facie, the right of the beneficiary to the payment awarded or provided 
for.
    (d) The Office shall advise the carrier of the amount approved for 
reimbursement. If the reimbursement request has been denied in whole or 
in part, the Office shall provide the carrier an explanation of the 
action taken and the reasons for the action. A carrier within the United 
States may file objections with the Associate Director for Federal 
Employees' Compensation to the disallowance or reduction of a claim 
within 60 days of the Office's decision. A carrier outside the United 
States has six months within which to file objections with the Associate 
Director. The Office may consider objections filed beyond the time 
limits under unusual circumstances or when reasonable cause has been 
shown for the delay. A determination by the Office is final.
    (e) In determining whether a claim is reimbursable, the Office shall 
hold the carrier to the same degree of care and prudence as any 
individual or corporation in the protection of its interests or the 
handling of its affairs would be expected to exercise under similar 
circumstances. A part or an item of a claim may be disapproved if the 
Office finds that the carrier--
    (1) Failed to take advantage of any right accruing by assignment or 
subrogation (except against the United States, directly or indirectly, 
its employees, or members of its armed forces) due to the liability of a 
third party, unless the financial condition of the third party or the 
facts and circumstances surrounding the liability justify the failure;
    (2) Failed to take reasonable measures to contest, reduce, or 
terminate its liability by appropriate available

[[Page 142]]

procedure under workers' compensation law or otherwise; or
    (3) Failed to make reasonable and adequate investigation or injury 
as to the right of any person to any benefit or payment; or
    (4) Failed to avoid augmentation of liability by reason of delay in 
recognizing or discharging a compensation claimant's right to benefits.



Sec. 61.103  Examination of records of carrier.

    Whenever it is deemed necessary, the Office may request submission 
of case records or may inspect the records and accounts of a carrier for 
the purpose of verifying any allegation, fact or payment stated in the 
claim. The carrier shall furnish the records and permit or authorize 
their inspection as requested. The right of inspection shall also relate 
to records and data necessary for the determination of whether any 
premium or other charge was made with respect to the reimbursement 
claimed.



Sec. 61.104  Reimbursement of claims expense.

    (a) A carrier may claim reimbursement for reasonable and necessary 
claims expense incurred in connection with a case for which 
reimbursement is claimed under the Act. Reimbursement may be claimed for 
allocated and unallocated claims expense.
    (b) The term ``allocated claims expense'' includes payments made for 
reasonable attorneys' fees, court and litigation costs, expenses of 
witnesses and expert testimony, examinations, autopsies and other items 
of expense that were reasonably incurred in determining liability under 
the Defense Base Act or other workers' compensation law. Allocated 
claims expense must be itemized and documented as described in Sec. 
61.101.
    (c) The term ``unallocated claims expense'' means costs that are 
incurred in processing a claim, but cannot be specifically itemized or 
documented. A carrier may receive reimbursement of unallocated claims 
expense in an amount of to 15% of the sum of the reimbursable payments 
made under the Defense Base Act or other workers' compensation law. If 
this method of computing unallocated claims expense would not result in 
reimbursement of reasonable and necessary claims expense, the Office 
may, in its discretion, determine an amount that fairly represents the 
expenses incurred.
    (d) The Office shall not consider as a claims expense any general 
administrative costs, general office maintenance costs, rent, insurance, 
taxes, or other similar general expenses. Nor shall expenses incurred in 
establishing or documenting entitlement to reimbursement under the Act 
be considered.



Sec. 61.105  Direct payment of benefits.

    (a) The Office may pay benefits, as they accrue, directly to any 
entitled beneficiary in lieu of reimbursement of a carrier.
    (b) The Office will not accept a case for direct payment until the 
right of the person or persons entitled to benefits has been established 
and the Office finds that the carrier would be entitled to reimbursement 
for continuing benefits.
    (c) The Office will not accept a case for direct payment until the 
rate of compensation or benefit and the period of payment have become 
relatively fixed and known. The Office may accept a case for direct 
payment before this condition has been satisfied, if the Office 
determines that direct payment is advisable due to the circumstances in 
that particular case.
    (d) In cases transferred to the Office for direct payment, medical 
care for the effects of a war-risk injury may be furnished in a manner 
consistent with the regulations governing the furnishing of medical care 
under the Federal Employees' Compensation Act, as amended (5 U.S.C. 
8101, et seq.).
    (e) The transfer of a case to the Office for direct payment does not 
affect the hearing or adjudicatory rights of a beneficiary or carrier as 
established under the Defense Base Act or other applicable workers' 
compensation law.
    (f) The Office may retransfer any case to a carrier either for the 
purpose of completion of adjudicatory processes or for continuation of 
payment of benefits.

[[Page 143]]



         Subpart C_Compensation for Injury, Disability or Death



Sec. 61.200  Entitlement to benefits.

    (a) Compensation under section 101(a) of the Act is payable for 
injury or death due to a war-risk hazard of an employee listed in Sec. 
61.1(a), whether or not the person was engaged in the course of his or 
her employment at the time of the injury.
    (b) Compensation under this subpart is paid under the provisions of 
the Federal Employees' Compensation Act, as amended (5 U.S.C. 8101 et 
seq.), except that the determination of beneficiaries and the 
computation of compensation are made in accordance with sections 6, 8, 
9, and 10 of the Longshore and Harbor Workers' Compensation Act (33 
U.S.C. 901 et seq.).
    (c) The Office may not approve a claim for compensation if any of 
the following conditions are met:
    (1) The employee resides at or in the vicinity of the place of 
employment, does not live there solely due to the exigencies of the 
employment, and is injured outside the course of the employment.
    (2) The claim is filed due to the injury or death of a prisoner of 
war detained or utilized by the United States.
    (3) The person seeking benefits recovers or receives workers' 
compensation benefits from any other source for the same injury or 
death.
    (4) The person seeking benefits is a national of a foreign country 
and is entitled to compensation benefits from that or any other foreign 
country on account of the same injury or death.
    (5) The employee is convicted in a court of competent jurisdiction 
of any subversive act against the United States or any of its allies.



Sec. 61.201  Filing of notice and claim.

    An employee or his or her survivors may file a claim under section 
101(a) of the Act only after a determination has been made that no 
benefits are payable under the Defense Base Act administered by the 
Office's Division of Longshore and Harbor Workers' Compensation, Notice 
and claim may be filed on standard Longshore or Federal Employees' 
Compensation Act forms. The claimant shall submit notice and claim, 
along with any supporting documentation, to the U.S. Department of 
Labor, Office of Workers' Compensation Programs, Branch of Special 
Claims, P.O. Box 37117, Washington, DC 20013-7117.



Sec. 61.202  Time limitations for filing notice and claim.

    The time limitation provisions found in 5 U.S.C. 8119 apply to the 
filing of claims under section 101(a) of the War Hazards Compensation 
Act. The Office may waive the time limitations if it finds that 
circumstances beyond the claimant's control prevented the filing of a 
timely claim.



Sec. 61.203  Limitations on and deductions from benefits.

    (a) Compensation payable for injury, disability or death may not 
exceed the maximum limitations specified in section 6(b) of the 
Longshore and Harbor Workers' Compensation Act, as amended.
    (b) In determining benefits for disability or death, the Office 
shall not apply the minimum limits found in sections 6(b) and 9(e) of 
the Longshore and Harbor Workers' Compensation Act.
    (c) Compensation for death or permanent disability payable to 
persons who are not citizens of the United States and who are not 
residents of the United States or Canada is in the same amount as 
provided for residents, except that dependents in a foreign country are 
limited to the employee's spouse and children, or if there be no spouse 
or children, to the employee's father or mother whom the employee 
supported, either wholly or in part, for the period of one year 
immediately prior to the date of the injury. The Office may discharge 
its liability for all future payments of compensation to a noncitizen/
nonresident by paying a limp sum representing one-half the commuted 
value of all future compensation as determined by the Office.
    (d) If any employee or beneficiary receives or claims wages, 
payments in lieu of wages, or insurance benefits for disability or loss 
of life (other than workers' compensation benefits), and the cost of 
these payments is provided in whole or in part by the United

[[Page 144]]

States, the Office shall credit the amount of the benefits against any 
payments to which the person is entitled under the Act. The Office shall 
apply credit only where the wages, payments, or benefits received are 
items for which the contractor is entitled to reimbursement from the 
United States, or where they are otherwise reimbursable by the United 
States.
    (e) If an employee who is receiving workers' compensation benefits 
on account of a prior accident or disease sustains an injury compensable 
under the Act, the employee is not entitled to any benefits under the 
Act during the period covered by other workers' compensation benefits 
unless the injury from a war-risk hazard increases the employee's 
disability. If the war-risk injury increases the disability, 
compensation under the Act is payable only for the amount of the 
increase in disability. This provision is applicable only to disability 
resulting jointly from two unrelated causes, namely, (1) prior 
industrial accident or disease, and (2) injury from a war-risk hazard.
    (f) Compensation for disability under this subchapter, with the 
exception of allowances for scheduled losses of members or functions of 
the body, may not be paid for the same period of time during which 
benefits for detention under this subchapter are paid or accrued.



Sec. 61.204  Furnishing of medical treatment.

    All medical services, appliances, drugs and supplies which in the 
opinion of the Office are necessary for the treatment of an injury 
coming within the purview of section 101(a) of the Act shall be 
furnished to the same extent, and wherever practicable in the same 
manner and under the same regulations, as are prescribed for the 
furnishing of medical treatment under the Federal Employees' 
Compensation Act, as amended (5 U.S.C. 8101 et seq.).



Sec. 61.205  Burial expense.

    (a) When the death of a person listed in Sec. 61.1(a) results from 
an injury caused by a war-risk hazard, the Office shall pay reasonable 
burial expenses up to the amount specified in section 9 of the Longshore 
and Harbor Workers' Compensation Act. If any part of the burial expense 
has been paid by any other agency of the United States, or by any person 
under obligation to discharge burial expenses, the amount so paid shall 
be deducted from the burial expense payable by the Office. Payment will 
be made directly (1) to the undertaker, (2) to the estate of the 
deceased if the estate is obligated to make payment, or (3) to any 
person who has paid such burial expenses and is entitled to such 
reimbursement.
    (b) If the employee's home is within the United States and death 
occurs away from the employee's home or outside the United States, the 
Office may pay an additional sum for transporting the remains to the 
home.



Sec. 61.206  Reports by employees and dependents.

    The Office may require a claimant to submit reports of facts 
materially affecting the claimant's entitlement to compensation under 
the Act. These may include reports of recurrence or termination of 
disability, of employment and earnings, or of a change in the marital or 
dependency status of a beneficiary.



                      Subpart D_Detention Benefits



Sec. 61.300  Payment of detention benefits.

    (a) The Office shall pay detention benefits to any person listed in 
Sec. 61.1(a) who is detained by a hostile force or person, or who is 
not returned to his or her home or to the place of employment by reason 
of the failure of the United States or its contractor to furnish 
transportation. Benefits are payable for periods of absence on and 
subsequent to January 1, 1942, regardless of whether the employee was 
actually engaged in the course of his or her employment at the time of 
capture or disappearance.
    (b) For the purposes of paying benefits for detention, the employee 
is considered as totally disabled until the time that the employee is 
returned to his or her home, to the place of employment, or to the 
jurisdiction of the United States. The Office shall credit the 
compensation benefits to the employee's account, to be paid to the 
employee for the period of the absence or

[[Page 145]]

until the employee's death is in fact established or can be legally 
presumed to have occurred. A part of the compensation accruing to the 
employee may be disbursed during the period of absence to the employee's 
dependents.
    (c) During the period of absence of any employee detained by a 
hostile force or person, detention benefits shall be credited to the 
employee's account at one hundred percent of his or her average weekly 
wages. The average weekly wages may not exceed the average weekly wages 
paid to civilian employees of the United States performing the same or 
most similar employment in that geographic area. If there are eligible 
dependents, the Office may pay to these dependents seventy percent of 
the credited benefits.
    (d) The Office may not pay detention benefits under any of the 
following conditions:
    (1) The employee resides at or in the vicinity of the place of 
employment, does not live there solely due to the exigencies of the 
employment, and is detained under circumstances outside the course of 
the employment.
    (2) The person detained is a prisoner of war detained or utilized by 
the United States.
    (3) Workers' compensation benefits from any other source or other 
payments from the United States are paid for the same period of absence 
or detention.
    (4) The person seeking detention benefits is a national of a foreign 
country and is entitled to compensation benefits from that or any other 
foreign country on account of the same absence or detention.
    (5) The employee has been convicted in a court of competent 
jurisdiction of any subversive act against the United States or any of 
its allies.



Sec. 61.301  Filing a claim for detention benefits.

    (a) A claim for detention benefits shall contain the following 
information: Name, address, and occupation of the missing employee; 
name, address and relation to the employee of any dependent making 
claim; name and address of the employer; contract number under which 
employed; date, place and circumstances of capture or detention; date, 
place and circumstances of release (if applicable). The employer shall 
provide information about the circumstances of the detention and the 
employee's payrate at the time of capture. Dependents making claim for 
detention benefits may be required to submit all evidence available to 
them concerning the employment status of the missing person and the 
circumstances surrounding his or her absence.
    (b) A claim filed by a dependent or by the employee upon his or her 
release should be sent with any supporting documentation to the U.S. 
Department of Labor, Office of Workers' Compensation Programs, Branch of 
Special Claims, P.O. Box 37117, Washington, DC 20013-7117.



Sec. 61.302  Time limitations for filing a claim for detention benefits.

    The time limitation provisions found in the Federal Employees' 
Compensation Act, as amended (5 U.S.C. 8101 et seq.) apply to the filing 
of claims for detention benefits. The Office may waive the time 
limitations if it finds that circumstances beyond the claimant's control 
prevented the filing of a timely claim.



Sec. 61.303  Determination of detention status.

    A determination that an employee has been detained by a hostile 
force or person may be made on the basis that the employee has 
disappeared under circumstances that make detention appear probable. In 
making the determination, the Office will consider the information and 
the conclusion of the Department or agency of the United States having 
knowledge of the circumstances surrounding the absence of the employee 
as prima facie evidence of the employee's status. The presumptive status 
of total disability of the missing person shall continue during the 
period of the absence, or until death is in fact established or can be 
legally presumed to have occurred.



Sec. 61.304  Limitations on and deductions from detention benefits.

    (a) In determining benefits for detention, the Office shall not 
apply the minimum limits found in sections 6(b)

[[Page 146]]

and 9(e) of the Longshore and Harbor Workers' Compensation Act.
    (b) If any employee or dependent receives or claims wages, payments 
in lieu of wages, or insurance benefits for the period of detention, and 
the cost of the wages, payments or benefits is provided in whole or in 
part by the United States, the Office shall credit the amount of the 
benefits against any detention payments to which the person is entitled 
under the Act. The Office shall apply credit only where the wages, 
payments, or benefits received are items for which the contractor is 
entitled to reimbursement from the United States, or where they are 
otherwise reimbursable by the United States.



Sec. 61.305  Responsibilities of dependents receiving detention benefits.

    A dependent having knowledge of a change of status of a missing 
employee shall promptly inform the Office of the change. The Office must 
be advised immediately by the dependent if the employee is returned home 
or to the place of his or her employment, or is able to be returned to 
the jurisdiction of the United States.



Sec. 61.306  Transportation of persons released from detention and 
return of employees.

    (a) The Office may furnish the cost of transporting an employee from 
the point of the employee's release from detention to his or her home, 
the place of employment, or other place within the jurisdiction of the 
United States. The Office shall not pay for transportation if the 
employee is furnished the transportation under any agreement with his or 
her employer or under any other provision of law.
    (b) The Office may furnish the cost of transportation under 
circumstances not involving detention, if the furnishing of 
transportation is an obligation of the United States or its contractor, 
and the United States or its contractor fails to return the employee to 
his or her home or to the place of employment.



Sec. 61.307  Transportation of recovered bodies of missing persons.

    If an employee dies while in detention and the body is later 
recovered, the Office may provide the cost of transporting the body to 
the home of the deceased or to any place designated by the employee's 
next of kin, near relative, or legal representative.



                   Subpart E_Miscellaneous Provisions



Sec. 61.400  Custody of records relating to claims under the War Hazards 
Compensation Act.

    All records, medical and other reports, statements of witnesses and 
other papers filed with the Office with respect to the disability, 
death, or detention of any person coming within the purview of the Act, 
are the official records of the Office and are not records of the 
agency, establishment, Government department, employer, or individual 
making or having the care or use of such records.



Sec. 61.401  Confidentiality of records.

    Records of the Office pertaining to injury, death, or detention are 
confidential, and are exempt from disclosure to the public under section 
552(b)(6) of title 5, U.S. Code. No official or employee of the United 
States who has investigated or secured statements from witnesses and 
others pertaining to any case within the purview of the Act, or any 
person having the care or use of such records, shall disclose 
information from or pertaining to such records to any person, except in 
accordance with applicable regulations (see 29 CFR part 70a).



Sec. 61.402  Protection, release, inspection and copying of records.

    The protection, release, inspection and copying of the records shall 
be accomplished in accordance with the rules, guidelines and provisions 
contained in 29 CFR parts 70 and 70a and the annual notice of systems of 
records and routine uses as published in the Federal Register.

[[Page 147]]



Sec. 61.403  Approval of claims for legal and other services.

    (a) No claim for legal services or for any other services rendered 
in respect to a claim or award for compensation under the Act to or on 
account of any person shall be valid unless approved by the Office. Any 
such claim approved by the Office shall, in the manner and to the extent 
fixed by the Office, be paid out of the compensation payable to the 
claimant.
    (b) The Office shall not recognize a contract for a stipulated fee 
or for a fee on a contingent basis. No fee for services shall be 
approved except upon application supported by a sufficient statement of 
the extent and character of the necessary work done on behalf of the 
claimant. Except where the claimant was advised that the representation 
would be rendered on a gratuitous basis, the fee approved shall be 
reasonably commensurate with the actual necessary work performed by the 
representative, and with due regard to the capacity in which the 
representative appeared, the amount of compensation involved, and the 
circumstances of the claimant.



Sec. 61.404  Assignments; creditors.

    The right of any person to benefits under the Act is not 
transferable of assignable at law or in equity except to the United 
States, and none of the moneys paid or payable (except money paid as 
reimbursement for funeral expenses), or rights existing under the Act 
are subject to execution, levy, attachment, garnishment, or other legal 
process or to the operation of any bankruptcy or insolvency law.

[[Page 148]]



 SUBCHAPTER G_COMPENSATION FOR INJURY, DISABILITY OR DEATH OF CIVILIAN 
   AMERICAN CITIZENS INCURRED WHILE DETAINED BY OR IN HIDING FROM THE 
                      IMPERIAL JAPANESE GOVERNMENT





PART 71_GENERAL PROVISIONS--Table of Contents




Sec.
71.1 General administrative provisions.
71.2 Computation of benefits.
71.3 Deductions from benefits.
71.4 Limitation upon benefits.
71.5 Payment of benefits.
71.6 Notice of injury or death.
71.7 Claim filing, processing, adjudication and time limits.

    Authority: Sec. 32, 39 Stat. 749, as amended, sec. 106, 56 Stat. 
1033, as amended, sec. 5, 62 Stat. 1242, as amended; 5 U.S.C. 8145, 
8149, 42 U.S.C. 1706, 50 U.S.C. App., 2004.

    Source: 16 FR 2933, Apr. 4, 1951, unless otherwise noted.



Sec. 71.1  General administrative provisions.

    (a) Section 5(f) of the War Claims Act of 1948 (act of July 3, 1948; 
Pub. L. 896, 80th Cong., 62 Stat. 1240) makes provision for the payment 
of benefits with respect to the injury, disability or death resulting 
from injury of any civilian American citizen occurring while he was held 
by or in hiding from the Imperial Japanese Government to the same extent 
as if such civilian American citizen were an employee within the purview 
of the act of December 2, 1942 (Pub. L. 784, 77th Cong., 56 Stat. 1028, 
42 U.S.C. 1701, et seq.). Under section 5(f) of the said War Claims Act 
of 1948, the rights of individuals to benefits payable under this 
subchapter shall accrue from and after December 7, 1941, subject, 
however, to all of the provisions of said act and the regulations in 
this subchapter.
    (b) The regulations in part 61 of subchapter F of this chapter 
governing the administration of the benefits provided under titles I and 
II of the said act of December 2, 1942, as amended, shall, insofar as 
they are applicable and are not inconsistent with any of the provisions 
of this subchapter, govern the administration of the benefits payable 
under this subchapter. Provisions of such regulations relating to 
benefits for detention by the enemy, reimbursement to an employer or 
insurance carrier, and limitations on benefits in cases where workmen's 
compensation is payable are not applicable to the benefits provided in 
this subchapter nor are they within the purview of this subchapter. The 
provisions of sections 101(b), 104 and 105 of such act of December 2, 
1942, and the various provisions of part 61 of this chapter relating to 
such provisions, accordingly, are not applicable to the payment of 
benefits under this subchapter.
    (c) All rights or benefits under this subchapter which are 
determinable with reference to other provisions of law other than the 
said War Claims Act of 1948, shall be determined with reference to such 
provisions as they existed and were in force on January 3, 1948.
    (d) As used in this subchapter:
    (1) The term ``Bureau'' means the Bureau of Employees' Compensation, 
U.S. Department of Labor.
    (2) The term ``civilian American citizen'' means any person who, 
being then a citizen of the United States, was captured by the Imperial 
Japanese Government on or after December 7, 1941, at Midway, Guam, Wake 
Island, the Philippine Islands, or any Territory or possession of the 
United States attacked or invaded by such government or while in transit 
to or from any such place, or who went into hiding at any such place in 
order to avoid capture or internment by such government; except (i) a 
person who at any time voluntarily gave aid to, collaborated with, or in 
any manner served such government, or (ii) a person who at the time of 
his capture or entrance into hiding was within the purview of the 
Federal Employees' Compensation Act of September 7, 1918, as amended and 
extended, or the said act of December 2, 1942, as amended, or the 
Missing Persons Act of March 7, 1942 (56 Stat. 143), as amended, or who 
was a regularly appointed, enrolled, enlisted, or

[[Page 149]]

inducted member of any military or naval force.
    (3) The terms ``held by the Imperial Japanese Government'' or 
``captured by the Imperial Japanese Government'' mean a holding of such 
person as a prisoner, internee, hostage or in any other capacity.
    (4) The terms ``compensation'', ``physician'' and ``medical, 
surgical and hospital services and supplies'' shall be construed and 
applied as defined in the Federal Employees' Compensation Act of 
September 7, 1916, as amended.
    (5) The term ``benefit'' is construed as synonymous with the term 
``compensation''.
    (6) The terms ``disability'', ``wages'', ``child'', ``grandchild'', 
``brother'', ``sister'', ``parent'', ``widow'', ``widower'', 
``adoption'' or ``adopted'' shall be construed and applied as defined in 
the Longshoremen's and Harbor Workers' Compensation Act, as amended.



Sec. 71.2  Computation of benefits.

    (a) For the purpose of determining the benefits under this 
subchapter, the average weekly wage of any such civilian American 
citizen, whether employed, self-employed, or not employed, shall be 
deemed to have been $37.50. The provisions of this subchapter are 
applicable and benefits are payable whether or not such civilian 
American citizen was employed. Monthly compensation in cases involving 
partial disability shall be determined by the percentage which the 
degree of partial disability bears to total disability, and shall not be 
determined with respect to the extent of loss of wage-earning capacity.
    (b) Notwithstanding any of the provisions of part 61 of this 
chapter, total maximum aggregate compensation for disability payable 
under this subchapter is limited to $7,500 in case of injury and $7,500 
in case of death, such sum being exclusive of medical costs and funeral 
and burial expenses.



Sec. 71.3  Deductions from benefits.

    If a civilian American citizen or his dependents receives or has 
received from the United States any payments on account of the same 
injury or death, or from his employer in the form of wages or payments 
in lieu of wages, or in any form of support or compensation (including 
workmen's compensation) in respect to the same objects, the benefits 
under this subchapter shall be diminished in the case of an injured 
person by the amount of payments such injured person received on account 
of the same injury or disability, or in the case of dependents, by the 
amount of payments such dependents of the deceased civilian American 
citizen received on account of the same death, as the case may be.



Sec. 71.4  Limitation upon benefits.

    No person, except a widow or a child, shall be entitled to benefits 
under this subchapter for disability with respect to himself and to 
death benefits on account of the death of another.



Sec. 71.5  Payment of benefits.

    (a) Benefits under this subchapter payable for disability or death 
shall be paid only to the person entitled thereto, or to his legal or 
natural guardian if he has one, and shall not upon death of the person 
so entitled survive for the benefit of his estate or any other person.
    (b) The benefit of a minor or an incompetent person who has no 
natural or legal guardian may, in the discretion of the Bureau be paid 
in whole or in such part as the Bureau may determine, for and on behalf 
of such minor or incompetent directly to the person or institution 
caring for, supporting or having custody of such minor or incompetent.
    (c) In any case in which benefits are payable under this subchapter 
to any person who is prevented from accepting such benefits by the 
rules, regulations or customs of the church or the religious order or 
organization of which he is a member, such benefits will be paid, upon 
the request of such person, to such church or to such religious order or 
organization.



Sec. 71.6  Notice of injury or death.

    Notwithstanding any of the provisions in part 61 of this chapter, no 
notice or report of injury or death shall be required for claims filed 
under this subchapter.

[[Page 150]]



Sec. 71.7  Claim filing, processing, adjudication and time limits.

    (a) Claims for injury, disability or death benefits payable under 
section 5(f) of the said War Claims Act of 1948, originating in the 
United States or in its Territories or possessions, shall be filed by 
mailing to the Bureau of Employees' Compensation, United States 
Department of Labor, Washington, DC 20211. All claims originating in the 
Philippine Islands may be filed by mailing to the Bureau of Employees' 
Compensation, United States Department of Labor, Manila, P.I. All claims 
will be finally processed and adjudicated by the Bureau at its principal 
office in Washington, DC.
    (b) The limitation provisions for the filing of claims for 
disability or death benefits, as prescribed by applicable provisions of 
statute, shall not begin to run earlier than July 3, 1948.

[[Page 151]]



                  CHAPTER II--RAILROAD RETIREMENT BOARD




  --------------------------------------------------------------------

                  SUBCHAPTER A--GENERAL ADMINISTRATION
Part                                                                Page
200             General administration......................         155
       SUBCHAPTER B--REGULATIONS UNDER THE RAILROAD RETIREMENT ACT
201             Definitions.................................         184
202             Employers under the Act.....................         184
203             Employees under the Act.....................         189
204             Employment relation.........................         192
205             Employee representative.....................         194
206             Account benefits ratio......................         195
209             Railroad employers' reports and 
                    responsibilities........................         196
210             Creditable railroad service.................         200
211             Creditable railroad compensation............         204
212             Military service............................         208
216             Eligibility for an annuity..................         210
217             Application for annuity or lump sum.........         227
218             Annuity beginning and ending dates..........         234
219             Evidence required for payment...............         245
220             Determining disability......................         257
221             Jurisdiction determinations.................         428
222             Family relationships........................         429
225             Primary insurance amount determinations.....         442
226             Computing employee, spouse, and divorced 
                    spouse annuities........................         454
227             Computing supplemental annuities............         467
228             Computation of survivor annuities...........         468
229             Social security overall minimum guarantee...         475
230             Months annuities not payable by reason of 
                    work....................................         488
233             Reduction in the windfall benefit annuity 
                    component...............................         489
234             Lump-sum payments...........................         490
235             Payment of Social Security benefits by the 
                    Railroad Retirement Board...............         498
236-238         [Reserved]
240             [Reserved]
243             Transfer, assignment, or waiver of payments.         499

[[Page 152]]

250             [Reserved]
255             Recovery of overpayments....................         500
258             Hearings before the Board or designated 
                    examiners...............................         507
259             Initial determinations and appeals from 
                    initial determinations with respect to 
                    employer status and employee status.....         509
260             Requests for reconsideration and appeals 
                    within the Board........................         511
261             Administrative finality.....................         520
262             [Reserved]
266             Representative payment......................         523
295             Payments pursuant to court decree or court-
                    approved property settlement............         530
 SUBCHAPTER C--REGULATIONS UNDER THE RAILROAD UNEMPLOYMENT INSURANCE ACT
300             Definitions.................................         536
301             Employers under the Act.....................         536
302             Qualified employee..........................         537
319             Procedure for determining liability for 
                    contributions or repayments of benefits.         539
320             Initial determinations under the Railroad 
                    Unemployment Insurance Act and reviews 
                    of and appeals from such determinations.         542
321             Electronic filing of applications and claims 
                    for benefits under the Railroad 
                    Unemployment Insurance Act..............         551
322             Remuneration................................         552
323             Nongovernmental plans for unemployment or 
                    sickness insurance......................         556
325             Registration for railroad unemployment 
                    benefits................................         559
327             Available for work..........................         564
330             Determination of daily benefit rates........         566
332             Mileage or work restrictions and stand-by or 
                    lay-over rules..........................         569
335             Sickness benefits...........................         571
336             Duration of normal and extended benefits....         575
337             [Reserved]
340             Recovery of benefits........................         579
341             Statutory lien where sickness benefits paid.         584
344             [Reserved]
345             Employers' contributions and contribution 
                    reports.................................         587
346             Railroad hiring.............................         604
348             Representative payment......................         604

[[Page 153]]

349             Finality of decisions regarding unemployment 
                    and sickness insurance benefits.........         605
                  SUBCHAPTER D--GARNISHMENT OF BENEFITS
350             Garnishment of benefits paid under the 
                    Railroad Retirement Act, the Railroad 
                    Unemployment Insurance Act, and under 
                    any other act administered by the Board.         608
     SUBCHAPTER E--ADMINISTRATIVE REMEDIES FOR FRAUDULENT CLAIMS OR 
                               STATEMENTS
355             Regulations under the Program Fraud Civil 
                    Remedies Act of 1986....................         611
356             Civil monetary penalty inflation adjustment.         626
      SUBCHAPTER F--INTERNAL ADMINISTRATION, POLICY AND PROCEDURES
360             [Reserved]
361             Recovery of debts owed to the United States 
                    Government by Government employees......         627
362             Employees' personal property claims.........         632
363             Garnishment of remuneration of Board 
                    personnel...............................         635
364             Use of penalty mail to assist in the 
                    location and recovery of missing 
                    children................................         637
365             Enforcement of nondiscrimination on the 
                    basis of handicap in programs or 
                    activities conducted by the Railroad 
                    Retirement Board........................         638
366             Collection of debts by Federal tax refund 
                    offset..................................         644
367             Recovery of debts owed to the United States 
                    Government by administrative offset.....         645
368             Prohibition of cigarette sales to minors....         648
369             Use of the seal of the Railroad Retirement 
                    Board...................................         649
                         SUBCHAPTER G [RESERVED]
                   SUBCHAPTER H--EMERGENCY REGULATIONS
375             Plan of operation during a national 
                    emergency...............................         651
                         SUBCHAPTER I [RESERVED]

[[Page 155]]



                   SUBCHAPTER A_GENERAL ADMINISTRATION





PART 200_GENERAL ADMINISTRATION--Table of Contents




Sec.
200.1 Designation of central and field organization.
200.2 The general course and method by which the Board's functions are 
          channeled and determined.
200.3 Obtaining forms from the Railroad Retirement Board.
200.4 Availability of information to public.
200.5 Protection of privacy of records maintained on individuals.
200.6 Open meetings.
200.7 Assessment or waiver of interest, penalties, and administrative 
          costs with respect to collection of certain debts.
200.8 Disclosure of information obtained in the administration of the 
          Railroad Retirement Act and the Railroad Unemployment 
          Insurance Act.
200.9 Selection of members of Actuarial Advisory Committee.
200.10 Representatives of applicant or beneficiaries.

    Authority: 45 U.S.C. 231f(b)(5) and 45 U.S.C. 362; Sec. 200.4 also 
issued under 5 U.S.C. 552; Sec. 200.5 also issued under 5 U.S.C. 552a; 
Sec. 200.6 also issued under 5 U.S.C. 552b; and Sec. 200.7 also issued 
under 31 U.S.C. 3717.



Sec. 200.1  Designation of central and field organization.

    (a) Introduction. (1) The Railroad Retirement Board (hereinafter 
referenced as the ``Board'') is an independent agency in the executive 
branch of the Federal Government and is administered by three members 
appointed by the President, with the advice and consent of the Senate. 
By law, one member is appointed upon recommendations made by railroad 
labor organizations, one upon recommendations of railroad employers, and 
the third member, the Chairman, is in effect independent of employees 
and employers and represents the public interest. The terms of office 
are five years and are arranged so as to expire in different calendar 
years.
    (2) The primary function of the Board is the determination and 
payment of benefits under the retirement-survivor and unemployment-
sickness programs. To this end, the Board must maintain lifetime 
earnings records for covered employees, a network of field offices to 
assist railroad personnel and their dependents in filing claims for 
benefits, and examiners to adjudicate the claims.
    (3) The Board administers the Railroad Retirement Act and the 
Railroad Unemployment Insurance Act. The Railroad Retirement Tax Act, 
which imposes employment taxes to fund the railroad retirement system, 
is administered by the Internal Revenue Service of the U.S. Department 
of Treasury. The Board also participates in the administration of the 
Federal Medicare health insurance program.
    (4) The headquarters of the Board is in Chicago, Illinois, at 844 
North Rush Street. The Board maintains numerous district offices across 
the country in localities easily accessible to large numbers of railroad 
workers, in addition to three regional offices located in Atlanta, 
Georgia; Denver, Colorado; and, Philadelphia, Pennsylvania.
    (b) Internal organization. (1) Reporting directly to the Board 
Members is the six member Executive Committee. The Executive Committee 
is comprised of the General Counsel, who also serves as the Senior 
Executive Officer, the Director of Administration, the Director of 
Programs, the Chief Financial Officer, the Chief Information Officer, 
and the Chief Actuary.
    (2) The Executive Committee is responsible for the day to day 
operations of the agency. The Senior Executive Officer is responsible 
for direction and oversight of the Executive Committee. The General 
Counsel is responsible for advising the Board Members on major issues, 
interpreting the Acts and regulations administered by the Board, 
drafting and analyzing legislation, and planning, directing, and 
coordinating the work of the Office of General Counsel, the Bureau of 
Hearings and Appeals, and the Office of Legislative Affairs through 
their respective directors, and the Office of Secretary to the Board. 
The Director of Programs is responsible for managing, coordinating, and 
controlling the program operations of the agency which carry out 
provisions of the Railroad Retirement and

[[Page 156]]

Railroad Unemployment Insurance Acts. The Director of Administration is 
responsible for managing, coordinating, and controlling certain 
administrative operations of the Board including the Bureau of Supply 
and Service, the Bureau of Human Resources, the Office of Public 
Affairs, and the Office of Equal Opportunity. The Chief Financial 
Officer is responsible for the financial management of the agency, and 
the Chief Information Officer is responsible for coordinating the 
agency's information resources management program. The Board's Chief 
Actuary is responsible for the actuarial program of the Board. The Chief 
Actuary is a non-voting member of the Executive Committee.
    (3) Further, the following offices provide administrative and other 
services in support of Board Operations: Office of Equal Employment 
Opportunity, Washington Legislative/Liaison Office, Office of Planning, 
Office of Public Affairs and Bureau of Quality Assurance.
    (c) Office of Inspector General. The Railroad Retirement Solvency 
Act of 1983 established the Office of Inspector General within the Board 
to be governed by the Inspector General Act of 1978. As structured, the 
Inspector General reports directly to the Chairman. The Office of 
Inspector General is responsible for policy direction and conduct of 
audit, inspection, and investigation activities relating to program and 
operations of the Board; and maintaining liaison with other law 
enforcement agencies, the Department of Justice, and United States 
Attorneys on all matters relating to the detection and prevention of 
fraud and abuse. The Inspector General reports semi-annually to the 
Congress through the Chairman concerning fraud, abuses, other serious 
problems, and deficiencies of agency programs and operations; recommends 
corrective action; and, reports on progress made in implementing these 
actions.

[52 FR 11010, Apr. 6, 1987, as amended at 67 FR 5723, Feb. 7, 2002]



Sec. 200.2  The general course and method by which the Board's functions 
are channeled and determined.

    (a) Retirement and death benefits. (1) Retirement and death benefits 
must be applied for by filing application therefor. (For details as to 
application, see parts 210 and 237 of this chapter). The Bureau of 
Retirement Claims considers the application and the evidence and 
information submitted with it. Wage and service records maintained by 
the Board are checked and if necessary, further evidence is obtained 
from the employee, the employer, fellow employees, public records and 
any other person or source available. The Bureau makes initial decisions 
on the following matters:
    (i) Applications for benefits;
    (ii) Requests for the withdrawal of an application;
    (iii) Requests for a change in an annuity beginning date;
    (iv) The termination of an annuity;
    (v) The modification of the amount of an annuity or lump sum;
    (vi) Requests for the reinstatement of an annuity which had been 
terminated or modified;
    (vii) The existence of an erroneous payment;
    (viii) The eligibility of an individual for a supplemental annuity 
or the amount of such supplemental annuity.
    (ix) Whether representative payments shall serve the interests of an 
individual by reason of his incapacity to manage his annuity payments; 
and
    (x) Who shall be appointed or continued as representative payee on 
behalf of an annuitant.
    (2) A claimant dissatisfied with the Bureau's decision may, upon 
filing notice within one year from the date the decision is mailed to 
the claimant, appeal to the Bureau of Hearings and Appeals. Provided, 
however, That (i) an individual under age 16 shall not have the right to 
appeal a finding of incapacity to manage his annuity payments, but shall 
have the right to contest on appeal that he is, in fact, under age 16; 
(ii) an individual who has been adjudged legally incompetent shall not 
have the right to appeal a finding of incapacity to manage his annuity 
payments, but shall have the right to contest on appeal the fact of his 
having been adjudged legally incompetent; and (iii) an individual shall 
not have the right to appeal a denial of his application to serve as 
representative payee on behalf of an annuitant. There he

[[Page 157]]

may have an oral hearing before a hearings officer of which a 
stenographic record is made, submit additional evidence, be represented, 
and present written and oral argument. If dissatisfied with the decision 
of the hearings officer, the claimant may appeal to the Board itself. 
This appeal must be made on a prescribed form within four months of the 
date a copy of the hearings officer's decision was mailed to him. If new 
evidence is received, the Board may remand the case to the hearings 
officer for investigation and recommendation concerning the new 
evidence. (For details on appeals procedure, see part 260 of this 
chapter.) A claimant, after he has unsuccessfully appealed to the Board 
itself and has thus exhausted all administrative remedies within the 
Board, may obtain a review of a final decision of the Board by filing a 
petition for review, within one year after the entry of the decision on 
the records of the Board and its communication to the claimant, in the 
U.S. Court of Appeals for the circuit in which the claimant resides, or 
in the U.S. Court of Appeals for the Seventh Circuit, or in the U.S. 
Court of Appeals for the District of Columbia Circuit.
    (b) Unemployment, sickness, and maternity benefits. (1) Claims for 
unemployment benefits are handled by a comprehensive organization set up 
in the field. Under agreements between the Railroad Retirement Board and 
covered employers, the employers select employees of theirs to act as 
unemployment claims agents. These agents perform their services, 
specified in the agreement, in accordance with instructions issued by 
the Board but under general supervision and control of the employer. In 
accordance with the agreements, employers are reimbursed for such 
services at the rate of 50 cents for each claim taken by an unemployment 
claims agent and transmitted to the Board. There are some 13,000 such 
contract claims agents. An unemployed person who wishes to file a claim 
for unemployment benefits need only consult his recent railroad employer 
to be directed to the unemployment claims agent with whom he may file 
his claim.
    (2) When an employee makes his first claim in any benefit year, he 
identifies himself and fills out an application for unemployment 
benefits (UI-1), an application for employment service (Form ES-1), and 
a pay rate report (Form UI 1a) to be used in determining the rate at 
which benefits may be paid. The employee is given an informational 
booklet UB-4 and an Unemployment Bulletin No. UB-3 informing him of his 
responsibilities and explaining the statements to which he is required 
to certify and to which he does certify when he registers for benefits. 
When the applications and pay rate report are completed, the 
unemployment claims agent sends them to the nearest field office of the 
Board. That office inspects the applications to detect errors and 
omissions and to note items requiring investigation. The office also 
attempts to verify the employee's statement about his pay rate unless 
the unemployment claims agent has already done so. The application for 
unemployment benefits and the pay rate report are then sent to the 
appropriate regional office of the Board. The application for employment 
service is retained in the field office for use in referring the 
claimant to suitable job openings. On the basis of the information 
furnished on the application for unemployment benefits, the regional 
office determines whether the applicant is a qualified employee (that 
is, whether he earned $500 or more from covered employment in the base 
year). The applicant is notified by letter if he is found to be not 
qualified.
    (3) In addition to the application forms and pay rate report, the 
claimant executes a registration and claim for unemployment insurance 
benefits (Form UI-3). In substance, registration consists of his 
appearing before an unemployment claims agent during the agent's working 
hours and signing his name on the registration and claim form for the 
days he wishes to claim as days of unemployment. Registration for any 
day must be made on the day or not later than the sixth calendar day 
thereafter, except that, if such calendar day is not a business day, the 
claimant may make his registration on the next following business day. 
In other words, a claimant must ordinarily appear for registration at 
seven-

[[Page 158]]

day intervals. Under certain circumstances, such as illness, employment, 
looking for employment, etc., an employee may make a delayed 
registration for any day for which he is unable to register within the 
time limit mentioned above. The unemployment claims agent sends the 
claim to the nearest field office where it is inspected with a view to 
calling the claimant in for interview or referral to job openings, 
detecting errors and omissions, and noting items requiring 
investigation. The claim is then forwarded to the regional office.
    (4) Claims for sickness benefits are handled by the field 
organization of the Board. An employee need not register in person for 
sickness benefits but claims for such benefits must be made on the forms 
prescribed by the Board and executed by the individual claiming benefits 
except that, if the Board is satisfied that an employee is so sick or 
injured that he cannot sign forms, the Board may accept forms executed 
by someone else in his behalf. Forms used in connection with claims for 
sickness benefits may be obtained from a railroad employer, a railway 
labor organization, or any Board office. An application for sickness 
benefits (Form SI-1a) and the required statement of sickness (Form SI-
1b) may be mailed to any office of the Board (see part 335 of this 
chapter). It is important that a statement of sickness be filed 
promptly, for no day can be considered as a day of sickness unless a 
statement of sickness with respect to such day is filed at an office of 
the Board within ten days. The application and statement of sickness are 
forwarded to a regional office where they are examined. If it appears 
that the employee is entitled to benefits, the regional office will send 
him a claim form covering a 14-day registration period, and a pay rate 
report (Form SI-1d). The employee completes the forms, indicating on the 
claim form the days during the period he claims as days of sickness and 
returns both forms to the regional office to which the claim form is 
preaddressed. When additional medical information is needed, a form for 
supplemental doctor's statement is sent to the employee. This should be 
filled out by a doctor and returned to the Board.
    (5) Maternity benefits must be applied for on a form prescribed by 
the Board. A statement of maternity sickness, executed by a person 
authorized to execute statements of sickness (see part 335 of this 
chapter), is required also. The necessary forms may be obtained from a 
railroad employer, a railway labor organization, or any Board office. An 
application for maternity benefits (Form SI-101) and the statement of 
maternity sickness (Form SI-104) may be filed in person or by mail with 
any Board office. It is important that the statement of maternity 
sickness be filed promptly since no day can be considered as a day of 
sickness in a maternity period unless a statement of maternity sickness 
with respect to the day is filed at an office of the Board within ten 
days. As in the case of claims for sickness benefits, the forms are 
forwarded to a regional office. Claim forms are mailed to the claimant 
and are pre-addressed for return to the regional office.
    (6) Whether benefits are payable to a claimant and, if so, the 
amount of benefits payable, is determined with respect to claims for 
unemployment, sickness, and maternity benefits, by the regional office. 
The names and addresses of claimants to whom benefits are found payable, 
and the amounts payable to them, are certified to the local disbursing 
office of the Treasury Department which mails the benefit checks to the 
claimants. If a claim is denied in whole or in part, an explanation is 
given to the claimant by letter.
    (7) The rate at which benefits are payable is determined from the 
claimant's railroad wages earned in a base year period or from his daily 
pay rate for his last railroad employment in the base year period, 
whichever will result in the higher benefit rate. His daily benefit rate 
will be at least 60 per centum of his daily pay rate for his last 
railroad employment in the base year period, but not exceeding $10.20.
    (8) Any qualified employee whose claim for benefits under the 
Railroad Unemployment Insurance Act has been denied in whole or in part 
may, within one year from the date such denial is communicated to him, 
appeal from the initial determination, and such appeal

[[Page 159]]

will be heard before an impartial hearings officer. An unsuccessful 
claimant in an appeal before such hearings officer may appeal to the 
Board. (For further details of appeals procedure by claimants for 
benefits and for appeals procedure by employers, see parts 319 and 320 
of this chapter.)

Any claimant, or any railway labor organization organized in accordance 
with the provisions of the Railway Labor Act, of which the claimant is a 
member, or any other party aggrieved by a final decision pursuant to the 
Railroad Unemployment Insurance Act, may, only after all administrative 
remedies within the Board will have been availed of and exhausted, 
obtain a review of such final decision of the Board by filing a petition 
for review within 90 days after the mailing of notice of such decision 
to the claimant or other party, or within such further time as the Board 
may allow, in the United States court of appeals for the circuit in 
which the claimant or other party resides or will have had his principal 
place of business or principal executive office, or in the United States 
Court of Appeals for the Seventh Circuit, or in the United States Court 
of Appeals for the District of Columbia Circuit.
    (c) Current compensation and service records. Current compensation 
and service records are maintained by the Bureau of Research and 
Employment Accounts. These records are obtained from reports made 
periodically on either a quarterly or annual basis by employers and 
employee representatives. General instructions in this regard may be 
found in part 250 of this chapter. Special instructions to employers and 
employee representatives are issued from time to time by the Director of 
Research and Employment Accounts.
    (d) Collection of contributions. The Office of Budget and Fiscal 
Operations acts as the collecting agency of the Board in receiving 
contributions due under the Railroad Unemployment Insurance Act. 
Contributions are, with some few exceptions, due quarterly and with the 
payment, the employer must file a report, Form DC-1, Employers Quarterly 
or Annual Report of Contributions under the Railroad Unemployment 
Insurance Act. (For further details see part 345 of this chapter.)
    (e) Employment service. Employers needing workers may avail 
themselves of the Board's employment service by making requests of any 
field office for referrals, in writing, on forms provided by the Board, 
or by telephone.

[15 FR 6752, Oct. 6, 1950, as amended at 21 FR 4808, June 29, 1956; 
Board Order 62-115, 27 FR 9254, Sept. 19, 1962; Board Order 67-67, 32 FR 
9064, June 27, 1967; 41 FR 22557, June 4, 1976. Redesignated at 52 FR 
11010, Apr. 6, 1987, as amended at 55 FR 26430, June 28, 1990]



Sec. 200.3  Obtaining forms from the Railroad Retirement Board.

    Forms used by the Board, including applications for benefits and 
informational publications, may be obtained from the Board's 
headquarters at 844 Rush Street, Chicago, Illinois 60611, and from local 
Board offices.

[63 FR 17326, Apr. 9, 1998]



Sec. 200.4  Availability of information to public.

    (a) The following materials (more particularly described in 
paragraph (d) of this section), with identifying details deleted 
pursuant to paragraph (b) of this section, are available for public 
inspection and copying:
    (1) All final opinions (including concurring and dissenting 
opinions), and all orders made in the adjudication of cases, which have 
precedential effect;
    (2) All statements of policy and interpretations which have been 
adopted by the Board, or by anyone under authority delegated by the 
Board, which have not been published in the Federal Register; and
    (3) Administrative staff manuals and instructions to staff that 
affect any member of the public.
    (b) The identifying details to be deleted shall include, but not be 
limited to, names and identifying numbers of employees and other 
individuals as needed to comply with sections 12(d) and (n) of the 
Railroad Unemployment Insurance Act, section 7(b)(3) of the Railroad 
Retirement Act, and Sec. 200.8 of this part, or to prevent a clearly 
unwarranted invasion of personal privacy.
    (c) There shall be maintained in the Board's library a current index 
of the materials referred to in paragraph (a)

[[Page 160]]

of this section which will have been issued, adopted, or promulgated 
subsequent to July 4, 1967. This index shall be available for public 
inspection and copying at the Board's headquarters offices located at 
844 Rush Street, Chicago, Illinois, during the normal business hours of 
the Board. Copies of the index or any portion thereof may be obtained 
for a fee equivalent to the costs of reproduction by submitting a 
written request therefor. Such request should comply with the form for 
requests as described in paragraph (h) of this section.
    (d) The materials and indexes thereto shall be kept, and made 
available to the public upon request, in the bureaus and offices of the 
Board that produce or utilize the materials. The following materials 
currently in use shall, as long as they are in effect as precedents and 
instructions, be made available in offices of the Board at 844 North 
Rush Street, Chicago, Illinois 60611-2092:
    (1) In the Office of Programs/Operations: The Retirement Claims 
Manual, RCM Circulars, Special Services Manual, Policy Decisions, 
Procedural Memoranda containing information on the adjudication of 
claims not contained in the Retirement Claims Manual or in RCM 
Circulars, Field Operating Manual (Parts I and VI), FOM Circulars and 
Memoranda, the Occupational Disability Rating Schedule, Adjudication 
Instruction Manual, Regional Operating Manual (Part I), memorandum 
instructions on adjudication, and circular letters of instruction to 
railroad officials.
    (2) In the Office of Programs/Assessment and Training: The 
Instructions to Employers, and Circular Letters to Employers.
    (3) In the Office of General Counsel: Legal Opinions.
    (4) In the Office of the Secretary to the Board: Decisions and 
rulings of the Board.
    (5) Regional offices and field offices shall also make available to 
the extent practicable such of these materials and indexes as are 
furnished them in the ordinary course of business.
    (e) The copies of manuals and instructions made available for public 
copying and inspection shall not include:
    (1) Confidential statements, standards, and instructions which do 
not affect the public, and
    (2) Instructions not affecting the public (such as those relating 
solely to processing and procedure, to management, or to personnel) 
which it is feasible to separate from instructions that do affect the 
public.
    (f) With the exception of records specifically excluded from 
disclosure by section 552(b) of title 5, United States Code, or other 
applicable statute, any records of or in the custody of this agency, 
other than those made available under paragraphs (a), (c), and (d) of 
this section, shall, upon receipt of a written request reasonably 
describing them, promptly be made available to the person requesting 
them.
    (g) The RRB may charge the person of persons making a request for 
records under paragraph (f) of this section a fee in an amount not to 
exceed the costs actually incurred in complying with the request and not 
to exceed the cost of processing a check for payment. Depending on the 
category into which the request falls, a fee may be assessed for the 
cost of search for documents, reviewing documents to determine whether 
any portion of any located documents is permitted to be withheld, and 
duplicating documents.
    (1) Fee schedule. To the extent that the following are chargeable, 
they are chargeable according to the following schedule:
    (i) The charge for making a manual search for records shall be the 
salary rate, including benefits, for a GS-7, step 5 Federal employee;
    (ii) The charge for reviewing documents to determine whether any 
portion of any located document is permitted to be withheld shall be the 
salary rate, including benefits, for a GS-13, step 5 Federal employee;
    (iii) The charge for making photocopies of any size document shall 
be $.10 per copy per page:
    (iv) The charge for computer-generated listings or labels shall 
include the direct cost to the RRB of analysis and programming, where 
required, plus the cost of computer operations to produce the listing or 
labels. The maximum computer search charge shall be $2,250.00 per hour 
($37.50 per minute).

[[Page 161]]

Search time shall not include the time expended in analysis or 
programming where these operations are required.
    (v) There shall be no charge for transmitting documents by regular 
post. The charge for all other methods of transmitting documents shall 
be the actual cost of transmittal.
    (2) Categories of requesters. For the purpose of assessing fees, 
requesters shall be classified into one of the following five groups:
    (i) Commercial use requesters. Commercial use requesters are 
requesters who seek information for a use or purpose that furthers the 
commercial, trade, or profit interests of the requester or the person on 
whose behalf the request is made. For such requesters, the RRB will 
fully charge for the cost of searching, reviewing and copying and shall 
not consider a request for waiver or reduction of fees based upon an 
assertion that disclosure would be in the public interest; however, the 
RRB will not charge a fee if the total cost for searching, reviewing, 
and copying is less than $10.00.
    (ii) Educational and non-commercial scientific institution 
requesters. Educational requesters are educational institutions which 
operate a program or programs of scholarly research. They may be a 
preschool, a public or private elementary or secondary school, an 
institution of graduate higher education, an institution of 
undergraduate higher education, an institution of professional 
education, or an institution of vocational education. Non-commercial 
scientific requesters are institutions that are not operated on a 
``commercial'' basis and which are operated solely for the purpose of 
conducting scientific research the results of which are not intended to 
promote any particular product or industry. To be eligible for inclusion 
in this category, requesters must show that the request is being made 
under the auspices of a qualifying institution and that the records are 
not sought for a commercial use, but are sought in furtherance of 
scholarly (if the request is from an educational institution) or 
scientific (if the request is from a non-commercial scientific 
institution) research. For requesters in this category, the RRB shall 
charge for the cost of reproduction alone, excluding the first 100 
pages, for which no charge will be made. If after excluding the cost of 
the first 100 pages of reproduction, there remain costs to be assessed, 
the RRB will not charge for such costs is such costs total less than 
$10.00. If the cost is $10.00 or more, the RRB may waive the charge or 
reduce it if it determines that disclosure of the information is in the 
public interest because it is likely to contribute significantly to 
public understanding of the operations or activities of the government 
and is not primarily in the commercial interest of the requester. To be 
eligible for free search time, these requesters must reasonably describe 
the records sought.
    (iii) Requesters who are representatives of the news media. The term 
``representative of the news media'' refers to any person actively 
gathering news for an entity that is organized and operated to publish 
or broadcast news to the public. The term ``news'' means information 
that is about current events or that could be of interest to the public. 
In the case of ``freelance'' journalists, they may be regarded as 
working for a news organization if they can demonstrate a solid basis 
for expecting publication through that organization, even though not 
actually employed by it. For requesters in this category the RRB shall 
charge for the cost of reproduction alone excluding the cost of the 
first 100 pages, for which no charge will be made. If, after excluding 
the cost of the first 100 pages of reproduction, there remain costs to 
be assessed, the RRB will not charge for such costs if such costs total 
less than $10.00. If the cost is $10.00 or more, the RRB may waive the 
charge or reduce it if it determines that disclosure is in the public 
interest because it is likely to contribute significantly to public 
understanding of the operations or activities of the government and is 
not primarily in the commercial interest of the requester. To be 
eligible for free search time, these requesters must reasonably describe 
the record sought.
    (iv) Requests by subjects of records in Privacy Act Systems of 
Records. Requests from subject individuals for records about themselves 
filed in any of the Board's Privacy Act Systems of records will continue 
to be treated under the

[[Page 162]]

fee provisions of the Privacy Act of 1984 which permit assessing fees 
only for reproduction.
    (v) All other requesters. For requesters who do not fall within the 
purview of paragraph (g)(2)(i), (ii), (iii), or (iv) of this section, 
the RRB will charge the full direct cost of searching for and 
reproducing records that are responsive to the request. The RRB will not 
charge for such costs to be assessed if the total is less than $10.00. 
If the total is $10.00 or more, the RRB may waive the charge or reduce 
it if it determines that disclosure of the information is in the public 
interest because it is likely to contribute significantly to public 
understanding of the operations or activities of the government and is 
not primarily in the commercial interest of the requester.
    (3) Charges for unsuccessful searches. Where search time is 
chargeable, the RRB may assess charges for time spent searching, even if 
the RRB fails to locate the records, or if located, the records are 
determined to be exempt from disclosure. If the Board estimates that 
search charges are likely to exceed $25.00 it will notify the requester 
of the estimated amount of fees, unless the requester has agreed in 
advance to pay fees as high as those anticipated. Such notice will offer 
the requester the opportunity to confer with agency personnel with the 
object of reformulating the request to meet his or here needs at a lower 
cost.
    (4) Aggregating requests. When the RRB reasonably believes that a 
requester or group of requesters acting in concert is attempting to 
break a request into a series of requests for the purpose of evading the 
assessment of fees, the RRB will aggregate any such requests and charge 
accordingly. One element the RRB will consider in determining whether a 
belief would be reasonable is the time period in which the requests have 
been.
    (5) Advance payments. (i) The RRB estimates or determines that the 
allowable charges payment unless:
    (A) The RRV estimates or determines that the allowable charges that 
a requester may be required to pay are likely to exceed $250.00, in 
which case the RRV will notify the requester of the likely cost and 
obtain satisfactory assurance of full payment where the requester has a 
history of prompt payment of FOIA fees, or require an advance payment of 
an amount up to the full estimated charges in the case of requesters 
with no history of payment; or
    (B) A requester has previously failed to pay a fee charged in a 
timely fashion (i.e., within 30 days of the date of the billing), in 
which case the RRB may require the requester to pay the full amount owed 
plus any applicable interest as provided below of demonstrate that he 
has, in fact, paid the fee, and to make an advance payment of the full 
amount of the estimated fee before the agency begins to process a new 
request or a pending request from that requester.
    (ii) When the Board acts under paragraph (g)(5)(i) of this section, 
the administrative time limits prescribed in subsection (a)(6) of the 
Freedom of Information Act (5 U.S.C. 552(a)(6)) (i.e., 10 working days 
from receipt of initial requests and 20 working days from receipt of 
appeals from initial denials, plus permissible extensions of these time 
limits) will begin only after the Board has received the fee payments 
described in said paragraph (g)(5)(i) of this section.
    (6) Charging interest. Interest may be charged to any requester who 
fails to pay fees charged within 30 days fo the date of billing. 
Interest will be assessed beginning on the 31st day following the day on 
which the bill for fees was sent. Interest will be the rate prescribed 
in section 3717 of title 31 of the U.S. Code Annotated and will accrue 
from the date of the billing.
    (7) Collection of fees due. Whenever it is appropriate in the 
judgment of the Board in order to encourage repayment of fees billed in 
accordance with these regulations, the Board will use the procedures 
authorized by the Debt Collection Act of 1982 (Pub. L. 97-365), 
including disclosure to consumer reporting agencies and use of 
collection agencies.
    (h) Any person or organization requesting records pursuant to this 
section shall submit such request in writing to the General Counsel, 
Railroad Retirement Board, Room 836, 844 North Rush Street, Chicago, 
Illinois 60611-

[[Page 163]]

2092. All such requests should be clearly and prominently identified as 
requests for information under the Freedom of Information Act. If 
submitted by mail or otherwise submitted in an envelope or other cover, 
requests should be clearly and prominently identified as such on the 
envelope or cover. Requests may also be submitted by e-mail, 
[email protected].
    (i) The General Counsel, or any other individual specifically 
authorized to act on behalf of the General Counsel, shall have the 
authority to grant or deny a request for information submitted under 
this section. The General Counsel or such authorized representative 
shall, within 20 working days following the receipt of a request, except 
as provided in paragraph (j)(1) of this section, make a determination 
granting or denying the request and notify the requester of his or her 
decision, and if a denial, the reasons therefor. The requester shall be 
further advised that a total or partial denial may be appealed to the 
Board as provided in paragraph (j) of this section.
    (j) In cases where a request for information is denied, in whole or 
in part, by the General Counsel or his or her authorized representative, 
the party who originally made the request may appeal such determination 
to the Board by filing a written appeal with the Secretary of the Board 
within 20 working days following receipt of the notice of denial. The 
Board shall render a decision on an appeal within 20 working days 
following receipt of the appeal except as provided in paragraph (j)(1) 
of this section. The requester shall promptly be notified of the Board's 
decision and, in cases where the denial is upheld, of the provisions for 
judicial review of such final administrative decisions.
    (1) In unusual circumstances, as enumerated in section 552(a)(6)(B) 
of title 5, United States Code, the time restrictions of paragraphs (i) 
and (j) of this section may be extended in the aggregate by no more than 
10 days by notice to the requester of such extension, the reasons 
therefor, and the date on which a determination is expected to be 
dispatched.
    (2) For purposes of paragraphs (i) and (j) of this section, a 
request shall be received by the General Counsel of the Board when it 
arrives at the Board's headquarters. Provided, however, That when the 
estimated fee to be assessed for a given request exceeds $30.00, such 
request shall be deemed not to have been received by the General Counsel 
until the requester is advised of the estimated cost and agrees to bear 
it. Provided further, That a request which does not fully comply with 
all the provisions of paragraph (h) of this section shall be deemed to 
have been received by the General Counsel on the day it actually reaches 
his or her office.
    (k) Any person in the employ of the Railroad Retirement Board who 
receives a request for any information, document or record of this 
agency, or in the custody thereof, shall advise the requester to address 
such request to the General Counsel. If the request received is in 
writing, it shall be immediately referred for action to the Executive 
Director.
    (l) The General Counsel shall maintain records of:
    (1) The total amount of fees collected by this agency pursuant to 
this section;
    (2) The number of initial denials of requests for records made 
pursuant to this section and the reason for each;
    (3) The number of appeals from such denials and the result of each 
appeal, together with the reason(s) for the action upon each appeal that 
results in a denial of information;
    (4) The name(s) and title(s) or position(s) of each person 
responsible for each initial denial of records requested and the number 
of instances of action on a request for information for each such 
person;
    (5) The results of each proceeding conducted pursuant to section 
552(a)(4)(F) of title 5 U.S. Code, including a report of any 
disciplinary action against an official or employee who was determined 
to be primarily responsible for improperly withholding records, or an 
explanation of why disciplinary action was not taken;
    (6) Every rule made by this agency affecting or in implementation of 
section 552 of title 5 U.S. Code;
    (7) The fee schedule for copies of records and documents requested 
pursuant to this regulation; and

[[Page 164]]

    (8) All other information which indicates efforts to administer 
fully the letter and spirit of section 552 of title 5 U.S. Code.
    (m) The Board shall, prior to February 1 of each year, prepare and 
submit a report to the Attorney General of the United States covering 
each of the categories of records maintained in accordance with the 
foregoing for the preceding fiscal year.
    (n) Special procedures for handling requests for business 
information:
    (1) The Freedom of Information Act exempts from mandatory disclosure 
matters that are ``trade secrets and commercial or financial information 
obtained from a person and privileged or confidential * * *.'' The Board 
maintains records that may include information within this exception and 
to protect the rights of submitters of business information with respect 
to the confidentiality of such information, all requests for records or 
information contained in contract bids, contract proposals, contracts, 
and similar business information documents shall be handled in 
accordance with the procedures established by this paragraph.
    (2) When the Executive Director or an individual authorized to grant 
or deny requests under the Freedom of Information Act receives a request 
for business information, the General Counsel or other individual shall 
promptly provide the person who submitted the information to the Board 
with written notice that a request for the information has been made. 
The notice shall specify what record or information has been requested 
and shall inform the business submitter that the submitter may, within 
ten working days after the date of the notice, file a written objection 
to disclosure of the information or portions of the information. The 
written objection to disclosure shall be addressed to the individual 
whose name appears in the notification and shall specify the portion or 
portions of the information that the submitter believes should not be 
disclosed and state the grounds or bases for objecting to disclosure of 
such portion or portions. No written notice to the business submitter 
shall be required under this subparagraph if it is readily determined 
that the information will not be disclosed or that the information has 
lawfully been published or otherwise made available to the public.
    (3) In determining whether to grant or deny the request for the 
business information, the official or entity making the determination 
shall carefully consider any objection to disclosure made by the 
submitter of the information in question.
    (4) If a determination is made to disclose information with respect 
to which the business submitter has filed an objection to disclosure, 
the official or entity making the determination shall, no later than ten 
working days prior to the date on which disclosure of the information 
will be made, provide the submitter with written notice of the 
determination to disclose. The written notice shall state the reasons 
why the submitter's grounds for objecting to disclosure were rejected 
and inform the submitter of the date on which the information is to be 
disclosed.
    (5) The Board shall promptly notify the business submitter of any 
suit commenced under the Freedom of Information Act to compel disclosure 
of information which he or she submitted to the Board.
    (o) Custom tailored information services; Fees charged. This 
paragraph and paragraph (p) of this section set forth the policy of the 
Railroad Retirement Board with respect to the assessment of a fee for 
providing custom tailored information where requested. Except as 
provided in paragraphs (o)(4)(vii) and (p) of this section, a fee shall 
be charged for providing custom tailored information.
    (1) Definition: Custom tailored information. Custom tailored 
information is information not otherwise required to be disclosed under 
this part but which can be created or extracted and manipulated, 
reformatted, or otherwise prepared to the specifications of the 
requester from existing records. For example, the Board needs to program 
computers to provide data in a particular format or to compile selected 
items from records, provide statistical data, ratios, proportions, 
percentages, etc. If this data is not already compiled and available, 
the end product would be

[[Page 165]]

the result of custom tailored information services.
    (2) Providing custom tailored information. The Board is not required 
to provide custom tailored information. It will do so only when the 
appropriate fees have been paid as provided in paragraph (o)(4) of this 
section and when the request for such information will not divert staff 
and equipment from the Board's primary responsibilities.
    (3) Requesting custom tailored information. Information may be 
requested in person, by telephone, or by mail. Any request should 
reasonably describe the information wanted and may be sent to the 
Director of Administration, Railroad Retirement Board, 844 North Rush 
Street, Chicago, Illinois 60611-2092.
    (4) Fee schedule. Requests for custom tailored information are 
chargeable according to the following schedule:
    (i) Manual searching for records. Full cost of the time of the 
employees who perform the service, even if records cannot be found, 
management and supervisory costs, plus the full costs of any machine 
time and materials the employee uses. Consulting and other indirect 
costs will be assessed as appropriate.
    (ii) Photocopying or reproducing records on magnetic tapes or 
computer diskettes. The charge for making photocopies of any size 
document shall be $.10 per copy per page. The charge for reproducing 
records on magnetic tapes or computer diskettes is the full cost of the 
operator's time plus the full cost of the machine time and the materials 
used.
    (iii) Use of electronic data processing equipment to obtain records. 
Full cost for the service, including computer search time and computer 
runs and printouts, and the time of computer programmers and operators 
and of other employees.
    (iv) Certification or authentication. Full cost of certification and 
authentication.
    (v) Providing other special services. Full cost of the time of the 
employee who performs the service, management and supervisory costs, 
plus the full costs of any machine time and materials the employee uses. 
Consulting and other indirect costs will be assessed as appropriate.
    (vi) Special forwarding arrangements. Full cost of special 
arrangements for forwarding material requested.
    (vii) Statutory supersession. Where a Federal statute prohibits the 
assessment of a charge for a service or addresses an aspect of that 
charge, the statute shall take precedence over this paragraph (o).
    (p) Assessment of a fee with respect to the provision of custom 
tailored information where the identification of the beneficiary is 
obscure and where provision of the information can be seen as benefiting 
the public generally. When the identification of a specific beneficiary 
with respect to the provision of custom tailored information is obscure, 
the service can be considered primarily as benefiting broadly the 
general public, and the estimated cost of providing the information is 
less than $1,000.00, the Director of Administration shall determine 
whether or not a fee is to be charged. In any such case where the cost 
is $1,000.00 or more, the request shall be referred by the Director of 
Administration to the three-member Board for a determination whether or 
not a fee is to be assessed.

[Board Order 6784, 32 FR 9651, Sept. 4, 1967, as amended at 40 FR 7255, 
Feb. 19, 1975; 48 FR 51447, 51448, Nov. 9, 1983; 50 FR 26357, June 26, 
1985. Redesignated at 52 FR 11010, Apr. 6, 1987, as amended at 52 FR 
13820, Apr. 24, 1987; 54 FR 43055, Oct. 20, 1989; 59 FR 28765, June 3, 
1994; 60 FR 29984, June 7, 1995; 61 FR 25390, May 21, 1996; 68 FR 61621, 
Oct. 29, 2003]



Sec. 200.5  Protection of privacy of records maintained on individuals.

    (a) Purpose and scope. The purpose of this section is to establish 
specific procedures necessary for compliance with the Privacy Act of 
1974 (Pub. L. 93-579). These regulations apply to all record systems 
containing information of a personal or private nature maintained by the 
Railroad Retirement Board that are indexed and retrieved by personal 
identifier.
    (b) Definitions--(1) Individual. The term ``individual'' pertains to 
a natural person who is a citizen of the United States or an alien 
lawfully admitted for permanent residence and not to a company or 
corporation.
    (2) System of records. For the purposes of this section, the term 
``system of records'' pertains to only those records

[[Page 166]]

that can be retrieved by an individual identifier.
    (3) Railroad Retirement Board. For purposes of this section, the 
term ``Railroad Retirement Board'' refers to the United States Railroad 
Retirement Board, an independent agency in the executive branch of the 
United States Government.
    (4) Board. For purposes of this section the term ``Board'' refers to 
the three member governing body of the United States Railroad Retirement 
Board.
    (c) Procedure for requesting the existence of personally 
identifiable records in a record system. An individual can determine if 
a particular record system maintained by the Railroad Retirement Board 
contains any record pertaining to him by submitting a written request 
for such information to the system manager of that record system as 
described in the annual notice published in the Federal Register. A 
current copy of the system notices, published in accordance with 
paragraph (i) of this section, is available for inspection at all 
regional and district offices of the Board. If necessary, Board 
personnel will aid requesters in determining what system(s) of records 
they wish to review and will forward any requests for information to the 
appropriate system manager. Also, requests for personal information may 
be submitted either by mail or in person to the system manager at the 
headquarters of the Railroad Retirement Board, 844 Rush Street, Chicago, 
Illinois 60611. Prior to responding to a request for information under 
this subsection, the system manager shall require the individual 
requesting such information to provide identifying data, such as his 
full name, date of birth, and social security number. The system manager 
shall respond to a request under this subsection within a reasonable 
time by stating that a record on the individual either is or is not 
contained in the system.
    (d) Disclosure of requested information to individuals. (1) Upon 
request, an individual shall be granted access to records pertaining to 
himself, other than medical records and records compiled in anticipation 
of a civil or criminal action or proceeding against him, which are 
indexed by individual identifier in a particular system of records. 
Requests for access must be in writing and should be addressed to the 
system manager of that record system as described in the annual notice 
published in the Federal Register. Requests under this subsection may be 
submitted either by mail or in person at the headquarters offices of the 
Railroad Retirement Board, 844 Rush Street, Chicago, Illinois 60611.
    (2) The system manager shall, within ten working days following the 
date on which the request is received in his office, render a decision 
either granting or denying access and shall promptly notify the 
individual of his decision. If the request is denied, the notification 
shall inform the individual of his right to appeal the denial to the 
Board. An individual whose request for access under this subsection has 
been denied by the system manager may appeal that determination to the 
Board by filing a written appeal with the Secretary of the Board, 
Railroad Retirement Board, 844 Rush Street, Chicago, Illinois 60611 
within twenty working days following receipt of the notice of denial. 
The Board shall render a decision on an appeal within thirty working 
days following the date on which the appeal is received in the office of 
the Secretary of the Board. The individual shall promptly be notified of 
the Board's decision.
    (3) In cases where an individual has been granted access to his 
records, the system manager shall, prior to releasing such records, 
require the individual to produce identifying data such as his name, 
date of birth, and social security number.
    (4) Disclosure to an individual of his record may be made by 
providing him, upon written request therefor, a copy of the record or 
portion thereof which he reasonably describes in his request.
    (5) An individual, and if such individual so desires, one other 
person of his choosing, may review and have a copy made of his record 
(in a form comprehensible to him) during regular business hours at the 
location described as the repository of the record system containing 
such records in the annual notice published in the Federal Register or 
at such other location convenient to the individual as

[[Page 167]]

specified by the system manager. If an individual is accompanied by 
another person, the system manager may require written authorizations 
for disclosure in the presence of the other person from the individual 
before any record or portion thereof is released.
    (e) Special procedures--medical records. (1) An individual 
concerning whom the Railroad Retirement Board maintains medical records 
in a system of records shall, upon written request, be permitted to 
review such medical records or be furnished copies of such records if 
the system manager of the system containing the requested records 
determines that disclosure of the records or any portion thereof would 
not be harmful to the individual's mental or physical health.
    (2) If, upon review of the medical records requested, the system 
manager determines that disclosure of such records or any portion 
thereof might be harmful to the individual's mental or physical health, 
he shall inform the individual that copies of the records may be 
furnished to a physician of the individual's own choosing. If the 
individual should select a physician to conduct such a review and direct 
the Board to permit the physician to review the records, the system 
manger shall promptly forward copies of the records in question to that 
physician. The system manger shall inform the physician that the records 
are being provided to him or her for the purpose of making an 
independent determination as to whether release or the records directly 
to the individual who has requested them might be harmful to that 
individual. The physician shall be informed that if, in his or her 
opinion, direct disclosure of the records would not be harmful to the 
individual's mental or physical health, he or she may then provide the 
copies to the individual. The physician shall further be informed that 
should he or she determine that disclosure of the records in question 
might be harmful to the individual, such records shall not be disclosed 
and should be returned to the Board, but the physician may summarize and 
discuss the contents of the records with the individual.
    (3) The special procedure established by paragraph (e) of this 
section to permit an individual access to medical records pertaining to 
himself or herself shall not be construed as authorizing the individual 
to direct the Board to disclose such medical records to any third 
parties, other than to a physician in accordance with paragraph (e)(2) 
of this section. Medical records shall not be disclosed by the Board to 
any entities or persons other than the individual to whom the record 
pertains or his or her authorized physician regardless of consent, 
except as permissible under paragraphs (j)(1)(i), (iii), and (viii) of 
this section and as provided under paragraph (e)(4) of this section.
    (4) Notwithstanding the provisions of paragraphs (e)(1), (2) and (3) 
of this section and of paragraph (d) of this section, if a determination 
made with respect to an individual's claim for benefits under the 
Railroad Retirement Act of the Railroad Unemployment Insurance Act is 
based in whole or in part on medical records, disclosure of or access to 
such medical records shall be granted to such individual or to such 
individual's representative when such records are requested for the 
purpose of contesting such determination either administratively of 
judicially.
    (5) The procedures for access to medical records set forth in 
paragraph (e) of this section shall not apply with respect to requests 
for access to an individual's disability decision sheet or similar 
adjudicatory documents, access to which is governed solely by paragraph 
(d) of this section.
    (f) General exemptions--(1) Systems of records subject to 
investigatory material exemption under 5 U.S.C. 552a(j)(2). RRB-43, 
Investigation Files, a system containing information concerning alleged 
violations of law, regulation, or rule pertinent to the administration 
of programs by the RRB or alleging misconduct or conflict of interest on 
the part of RRB employees in the discharge of their official duties.
    (2) Scope of exemption. (i) The system of records identified in this 
paragraph is maintained by the Office of Investigations (OI) of the 
Office of Inspector General (OIG), a component of the Board which 
performs as its principal function activities pertaining to the 
enforcement of criminal laws. Authority for the criminal law enforcement

[[Page 168]]

activities of the OIG's OI is the Inspector General Act of 1978, 5 
U.S.C. App.
    (ii) Applicable information in the system of records described in 
this paragraph is exempt from subsections (c)(3) and (4) (Accounting of 
Certain Disclosures), (d) (Access to Records), (e)(1), (2), (3), (4)(G), 
(H), and (I), (5), and (8), (Agency Requirements), (f) (Agency Rules) 
and (g) (Civil Remedies) of 5 U.S.C. 552a.
    (iii) To the extent that information in this system of records does 
not fall within the scope of this general exemption under 5 U.S.C. 
552(j)(2) for any reason, the specific exemption under 5 U.S.C. 
552(k)(2) is claimed for such information. (See paragraph (g) of this 
section.)
    (3) Reasons for exemptions. The system of records described in this 
section is exempt for one or more of the following reasons:
    (i) 5 U.S.C. 552a(c)(3) requires an agency to make available to the 
individual named in the records, at his or her request, an accounting of 
each disclosure of records. This accounting must state the date, nature, 
and purpose of each disclosure of a record and the name and address of 
the recipient. Accounting of each disclosure would alert the subjects of 
an investigation to the existence of the investigation and the fact that 
they are subjects of an investigation. The release of such information 
to the subjects of an investigation would provide them with significant 
information concerning the nature of the investigation, and could 
seriously impede or compromise the investigation and lead to the 
improper influencing of witnesses, the destruction of evidence, or the 
fabrication of testimony.
    (ii) 5 U.S.C. 552a(c)(4) requires an agency to inform any person or 
other agency about any correction or notation of dispute made by the 
agency in accordance with subsection (d) of the Act. Since the RRB is 
claiming that this system of records is exempt from subsection (d) of 
the Act, concerning access to records, this section is inapplicable and 
is exempted to the extent that this system of records is exempted from 
subsection (d) of the Act.
    (iii) 5 U.S.C. 552a(d) requires an agency to permit an individual to 
gain access to records pertaining to him or her, to request amendment of 
such records, to request a review of an agency decision not to amend 
such records, and to contest the information contained in such records. 
Granting access to records in this system of records could inform the 
subject of the investigation of an actual or potential criminal 
violation of the existence of that investigation, of the nature and 
scope of the information and evidence obtained as to his or her 
activities, of the identity of confidential sources, witnesses, and law 
enforcement personnel, and could provide information to enable the 
subject to avoid detection or apprehension. Granting access to such 
information could seriously impede or compromise an investigation, lead 
to the improper influencing of witnesses, the destruction of evidence, 
or the fabrication of testimony, and disclose investigative techniques 
and procedures.
    (iv) 5 U.S.C. 552a(e)(1) requires each agency to maintain in its 
records only such information about an individual as is relevant and 
necessary to accomplish a purpose required by statute or executive order 
of the President. The application of this provision could impair 
investigations and law enforcement, because it is not always possible to 
detect the relevance or necessity of specific information in the early 
stages of an investigation. Relevance and necessity are often questions 
of judgment and timing, and it is only after the information is 
evaluated that the relevance and necessity of such information can be 
established.
    (v) 5 U.S.C. 552a(e)(2) requires an agency to collect information to 
the greatest extent practicable directly from the subject individual 
when the information may result in adverse determinations about an 
individual's rights, benefits, and privileges under Federal programs. 
The application of this provision could impair investigations and law 
enforcement by alerting the subject of an investigation of the existence 
of the investigation, enabling the subject to avoid detection or 
apprehension, to influence witnesses improperly, to destroy evidence, or 
to fabricate testimony. Moreover, in certain

[[Page 169]]

circumstances the subject of an investigation cannot be required to 
provide information to investigators, and information must be collected 
from other sources. Furthermore, it is often necessary to collect 
information from sources other than the subject of the investigation to 
verify the accuracy of the evidence collected.
    (vi) 5 U.S.C. 552a(e)(3) requires an agency to inform each person 
whom it asks to supply information, on a form that can be retained by 
the person, of the authority under which the information is sought and 
whether disclosure is mandatory or voluntary; of the principal purposes 
for which the information is intended to be used; of the routine uses 
which may be made of the information; and of the effects on the person, 
if any, of not providing all or any part of the requested information. 
The application of this provision could provide the subject of an 
investigation with substantial information about the nature of that 
investigation.
    (vii) 5 U.S.C. 552a(e)(4)(G) and (H) require an agency to publish a 
Federal Register notice concerning its procedures for notifying an 
individual at his request if the system of records contains a record 
pertaining to him or her, how he or she can gain access to such a 
record, and how he or she can contest its contents. Since the RRB is 
claiming that the system of records is exempt from subsection (f) of the 
Act, concerning agency rules, and subsection (d) of the Act, concerning 
access to records, these requirements are inapplicable and are exempted 
to the extent that these systems of records are exempted from 
subsections (f) and (d) of the Act. Although the RRB is claiming 
exemption from these requirements, RRB has published such a notice 
concerning its notification, access, and contest procedures because, 
under certain circumstances, RRB might decide it is appropriate for an 
individual to have access to all or a portion of his or her records in 
this system of records.
    (viii) 5 U.S.C. 552a(e)(4)(I) requires an agency to publish in the 
Federal Register notice concerning the categories of sources or records 
in the system of records. Exemption from this provision is necessary to 
protect the confidentiality of the sources of information, to protect 
the privacy of confidential sources and witnesses, and to avoid the 
disclosure of investigative techniques and procedures. Although RRB is 
claiming exemption from this requirement, RRB has published such a 
notice in broad generic terms in the belief that this is all subsection 
(e)(4)(I) of the Act requires.
    (ix) 5 U.S.C. 552a(e)(5) requires an agency to maintain its records 
with such accuracy, relevance, timeliness, and completeness as is 
reasonably necessary to assure fairness to the individual in making any 
determination about the individual. Since the Act defines ``maintain'' 
to include the collection of information, complying with this provision 
would prevent the collection of any data not shown to be accurate, 
relevant, timely, and complete at the moment it is collected. In 
collecting information for criminal law enforcement purposes, it is not 
possible to determine in advance what information is accurate, relevant, 
timely, and complete. Facts are first gathered and then placed into a 
logical order to prove or disprove objectively the criminal behavior of 
an individual. Material which may seem unrelated, irrelevant, or 
incomplete when collected may take on added meaning or significance as 
the investigation progresses. The restrictions of this provision could 
interfere with the preparation of a complete investigative report, 
thereby impending effective law enforcement.
    (x) 5 U.S.C. 552a(e)(8) requires an agency to make reasonable 
efforts to serve notice on an individual when any record on such 
individual is made available to any person under compulsory legal 
process when such process becomes a matter of public record. Complying 
with this provision could prematurely reveal an ongoing criminal 
investigation to the subject of the investigation.
    (xi) 5 U.S.C. 552a(f)(1) requires an agency to promulgate rules 
which shall establish procedures whereby an individual can be notified 
in response to his or her request if any system of records named by the 
individual contains a record pertaining to him or her. The application 
of this provision could impede or compromise an investigation

[[Page 170]]

or prosecution if the subject of an investigation was able to use such 
rules to learn of the existence of an investigation before it could be 
completed. In addition, mere notice of the fact of an investigation 
could inform the subject or others that their activities are under or 
may become the subject of an investigation and could enable the subjects 
to avoid detection or apprehension, to influence witnesses improperly, 
to destroy evidence, or to fabricate testimony. Since the RRB is 
claiming that these systems of records are exempt from subsection (d) of 
the Act, concerning access to records, the requirements of subsections 
(f)(2) through (5) of the Act, concerning agency rules for obtaining 
access to such records, are inapplicable and are exempted to the extent 
that this system of records is exempted from subsection (d) of the Act. 
Although RRB is claiming exemption from the requirements of subsection 
(f) of the Act, RRB has promulgated rules which establish Agency 
procedures because, under certain circumstances, it might be appropriate 
for an individual to have access to all or a portion of his or her 
records in this system of records. These procedures are described 
elsewhere in this part.
    (xii) 5 U.S.C. 552a(g) provides for civil remedies if an agency 
fails to comply with the requirements concerning access to records under 
subsections (d)(1) and (3) of the Act; maintenance of records under 
subsection (e)(5) of the Act; and any rule promulgated thereunder, in 
such a way as to have an adverse effect on an individual. Since the RRB 
is claiming that this system of records is exempt from subsections 
(c)(3) and (4), (d), (e)(1), (2), (3), (4)(G), (H), and (I), (5), and 
(8), and (f) of the Act, the provisions of subsection (g) of the Act are 
inapplicable and are exempted to the extent that this system or records 
is exempted from those subsections of the Act.
    (g) Specific exemptions--(1) Systems of records subject to 
investigatory material exemption under 5 U.S.C. 552a(k)(2). RRB-43, 
Investigation Files, a system containing information concerning alleged 
violations of law, regulation, or rule pertinent to the administration 
of programs by the RRB or alleging misconduct or conflict of interest on 
the part of RRB employees in the discharge of their official duties.
    (2) Privacy Act provisions from which exempt. The system of records 
described in this paragraph is exempt from subsections (c)(3) 
(Accounting of Certain Disclosures), (d) (Access to Records), (e)(1), 
4G, H, and I (Agency Requirements), and (f) (Agency Rules) of 5 U.S.C. 
552a.
    (3) Reasons for exemptions. The system of records described in this 
section is exempt for one or more of the following reasons:
    (i) To prevent the subject of the investigations from frustrating 
the investigatory process.
    (ii) To protect investigatory material compiled for law enforcement 
purposes.
    (iii) To fulfill commitments made to protect the confidentiality of 
sources and to maintain access to necessary sources of information.
    (iv) To prevent interference with law enforcement proceedings.
    (h) Request for amendment of a record. (1) An individual may request 
that a record pertaining to himself be amended by submitting a written 
request for such amendment to the system manager as described in the 
annual notice published in the Federal Register. Requests under this 
subsection may be made either by mail or in person at the headquarters 
offices of the Railroad Retirement Board, 844 Rush Street, Chicago, 
Illinois 60611. Such a request should include a statement of the 
information in the record which the individual believes is incorrect, a 
statement of any information not in the record which the individual 
believes would correct the record, if included, and a statement of any 
evidence which substantiates the individual's belief concerning the 
inaccuracy of the information presently contained in the record.
    (2) Prior to rendering a determination in response to a request 
under this subsection, the system manager shall require that the 
individual provide identifying data such as his name, date of birth, and 
social security number.
    (3) The system manager responsible for the system of records which 
contains the challenged record shall acknowledge receipt of the request 
in

[[Page 171]]

writing within ten working days following the date on which the request 
for amendment was received in his office and shall promptly render a 
decision either granting or denying the request.
    (i) If the system manager grants the individual's request to amend 
his record, the system manager shall amend the record accordingly, 
advise the individual in writing that the requested amendment has been 
made and where an accounting of disclosures has been made, advise all 
previous recipients of the record to whom disclosure of such record was 
made and accounted for of the fact that the amendment was made and the 
substance of the amendment.
    (ii) If the system manager denies the individual's request to amend 
his record, the system manager shall inform the individual that the 
request has been denied in whole or in part, the reason for the denial 
and the procedure regarding the individual's right to appeal the denial 
to the Board.
    (i) Appeal of initial adverse determination on amendment. (1) An 
individual, whose request for amendment of a record pertaining to him is 
denied, may appeal that determination to the Board by filing a written 
appeal with the Secretary of the Board, Railroad Retirement Board, 844 
Rush Street, Chicago, Illinois 60611. The written notice of appeal 
should include a statement of the information in the record which the 
individual believes is correct, a statement of any information not in 
the record which the individual believes would correct the record, if 
included, and a statement of any evidence which substantiates the 
individual's belief concerning the inaccuracy of the information 
presently contained in the record.
    (2) The Board shall consider the appeal and render a final decision 
thereon within thirty working days following the date on which the 
appeal is received in the office of the Secretary of the Board. An 
extension of the thirty day response period is permitted for a good 
cause upon notification of such to the requester.
    (3) If, upon consideration of the appeal, the Board upholds the 
denial, the appellant shall be so informed in writing. The appellant 
shall be advised that he may file a concise statement with the Board 
setting forth his reasons for disagreeing with the Board's decision and 
the procedures to be followed in filing such a statement of 
disagreement. The individual shall also be informed of his right to 
judicial review as provided under section 552a(g)(1)(A) of title 5 of 
the United States Code. If disclosure has or will be made of a record 
containing information about which an individual has filed a statement 
of disagreement, that contested information will be annotated and a copy 
of the statement of disagreement will be provided to past and future 
recipients of the information along with which the Board may include a 
statement of its reasons for not amending the record in question.
    (4) If, upon consideration of the appeal, the Board reverses the 
denial, the Board shall amend the record, advise the appellant in 
writing that such amendment has been made, and where an accounting of 
disclosures has been made, advise all previous recipients of the record 
to whom disclosure of such was made and accounted for, of the fact that 
the amendment was made and the substance of the amendment.
    (j) Disclosure of record to person other than the individual to whom 
it pertains. (1) Records collected and maintained by the Railroad 
Retirement Board in the administration of the Railroad Retirement Act 
and the Railroad Unemployment Insurance Act which contain information of 
a personal or private nature shall not be disclosed to any person or to 
another agency without the express written consent of the individual to 
whom the record pertains. Such written consent shall not be required if 
the disclosure is not otherwise prohibited by law or regulation and is:
    (i) To officers or employees of the Railroad Retirement Board who, 
in the performance of their official duties, have a need for the record;
    (ii) Required under section 552 of title 5 of the U.S. Code;
    (iii) For a routine use of such record as published in the annual 
notice in the Federal Register;
    (iv) To the Bureau of the Census for uses pursuant to the provisions 
of title 13 of the United States Code;

[[Page 172]]

    (v) To a recipient who has provided the Board with advance written 
assurance that the record will be used solely as a statistical or 
research record, and the record is to be transferred in a form that is 
not individually identifiable;
    (vi) To the National Archives of the United States as a record which 
has sufficient historical or other value to warrant its continued 
preservation by the U.S. Government or for evaluation by the 
administrator of General Services or his designee to determine whether 
the record has such value;
    (vii) To another agency or to an instrumentality of any governmental 
jurisidiction within or under the control of the United States for a 
civil or criminal law enforcement activity if the activity is authorized 
by law, and if the head of the agency or instrumentality has made a 
written request to the agency which maintains the record specifying the 
particular portion desired and the law enforcement activity for which 
the record is sought;
    (viii) To a person pursuant to a showing of compelling circumstances 
affecting the health or safety of an individual if, upon such 
disclosure, notification is transmitted to the last known address of 
such individual;
    (ix) To either House of Congress, or, to the extent of matter within 
its jurisdiction, any committee or subcommittee thereof, any joint 
committee of Congress or subcommittee of any such joint committee;
    (x) To the Comptroller General, or any of his authorized 
representatives, in the course of the performance of the duties of the 
General Accounting Office; or
    (xi) Pursuant to the order of a court of competent jurisdiction.
    (2) The Railroad Retirement Board shall maintain an accounting of 
all disclosures of records made under paragraph (h)(1) of this section, 
except those made under paragraphs (h)(1)(i) and (ii) of this section. 
This accounting will include:
    (i) Date of disclosure;
    (ii) Specific subject matter of disclosure;
    (iii) Purpose of disclosure; and
    (iv) Name and address of the person or agency to whom the 
information has been released.

The Railroad Retirement Board shall maintain the accounting for five 
years or the life of the system of records, whichever is longer, and 
make such accounting, with the exception of disclosures made under 
paragraph (h)(1)(vii) of this section, available to the individual to 
whom the record pertains upon his request. If, subsequent to disclosure 
of a record for which disclosure an accounting has been made pursuant to 
this subsection, an amendment is made to that record or an individual 
has filed a statement of disagreement concerning that record, the person 
or agency to whom such disclosure was made shall be notified of the 
amendment or statement of disagreement.
    (k) Annual notice of systems of records. The Railroad Retirement 
Board shall publish in the Federal Register on an annual basis a listing 
of the various systems of records which it maintains by individual 
identifier. That notice shall provide the following for each system:
    (1) The name and location of the system;
    (2) The categories of individuals on whom records are maintained in 
the system;
    (3) The routine uses of the system;
    (4) The methods of storage, disposal, retention, access controls and 
retrievability of the system;
    (5) The title and business address of the individual who is 
responsible for the system;
    (6) The procedure whereby an individual can be notified at his 
request whether or not the system contains a record pertaining to him;
    (7) The procedure whereby the individual can be notified at his 
request how he can gain access to any record pertaining to him which is 
contained in the system;
    (8) How the individual can contest the contents of such a record; 
and
    (9) The categories of sources of records in the system.
    (l) Collection of information and maintenance of records. With 
respect to each system of records indexed by individual identifer which 
is maintained by the

[[Page 173]]

Railroad Retirement Board, the Railroad Retirement Board shall:
    (1) Maintain in each system only such information about an 
individual as is relevant and necessary in accomplishing the purposes 
for which the system is kept;
    (2) To the greatest extent practicable, collect information directly 
from the individual when that information may result in an adverse 
determination about such individual's rights, benefits or privileges 
under programs administered by the Railroad Retirement Board;
    (3) Inform each individual who is asked to supply information:
    (i) The authority under which the solicitation of such information 
is carried out;
    (ii) Whether disclosure of the requested information is mandatory or 
voluntary and any penalties for failure to furnish such information;
    (iii) The principal purposes for which the information will be used;
    (iv) The routine uses and transfers of such information; and
    (v) The possible effects on such individual if he fails to provide 
the requested information.
    (4) Maintain all records which are used by the Railroad Retirement 
Board in making any determination about any individual with such 
accuracy, relevance, timeliness and completeness as is reasonably 
necessary to assure fairness to the individual in the determination;
    (5) Prior to disseminating any record about an individual to any 
person other than an agency, unless the dissemination is made pursuant 
to paragraph (h)(1)(ii) of this section, make reasonable efforts to 
assure that such records are accurate, complete, timely and relevant for 
purposes of the administration of the Railroad Retirement Act and the 
Railroad Unemployment Insurance Act;
    (6) Maintain no record describing how any individual exercises 
rights guaranteed by the First Amendment unless expressly authorized by 
statute or by the individual to whom the record pertains or unless 
pertinent to and within the scope of an authorized law enforcement 
activity;
    (7) Make reasonable efforts to serve notice on an individual when 
any record on such individual is made available to any person under 
compulsory legal process when such process becomes a matter of public 
record; and
    (8) At least thirty days prior to publication of information under 
paragraph (i) of this section, publish in the Federal Register notice of 
any new use or intended use of the information in the system and provide 
an opportunity for interested persons to submit written data, views or 
arguments to the Railroad Retirement Board.
    (m) Fees. The Railroad Retirement Board may assess a fee for copies 
of any records furnished to an individual under paragraph (d) of this 
section. The fees for copies shall be $.10 per copy per page, not to 
exceed the actual cost of reproduction, and should be paid to the 
Director of Budget and Fiscal Operations for deposit to the Railroad 
Retirement Account. If payment is made by check, the check should be 
payable to the order of the Railroad Retirement Board. Any fee of less 
than $10 may be waived by the system manager if he determines that it is 
in the public interest to do so.
    (n) Government contractors. When the Railroad Retirement Board 
provides by a contract or by a subcontract subject to its approval for 
the operation by or on behalf of the Railroad Retirement Board of a 
system of records to accomplish an agency function, the Railroad 
Retirement Board shall, consistent with its authority, cause the 
requirements of section 552a of title 5 of the United States Code to be 
applied to such system. In each such contract or subcontract for the 
operation of a system of records, entered into on or after September 27, 
1975, the Railroad Retirement Board shall cause to be included a 
provision stating that the contractors or subcontractors and their 
employees shall be considered employees of the Railroad Retirement Board 
for purposes of the civil and criminal penalties provided in sections 
(g) and (i) of the Privacy Act of 1974 (5 U.S.C. 552a (g) and (i)).
    (o) Mailing lists. The Railroad Retirement Board shall neither sell 
nor rent

[[Page 174]]

information containing any individual's name or address, unless 
authorized by statute.
    (p) Disclosure of social security account numbers. Whenever an 
individual is requested by the Railroad Retirement Board to disclose his 
social security account number he shall be informed as to whether such 
disclosure is mandatory or voluntary. If disclosure of the individual's 
social security account number is mandatory, he shall be informed of the 
statutory authority requiring such disclosure.

[41 FR 20580, May 19, 1976, as amended at 43 FR 17468, Apr. 25, 1978; 50 
FR 27222, July 2, 1985. Redesignated at 52 FR 11010, Apr. 6, 1987, as 
amended at 53 FR 3198, Feb. 4, 1988; 54 FR 43055, Oct. 20, 1989]



Sec. 200.6  Open meetings.

    (a) Definitions--(1) Meeting. For purposes of this section, the term 
``meeting'' shall mean the deliberations of at least two of the three 
members of the Railroad Retirement Board, which deliberations determine 
or result in the joint conduct or disposition of official agency 
business. The term ``meeting'' shall not include:
    (i) Deliberations of the Board members concerning the closure of a 
meeting, the withholding of any information with respect to a meeting, 
the scheduling of a meeting, the establishment of the agenda of a 
meeting, or any change in the scheduling, agenda, or the open or closed 
status of a meeting; or
    (ii) Consideration by the Board members of agency business 
circulated to them individually in writing for disposition by notation.
    (2) Public announcement. For purposes of this section the term 
``public announcement'' shall mean the posting of the notice of a 
scheduled meeting as required by this section on a bulletin board 
available to the public on the first floor of the Board's headquarters 
building located at 844 Rush Street, Chicago, Illinois 60611.
    (b)(1) The members of the Board shall not jointly conduct or dispose 
of agency business except in accordance with the procedures and 
requirements established by this section. Provided, however, That 
nothing in this section shall be construed so as to prohibit the Board 
from disposing of routine or administrative matters by sequential, 
notational voting.
    (2) Where agency business is disposed of by notational voting as 
provided in paragraph (b)(1) of this section, the minutes of the next 
succeeding Board meeting shall reflect such action.
    (3) Every portion of every meeting of the Board at which agency 
business is conducted or disposed of shall be open to public 
observation, except as provided in paragraph (c) of this section.
    (c)(1) Except as provided in this section, every portion of every 
meeting of the Board shall be open to the public. A meeting or a portion 
of a meeting may be closed where (i) the Board properly determines that 
the subject matter of the meeting or portion thereof is such as to make 
it likely that disclosure of matters falling within one or more of the 
exceptions set out in paragraph (c)(3) of this section would result, and 
(ii) the Board determines that the public interest would not require 
that the meeting or portion thereof be open to the public.
    (2) The requirements of paragraphs (d) and (e) of this section shall 
not apply to information pertaining to a meeting which would otherwise 
be required to be disclosed to the public under this section where the 
Board properly determines that the disclosure of the information is 
likely to disclose matters within the exceptions listed in paragraph 
(c)(3) of this section, and that the public interest would not require 
that the matters, even though excepted, should be disclosed.
    (3) The Board may close a meeting or a portion thereof and may 
withhold information concerning the meeting or portion thereof, 
including the explanation of closure, the description of the subject 
matter of the meeting, and the list of individuals expected to attend, 
which otherwise would be required to be made public under paragraphs (d) 
and (e) of this section, where it has determined, as provided in 
paragraphs (c)(1) and (2) of this section, where it has determined, as 
provided in paragraphs (c)(1) and (2) of this section, that the public 
interest would not otherwise require that the meeting or portion thereof 
be open or that the information be made public, and that the

[[Page 175]]

meeting, or portion thereof, or the disclosure of the information is 
likely to:
    (i) Disclose matters that are (A) specifically authorized under 
criteria established by Executive Order to be kept secret in the 
interests of national defense or foreign policy and (B) in fact properly 
classified pursuant to such executive order;
    (ii) Relate solely to the internal personnel rules and practices of 
the Board;
    (iii) Disclose matters exempted from disclosure under 45 U.S.C. 
362(d) and 362(n) and 45 U.S.C. 231f(b)(3) or disclose matters 
specifically exempted from disclosure by any other statute (other than 5 
U.S.C 552), Provided, That such other statute either requires that the 
matters be withheld from the public in such a manner as to afford no 
discretion on the issue or establishes particular criteria for 
withholding or refers to particular types of matters to be withheld;
    (iv) Disclose trade secrets and commercial or financial information 
obtained from a person and privileged or confidential;
    (v) Involve accusing any person of a crime, or formally censuring 
any person;
    (vi) Disclose information of a personal nature where disclosure 
would constitute a clearly unwarranted invasion of personal privacy;
    (vii) Disclose investigatory records compiled for law enforcement 
purposes, or information which if written would be contained in such 
records, but only to the extent that the production of such records or 
information would
    (A) Interfere with law enforcement proceedings,
    (B) Deprive a person of a right to a fair trial or an impartial 
adjudication,
    (C) Constitute an unwarranted invasion of personal privacy,
    (D) Disclose the identity of a confidential source and, in the case 
of a record compiled by a criminal law enforcement authority in the 
course of a criminal investigation, or by an agency conducting a lawful 
national security intelligence investigation, confidential information 
furnished only by the confidential source,
    (E) Disclose investigative techniques and procedures, or
    (F) Endanger the life or physical safety of law enforcement 
personnel;
    (viii) Disclose information the premature disclosure of which would 
be likely to significantly frustrate implementation of a proposed Board 
action, except that this paragraph shall not apply in any instance where 
the Board has already disclosed to the public the content or nature of 
its proposed action, or where the Board is required by law to make such 
disclosure on its own initiative prior to taking final agency action on 
such proposal; or
    (ix) Specifically concern the agency's issuance of a subpoena, or 
the agency's participation in a civil action or proceeding, an action in 
a foreign court or international tribunal, or an arbitration, or the 
initiation, conduct, or disposition by the agency of a particular case 
of formal agency adjudication pursuant to the authority granted in 45 
U.S.C. 231f and 45 U.S.C. 365.
    (d)(1) Any action by the Board to close a meeting or a portion 
thereof, or to withhold any information pertaining to such meeting or 
portion thereof, shall be taken only upon the vote of at least two 
members of the Board that the meeting or portion thereof be closed or 
information withheld for one or more of the reasons set forth in 
paragraph (c)(3) of this section. A single vote may be taken with 
respect to a series of meetings, to close the meetings or portions 
thereof or to withhold information pertaining to such meetings, where 
the meetings or portions thereof involve the same subject matter and are 
scheduled within 30 calendar days after the date of the initial meeting 
in the series.
    (2) The vote of each member of the Board participating in the vote 
on closure of a meeting or portion thereof shall be recorded. Vote by 
proxy shall not be allowed.
    (3) A person whose interests might be directly affected by a meeting 
or portion thereof which otherwise would be open may request that the 
meeting or portion thereof which concerns such person's interests be 
closed under paragraphs (c)(3)(v), (vi), or (vii) of this section. The 
request should be directed to The Secretary, Railroad Retirement Board, 
844 Rush Street, Chicago, Illinois 60611, and must be received no

[[Page 176]]

later than the beginning of the meeting to which it applies. Upon 
receipt of such a request the Board shall vote by recorded vote on the 
question as to whether the meeting or portion thereof should be closed.
    (4) Within one day following a vote taken under paragraphs (d)(2) 
and (3) of this section, a copy of such vote showing the vote of each 
member shall be available for public inspection and copying in the 
office of the Secretary of the Board, located in the Board's 
headquarters office.
    (5) If a meeting or portion thereof is closed in accordance with an 
action under paragraphs (d)(2) or (3) of this section, the Board shall, 
within one day following the vote, except to the extent such information 
is exempt from disclosure under paragraph (c) of this section, make 
available for inspection and copying in the office of the Secretary of 
the Board a written explanation of the Board's action and a list of the 
persons expected to attend and their affiliations.
    (e)(1) Except as to those meetings or portions of meetings scheduled 
as provided in paragraphs (d)(2) and (3) of this section, the Board 
shall for each meeting make public announcement at least one week prior 
thereto of the time, place and subject matter of the meeting, whether 
the meeting is to be open or closed to the public, and the name and 
telephone number of an official of the Railroad Retirement Board 
designated by the Board to respond to any requests from the public 
pertaining to the meeting.
    (2) The requirement contained in paragraph (e)(1) of this section 
that the Board give one week advance notice of each meeting shall not 
apply where the Board determines by majority vote, which vote shall be 
recorded, that agency business requires that a meeting be scheduled at 
an earlier date. If a meeting is scheduled less than one week in the 
future, as provided in this paragraph, the Board shall make a public 
announcement at the earliest practicable time of the time, place and 
subject matter of the meeting and whether the meeting is to be open or 
closed to the public.
    (3) The Board may change the time and place of a previously 
scheduled and announced meeting, but such change must be announced to 
the public at the earliest practicable time. The Board may change the 
subject matter, or its determination to open or close a meeting or 
portion thereof, of a previously scheduled and announced meeting only if 
(i) a majority of the Board determines by recorded vote that agency 
business requires the change and that no earlier public announcement of 
the change was possible, and (ii) the Board makes a public announcement 
of the change and the vote of each member thereon at the earliest 
practicable time.
    (4) Immediately following each public announcement required by this 
subsection, the Board shall submit for publication in the Federal 
Register notice of the time, place, and subject matter of the meeting, 
whether the meeting is to be open or closed, any changes in such items 
from a previous announcement, and the name and telephone number of the 
Railroad Retirement Board official designated by the Board to respond to 
requests concerning the announced meeting.
    (f)(1) Whenever the Board should determine to close a meeting or a 
portion of a meeting under any of the exemptions contained in paragraph 
(c)(3) of this section, the General Counsel of the Railroad Retirement 
Board shall, prior to the meeting, certify in writing that in his or her 
opinion the meeting or portion thereof may be closed to the public and 
shall state the applicable exemptions which permit closure. The Board 
shall maintain a copy of the General Counsel's certification and a copy 
of the statement of the presiding officer of the meeting setting forth 
the time and place of the meeting and a list of the persons present, 
other than those present merely as spectators.
    (2) In the event that a meeting or any portion of a meeting is 
closed to the public, a complete transcript or recording shall be made 
of the meeting or portion thereof closed; Provided, however, That if the 
meeting or portion thereof is closed under paragraph (c)(3)(ix) of this 
section, a set of minutes may be made of the closed meeting or portion 
of a meeting in lieu of a complete transcript or recording thereof. If a 
set of minutes is the method

[[Page 177]]

chosen to record the proceedings of a meeting or portion thereof closed 
under paragraph (c)(3)(ix) of this section, such minutes shall fully and 
clearly describe the matters discussed. The minutes shall also fully 
reflect any actions taken by the Board, set forth a statement of the 
reasons for such actions, summarize each of the views expressed 
concerning such actions, identify any documents considered in connection 
with such agency actions, and show the vote of the Board and each of its 
members on such actions.
    (3) The transcript, recording, or minutes of each meeting or portion 
thereof closed to the public shall be available for public inspection or 
listening in the office of the Secretary of the Board, 844 Rush Street, 
Chicago, Illinois 60611, no later than two weeks following the meeting. 
There shall be expunged or erased from the transcript, recording, or 
minutes of each meeting which is made available to the public any items 
of discussion or testimony when it has been determined that they contain 
information which may be withheld under paragraph (c) of this section, 
and that the public interest would not require disclosure. The 
determination as to what items of discussion or testimony shall be 
expunged or erased from the copies of the transcript, recording, or 
minutes available to the public shall be made by the Secretary of the 
Board with the approval of the Board.
    (4) Copies of transcripts, minutes, or transcriptions of recordings 
maintained by the Board as provided in paragraph (e)(3) of this section 
shall be provided to members of the public who request such copies, at 
the actual cost of duplicating or transcription. Requests for copies of 
transcripts, minutes or transcriptions of recordings should be in 
writing, addressed to the Secretary of the Board, Railroad Retirement 
Board, 844 Rush Street, Chicago, Illinois 60611, and should clearly 
indicate the date of the meeting or meetings for which such copies are 
requested. If the requester desires a copy of only a portion or portions 
of the transcript, minutes, or transcription of a specified meeting, the 
request should specify which portion or portions are desired.
    (5) The Board shall maintain the complete transcript, recording, or 
minutes required to be made under paragraph (e)(2) of this section for a 
period of at least two years after the meeting, or for at least one year 
after the conclusion of any agency proceeding with respect to which the 
meeting or portion of the meeting was held, whichever occurs later.
    (g) Nothing in this section shall expand or limit the rights of any 
person under 5 U.S.C. 552, and 20 CFR 200.3, except that the exemptions 
contained in paragraph (c) of this section shall govern in the case of 
any request under 5 U.S.C. 552 and 20 CFR 200.3 to copy, inspect, or 
obtain copies of transcripts, recordings, or minutes described in 
paragraph (f) of this section. Nothing in this section shall limit the 
rights of any individual under 5 U.S.C. 552a and 20 CFR 200.4 to gain 
access to any record which would be available to such individual under 
those provisions.

[42 FR 15312, Mar. 21, 1977, as amended at 42 FR 22865, Nov. 11, 1977. 
Redesignated at 52 FR 11010, Apr. 6, 1987]



Sec. 200.7  Assessment or waiver of interest, penalties, and 
administrative costs with respect to collection of certain debts.

    (a) Purpose. The Debt Collection Act of 1982 requires the Board to 
charge interest on claims for money owed the Board, to assess penalties 
on delinquent debts, and to assess charges to cover the costs of 
processing claims for delinquent debts. The Act permits, and in certain 
cases requires, an agency to waive the collection of interest, penalties 
and charges under circumstances which comply with standards enunciated 
jointly by the Comptroller General and the Attorney General. Those 
standards are contained in 4 CFR 102.13. This section contains the 
circumstances under which the Board may either assess or waive interest, 
penalties, and administrative costs which arise from benefit or annuity 
overpayments made under any of the Acts which the Board administers.
    (b)(1) Simple interest shall be assessed once a month on the unpaid 
principal of a debt.
    (2) Interest shall accrue from the date on which notice of the debt 
and

[[Page 178]]

demand for repayment with interest is first mailed or hand-delivered to 
the debtor, or in the case of a debt which is subject to section 10(c) 
of the Railroad Retirement Act or section 2(d) of the Railroad 
Unemployment Insurance Act, interest shall accrue from the date that a 
denial of waiver of recovery is mailed or hand-delivered to the debtor 
or, if waiver has not been requested, upon the expiration of the time 
within which to request waiver, except as otherwise specified in this 
section.
    (3) In the case of a lien for reimbursement of sickness benefits 
pursuant to part 341 of this chapter, interest on the amount of the lien 
shall accrue from the date of settlement or the entry of final judgment.
    (4) The rate of interest assessed shall be the rate of the current 
value of funds to the U.S. Treasury (i.e., the Treasury tax and loan 
account rate) as prescribed and published in the Federal Register and 
the Treasury Financial Manual Bulletins annually or quarterly, in 
accordance with 31 U.S.C. 3717.
    (5) The rate of interest as initially assessed shall remain fixed 
for the duration of the indebtedness, except that where a debtor has 
defaulted on a repayment agreement and seeks to enter into a new 
agreement, a new interest rate may be assessed.
    (c)(1) A penalty charge of 6 percent per year shall be assessed on 
any debt that is delinquent for more than 90 days.
    (2) The penalty charge shall accrue from the date on which the debt 
became delinquent.
    (3) A debt is delinquent if it has not been paid in full by the 30th 
day after the date on which the initial demand letter was first mailed 
or hand-delivered, or, if the debt is being repaid under an installment 
payment agreement, at any time after the debtor fails to satisfy his or 
her obligation for payment thereunder.
    (4) In the case of a lien for reimbursement of sickness benefits 
pursuant to part 341 of this chapter, the amount of the lien is 
delinquent if it has not been paid in full by the 30th day after the 
date of settlement or entry of final judgment.
    (d)(1) Charges shall be assessed against the debtor for 
administrative costs incurred as a result of processing and handling the 
debt because it became delinquent.
    (2) Administrative costs include costs incurred in obtaining a 
credit report and in using a private debt collector.
    (e) When a debt is paid in partial or installment payments, amounts 
received shall be applied first to outstanding penalty and 
administrative cost charges, second to accrued interest, and third to 
outstanding principal. Where a debtor is in default under an installment 
repayment agreement, uncollected interest, penalties and administrative 
cost charges which have accrued under the agreement shall be added to 
the principal to be paid under any new installment repayment agreement 
entered into between the Board and the debtor.
    (f) Exemptions. The assessment of interest, penalties, and 
administrative costs under this section does not apply to debts under 
sections 2(f) and 8(g) of the Railroad Unemployment Insurance Act (45 
U.S.C. 352(f) and 358(g)).
    (g)(1) The Board shall waive the collection of interest under the 
following circumstances:
    (i) When the debt is paid within thirty days after the date on which 
notice of the debt was mailed or personally delivered to the debtor,
    (ii) When, in any case where a decision with respect to waiver of 
recovery of an overpayment must be made:
    (A) The debt is paid within thirty days after the end of the period 
within which the debtor may request waiver of recovery, if no request 
for waiver is received within the prescribed time period; or
    (B) The debt is paid within thirty days after the date on which 
notice was mailed to the debtor that his or her request for waiver of 
recovery has been wholly or partially denied if the debtor requested 
waiver of recovery within the prescribed time limit; however, regardless 
of when the debt is paid, no interest may be charged for any period 
prior to the end of the period within which the debtor may request 
waiver of recovery or, if such request is made, for any period prior to 
the date on which notice was mailed to the debtor that

[[Page 179]]

his or her request for waiver of recovery has been wholly or partially 
denied;
    (iii) When, in the situations described in paragraphs (g)(1) (i) and 
(ii) of this section, the debt is paid within any extension of the 
thirty-day period granted by the Board;
    (iv) With respect to any portion of the debt which is paid within 
the time limits described in paragraphs (g)(1)(i), (g)(1)(ii), or 
(g)(1)(iii) of this section; or
    (v) In regard to any debt the recovery of which is waived.
    (2) The Board may waive the collection of interest, penalties and 
administrative costs in whole or in part in the following circumstances:
    (i) Where, in the judgment of the Board, collecting interest, 
penalty and administrative costs would be against equity and good 
conscience; or
    (ii) Where, in the judgment of the Board, collecting interest, 
penalty and administrative costs would not be in the best interest of 
the United States.
    (h)(1) In making determinations as to when the collection of 
interest, penalty and administrative costs is against equity and good 
conscience the Board will consider evidence on the following factors:
    (i) The fault of the overpaid individual in causing the underlying 
overpayment; and
    (ii) Whether the overpaid individual in reliance on the incorrect 
payment relinquished a valuable right or changed his or her position for 
the worse.
    (2) In rendering a determination as to when the collection of 
interest, penalties and administrative costs is not in the best interest 
of the United States the Board will consider the following factors:
    (i) Whether the collection of interest, penalties and administrative 
costs would result in the debt never being repaid; and
    (ii) Whether the collection of interest, penalties and 
administrative costs would cause undue hardship.
    (i) The Board shall waive the collection of interest, penalties, and 
administrative costs in any case where the debt to be recovered is being 
recovered by full or partial withholding of a current annuity payable 
under the Railroad Retirement Act and the debt was not incurred through 
fraud.

[52 FR 41559, Oct. 29, 1987, as amended at 59 FR 15049, Mar. 31, 1994; 
67 FR 5723, Feb. 7, 2002]



Sec. 200.8  Disclosure of information obtained in the administration of 
the Railroad Retirement Act and the Railroad Unemployment Insurance Act.

    (a) Purpose and scope. The purpose of this section is to establish 
specific procedures necessary for compliance with section 12(d) of the 
Railroad Unemployment Insurance Act, which is incorporated into the 
Railroad Retirement Act by section 7(b)(3) of that Act. Except as 
otherwise indicated in this section, these regulations apply to all 
information obtained by the Railroad Retirement Board in connection with 
the administration of the Railroad Retirement Act and the Railroad 
Unemployment Insurance Act.
    (b) Definitions--Agency. The term agency refers to the Railroad 
Retirement Board, an independent agency in the executive branch of the 
United States Government.
    Applicant. The term applicant means a person who signs an 
application for an annuity or lump-sum payment or unemployment benefits 
or sickness benefits for himself or herself or for some other person.
    Beneficiary. The term beneficiary refers to an individual to whom a 
benefit is payable under either the Railroad Retirement Act or the 
Railroad Unemployment Insurance Act.
    Board. The term Board refers to the three-member governing body of 
the Railroad Retirement Board.
    Document. The term document includes correspondence, applications, 
claims, reports, records, memoranda and any other materials or data 
used, prepared, received or transmitted to, from, by or for the agency 
in connection with the administration of the Railroad Retirement Act or 
the Railroad Unemployment Insurance Act.
    Information. The term information means any non-medical document or 
data which is obtained by the agency in the administration of the 
Railroad Retirement Act and/or the Railroad

[[Page 180]]

Unemployment Insurance Act. Information does not include the fact of 
entitlement to or the amount of a benefit under either of these Acts. 
Medical records are subject to the disclosure provisions set out in 
Sec. 200.5(e) of this part.
    Testify and testimony. The terms testify and testimony include both 
in-person oral statements before a court or a legislative or 
administrative body and statements made in the form of depositions, 
interrogatories, declarations, affidavits or other means of formal 
participation in such proceedings.
    (c) General rule. Except as otherwise authorized by this section, 
information shall not be produced, disclosed, delivered or open to 
inspection in any manner revealing the identity of an employee, 
applicant or beneficiary unless the Board or its authorized designee 
finds that such production, disclosure, delivery, or inspection is 
clearly in furtherance of the interest of the employee, applicant or 
beneficiary or of the estate of such employee, applicant, or 
beneficiary. Where no such finding is made, no information shall be 
released except in accordance with the provisions of Sec. 200.5 of this 
part, unless release of such information is required by a law determined 
to supersede this general rule. In addition, regardless of whether or 
not such finding can be made, information which is compiled in 
anticipation of a civil or criminal action or proceeding against an 
applicant or beneficiary may not be released under this general rule.
    (d) Subpoenas--statement of policy and general rule. (1) It is the 
policy of the Board to provide information, data, and records to non-
Federal litigants to the same extent and in the same manner that they 
are available to the general public. The availability of Board employees 
to testify before state and local courts and administrative and 
legislative bodies, as well as in Federal court and administrative 
proceedings which involve non-Federal litigants, concerning information 
acquired in the course of performing their official duties or because of 
the employee's official capacity, is governed by the Board's policy of 
maintaining strict impartiality with respect to private litigants and 
minimizing the disruption of an employee's official duties. Thus, the 
Board may refuse to make an employee available for testimony under this 
paragraph or paragraph (e) or (f) of this section if it determines that 
the information sought is available other than through testimony and 
where making such employee available would cause disruption of agency 
operations. However, this paragraph does not apply to any civil or 
criminal proceeding where the United States, the Railroad Retirement 
Board, or any other Federal agency is a party; to Congressional requests 
or subpoenas for testimony; to consultative services and technical 
assistance provided by the Board or the agency in carrying out its 
normal program activities; to employees serving as expert witnesses in 
connection with professional and consultative services rendered as 
approved outside activities (in cases where employees are providing such 
outside services, they must state for the record that the testimony 
represents their own views and does not necessarily represent the 
official position of the agency); or to employees making appearances in 
their private capacity in legal or administrative proceedings that do 
not relate to the official business of the agency (such as cases arising 
out of traffic accidents, crimes, domestic relations, etc.) and not 
involving professional and consultative services as described above.
    (2) No officer, agent, or employee of the agency is authorized to 
accept or receive service of subpoenas, summons, or other judicial 
process addressed to the Board or to the agency except as the Board may 
from time to time delegate such authority by power of attorney. The 
Board has issued such power of attorney to the Deputy General Counsel of 
the agency and to no one else.
    (3) In the event the production, disclosure, or delivery of any 
information is called for on behalf of the United States or the agency, 
such information shall be produced, disclosed, or delivered only upon 
and pursuant to the advice of the Deputy General Counsel.
    (4) When any member, officer, agent, or employee of the agency is 
served with a subpoena to produce, disclose, deliver, or furnish any 
information, he

[[Page 181]]

or she shall immediately notify the Deputy General Counsel of the fact 
of the service of such subpoena. Unless otherwise ordered by the Deputy 
General Counsel or his or her designee, he or she shall appear in 
response to the subpoena and respectfully decline to produce, disclose, 
deliver, or furnish the information, basing such refusal upon the 
authority of this section.
    (e) Subpoena duces tecum. (1) When any document is sought from the 
agency by a subpoena duces tecum or other judicial order issued to the 
agency by a court of competent jurisdiction in a proceeding wherein such 
document is relevant, a copy of such document, certified by the 
Secretary to the Board to be a true copy, may be produced, disclosed, or 
delivered by the agency if, in the judgment of the Board or its 
designee, such production is clearly in furtherance of the interest of 
the employee, applicant, or beneficiary to whom the document pertains, 
or is clearly in furtherance of the interest of the estate of such 
employee, applicant, or beneficiary, and such document does not consist 
of or include a report of medical information.
    (2) When the production, diclosure, or delivery of any document 
described in paragraph (e)(1) of this section would not be permitted 
under the standards therein set forth, no member, officer, agent, or 
employee of the agency shall make any disclosure of or testify with 
respect to such document.
    (f) Requests for voluntary testimony. All requests for testimony by 
a Board employee in his or her official capacity must be in writing and 
directed to the Deputy General Counsel. They shall state the nature of 
the requested testimony, why the information is not available by any 
other means, and the reasons, if any, why the testimony would be in the 
interest of the Board or the Federal government.
    (g) Authorized release of information. Subject to the limitation 
expressed in paragraph (h) of this section, disclosure of documents and 
information is hereby authorized, in such manner as the Board may by 
instructions prescribe, in the following cases:
    (1) To any employer, employee, applicant, or prospective applicant 
for an annuity or death benefit under the Railroad Retirement Act of 
1974, or his or her duly authorized representative, as to matters 
directly concerning such employer, employee, applicant, or prospective 
applicant in connection with the administration of such Act.
    (2) To any employer, employee, applicant or prospective applicant 
for benefits under the Railroad Unemployment Insurance Act, or his or 
her duly authorized representative, as to matters directly concerning 
such employer, employee, applicant, or prospective applicant in 
connection with the administration of such Act.
    (3) To any officer or employee of the United States lawfully charged 
with the administration of the Railroad Retirement Tax Act, the Social 
Security Act, or acts or executive orders administered by the Department 
of Veterans Affairs, and for the purpose of the administration of those 
Acts only.
    (4) To any applicant or prospective applicant for death benefits or 
accrued annuities under the Railroad Retirement Act, or to his or her 
duly authorized representative, as to the amount payable as such death 
benefits or accrued annuities, and the name of the person or persons 
determined by the agency to be the beneficiary, or beneficiaries, 
thereof, if such applicant or prospective applicant purports to have a 
valid reason for believing himself or herself to be, in whole or in 
part, the beneficiary thereof.
    (5) To any officer or employee of the United States lawfully charged 
with the administration of any Federal law concerning taxes imposed with 
respect to amounts payable under the Railroad Retirement Act of 1974 and 
the Railroad Unemployment Insurance Act and the name of the person or 
persons to whom such amount was payable.
    (6) To any officer or employee of any state of the United States 
lawfully charged with the administration of any law of such state 
concerning unemployment compensation, as to the amounts payable to 
payees or beneficiaries under the Railroad Retirement Act of 1974 and 
the Railroad Unemployment Insurance Act.

[[Page 182]]

    (7) To any court of competent jurisdiction in which proceedings are 
pending which relate to the care of the person or estate of an 
incompetent individual, as to amounts payable under the Railroad 
Retirement Act to such incompetent individual, but only for the purpose 
of such proceedings.
    (8) To parties involved in litigation, including an action with 
respect to child support, alimony, or marital property, the amount of 
any actual or estimated benefit payable under the Railroad Retirement 
Act or the Railroad Unemployment Insurance Act, where such amount or 
estimated amount is relevant to that litigation.
    (9) To any employer, as to the monthly amount of any retirement 
annuity under the Railroad Retirement Act of 1974 or benefit under the 
Railroad Unemployment Insurance Act to which a present or former 
employee of that employer is entitled.
    (10) To any governmental welfare agency, information about the 
receipt of benefits and eligibility for benefits.
    (11) To any law enforcement agency, information necessary to 
investigate or prosecute criminal activity in connection with claims for 
benefits under the Railroad Retirement Act, Railroad Unemployment 
Insurance Act, or any other Act the Board may be authorized to 
administer.
    (12) To any consular official, other than a consular officer of a 
country to which United States Treasury checks and warrants may not be 
sent, acting in behalf of a compatriot who has claimed benefits under 
the Railroad Retirement Act or Railroad Unemployment Insurance Act, 
information that is pertinent to the claim and that the applicant 
himself could have upon his or her own request.
    (h) No document and no information acquired solely by reason of any 
agreement, arrangement, contract, or request by or on behalf of the 
agency, relating to the gathering, preparation, receipt or transmittal 
of documents or information to, from or for the agency, which is by 
virtue of such agreement, arrangement, contract, or request in the 
possession of any person other than an employee of the agency, shall be 
produced, reproduced, or duplicated, disclosed or delivered by any 
person to any other person or tribunal (other than the agency or an 
employee thereof, or the person to whom the document or information 
pertains), whether in response to a subpoena or otherwise, except with 
the consent of the Board or its designee. Any person, upon receipt of 
any request, subpoena, or order calling for the production, disclosure, 
or delivery of such document or information shall notify the Board or 
its designee of the request, subpoena, or order and shall take no 
further action except upon advice of the Board or its designee. Unless 
consent of the Board or its designee is given, the person shall 
respectfully decline to comply with the request, subpoena or order.
    (i) Notwithstanding any other provision of this section, no 
disclosure of information may be made by the Board or any member, 
officer, agent, or employee of the agency, if the disclosure of such 
information is prohibited by law.
    (j) The Deputy General Counsel or his designee will request the 
assistance of the Department of Justice where necessary to represent the 
interests of the agency and its employees under this section.

[54 FR 43055, Oct. 20, 1989, as amended at 56 FR 50247, Oct. 4, 1991; 63 
FR 2141, Jan. 14, 1998]



Sec. 200.9  Selection of members of Actuarial Advisory Committee.

    (a) Introduction. Under section 15(f) of the Railroad Retirement Act 
of 1974 (45 U.S.C. 231n(f)), the Board is directed to select two 
actuaries to serve on an Actuarial Advisory Committee. This section 
describes how the two actuaries are selected.
    (b) Carrier actuary. One member of the Actuarial Advisory Committee 
shall be selected by recommendations made by ``carrier 
representatives.'' ``Carrier representatives,'' as used in this section, 
shall mean any organization formed jointly by the express companies, 
sleeping-car companies and carriers by railroad subject to the 
Interstate Commerce Act which own or control more than 50 percent of the 
total railroad mileage within the United States.
    (c) Railway labor actuary. The other member of the Actuarial 
Advisory

[[Page 183]]

Committee to be selected by the Board shall be recommended by 
``representatives of employees.'' ``Representatives of employees,'' as 
used in this section, shall mean any organization or body formed jointly 
by a majority of railway labor organizations organized in accordance 
with the provisions of the Railway Labor Act, as amended, or any 
individual or committee authorized by a majority of such railway labor 
organizations to make such recommendation.

[54 FR 43056, Oct. 20, 1989]



Sec. 200.10  Representatives of applicant or beneficiaries.

    (a) Power of attorney. An applicant or a beneficiary shall not be 
required to hire, retain or utilize the services of an attorney, agent, 
or other representative in any claim filed with the Board. In the event 
an applicant or beneficiary desires to be represented by another person, 
he or she shall file with the Board prior to the time of such 
representation a power of attorney signed by such applicant or 
beneficiary and naming such other person as the person authorized to 
represent the applicant or beneficiary with respect to matters in 
connection with his or her claim. However, the Board may recognize one 
of the following persons as the duly authorized representative of the 
applicant or beneficiary without requiring such power of attorney when 
it appears that such recognition is in the interest of the applicant or 
beneficiary:
    (1) A Member of Congress;
    (2) A person designated by the railway labor organization of which 
the applicant or beneficiary is a member to act on behalf of members of 
that organization on such matters; or
    (3) An attorney who, in the absence of information to the contrary, 
declares that he or she is representing the applicant or beneficiary.
    (b) Payment of claim. The Board will not certify payment of any 
awarded claim to or through any person other than the applicant or 
beneficiary for the reason that a power of attorney for such person to 
represent such applicant or beneficiary has been filed.

[54 FR 43057, Oct. 20, 1989]

[[Page 184]]



       SUBCHAPTER B_REGULATIONS UNDER THE RAILROAD RETIREMENT ACT





PART 201_DEFINITIONS--Table of Contents




    Authority: Secs. 1, 10, 50 Stat. 307, as amended, 314, as amended; 
45 U.S.C. 228a, 228j.



Sec. 201.1  Words and phrases.

    For the purposes of the regulations in this chapter, except where 
the language or context indicates otherwise:
    (a) Act. The term ``act,'' or ``1937 act'' means the Railroad 
Retirement Act of 1937 (50 Stat. 307; 45 U.S.C. chapter 9). The term 
``1935 act,'' means the Railroad Retirement Act of 1935 (49 Stat. 967; 
45 U.S.C. chapter 9).
    (b) Employer. The term ``employer'' means an employer as defined in 
the act and part 202 of this chapter.
    (c) Employee. The term ``employee'' means an employee as defined in 
the act and part 203 of this chapter.
    (d) Service. The term ``service'' means service as defined in the 
act and part 220 of this chapter.
    (e) Compensation. The term ``compensation'' means compensation as 
defined in the act and part 222 of this chapter.
    (f) Board. The term ``Board'' means the Railroad Retirement Board.
    (g) Company. The term ``company'' means a partnership, association, 
joint stock company, corporation, or institution.
    (h) United States. The term ``United States'' where used in a 
geographical sense means the States and the District of Columbia.
    (i) Carrier. The term ``carrier'' means an express company, 
sleeping-car company, or carrier by railroad, subject to part I of the 
Interstate Commerce Act (24 Stat. 379; 49 U.S.C. chapter 1).
    (j) Person. The term ``person'' includes an individual, trust, 
estate, partnership, association, joint stock company, company, 
corporation, and institution.
    (k) General Committee. The term ``General Committee'' as used in 
section 1 of the Railroad Retirement Act of 1937 (50 Stat. 307; 45 
U.S.C., Sup., 228a) is construed to include any subordinate unit of a 
national railway labor organization, defined as an employer in the 1937 
act, regardless of the title or designation of such unit, which, under 
the constitution and bylaws of the organization of which it is a unit, 
is properly authorized to and does represent that organization on all of 
a particular railroad or on a substantial portion thereof (such as on 
that portion of a railroad under the jurisdiction of the general 
manager) in negotiating with the management of that railroad with 
respect to the wages and working conditions of the employees represented 
by such organization.
    (l) Local lodges and divisions; local lodge or division. The term 
``local lodges and divisions'' and the term ``local lodge or division'' 
as used in section 1(a) and 1(b), respectively, of the 1937 act, shall 
be construed to include any subordinate unit of a national railway labor 
organization defined as an ``employer'' under the 1937 act, which unit 
functions in the same manner as, or similar to ``local lodges'' as that 
term is ordinarily used, irrespective of the designation of such unit by 
its national organization.

[4 FR 1477, Apr. 7, 1939, as amended by Board Order 40-367, 5 FR 2717, 
Aug. 1, 1940; Board Order 59-190, 24 FR 9083, Nov. 7, 1959]



PART 202_EMPLOYERS UNDER THE ACT--Table of Contents




Sec.
202.1 Statutory provisions.
202.2 Company or person principally engaged in carrier business.
202.3 Company or person principally engaged in non-carrier business.
202.4 Control.
202.5 Company or person under common control.
202.6 Casual service and the casual operation of equipment or 
          facilities.
202.7 Service or operation in connection with railroad transportation.
202.8 Controlled company or person principally engaged in service or 
          operation in connection with railroad transportation.

[[Page 185]]

202.9 Controlled company or person not principally engaged in service or 
          operation in connection with railroad transportation.
202.10 Commencement of employer status of receiver or trustee, etc.
202.11 Termination of employer status.
202.12 Evidence of termination of employer status.
202.13 Electric railways.
202.14 Service incidental to railroad transportation.
202.15 Railway labor organizations.

    Authority: Secs. 1, 10, 50 Stat. 307, as amended, 314, as amended; 
45 U.S.C. 228a, 228j, unless otherwise noted.

    Source: 4 FR 1478, Apr. 7, 1939, unless otherwise noted.



Sec. 202.1  Statutory provisions.

    The term ``employer'' means any carrier (as defined in subsection 
1(m) of this section), and any company which is directly or indirectly 
owned or controlled by one or more such carriers or under common control 
therewith, and which operates any equipment or facility or performs any 
service (except trucking service, casual service, and the casual 
operation of equipment or facilities) in connection with the 
transportation of passengers or property by railroad, or the receipt, 
delivery, elevation, transfer in transit, refrigeration or icing, 
storage, or handling of property transported by railroad, and any 
receiver, trustee, or other individual or body, judicial or otherwise, 
when in the possession of the property or operating all or any part of 
the business of any such employer: Provided, however, That the term 
``employer'' shall not include any street, interurban, or suburban 
electric railway, unless such railway is operating as a part of a 
general steam-railroad system of transportation, but shall not exclude 
any part of the general steam-railroad system now or hereafter operated 
by any other motive power. The Interstate Commerce Commission is hereby 
authorized and directed upon request of the Board, or upon complaint of 
any party interested, to determine after hearing whether any line 
operated by electric power falls within the terms of this proviso. The 
term ``employer'' shall also include railroad associations, traffic 
associations, tariff bureaus, demurrage bureaus, weighing and inspection 
bureaus, collection agencies and other associations, bureaus, agencies, 
or organizations controlled and maintained wholly or principally by two 
or more employers as hereinbefore defined and engaged in the performance 
of services in connection with or incidental to railroad transportation; 
and railway labor organizations, national in scope, which have been or 
may be organized in accordance with the provisions of the Railway Labor 
Act, as amended, and their State and National legislative committees and 
their general committees and their insurance departments and their local 
lodges and divisions, established pursuant to the constitution and by-
laws of such organizations. (Sec. 1 (a), 50 Stat. 307; 45 U. S. C. 228a 
(a))
    The term ``employer'' shall not include any company by reason of its 
being engaged in the mining of coal, the supplying of coal to an 
employer where delivery is not beyond the mine tipple, and the operation 
of equipment or facilities therefore, or in any of such activities. (54 
Stat. 785; 45 U.S.C. 228a (a))

[4 FR 1478, Apr. 7, 1939, as amended by Board Order 41-526, 7 FR 96, 
Jan. 6, 1942]



Sec. 202.2  Company or person principally engaged in carrier business.

    Any company or person principally engaged in carrier business is an 
employer.



Sec. 202.3  Company or person principally engaged in non-carrier 
business.

    (a) With respect to any company or person principally engaged in 
business other than carrier business, but which, in addition to such 
principal business, engages in some carrier business, the Board will 
require submission of information pertaining to the history and all 
operations of such company or person with a view to determining whether 
some identifiable and separable enterprise conducted by the person or 
company is to be considered to be the employer. The determination will 
be made in the light of considerations such as the following:
    (1) The primary purpose of the company or person on and since the 
date it was established;
    (2) The functional dominance or subservience of its carrier business 
in relation to its non-carrier business;
    (3) The amount of its carrier business and the ratio of such 
business to its entire business;
    (4) Whether its carrier business is a separate and distinct 
enterprise.
    (b) In the event that the employer is found to be an aggregate of 
persons or legal entities or less than the whole of a legal entity or a 
person operating in only one of several capacities, then the unit or 
units competent to assume legal obligations shall be responsible for the 
discharge of the duties of the employer.

[[Page 186]]



Sec. 202.4  Control.

    A company or person is controlled by one or more carriers, whenever 
there exists in one or more such carriers the right or power by any 
means, method or circumstance, irrespective of stock ownership to 
direct, either directly or indirectly, the policies and business of such 
a company or person and in any case in which a carrier is in fact 
exercising direction of the policies and business of such a company or 
person.



Sec. 202.5  Company or person under common control.

    A company or person is under common control with a carrier, whenever 
the control (as the term is used in Sec. 202.4) of such company or 
person is in the same person, persons, or company as that by which such 
carrier is controlled.



Sec. 202.6  Casual service and the casual operation of equipment or 
facilities.

    The service rendered or the operation of equipment or facilities by 
a controlled company or person in connection with the transportation of 
passengers or property by railroad is ``casual'' whenever such service 
or operation is so irregular or infrequent as to afford no substantial 
basis for an inference that such service or operation will be repeated, 
or whenever such service or operation is insubstantial.



Sec. 202.7  Service or operation in connection with railroad 
transportation.

    The service rendered or the operation of equipment or facilities by 
persons or companies owned or controlled by or under common control with 
a carrier is in connection with the transportation of passengers or 
property by railroad, or the receipt, delivery, elevation, transfer in 
transit, refrigeration or icing, storage, or handling of property 
transported by railroad, if such service or operation is reasonably 
directly related, functionally or economically, to the performance of 
obligations which a company or person or companies or persons have 
undertaken as a common carrier by railroad, or to the receipt, delivery, 
elevation, transfer in transit, refrigeration or icing, storage, or 
handling of property transported by railroad.



Sec. 202.8  Controlled company or person principally engaged in service 
or operation in connection with railroad transportation.

    Any company or person owned or controlled by one or more carriers or 
under common control therewith, whose principal business is the 
operation of equipment or facilities or the performance of service 
(other than trucking service) in connection with the transportation of 
passengers or property by railroad, shall be an employer.



Sec. 202.9  Controlled company or person not principally engaged in 
service or operation in connection with railroad transportation.

    (a) With respect to any company or person owned or controlled by one 
or more carriers or under common control therewith, performing a service 
or operating equipment in connection with the transportation of 
passengers or property by railroad, or the receipt, delivery, elevation, 
transfer in transit, refrigeration or icing, storage, or handling of 
property transported by railroad, but which is principally engaged in 
some other business, the Board will require the submission of 
information pertaining to the history and all operations of such company 
or person with a view to determining whether it is an employer or 
whether some identifiable and separable enterprise conducted by the 
person or company is to be considered to be the employer, and will make 
a determination in the light of considerations such as the following:
    (1) The primary purpose of the company or person on and since the 
date it was established;
    (2) The functional dominance or subservience of its business which 
constitutes a service or operation of equipment or facilities in 
connection with the transportation of passengers or property by railroad 
in relation to its other business;
    (3) The amount of its business which constitutes a service or 
operation of equipment or facilities in connection with the 
transportation of passengers or property by railroad and the ratio of 
such business to its entire business;
    (4) Whether such service or operation is a separate and distinct 
enterprise;

[[Page 187]]

    (5) Whether such service or operation is more than casual, as that 
term is defined in Sec. 202.6.
    (b) In the event that the employer is found to be an aggregate of 
persons or legal entities or less than the whole of a legal entity or a 
person operating in only one of several capacities, then the unit or 
units competent to assume legal obligations shall be responsible for the 
discharge of the duties of the employer.



Sec. 202.10  Commencement of employer status of receiver or trustee, etc.

    A receiver, trustee, or other individual or body, judicial or 
otherwise, in the possession of the property or operating all or any 
part of the business of a carrier, or of a company or person owned or 
controlled by or under common control with such a carrier, which 
operates any equipment or facility or performs any service in connection 
with the transportation of passengers or property by railroad, shall be 
deemed to be an employer beginning as of whichever of the following 
three dates is the earliest:
    (a) The date that it takes possession of such property; or
    (b) The first date on which it has authority to operate all or any 
part of the business of such a carrier, company or person; or
    (c) The date that it begins operating without appointment or 
authorization all or any part of the business of such a carrier, company 
or person;

Provided, however, That the receiver, trustee, or other individual or 
body, judicial or otherwise, shall be an employer only with respect to 
such individuals as would be employees if the preceding employer had 
continued in the possession of the property or the operation of the 
business.



Sec. 202.11  Termination of employer status.

    The employer status of any company or person shall terminate 
whenever such company or person loses any of the characteristics 
essential to the existence of an employer status.

[Board Order 41-85, 6 FR 1210, Mar. 1, 1941]



Sec. 202.12  Evidence of termination of employer status.

    (a) In determining whether a cessation of an essential 
characteristic, such as control or service in connection with railroad 
transportation, has occurred, consideration will be given only to those 
events or actions which evidence a final or complete cessation. Mere 
temporary periods of inactivity or failure to exercise functions or to 
operate equipment or facilities will not necessarily result in a loss of 
employer status.
    (b) The actual date of cessation of employer status shall be the 
date upon which final or complete cessation of an essential employer 
characteristic occurs. The following indicate but do not delimit the 
type of evidence that will be considered in determining the actual date 
of cessation of an employer status: stoppage of business or operations; 
the cancellation of tariffs, concurrences, or powers of attorney filed 
with the Interstate Commerce Commission; the effective date of a 
certificate permitting abandonment; the effective date of a pertinent 
judicial action such as the discharge of a receiver, trustee, or other 
judicial officer, or an order approving sale of equipment or machinery; 
the sale, transfer, or lease of property, equipment, or machinery 
essential to the continuance of an employer function or to control by a 
carrier employer; public or private notices of contemplated or scheduled 
abandonment or cessation of operations; termination of contract; 
discharge of last employee; date upon which the right of a railway labor 
organization to participate in the selection of labor members of the 
National Railroad Adjustment Board ceases or is denied; and date on 
which an employer, if a labor organization, ceases to represent or is 
denied the right to represent crafts or classes of employees in the 
railroad industry, or to promote the interests of employees in the 
railroad industry.
    (c) In the absence of evidence to the contrary the employer status 
of an existing company or person shall be presumed to continue, and in 
accordance with Sec. 250.1(b) of this chapter it is the

[[Page 188]]

duty of each employer promptly to notify the Board of any change in 
operations affecting such company's status as an employer.

[Board Order 41-85, 6 FR 1210, Mar. 1, 1941]



Sec. 202.13  Electric railways.

    (a) The Deputy General Counsel will require the submission of 
information pertaining to the history and operations of an electric 
railway with a view to determining whether it is an employer and will 
inquire into and make his recommendations upon the following 
considerations:
    (1) Whether the electric railway is more than a street, suburban or 
interurban electric railway; or
    (2) Whether it is operating as a part of a general steam-railroad 
system of transportation; or
    (3) Whether it is part of the national transportation system.
    (b) If in the opinion of the Deputy General Counsel an electric 
railway has the characteristic set forth in either paragraphs (a)(1), 
(2), or (a)(3) of this section, he will conclude that it is an employer 
under the act and if the operator concurs in such opinion, the decision 
will be made final by the Board. If the operator does not concur in the 
conclusion reached the question will be submitted to the Interstate 
Commerce Commission for determination.

(45 U.S.C. 231f(b)(5))

[4 FR 1478, Apr. 7, 1939, as amended at 48 FR 51448, Nov. 9, 1983]



Sec. 202.14  Service incidental to railroad transportation.

    An organization, association, bureau or agency is performing a 
service in connection with or incidental to railroad transportation 
whenever it is engaged in the performance of functions which would 
normally be performed by the constituent employers in the absence of 
such organization, association, bureau, or agency.



Sec. 202.15  Railway labor organizations.

    Railway labor organizations, national in scope, which have been or 
may be organized in accordance with the provisions of the Railway Labor 
Act, as amended, and their State and National legislative committees and 
their general committees and their insurance departments and their local 
lodges and divisions, established pursuant to the constitution and 
bylaws of such organizations, shall be employers within the meaning of 
the act.
    (a) An organization doing business on or after June 21, 1934, which 
establishes, in accordance with paragraph (a)(1), (2), or (3) of this 
section a right, under section 3 ``First'' (a) of the Railway Labor Act, 
as amended (48 Stat. 1189; 45 U.S.C. 153 ``First'' (a)), to participate 
in the selection of labor members of the National Railroad Adjustment 
Board, will be presumed, in the absence of clear and convincing evidence 
to the contrary, to be, from and after the date on which such right is 
thus established, a labor organization, national in scope and organized 
in accordance with the provisions of the Railway Labor Act, as amended. 
Such an organization can establish that it is an employer by 
establishing, in accordance with paragraph (b) of this section, that, as 
a labor organization, national in scope and organized in accordance with 
the provisions of the Railway Labor Act, as amended, it is a ``railway'' 
organization. An organization, doing business on or after June 21, 1934, 
which has not established such a right of participation, will be 
presumed not to be a labor organization, national in scope and organized 
in accordance with the provisions of the Railway Labor Act, as amended, 
and such presumption can be rebutted only by clear and convincing 
evidence satisfactory to the Board showing that the reasons for the 
organization's failure to establish such a right have no relation to its 
being a labor organization, national in scope and organized in 
accordance with the provisions of the Railway Labor Act, as amended. 
Only after such presumption has thus been rebutted will further evidence 
as to whether the organization is an employer be considered. (The 
establishment or nonestablishment of such a right of participation will 
not raise any presumption as to whether an organization is, or is not, a 
``railway'' organization. The existence of this qualification shall be 
determined in accordance with paragraph (b) of this section.) An

[[Page 189]]

organization will have established such a right of participation if:
    (1) It has in fact participated in the selection of labor members of 
the National Railroad Adjustment Board and has continued to participate 
in such selection; or
    (2) It has been found, under section 3 ``First'' (f) of the Railway 
Labor Act, as amended (48 Stat. 1190; 45 U.S.C. 153 ``First'' (f)), to 
be qualified to participate in the selection of labor members of the 
National Railroad Adjustment Board; or
    (3) It is recognized by all organizations, qualified under 
paragraphs (a)(1) or (2) of this section, as having the right to 
participate in the selection of labor members of the National Railroad 
Adjustment Board.
    (b) The question as to whether a labor organization, national in 
scope, and organized in accordance with the provisions of the Railway 
Labor Act, as amended, is, as such a national labor organization, a 
``railway'' labor organization, will be determined by the Board on the 
basis of considerations such as the following:
    (1) The extent to which it is, and has been recognized as, 
representative of crafts or classes of employees in the railroad 
industry.
    (2) The extent to which its purposes and business are and have been 
to promote the interests of employees in the railroad industry.
    (c) A labor organization which ceased doing business before June 21, 
1934, will have been an employer if its characteristics were 
substantially the same as those of labor organizations, doing business 
on or after June 21, 1934, which are established as employers in 
accordance with paragraphs (a) and (b) of this section.
    (d) An organization which establishes, to the satisfaction of the 
Board, that it is a labor organization, as defined in paragraph (e) of 
this section, and that is composed of labor organizations which are 
established as employers in accordance with paragraphs (a), (b), and (c) 
of this section, is thereby established as being an employer.
    (e) For the purposes of the regulations in this chapter, a labor 
organization is an organization whose business is to promote the 
interests of employees in their capacity as employees, either directly 
or through their organizations.



PART 203_EMPLOYEES UNDER THE ACT--Table of Contents




Sec.
203.1 Statutory provisions.
203.2 General definition of employee.
203.3 When an individual is performing service for an employer.
203.4 When service is compensated.
203.5 Service outside the United States.
203.6 Age, citizenship, and other factors.
203.7 Local lodge employee.

    Authority: Secs. 1, 10, 50 Stat. 307, as amended, 314 as amended; 45 
U.S.C. 228a, 228j, unless otherwise noted.

    Source: 12 FR 1133, Feb. 19, 1947, unless otherwise noted.



Sec. 203.1  Statutory provisions.

    The term ``employee'' means (1) any individual in the service of one 
or more employers for compensation, (2) any individual who is in the 
employment relation to one or more employers, and (3) an employee 
representative. The term ``employee'' shall include an employee of a 
local lodge or division defined as an employer in sub-section (a) only 
if he was in the service of or in the employment relation to a carrier 
on or after the enactment date. The term ``employee representative'' 
means any officer or official representative of a railway labor 
organization other than a labor organization included in the term 
``employer'' as defined in section 1(a) who before or after the 
enactment date was in the service of an employer as defined in section 
1(a) and who is duly authorized and designated to represent employees in 
accordance with the Railway Labor Act, as amended, and any individual 
who is regularly assigned to or regularly employed by such officer or 
official representative in connection with the duties of his office.
    The term ``employee'' shall not include any individual while such 
individual is engaged in the physical operations consisting of the 
mining of coal, the preparation of coal, the handling (other than 
movement by rail with standard railroad locomotives) of coal

[[Page 190]]

not beyond the mine tipple, or the loading of coal at the tipple.
    An individual is in the service of an employer whether his service 
is rendered within or without the United States if (i) he is subject to 
the continuing authority of the employer to supervise and direct the 
manner of rendition of his service, or he is rendering professional or 
technical services and is integrated into the staff of the employer, or 
he is rendering, on the property used in the employer's operations, 
other personal services the rendition of which is integrated into the 
employer's operations, and (ii) he renders such service for 
compensation, or a method of computing the monthly compensation for such 
service is provided in section 3(c): Provided, however, That an 
individual shall be deemed to be in the service of an employer, other 
than a local lodge or division or a general committee of a railway-
labor-organization employer, not conducting the principal part of its 
business in the United States only when he is rendering service to it in 
the United States; and an individual shall be deemed to be in the 
service of such a local lodge or division only if (1) all, or 
substantially all, the individuals constituting its membership are 
employees of an employer conducting the principal part of its business 
in the United States; or (2) the headquarters of such local lodge or 
division is located in the United States; and an individual shall be 
deemed to be in the service of such a general committee only if (1) he 
is representing a local lodge or division described in clauses (1) or 
(2) immediately above; or (2) all, or substantially all, the individuals 
represented by it are employees of an employer conducting the principal 
part of its business in the United States; or (3) he acts in the 
capacity of a general chairman or an assistant general chairman of a 
general committee which represents individuals rendering service in the 
United States to an employer, but in such case if his office or 
headquarters is not located in the United States and the individuals 
represented by such general committee are employees of an employer not 
conducting the principal part of its business in the United States, only 
such proportion of the remuneration for such service shall be regarded 
as compensation as the proportion which the mileage in the United States 
under the jurisdiction of such general committee bears to the total 
mileage under its jurisdiction, unless such mileage formula is 
inapplicable in which case the Board may prescribe such other formula as 
it finds to be equitable, and if the application of such mileage 
formula, or such other formula as the Board may prescribe, would result 
in the compensation of the individual being less than 10 per centum of 
his remuneration for such service no part of such remuneration shall be 
regarded as compensation: Provided further, That an individual not a 
citizen or resident of the United States shall not be deemed to be in 
the service of an employer when rendering service outside the United 
States to an employer who is required under the laws applicable in the 
place where the service is rendered to employ therein, in whole or in 
part, citizens or residents thereof; and the laws applicable on August 
29, 1935, in the place where the service is rendered shall be deemed to 
have been applicable there at all times prior to that date.



Sec. 203.2  General definition of employee.

    An individual shall be an employee whenever (a) he is engaged in 
performing compensated service for an employer or (b) he is in an 
employment relation to an employer, or (c) he is an employee 
representative, or (d) he is an officer of an employer.



Sec. 203.3  When an individual is performing service for an employer.

    (a) The legal relationship of employer and employee is defined by 
the act. Thus, an individual is performing service for an employer if:
    (1) He is subject to the right of an employer, directly or through 
another, to supervise and direct the manner in which his services are 
rendered; or
    (2) In rendering professional or technical services he is integrated 
into the staff of the employer; or
    (3) He is rendering personal services on the property used in the 
operations of the employer and the services are integrated into those 
operations.

[[Page 191]]

    (b) The provisions in paragraph (a) of this section are controlling 
irrespective of whether the service is performed on a part-time basis, 
and, with respect to paragraph (a)(1) of this section, irrespective of 
whether the right to supervise and direct is exercised.



Sec. 203.4  When service is compensated.

    Service shall be ``compensated'' if it is performed for 
compensation, as that term is defined in part 222 of this chapter: 
Provided, however, That service prior to September 1941 of a station 
employee whose duties consisted of or included the carrying of 
passengers' hand baggage and otherwise assisting passengers at passenger 
stations shall be considered compensated service although the 
individual's remuneration was, in whole or in part, in the form of tips. 
(For the effect of compensation of less than $3.00 per month earned 
after December 31, 1936, for service to a local lodge or division of a 
railway-labor-organization employer, see part 222 of this chapter.)

(Sec. 3, 50 Stat. 310, as amended; 45 U.S.C. 228c)



Sec. 203.5  Service outside the United States.

    (a) An individual shall not be an employee by reason of rendition of 
service to an employer other than a local lodge or division, or a 
general committee of a railway-labor-organization employer, not 
conducting the principal part of its business in the United States 
except while engaged in performing service for it in the United States.
    (b) An individual shall not be an employee by reason of rendition of 
service to a local lodge or division, unless:
    (1) All, or substantially all the individuals constituting the 
membership of such local lodge or division are employees of an employer 
conducting the principal part of its business in the United States; or
    (2) The headquarters of such local lodge or division is located in 
the United States.
    (c) An individual shall not be an employee by reason of rendition of 
service to a general committee of a railway-labor-organization employer, 
unless:
    (1) Such individual is representing a local lodge or division, all 
or substantially all of whose members are employees of an employer 
conducting the principal part of its business in the United States, or 
the headquarters of such local lodge or division is located in the 
United States; or
    (2) All or substantially all the individuals represented by such a 
general committee are employees of an employer conducting the principal 
part of its business in the United States; or
    (3) Such an individual acts in the capacity of a general chairman or 
an assistant general chairman of a general committee which represents 
individuals rendering service in the United States to an employer; 
Provided, however, That if the office or headquarters of such general 
chairman or assistant general chairman is not located within the United 
States he will not be an employee unless 10 percent or more of his 
remuneration for service as general chairman or assistant general 
chairman is creditable as compensation, the creditable compensation to 
be computed according to the proportion which the mileage in the United 
States under the jurisdiction of such general committee bears to the 
total mileage under its jurisdiction, or according to a formula to be 
prescribed by the Board if the mileage formula is inapplicable.



Sec. 203.6  Age, citizenship, and other factors.

    The age, citizenship, or residence of an individual, or his 
designation as other than an ``employee'' shall not be controlling in 
determining whether or not such individual is an employee within the 
meaning of the act, except that an individual not a citizen or resident 
of the United States shall not be deemed to be in the service of an 
employer when rendering service outside the United States to an employer 
who is required by the laws of the place where the service is performed 
to employ, in whole or in part, citizens or residents thereof and the 
laws in force therein on August 29, 1935, shall be deemed to have been 
in force at all times prior to that date.

[Board Order 55-89, 20 FR 3706, May 27, 1955]



Sec. 203.7  Local lodge employee.

    An individual who, prior to January 1, 1937, shall have rendered 
service to a

[[Page 192]]

local lodge or division of a railway labor organization included as an 
employer under section 1(a) of the act, shall be an employee with 
respect to such service to such local lodge or division only if he was 
on August 29, 1935, in the service of or in an employment relation to an 
employer which was a carrier. An individual who, subsequent to December 
31, 1936, shall have rendered service to a local lodge or division of a 
railway labor organization included as an employer under section 1(a) of 
the act, shall be an employee with respect to such service to such local 
lodge or division only with respect to such service as was preceded by 
service, or an employment relation, on or after August 29, 1935, to an 
employer which was a carrier. (For the effect of compensation less than 
$3.00 per month earned after December 31, 1936, for service to a local 
lodge or division of a railway-labor-organization employer, see part 222 
of this chapter.)



PART 204_EMPLOYMENT RELATION--Table of Contents




Sec.
204.1 Introduction.
204.2 Employment relation--determination by the Board.
204.3 Employment relation--prior service.
204.4 Conditions which preclude an employment relation.
204.5 Employment relation--deemed service.
204.6 Employment relation--pay for time lost.
204.7 Employment relation--service to a local lodge or division of a 
          railway labor organization.

    Authority: 45 U.S.C. 231f.

    Source: 54 FR 5224, Feb. 2, 1989, unless otherwise noted.



Sec. 204.1  Introduction.

    In order for an individual to receive credit under the Railroad 
Retirement Act (Act) for railroad service prior to 1937, he or she must 
establish that he or she was actively working for an employer under the 
Act on August 29, 1935, or was in an employment relation to an emp]oyer 
on that date. Section 204.3 of this part defines employment relation for 
purposes of establishing prior service. It is also necessary to 
establish an employment relation to an employer for any month in which 
an individual wishes to receive a deemed service month, as provided for 
in Sec. 210.3 of this chapter, and to receive credit for pay for time 
lost as provided for in Sec. 211.3 of this chapter. This part defines 
employment relation for these purposes. See Sec. Sec. 204.5 and 204.6. 
In addition, in order for an individual to have his or her service to a 
local lodge or division of a railway labor organization considered as 
creditable service under the Act, he or she must establish that he or 
she was working for a railroad or in an employment relation to a 
railroad on or after August 29, 1935, and that such employment or 
employment relation preceded his or her service to the local lodge or 
division. Section 204.7 defines employment relation for this purpose.



Sec. 204.2  Employment relation--determination by the Board.

    The existence or non-existence of an employment relation, as defined 
in this part, is a conclusion which must be reached by the Board or its 
authorized officers or employees upon the basis of the evidence before 
the agency. The employer and the employee are the principal sources of 
evidence with respect to a determination whether an employment relation 
existed, but the Board will not be bound by the mere conclusion of the 
employer or the employee that the employee had or did not have an 
employment relation.



Sec. 204.3  Employment relation--prior service.

    An individual shall have an employment relation to an employer on 
August 29, 1935, for purposes of crediting service prior to January 1, 
1937, if:
    (a) He or she was in the service of an employer on that date; or
    (b) He or she was on that date on 1eave of absence expressly granted 
by the employer or by a duly authorized representative of such employer, 
but only if such leave of absence was established to the satisfaction of 
the Board before July 1947; or
    (c) He or she was in the service of an employer after that date and 
before January 1946, in each of six calendar months, whether or not 
consecutive; or
    (d) Before that date he or she did not retire and was not retired or 
discharged from the service of the last

[[Page 193]]

employer by whom he or she was employed, but solely by reason of a 
physical or mental disability he or she ceased before August 29, 1935, 
to be in the service of such employer and thereafter remained 
continuously disabled until he or she attained age sixty-five or until 
August 1945; or
    (e) Solely for the reason stated in paragraph (c) of this section an 
employer by whom he or she was employed before August 29, 1935, did not 
on or after August 29, 1935, and before August 1945, call him or her to 
return to service, or if he or she were called to return to service he 
or she for such reason was unable to render service in six calendar 
months as provided in paragraph (b) of this section; or
    (f) He or she was on August 29, 1935, absent from the service of an 
employer by reason of a discharge which, within one year after the 
effective date thereof, was protested to an appropriate labor 
representative or to the employer, as wrongful, and which was followed 
within ten years of the effective date thereof by his or her 
reinstatement in good faith to his or her former service with all his or 
her seniority rights.



Sec. 204.4  Conditions which preclude an employment relation.

    (a) An individual shall not have been on August 29, 1935, an 
employee by reason of an employment relation if, during the last payroll 
period in which he or she rendered service to an employer prior to that 
date, such service was rendered outside of the United States to an 
employer not conducting the principal part of its business in the United 
States.
    (b) An individual may not acquire an employment relation solely by 
virtue of service to a local lodge or division of a railway labor 
organization.



Sec. 204.5  Employment relation--deemed service.

    For the purpose of crediting deemed service months as provided in 
Sec. 210.3(b) of this chapter, an individual must have maintained an 
employment relation to one or more employers in the month or months to 
be deemed. For that purpose an employment relation exists with respect 
to any month in which an individual, although not in the active service 
of an employer, is on furlough subject to recall by an employer, is on a 
bona fide leave of absence, has not been retired or discharged but was 
by reason of continuous disability unable to return to service, or was 
not in active service because of a discharge later determined to be 
wrongful. However, an employment relation with respect to an employer 
ceases after an individual has resigned or relinquished his or her 
rights to return to the service of that employer or after the individual 
becomes entitled to receive an annuity under the Railroad Retirement 
Act.



Sec. 204.6  Employment relation--pay for time lost.

    For the purpose of crediting pay for time lost as provided in Sec. 
211.3 of this chapter, an individual must have maintained an employment 
relation to one or more employers in the month or months to be credited 
with pay for time lost. For that purpose an employment relation exists 
with respect to any month in which an individual, although not in the 
active service of an employer, is on furlough subject to recall by an 
employer, is on a bona fide leave of absence, has not been retired or 
discharged but was by reason of continuous disability unable to return 
to service, or was not in active service because of a discharge later 
determined to be wrongful. However, an employment relation with respect 
to an employer ceases after an individual has resigned or relinquished 
his or her rights to return to the service of that employer.



Sec. 204.7  Employment relation--service to a local lodge or division 
of a railway labor organization.

    Service by an individual to a local lodge or division of a railway 
labor organization shall be creditable under the Railroad Retirement Act 
only if, prior to such service, and on or after August 29, 1935, such 
individual performed compensated service for a carrier employer under 
part 202 of this chapter or was in an employment relation to such a 
carrier employer under the rules set forth in Sec. 204.3 of this part.

[[Page 194]]



PART 205_EMPLOYEE REPRESENTATIVE--Table of Contents




Sec.
205.1 Introduction.
205.2 Definition of employee representative.
205.3 Factors considered in determining employee representative status.
205.4 Claiming status as an employee representative.
205.5 Reports of an employee representative.
205.6 Service of an employee representative.
205.7 Termination of employee representative status.

    Authority: 45 U.S.C. 231, 45 U.S.C. 231f, 45 U.S.C. 231h.

    Source: 53 FR 39255, Oct. 6, 1988, unless otherwise noted.



Sec. 205.1  Introduction.

    This part sets out the various factors considered in determining an 
individual's status as an employee representative under section 1(b)(1) 
of the Railroad Retirement Act, and discusses the procedure for 
reporting and crediting of compensation and service as an employee 
representative under that Act. An employee representative is considered 
to be a covered employee under the provisions of the Railroad Retirement 
Act.



Sec. 205.2  Definition of employee representative.

    (a) An individual shall be an employee representative within the 
meaning of the Railroad Retirement Act if he or she is an officer or 
official representative of a railway labor organization, other than a 
labor organization included in the term ``employer'' within the meaning 
of part 202 of these regulations, who before or after August 29, 1935, 
was in the service of an ``employer'' within the meaning of part 202 of 
these regulations and who is duly authorized and designated to represent 
employees in accordance with the Railway Labor Act, as amended.
    (b) An individual is also considered to be an employee 
representative within the meaning of the Act if he or she is regularly 
assigned to or regularly employed by an individual described in 
paragraph (a) of this section in connection with the duties of the 
office of employee representative of said individual.
    (c) Example: A is employed by railroad R as a carman. He is also 
employed as recording secretary for the local chapter of union U, which 
has been recognized as the collective bargaining representative of the 
carmen of R. Although U represents some railroad employees, it is not a 
railway labor organization as described in part 202 of these 
regulations. A is an employee representative. His service for U is 
treated as employee service under the Railroad Retirement Act.



Sec. 205.3  Factors considered in determining employee representative 
status.

    The following factors, among others, are considered by the Board in 
determining an individual's status as an employee representative:
    (a) The name of the last railroad or other employer under the Act by 
which the individual was employed, and the period of employment;
    (b) The present official name of the organization by which the 
individual is employed, as well as any other name(s) under which that 
organization operated previously;
    (c) The date on which the organization was founded;
    (d) The title of the position held by the individual within the 
organization, and the duties of said position;
    (e) The method by which the individual, or the person to whom he or 
she is regularly assigned or by whom he or she is regularly employed, 
was authorized to represent members of the organization in negotiating 
with their employers, the date on which the individual was so 
authorized, and the time period covered by said authorization;
    (f) The purpose or business of the organization as reflected by its 
constitution and by-laws;
    (g) The extent to which the organization is, and has been recognized 
as, representative of crafts or classes of employees in the railroad 
industry;
    (h) The extent to which the purposes and businesses of the 
organization are and have been to promote the interests of employees in 
the railroad industry as indicated by:
    (1) The specific employee group(s) represented; and

[[Page 195]]

    (2) The proportion of members that are employed by railroad 
employers in relation to those members that are employed by non-railroad 
employers;
    (i) Whether the organization has been certified by the National 
Mediation Board as a representative of any class of employees of any 
company;
    (j) If the organization has not been certified as representative of 
any class of employees, the manner and method by which the organization 
determined that it was the duly authorized representative of such 
employees;
    (k) Whether the organization participates or is authorized to 
participate in the selection of labor members of the National Railroad 
Adjustment Board; and
    (l) Whether the organization was assisted by any carrier by 
railroad, express company, or sleeping car company, directly or 
indirectly, in its formation, in influencing employees to join the 
organization, financially, or in the collection of dues, fees, 
assessments, or any contributions payable to the organization.



Sec. 205.4  Claiming status as an employee representative.

    An individual who claims status as an employee representative shall 
file a report in accordance with Sec. 209.10 of this chapter.

(Approved by the Office of Management and Budget under control number 
3220-0014)



Sec. 205.5  Reports of an employee representative.

    An annual report of creditable compensation shall be made by an 
employee representative in accordance with Sec. 209.10 of this chapter.

(Approved by the Office of Management and Budget under control number 
3220-0014)



Sec. 205.6  Service of an employee representative.

    Service rendered as an employee representative is creditable in the 
same manner and to the same extent as though the organization by which 
the employee representative was employed were an employer under the 
Railroad Retirement Act. (Creditable railroad service is discussed under 
part 210 of the Board's regulations.)



Sec. 205.7  Termination of employee representative status.

    The employee representative status of any individual shall terminate 
whenever the individual or the organization by whom he or she is 
employed loses any of the characteristics essential to the existence of 
employee representative status.



PART 206_ACCOUNT BENEFITS RATIO--Table of Contents




Sec.
206.1 Definitions.
206.2 Computations.

    Authority: 45 U.S.C. 231f(b)(5); 45 U.S.C. 231u(a).

    Source: 68 FR 51153, Aug. 26, 2003, unless otherwise noted.



Sec. 206.1  Definitions.

    Except as otherwise expressly noted, as used in this part--
    Account benefits ratio means the amount determined by the Railroad 
Retirement Board by dividing the fair market value of the assets in the 
Railroad Retirement Account and the National Railroad Retirement 
Investment Trust (and for years prior to 2002, the Social Security 
Equivalent Benefit Account) as of the close of each fiscal year by the 
total benefits and administrative expenses paid from those accounts 
during the fiscal year.
    Administrative expenses paid means the amount of the cash transfers 
from the Railroad Retirement Account to the agency's single 
administrative fund. Also included in this term is the amount of the 
cash transfers from the Railroad Retirement Account to the Limitation on 
the Office of Inspector General and the administrative expenses paid by 
the National Railroad Retirement Investment Trust.
    Assets means the market value of cash and investments in the 
Railroad Retirement Account and the National Railroad Retirement 
Investment Trust (and for years before 2002, the Social Security 
Equivalent Benefit Account).
    Average account benefits ratio means for any calendar year, the 
average of the account benefits ratio for the 10 most recent fiscal 
years ending before

[[Page 196]]

such calendar year. If the amount computed is not a multiple of 0.1, 
such amount shall be increased to the next highest 0.1.
    Total benefits paid means the total amount of benefits paid from the 
Railroad Retirement Account and the National Railroad Retirement 
Investment Trust in a fiscal year minus any benefit overpayments 
actually recovered during that fiscal year.



Sec. 206.2  Computation.

    (a) On or before November 1, 2003, the Railroad Retirement Board 
shall:
    (1) Compute the account benefits ratios for each of the most recent 
10 preceding fiscal years; and
    (2) Certify the account benefits ratio for each such fiscal year to 
the Secretary of the Treasury.
    (b) On or before November 1 of each year after 2003, the Railroad 
Retirement Board shall:
    (1) Compute the account benefits ratio for the fiscal year ending in 
such year; and
    (2) Certify the account benefits ratio for such fiscal year to the 
Secretary of the Treasury.
    (c) No later than May 1 of each year, beginning 2003, the Board 
shall compute its projection of the account benefits ratio and the 
average account benefits ratios for each of the next succeeding 5 fiscal 
years.



PART 209_RAILROAD EMPLOYERS' REPORTS AND RESPONSIBILITIES--Table of 
Contents




Sec.
209.1 General.
209.2 Duty to furnish information and records.
209.3 Social security number required.
209.4 Method of filing.
209.5 Information regarding change in status.
209.6 Employers' notice of death of employees.
209.7 Employers' supplemental reports of service.
209.8 Employers' annual reports of creditable service and compensation.
209.9 Employers' adjustment reports.
209.10 Terminated employers' reports.
209.11 Employee representatives' reports.
209.12 Certificates of service months and compensation.
209.13 Employers' gross earnings reports.
209.14 Report of separation allowances subject to tier II taxation.
209.15 Compensation reportable when paid.
209.16 Disposal of payroll records.
209.17 Use of payroll records as returns of compensation.

    Authority: 45 U.S.C. 231f.

    Source: 49 FR 46729, Nov. 28, 1984, unless otherwise noted.



Sec. 209.1  General.

    Benefits under the Railroad Retirement Act are based in part upon an 
individual's years of service and amount of compensation credited to the 
individual under the Act. It is the duty of the Board to gather, keep 
and compile such records and data as may be necessary to assure proper 
administration of the Act. This part sets forth the types of reports 
employers are required to make to the Board and states the penalties 
that the Board may impose upon employers and employees who fail or 
refuse to make required reports.



Sec. 209.2  Duty to furnish information and records.

    In the administration of the Railroad Retirement Act of 1974, the 
Board may require any employer or employee to furnish or submit any 
information, records, contracts, documents, reports or other materials 
within their possession or control, that, in the judgment of the Board, 
may have any bearing upon:
    (a) The employer status of any individual, person or company,
    (b) The employee or pension status of any individual,
    (c) The amount and creditability of service and compensation, or
    (d) Any other matter arising which involves the administration of 
the Railroad Retirement Act. Any person who knowingly fails or refuses 
to make any report or furnish any information required by the Board, may 
be punished by a fine of not more than $10,000 or by imprisonment not 
exceeding one year, or both.

(Approved by the Office of Management and Budget under control number 
3220-0089)

[49 FR 46729, Nov. 2, 1984, as amended at 52 FR 11016, Apr. 6, 1987]

[[Page 197]]



Sec. 209.3  Social security number required.

    Each employer shall furnish to the Board a social security number 
for each employee for whom any report is submitted to the Board. 
Employers are encouraged to validate any social security number provided 
under this section.

(Approved by the Office of Management and Budget under control number 
3220-0008)

[63 FR 32613, June 15, 1998]



Sec. 209.4  Method of filing.

    Any report or information required to be furnished under this part 
shall be prepared in accordance with instructions of the Board and shall 
be filed with the Board electronically, which includes the use of 
magnetic tape, computer diskette, electronic data interchange, or on 
such form as prescribed by the Board. If not filed electronically, 
reports shall be transmitted by facsimile or mailed directly to the 
Board. Any report which includes, or should include, information for 250 
or more employees must be filed electronically, as described in this 
section.

[63 FR 32613, June 15, 1998]



Sec. 209.5  Information regarding change in status.

    It is the duty of each employer to promptly notify the Board of:
    (a) Any change in the employer's operations, ownership or control of 
the employer which affects its status as an employer under the Railroad 
Retirement Act and the Railroad Unemployment Insurance Act;
    (b) Any change in the ownership or control by the employer in any 
company which may affect the status of the company as an employer under 
the Railroad Retirement Act or Railroad Unemployment Insurance Act; and
    (c) The gain of ownership or control by the employer of any company 
which may give that company status as an employer under the Railroad 
Retirement Act and Railroad Unemployment Insurance Act. The notice must 
fully advise the Board of the type of change in ownership, the date of 
the change, the number of employees affected by the change and any other 
information pertinent to the change.

[49 FR 46729, Nov. 28, 1984. Redesignated at 63 FR 32613, June 15, 1998]



Sec. 209.6  Employers' notice of death of employees.

    Each employer shall notify the Board immediately of the death of an 
employee who, prior to the employee's death, performed compensated 
service which has not been reported to the Board.

(Approved by the Office of Management and Budget under control number 
3220-0005)

[63 FR 32613, June 15, 1998]



Sec. 209.7  Employers' supplemental reports of service.

    Each employer shall furnish the Board a report of the current year 
service of each employee who ceases work for the purpose of retiring 
under the provisions of the Railroad Retirement Act.

(Approved by the Office of Management and Budget under control number 
3220-0005)

[63 FR 32613, June 15, 1998]



Sec. 209.8  Employers' annual reports of creditable service and 
compensation.

    Each year, on or before the last day of February, each employer is 
required to make an annual report of the creditable service and 
compensation (including a report that there is no compensation or 
service to report) of employees who performed compensated service in the 
preceding calendar year. The annual report shall include service and 
compensation previously furnished in supplemental reports and notices of 
death.

(Approved by the Office of Management and Budget under control number 
3220-0008)

[63 FR 32613, June 15, 1998]



Sec. 209.9  Employers' adjustment reports.

    (a) The Board may request employers to submit adjustments to correct 
employee accounts when:
    (1) Errors are detected in processing employers' annual report;

[[Page 198]]

    (2) An employee shows that the amount of service or compensation 
reported by the employer to the employee's account was not correct; or
    (3) An employee shows that he or she should have been credited with 
service and compensation for a period for which the employer reported no 
service and compensation.
    (b) Employers may submit adjustment reports to:
    (1) Correct service and compensation previously reported; and
    (2) Report service and compensation that was omittted from a 
previous report.
    (c) Employers submitting adjustment reports covering pay for time 
lost as an employee shall report this compensation as provided for in 
Sec. 211.3 of this chapter. Adjustment reports may be submitted to the 
Board each month.

(Approved by the Office of Management and Budget under control number 
3220-0008)

[49 FR 46729, Nov. 28, 1984. Redesignated and amended at 63 FR 32613, 
June 15, 1998]



Sec. 209.10  Terminated employers' reports.

    When an employer's status as an employer is terminated, a final 
report of creditable service and compensation shall be made. The final 
report shall be submitted to the Board on or before the last day of the 
month following the final month for which there was compensated service. 
The report shall be completed as prescribed in Sec. 209.8(a) of this 
part and shall be marked Final Compensation Report.

(Approved by the Office of Management and Budget under control number 
3220-0008)

[49 FR 46729, Nov. 28, 1984. Redesignated and amended at 63 FR 32613, 
June 15, 1998]



Sec. 209.11  Employee representatives' reports.

    An individual claiming status as an employee representative shall 
describe his or her duties as an employee representative on the form 
prescribed by the Board. The Board shall determine whether the 
individual claiming to be an employee representative meets the 
requirements for such a status. If the individual is determined to be an 
employee representative, he or she is required to make an annual report 
of creditable compensation as provided for in Sec. 209.8 of this part. 
If an employee representative's status is terminated, the last report of 
service and compensation shall be marked Final Compensation Report.

(Approved by the Office of Management and Budget under control number 
3220-0014)

[63 FR 32613, June 15, 1998]



Sec. 209.12  Certificates of service months and compensation.

    (a) Each year the Board shall provide each employee who performed 
compensated service in the preceding calendar year a certificate of 
service months and compensation. This certificate is the employee's 
record of the service and compensation credited to his or her account at 
the Board. An employee who for any reason does not receive a certificate 
may obtain one from the nearest Board district office or may write the 
Board for one.
    (b) By April 1 of each year each employer shall provide the Board 
the current address of each employee for whom it had reported 
compensation. This requirement shall not apply in the case of an 
employee for whom the employer had previously provided an address.

(Approved by the Office of Management and Budget under control number 
3220-0194)

[63 FR 32613, June 15, 1998]



Sec. 209.13  Employers' gross earnings reports.

    (a) Each employer is required to report the gross earnings of a one-
percent sample group of railroad employees. The gross earnings sample is 
based on the earnings of employees whose social security numbers end 
with the digits 30. This report is used to determine:
    (1) Tax and benefit amounts involved in the Financial Interchange 
with the Social Security Administration and the Health Care Financing 
Administration; and
    (2) Estimated tax income accruing to the railroad retirement system 
in future periods.
    (b) Employers shall submit reports annually for employees in the 
gross earnings sample. Such reports shall include the employee's gross 
annual

[[Page 199]]

earnings, which includes all compensation taxable under the hospital 
insurance portion of the tier I tax rate. Employers with 5,000 or more 
employees shall provide a monthly or quarterly breakdown of the year's 
earnings. Employers with fewer than 5,000 employees may submit an annual 
amount only, although a monthly or quarterly breakdown is preferable. 
Gross earnings are to be counted for the same time period as used in 
determining the employer's annual report of creditable compensation. The 
reports are to be prepared in accordance with prescribed instructions 
and filed in accordance with Sec. 209.4 of this part.

(Approved by the Office of Management and Budget under control number 
3220-0132)

[49 FR 46729, Nov. 28, 1984, as amended at 55 FR 26430, June 28, 1990; 
57 FR 4365, Feb. 5, 1992; 59 FR 2292, Jan. 14, 1994. Redesignated and 
amended at 63 FR 32613, 32614, June 15, 1998]



Sec. 209.14  Report of separation allowances subject to tier II taxation.

    For any employee who is paid a separation payment, the employer must 
file a report of the amount of the payment. This report shall be 
submitted to the Board on or before the last day of the month following 
the end of the calendar quarter in which payment is made. The report is 
to be prepared in accordance with prescribed instructions and filed in 
accordance with Sec. 209.4 of this part.

(Approved by the Office of Management and Budget under control number 
3220-0173)

[63 FR 32614, June 15, 1998]



Sec. 209.15  Compensation reportable when paid.

    (a) General. In preparing a report required under this part, an 
employer may report compensation in the report required for the year in 
which the compensation was paid even though such compensation was earned 
by the employee in a previous year. If compensation is reported with 
respect to the year in which it was paid, it shall be credited by the 
Board to the employee in such year unless within the four year period 
provided in Sec. 211.15 of this chapter the employee requests that such 
compensation be credited to the year in which it was earned. If the 
employee makes such a request, and the Board determines that the 
compensation should be credited to the year in which it was earned, the 
reporting employer must file an adjustment report as required by Sec. 
209.9 of this part which reports such compensation in the year in which 
it was earned. The employee may revoke his or her request anytime prior 
to the filing of the adjustment report. Upon the Board's receipt of the 
adjustment report, the request becomes irrevocable.
    (b) Pay for time lost. Compensation which is pay for time lost, as 
provided in Sec. 211.3 of this chapter, shall be reported with respect 
to the period in which the time and compensation were lost. For example, 
if an employee is off work because of an on-the-job injury for a period 
of months in a given year and in a later year receives a payment from 
his or her employer to compensate for wages lost during the period of 
absence, the employer must, by way of adjustment provided for in Sec. 
209.9 of this part, report the compensation with respect to the year in 
which the time and compensation were lost.
    (c) Separation allowance or severance pay. A separation allowance or 
severance payment shall be reported in accordance with Sec. 209.14 of 
this part.
    (d) Miscellaneous pay. Miscellaneous pay, as defined in Sec. 211.11 
of this chapter, shall be reported in the year paid and reported on the 
annual report of compensation as provided for in Sec. 209.8 of this 
part.
    (e) Vacation pay. Vacation pay may be reported in accordance with 
this section except that any payments made in the year following the 
year in which the employee resigns or is discharged shall be reported by 
way of adjustment under Sec. 209.9 of this part as paid in the year of 
resignation or discharge.

[58 FR 45250, Aug. 27, 1993, as amended at 63 FR 32614, June 15, 1998]



Sec. 209.16  Disposal of payroll records.

    Employers may dispose of payroll records for periods subsequent to 
1936, provided that the payroll records are more than five years old and 
that there is no dispute pending pertaining to the

[[Page 200]]

compensation reported for the period of those records.

[61 FR 31395, June 20, 1996]



Sec. 209.17  Use of payroll records as returns of compensation.

    Payroll records of employers which have permanently ceased 
operations may be accepted in lieu of prescribed reports provided that 
there is no official of the employer available to prepare and certify to 
the accuracy of such reports and, provided further that any employer and 
employee tax liability incurred under the Railroad Retirement Tax Act 
has been discharged.

[61 FR 31395, June 20, 1996]



PART 210_CREDITABLE RAILROAD SERVICE--Table of Contents




Sec.
210.1 General.
210.2 Definition of service.
210.3 Month of service.
210.4 Year of service.
210.5 Creditability of service.
210.6 Service credited for creditable military service.
210.7 Verification of service claimed.

    Authority: 45 U.S.C. 231f.



Sec. 210.1  General.

    An individual's entitlement to benefits and the amount of benefits 
payable under the Railroad Retirement Act are determined based, in part, 
on the individual's years of service. This part defines what the term 
service means under the Railroad Retirement Act and sets forth what 
types of service are creditable under that Act.

[49 FR 46731, Nov. 28, 1984]



Sec. 210.2  Definition of service.

    Service means a period of time for which an employee receives 
payment from a railroad employer for the performance of work; or a 
period of time for which an employee receives compensation which is paid 
for time lost as an employee; or a period of time credited to an 
employee for creditable military service as defined in part 212 of this 
chapter. Service shall also include deemed months of service as provided 
under Sec. 210.3(b) of this chapter and any month in which an employee 
is credited with compensation under Sec. 211.12 of this chapter based 
on benefits paid under title VII of the Regional Rail Reorganization Act 
of 1973.

[53 FR 17182, May 16, 1988]



Sec. 210.3  Month of service.

    (a) Reported. A reported month of service is any calendar month or 
any part of a calendar month for which an employee receives compensation 
for services performed for an employer; or receives pay for time lost as 
an employee; or is credited with compensation for a period of creditable 
military service; or is credited with compensation under Sec. 211.12 of 
this chapter based on benefits paid under title VII of the Regional Rail 
Reorganization Act of 1973.
    (b) Deemed. A deemed month of service is any additional month of 
service credited to an employee subject to paragraphs (b)(1) and (2) of 
this section.
    (1) An employee who is credited with less than twelve reported 
months of service for a calendar year after 1984 may be ``deemed'' to 
have performed service for compensation in additional months, not to 
exceed twelve, providing:
    (i) The employee's compensation for the calendar year in question 
exceeds an amont calculated by multiplying the number of reported months 
credited for that year by an amount equal to one-twelfth of the current 
annual maximum for non-tier I components as defined in Sec. 211.15 of 
this chapter; and
    (ii) The employee maintains an employment relation to one or more 
employers or serves as an employee representative in the month or months 
to be deemed. For purposes of this section, employment relation has the 
same meaning as defined in part 204 of this chapter, disregarding the 
restrictions involving the establishment of such a relationship as of 
August 29, 1935. Employee representative has the same meaning as defined 
in part 205 of this chapter.
    (2) Employees satisfying the conditions in both paragraphs (b)(1)(i) 
and (b)(1)(ii) of this section shall have their months of service for a 
calendar year calculated using the following formula:

[[Page 201]]

[GRAPHIC] [TIFF OMITTED] TC14NO91.103


The quotient obtained using this formula equals the employee's total 
months of service, reported and deemed, for the calendar year. Any 
fraction or remainder in the quotient is credited as an additional month 
of service.
    (3) Examples. The provisions of paragraphs (b)(1) and (2) of this 
section may be illustrated by the following examples.

    Example (1): Employee B worked in the railroad industry in 1985 and 
was credited with nine reported months of service (January through 
September) and non-tier I compensation of $20,000. The 1985 annual 
maximum for non-tier I compensation is $29,700. B maintained an 
employment relation in the three months he was not employed in 1985. The 
following computations are necessary to determine if B has sufficient 
non-tier I compensation to be credited with deemed months of service.

(1) Enter the annual maximum for non-tier I compensation for the 
calendar year....................................................$29,700
(2) Divide line (1) by 12
 $29,700/12.......................................................$2,475
(3) Enter the employee's reported months of service for the calendar 
year...................................................................9
(4) Multiply line (2) by line (3) $2,475x9.......................$22,275
(5) Enter the employee's non-tier I compensation for the calendar year 
                                                                 $20,000
(6) Subtract line (4) from line (5). Enter the result (but not less than 
zero). This is the employee's excess non-tier I compensation for the 
calendar year.
 $20,000-$22,275.......................................................0

    a. If line (6) is zero, the employee does not have sufficient non-
tier I compensation to be credited with deemed months of service.
    b. If line (6) is greater than zero, the employee has sufficient 
non-tier I compensation to be credited with deemed months of service.
    Since the amount on line (6) is zero, employee B does not have 
enough non-tier I compensation to be credited with deemed months of 
service. B is credited with only nine reported months of service for the 
year.
    Example (2): Assume the same facts as in example (1), except that 
employee B was credited with non-tier I compensation of $25,000 for 
1985. The following computations are necessary to determine if B has 
sufficient non-tier I compensation to be credited with deemed months of 
service.

(1) Enter the annual maximum for non-tier I compensation for the 
calendar year....................................................$29,700
(2) Divide line (1) by 12
 $29,700/12.......................................................$2,475
(3) Enter the employee's reported months of service for the calendar 
year...................................................................9
(4) Multiply line (2) by line (3) $2,475x9.......................$22,275
(5) Enter the employee's non-tier I compensation for the calendar year 
                                                                 $25,000
(6) Subtract line (4) from line (5). Enter the result (but not less than 
zero). This is the employee's excess non-tier I compensation for the 
calendar year.
 $25,000-$22,275..................................................$2,725

    a. If line (6) is zero, the employee does not have sufficient non-
tier I compensation to be credited with deemed months of service.
    b. If line (6) is greater than zero, the employee has sufficient 
non-tier I compensation to be credited with deemed months of service.
    Since the amount on line (6) is greater than zero, employee B has 
enought non-tier I compensation to be credited with deemed months of 
service. B now satisfies all the requirements for deeming, therefore his 
months of service for the calendar year are calculated using the formula 
in Sec. 210.3(b)(2).
[GRAPHIC] [TIFF OMITTED] TC14NO91.104

[GRAPHIC] [TIFF OMITTED] TC14NO91.105


[[Page 202]]


[GRAPHIC] [TIFF OMITTED] TC14NO91.106

(3) Months of service = 25,000/2,475 or 10.10
(4) Round the result in line (3) to the next higher whole number. This 
is the employee's total months of service for the calendar year.
 10.10 becomes........................................................11


Employee B is credited with 11 months of service for 1985; nine reported 
months (January through September) and two deemed months (October and 
November).

[53 FR 17182, May 16, 1988]



Sec. 210.4  Year of service.

    (a) A year of service is twelve months of reported or deemed 
service, consecutive or not consecutive. A fraction of a year of service 
is taken at its actual value.
    (b) The term years of service means the total number of years an 
employee is credited with service as defined in Sec. 210.2 of this 
part.

[49 FR 46731, Nov. 28, 1984, as amended at 53 FR 17183, May 16, 1988]



Sec. 210.5  Creditability of service.

    (a) Service before January 1, 1937. (1) Service performed before 
January 1, 1937, is called prior service. Prior service is creditable 
under the Railroad Retirement Act if the employee had an employment 
relation with a railroad employer on August 29, 1935. Prior service may 
be combined with creditable service performed after December 31, 1936, 
to make the employee's total years of service equal, but not exceed, 30 
years (360 months).
    (2) An employee is considered to have an employment relation on 
August 29, 1935, if:
    (i) The employee was on that date in active railroad service for an 
employer; or
    (ii) The employee was on that date on a leave of absence expressly 
granted by the employer or the employer's authorized representative, but 
only if such leave of absence was established to the satisfaction of the 
Board before July 1947; or
    (iii) The employee had 6 months of active railroad service for an 
employer during the period August 29, 1935, through December 31, 1945; 
or
    (iv) The employee was not in the service of an employer by reason of 
a mental or physical disability from which the employee was continuously 
disabled until the employee attained age 65 or until August 1945; or
    (v) Solely for the reason stated in paragraph (a)(2)(iv) of this 
section the employee was not recalled to active service before August 
1945; or
    (vi) If the employee was recalled, the employee was unable to 
perform 6 months of service during the period August 29, 1935, through 
December 31, 1945, solely for the reason stated in paragraph (a)(2)(iv) 
of this section.
    (b) Service after December 31, 1936. All service performed after 
December 31, 1936, is creditable. If an employee has service both before 
January 1, 1937, and after December 31, 1936, all service after December 
31, 1936, is credited first; if this service totals less than 30 years 
(360 months), then the service before January 1, 1937, is included but 
only up to the amount sufficient to make the total years of service 
equal 30. Where the years of service include only part of the service 
performed before January 1, 1937, the part included is taken in reverse 
order beginning with the last calendar month of the service.
    (c) Service after December 31, 1936, to a local lodge or division. 
Services performed for a local lodge or division of a railway labor 
organization is creditable if the employee is credited with compensation 
as defined in Sec. 211.2 of this chapter.
    (d) Service based on time lost. Any month or any part of a month 
during which an employee performed no active service but received pay 
for time lost as an employee is counted as a month of service. Service 
for time lost as an employee shall be credited as provided for in Sec. 
211.3 of this chapter.
    (e) Place of performance of service. (1) Service performed for an 
employer who

[[Page 203]]

conducts the principal part of its business with the United States is 
creditable. However, service performed for an employer who conducts the 
principal part of its business outside the United States is creditable 
only when the service is performed in the United States. If an employer, 
other than a local lodge or division or a general committee of a railway 
labor organization, does not conduct the principal part of its business 
within the United States, the service performed outside the United 
States for that employer is not creditable.
    (2) Service performed outside the United States by an employee who 
is not a citizen or resident of the United States is not creditable if 
the employer is required under the laws of that place to hire, in whole 
or in part, only citizens or residents of that place.
    (f) Service as employee representative. Service performed as an 
employee representative is creditable in the same manner and to the same 
extent as service performed for an employer.
    (g) Service performed after the beginning date of an annuity. 
Service performed after the beginning date of an annuity shall be used 
in the annuity recomputation.

[49 FR 46731, Nov. 28, 1984, as amended at 53 FR 17184, May 16, 1988]



Sec. 210.6  Service credited for creditable military service.

    Any calendar month in which an employee performed creditable 
military service, as defined in part 212 of this chapter, shall be 
counted as a month of service and shall be included in the employee's 
years of service, as provided for in Sec. 210.5, provided that the 
employee has not previously been credited with reported or deemed 
service for an employer for the same month(s).

[53 FR 17184, May 16, 1988]



Sec. 210.7  Verification of service claimed.

    Service claimed by an employee, which is not credited in the records 
of the Board, must be verified to the satisfaction of the Board before 
it may be credited. Verification of the Service claimed shall be as 
follows:
    (a) Service claimed will be verified from the payroll or other 
detailed records of the employer.
    (b) If the payroll or other detailed records are incomplete or 
missing, the service claimed and not established by these records will 
be verified from the personnel records of the employer.
    (c) If the payroll, personnel and detailed records are incomplete or 
missing, the service claimed and not established by these records will 
be verified from any other books and records of the employer.
    (d) If the employer's records do not establish the service claimed, 
the employee may submit affidavits and other evidence in support of the 
service claimed in either of the following instances:
    (1) When there are no employer records available to show whether or 
not the service claimed was performed; or
    (2) When there are employer records available which do not verify 
the service claimed and do not establish that the service claimed was 
not performed.
    (e) When service is verified as to over-all dates, but is not 
supported in detail by employer records, and when there are no employer 
records showing in detail absences from service, a deduction shall be 
made to cover an average amount of the absences. The deduction shall be 
the absences shown by the applicant or 5 percent of the total period in 
question, whichever is greater. However, where the employee submits 
detailed records of the service claimed, properly identified and 
established as having been made at the time the employee performed the 
service for which detailed records of the employer are not available, 
full credit may be allowed for the service as may be verified from the 
records. Also, the employee may be permitted to establish in any other 
manner satisfactory to the Board the actual amount of his or her 
absences.
    (f) For the purpose of verifying service before 1937, employers 
shall preserve through 1986, in accessible form, the original records of 
the service and compensation.
    (g) For the purpose of verifying service after 1936, employers shall 
preserve in accessible form the original records

[[Page 204]]

of service and compensation for a period of five calendar years after 
the due date of the report.

(Approved by the Office of Management and Budget under control numbers 
3220-0003 and 3220-0008)

[49 FR 46731, Nov. 28, 1984, as amended at 52 FR 11016, Apr. 6, 1987]



PART 211_CREDITABLE RAILROAD COMPENSATION--Table of Contents




Sec.
211.1 General.
211.2 Definition of compensation.
211.3 Compensation paid for time lost.
211.4 Vacation pay.
211.5 Employee representative compensation.
211.6 Compensation based on waiver or refund of organization dues.
211.7 Compensation credited for creditable military service.
211.8 Displacement allowance.
211.9 Dismissal allowance.
211.10 Separation allowance or severance pay.
211.11 Miscellaneous pay.
211.12 Compensation credited for title VII benefits.
211.13 Payments made after death.
211.14 Maximum creditable compensation.
211.15 Verification of compensation claimed.
211.16 Finality of records of compensation.

    Authority: 45 U.S.C. 231f.

    Source: 49 FR 46732, Nov. 28, 1984, unless otherwise noted.



Sec. 211.1  General.

    Benefits under the Railroad Retirement Act are based in part on the 
individual's years of service and amount of compensation credited to the 
individual under the Act. This part defines what the term compensation 
means and sets forth the criteria applied in determining what payments 
are creditable as compensation under the Railroad Retirement Act.



Sec. 211.2  Definition of compensation.

    (a) The term compensation means any form of payment made to an 
individual for services rendered as an employee for an employer; 
services performed as an employee representative; and any separation or 
subsistence allowance paid under any benefit schedule provided in 
conformance with title VII of the Regional Rail Reorganization Act of 
1973 and any termination allowance paid under section 702 of that Act. 
Compensation may be paid as money, a commodity, a service or a 
privilege. However, if an employee is to be paid in any form other than 
money, the employer and employee must agree before the service is 
performed upon the following:
    (1) The value of the commodity, service or privilege; and
    (2) That the amount agreed upon to be paid may be paid in the form 
of the commodity, service or privilege.
    (b) Compensation includes, but is not limited to, the following:
    (1) Salary, wages and bonuses;
    (2) Pay for time lost as an employee;
    (3) Cash tips of $20 or more received in a calendar month;
    (4) Vacation pay;
    (5) Military pay as determined in Sec. 211.7 of this part;
    (6) Displacement allowances as provided for in Sec. 211.8 of this 
part;
    (7) Dismissal allowances as provided for in Sec. 211.9 of this 
part;
    (8) Separation allowances as provided for in Sec. 211.10 of this 
part;
    (9) Miscellaneous pay as provided for in Sec. 211.11 of this part;
    (10) Payments made under title VII of the Regional Rail 
Reorganization Act of 1973 as provided for in Sec. 211.12 of this part.
    (11) Payments paid to an employee or employee representative which 
are subject to tax under section 3201(a) or 3211(a) of the Internal 
Revenue Code of 1954 are creditable as compensation under the Railroad 
Retirement Act for purposes of computation of benefits under sections 
3(a)(1), 3(f)(3), 4(a)(1) and 4(f)(1).
    (12) Voluntary payments of any tax by an employer, without deducting 
such tax from the employee's salary.
    (13) Payments made by an employer with respect to a deceased 
employee except as provided for in Sec. 211.13 of this part.
    (c) Compensation does not include:
    (1) Tips, except as provided in paragraph (b)(3) of this section;
    (2) Payments for services performed by a nonresident alien for the 
period the individual is temporarily present in the United States as a 
nonimmigrant

[[Page 205]]

under subparagraph (F) or (J) of section 1101(a)(15) of title 8, U.S.C. 
and which is performed to carry out the purpose specified in 
subparagraph (F) or (J), as the case may be;
    (3) Remuneration paid in certain cases, as described below, for 
services performed for a local lodge or division of a railway labor 
organization.
    (i) Remuneration for services rendered for a local lodge or division 
of a railway labor organization which was earned after 1936 and prior to 
April 1, 1940, shall not be creditable as compensation in a month unless 
taxes with respect to such remuneration were paid under the Railroad 
Retirement Tax Act prior to July 1, 1940.
    (ii) Remuneration for services rendered for a local lodge or 
division of a railway labor organization which was earned after March 
31, 1940, and prior to January 1, 1975, shall not be creditable as 
compensation in a month if the amount of such remuneration earned in the 
month is less than $3.00.
    (iii) Remuneration for services rendered for a local lodge or 
division of a railway labor organization which was earned after December 
31, 1974, shall not be creditable as compensation in a month if the 
amount of such remuneration earned in the month is less than $25.00.
    (4) Payments for service as a delegate to a national or 
international convention of a railway-labor-organization employer if the 
individual rendering the service has not previously rendered service, 
other than as a delegate, which may be included in the individual's 
years of service;
    (5) Except as provided in Sec. 211.2(b)(11), the amount of any 
payment (including any amount paid by an employer for insurance or 
annuities, or into a fund, to provide for any such payment) made to, or 
on behalf of, an employee or any of the employee's dependents under a 
plan or system established by an employer which makes provisions for 
employees generally (or for employees generally and their dependents), 
or for a class or classes of employees (or for a class or classes of 
employees and their dependents), on account of sickness or accident 
disability, or medical, or hospitalization expenses in connection with 
sickness or accident disability; and
    (6) Any amount paid specifically--either as an advance, as 
reimbursement or allowance--for traveling or other bona fide and 
necessary expenses incurred, or reasonably expected to be incurred in 
the business of the employer, provided the payment is identified by the 
employer either by a separate payment or by specifically indicating the 
separate amounts where both wages and expense reimbursement or allowance 
are combined in a single payment.

[49 FR 46732, Nov. 28, 1984, as amended at 53 FR 17184, May 16, 1988; 58 
FR 45251, Aug. 27, 1993]



Sec. 211.3  Compensation paid for time lost.

    (a) A payment made to an employee for a period during which the 
employee was absent from the active service of the employer is 
considered to be pay for time lost and is, therefore, creditable 
compensation. Pay for time lost as an employee includes:
    (1) Pay received for a certain period of time due to personal 
injury, or
    (2) Pay received for loss of earnings for a certain period of time, 
resulting from the employee being placed in a position or occupation 
paying less money. In reporting compensation which represents pay for 
time lost, employers shall allocate the amount paid to the employee to 
the month(s) in which the time was actually lost. The entire amount of 
any payment made to an employee for personal injury is considered pay 
for time lost unless, at the time of payment, the employer states that a 
particular amount of the payment was for reasons other than pay for time 
lost.
    (b) Where pay for time lost is allocated to the month(s) in which 
the time was actually lost, the Board will accept the allocation made by 
the parties involved if it relates to the employee's normal monthly pay. 
A reasonable relationship to an employee's normal monthly pay is 
ordinarily no less than ten times the employee's daily pay rate.



Sec. 211.4  Vacation pay.

    Payments made to an employee with respect to vacation or holidays 
shall be

[[Page 206]]

considered creditable compensation whether or not the employee takes the 
vacation or holiday.

[58 FR 45251, Aug. 27, 1993]



Sec. 211.5  Employee representative compensation.

    All payments made by a railway labor organization to an individual 
who is an employee representative as a result of the position or office 
he occupies with such organization are creditable as compensation, 
including payments made for services not connected with the 
representation of employees, except that payments in excess of the 
annual maximum amount will not be credited.

[53 FR 17184, May 16, 1988]



Sec. 211.6  Compensation based on waiver or refund of organization dues.

    A waiver or refund or organization dues which was based solely on 
consideration for membership in the organization is considered 
creditable compensation if there is proof that the waiver or refund was 
intended to be, and was accepted as, a dismissal of an obligation of the 
organization to compensate the employee for services rendered.

[53 FR 17184, May 16, 1988]



Sec. 211.7  Compensation credited for creditable military service.

    In determining the creditable compensation of an employee, the 
following amounts shall be credited for each month of military service, 
provided the employee's combined monthly railroad and military 
compensation does not exceed the maximum creditable amount:
    (a) $160 for each calendar month before 1968;
    (b) $260 for each calendar month after 1967 and before 1975;
    (c) For years after 1974, the actual military earnings reported as 
wages under the Social Security Act.

[53 FR 17184, May 16, 1988]



Sec. 211.8  Displacement allowance.

    An allowance paid to an employee because he has been displaced to a 
lower paying position is creditable compensation.

[58 FR 45251, Aug. 27, 1993]



Sec. 211.9  Dismissal allowance.

    Dismissal allowances paid to an employee under a protective labor 
agreement that covers the amounts paid for specific periods of time are 
creditable as compensation under the Railroad Retirement Act, provided 
the employee has not severed his or her employee-employer relationship.

[53 FR 17184, May 16, 1988, as amended at 58 FR 45251, Aug. 27, 1993]



Sec. 211.10  Separation allowance or severance pay.

    Separation or severance payments are creditable compensation except 
that no part of such payment shall be considered creditable compensation 
to any period after the employee has severed his or her employer-
employee relationship except as provided for in Sec. 211.11 of this 
part.

[58 FR 45251, Aug. 27, 1993]



Sec. 211.11  Miscellaneous pay.

    Any payment made to an employee by an employer which is excluded 
from compensation under the Railroad Retirement Act, but which is 
subject to taxes under the Railroad Retirement Tax Act, shall be 
considered compensation for purposes of this part but only for the 
limited purpose of computing the portion of the annuity computed under 
section 3(a), 4(a), or 4(f) of the Railroad Retirement Act (commonly 
called the tier I component).

[58 FR 45251, Aug. 27, 1993]



Sec. 211.12  Compensation credited for title VII benefits.

    Payments made to an employee under title VII of the Regional Rail 
Reorganization Act of 1973 are creditable as compensation only for the 
month in which the employee first filed an application for benefits 
under that Act. The compensation to be credited cannot exceed the 
monthly creditable amounts defined in Sec. 211.13(a) of this part for 
compensation earned prior to 1985 or the annual creditable amount 
defined

[[Page 207]]

in Sec. 211.13(b) of this part for compensation earned after 1984.

[53 FR 17185, May 16, 1988]



Sec. 211.13  Payments made after death.

    Payments made by an employer with respect to a deceased employee but 
paid after the calendar year of the employee's death to the employee's 
survivors or estate are not creditable compensation.

[58 FR 45251, Aug. 27, 1993]



Sec. 211.14  Maximum creditable compensation.

    Maximum creditable compensation for calendar years after 1984 is the 
maximum annual taxable wage base defined in section 3231(e)(2)(B) of the 
Internal Revenue Code of 1986. In November of each calendar year the 
Director of Research and Employment Accounts shall notify each employer 
of the amount of maximum creditable compensation applicable to the 
following calendar year.

[58 FR 45251, Aug. 27, 1993]



Sec. 211.15  Verification of compensation claimed.

    Compensation claimed by an employee, which is not credited in the 
records of the Board, must be verified to the satisfaction of the Board 
before it may be credited. An employee's claim to compensation not 
credited shall be processed as follows:
    (a) If the compensation claimed is in excess of the maximum 
creditable amounts defined in Sec. 211.13 of this part, the Director of 
the Bureau of Research and Employment Accounts shall inform the employee 
that the compensation claimed is not creditable.
    (b) If the compensation is claimed within four years from the date 
the compensation was required to be reported to the Board as prescribed 
in Sec. 209.6 of this chapter, the Director of Research and Employment 
Accounts shall contact the employer requesting a review of their 
records, and if the employee's claim is correct, the employer will 
submit an adjustment crediting the employee with the compensation 
claimed. If the employer states that the employee's claim is incorrect, 
the employee will be requested to submit check stubs to show railroad 
retirement taxes withheld from the compensation claimed. Upon receipt of 
the check stubs, the proof will be sent to the employer along with a 
request for the employer to submit an adjustment crediting the employee 
with the compensation claimed.

[49 FR 46732, Nov. 28, 1984, as amended at 53 FR 17185, May 16, 1988. 
Redesignated at 58 FR 45251, Aug. 27, 1993]



Sec. 211.16  Finality of records of compensation.

    (a) Time limit for corrections to records of compensation. The 
Board's record of the compensation reported as paid to an employee for a 
given period shall be conclusive as to amount, or if no compensation was 
reported for such period, then as to the employee's having received no 
compensation for such period, unless the error in the amount of 
compensation or the failure to make return of the compensation is called 
to the attention of the Board within four years after the date on which 
the compensation was required to be reported to the Board as provided 
for in Sec. 209.6 of this chapter.
    (b) Correction after 4 years. (1) The Board may correct a report of 
compensation after the time limit set forth in paragraph (a) of this 
section where the compensation was posted or not posted as the result of 
fraud on the part of the employer.
    (2) Subject to paragraph (c) of this section, the Board may correct 
a report of compensation after the time limit set forth in paragraph (a) 
of this section for one of the following reasons:
    (i) Where the compensation was posted for the wrong person or the 
wrong period;
    (ii) Where the earnings were erroneously reported to the Social 
Security Administration in the good faith belief by the employer or 
employee that such earnings were not covered under the Railroad 
Retirement Act and there is a final decision of the Board under part 259 
of this chapter that such employer or employee was covered under the 
Railroad Retirement Act during the period in which the earnings were 
paid;
    (iii) Where a determination pertaining to the coverage under the 
Railroad Retirement Act of an individual,

[[Page 208]]

partnership, or company as an employer, is retroactive; or
    (iv) Where a record of compensation could not otherwise be corrected 
under this part and where in the judgment of the three-member Board that 
heads the Railroad Retirement Board failure to make a correction would 
be inequitable.
    (c) Limitation on crediting service. (1) Except as provided in 
paragraph (b)(1) of this section, no employee may be credited with 
service months or tier II compensation beyond the four year period 
referred to in paragraph (a) of this section unless the employee 
establishes to the satisfaction of the Board that all employment taxes 
imposed by sections 3201, 3211, and 3221 of title 26 of the Internal 
Revenue Code have been paid with respect to the compensation and 
service.
    (2) The limitation on the creditability of service months and tier 
II compensation in paragraph (c)(1) of this section shall not affect the 
creditability, for purposes of computing the tier I component of a 
railroad retirement annuity, of compensation payments with respect to 
which taxes have been paid under either the Railroad Retirement Tax Act 
or the Federal Insurance Contributions Act.

[62 FR 3790, Jan. 27, 1997]



PART 212_MILITARY SERVICE--Table of Contents




Sec.
212.1 General.
212.2 Military service defined.
212.3 Crediting of military service.
212.4 Periods of creditable military service.
212.5 Verification of military service.
212.6 Board's determination for use of military service.

    Authority: 45 U.S.C. 231f.

    Source: 49 FR 46734, Nov. 28, 1984, unless otherwise noted.



Sec. 212.1  General.

    In determining an individual's entitlement and amount of benefits 
under the Railroad Retirement Act, an individual's military service 
creditable under the Railroad Retirement Act is used. This part defines 
military service as used under this Act and sets forth the criteria to 
determine the creditability of military service.



Sec. 212.2  Military service defined.

    Military service is the performance of active service by an 
individual in the armed forces of the United States. An individual is 
considered to be in active military service when commissioned or 
enrolled in the land, naval or air forces of the United States until 
resignation or discharge therefrom. The service of an individual in any 
reserve component of the land, naval or air forces of the United States, 
during any period in which ordered to active duty, even though less than 
thirty days, is also considered active service. However, service in the 
Army Specialist Corps and the Merchant Marine is not creditable under 
the Railroad Retirement Act.



Sec. 212.3  Crediting of military service.

    In determining an individual's entitlement to an annuity and the 
amount of annuity to be paid under the Railroad Retirement Act, a 
calendar month or part of a calendar month during which the individual 
was in the active military service of the United States in a war service 
period, or period of national emergency, as determined in Sec. 212.4 of 
this part, may be included in the individual's years of service. 
Military service is credited as though the individual had performed 
service for a railroad employer as provided for in part 210 of this 
chapter, provided that the individual is credited with railroad service 
in the year of or the year before entrance into active military service. 
Compensation for creditable military service shall be credited as 
provided for in Sec. 211.7 of this chapter.



Sec. 212.4  Periods of creditable military service.

    In order for military service to be considered to be creditable 
under the Railroad Retirement Act, it must have been performed during 
one of the following periods:
    (a) April 21, 1898, through August 13, 1898--Spanish American War;
    (b) February 4, 1899, through April 27, 1902--Philippine 
Insurrection;
    (c) May 9, 1916, through February 5, 1917--Mexican Border 
Disturbances;
    (d) April 6, 1917, through November 11, 1918--World War I;

[[Page 209]]

    (e) September 8, 1939, through June 14, 1948--National Emergency and 
World War II. Individuals required to continue in service after this 
period may be credited with the service if:
    (1) They were in military service on December 31, 1946, or
    (2) They were required to remain in military service involuntarily 
after December 31, 1946;
    (f) June 15, 1948, through December 15, 1950. This service is 
creditable if:
    (1) Entered into involuntarily; or
    (2) Entered into voluntarily, but only if:
    (i) The individual who seeks credit for this service performs 
service as an employee for an employer as defined in part 202 of this 
chapter either in the year of his or her release from active military 
service or in the year following such release, and;
    (ii) The individual does not engage in any employment not covered by 
part 203 between his or her release from active military service and his 
or her commencement of service for an employer.
    (g) December 16, 1950, through September 14, 1978--National 
Emergency.

[49 FR 46734, Nov. 28, 1984, as amended at 55 FR 20454, May 17, 1990]



Sec. 212.5  Verification of military service.

    Military service may be verified by the following proof:
    (a) The original certificate of discharge or release to inactive 
duty from a branch of the armed forces that shows the beginning and 
ending dates of the individual's active military service; or a certified 
copy of the original certificate made by the Federal, State, county or 
municipal agency or department in which the original certificate is 
recorded; or
    (b) A certificate from a branch of the armed forces that shows the 
beginning and ending dates of the individual's active military service; 
or
    (c) A photocopy of the document described in paragraph (a) or (b) of 
this section.



Sec. 212.6  Board's determination for use of military service.

    (a) Military service may be creditable under both the Railroad 
Retirement and Social Security Acts, but there are provisions under 
those Acts to prevent duplicate use of the service. The Railroad 
Retirement Board will determine whether an employee's military service 
should be used as railroad service or as Social Security service. The 
Board's determination is intended to be to the employee's advantage; 
however, if the employee does not agree with the Board's determination 
for use of the employee's military service, the employee may request 
that it be changed.
    (b) Generally, it is to the employee's advantage for the employee's 
military service to be creditable as railroad service where any of the 
following conditions may be met with the use of the employee's military 
service as railroad service:
    (1) It gives the employee 10 years of service (120 months), which is 
the minimum needed to qualify for an annuity based on age and service or 
total disability, as provided for in part 216, subpart B; or
    (2) It gives the employee 20 years of service (240 months), which is 
the minimum needed to qualify for an occupational disability annuity, as 
provided for in Sec. 216.6 of this chapter; or
    (3) It gives the employee 25 years of service (300 months), which is 
the minimum needed to qualify for a supplemental annuity, as provided 
for in part 216, subpart C; or
    (4) It gives the employee 30 years of service (360 months), which 
would allow the employee to retire at age 60 with a full annuity and 
will also provide a full annuity to a qualified spouse at age 60, as 
provided for in part 216, subparts B and D; or
    (5) It gives the employee sufficient railroad service to entitle the 
employee to vested dual benefit payments, as provided for in part 216, 
subpart H.
    (c) In certain cases it may be to the employee's advantage for the 
employee's military service to be credited under the Social Security 
Act. This is generally true under the following conditions:
    (1) Crediting the military service under the Social Security Act 
would entitle the employee and any eligible children to social security 
benefits, since direct benefits are not payable to

[[Page 210]]

children of retired employees under the Railroad Retirement Act; or
    (2) Crediting the military service under the Social Security Act 
would entitle employee to vested dual benefit payments.



PART 216_ELIGIBILITY FOR AN ANNUITY--Table of Contents




                            Subpart A_General

Sec.
216.1 Introduction.
216.2 Definitions.
216.3 Other regulations related to this part.

         Subpart B_Current Connection With the Railroad Industry

216.11 General.
216.12 When current connection is required.
216.13 Regular current connection test.
216.14 Regular non-railroad employment that will not break a current 
          connection.
216.15 Special current connection test.
216.16 What is regular non-railroad employment.
216.17 What amount of regular non-railroad employment will break a 
          current connection.

           Subpart C_Railroad and Last Non-Railroad Employment

216.21 General.
216.22 Work as an employee which affects payment.
216.23 Work which does not affect eligibility.
216.24 Relinquishment of rights to return to work.

                       Subpart D_Employee Annuity

216.30 General.
216.31 Who is eligible for an age annuity.
216.32 Who is eligible for a disability annuity.
216.33 What is required for payment of an age or disability annuity.

                     Subpart E_Supplemental Annuity

216.40 General.
216.41 Who is entitled to a supplemental annuity.
216.42 How a private railroad pension affects a supplemental annuity.
216.43 Effect of a supplemental annuity on other benefits.

             Subpart F_Spouse and Divorced Spouse Annuities

216.50 General.
216.51 Who is eligible for a spouse annuity.
216.52 Who is eligible for an annuity as a divorced spouse.
216.53 What is required for payment.
216.54 Who is an employee's wife or husband.

Subpart G_Widow(er), Surviving Divorced Spouse, and Remarried Widow(er) 
                                Annuities

216.60 General.
216.61 Who is eligible for an annuity as a widow(er).
216.62 Who is eligible for an annuity as a surviving divorced spouse.
216.63 Who is eligible for an annuity as a remarried widow(er).
216.64 What is required for payment.
216.65 Who is an employee's widow(er).
216.66 Who is an employee's surviving divorced spouse.
216.67 ``Child in care.''
216.68 Disability period for widow(er), surviving divorced spouse, or 
          remarried widow(er).

                        Subpart H_Child's Annuity

216.70 General.
216.71 Who is eligible for a child's annuity.
216.72 What is required for payment of a child's annuity.
216.73 Who may be re-entitled to a child's annuity.
216.74 When a child is a full-time elementary or secondary school 
          student.
216.75 When a child is a full-time student during a period of non-
          attendance.

                       Subpart I_Parent's Annuity

216.80 General.
216.81 Who is eligible for a parent's annuity.
216.82 What is required for payment.

             Subpart J_Eligibility for More Than One Annuity

216.90 General.
216.91 Entitlement as an employee and spouse, divorced spouse, or 
          survivor.
216.92 Entitlement as a spouse or divorced spouse and as a survivor.
216.93 Entitlement to more than one survivor annuity.
216.94 Entitlement to more than one divorced spouse annuity.

    Authority: 45 U.S.C. 231f.

    Source: 56 FR 28692, June 24, 1991, unless otherwise noted.

[[Page 211]]



                            Subpart A_General



Sec. 216.1  Introduction.

    This part explains when an individual is eligible for a monthly 
annuity under the Railroad Retirement Act. An individual eligible for an 
annuity as described in this part may become entitled to an annuity only 
in such amount as set forth in parts 225 through 229 of this chapter
    (a) Regular annuity. A regular monthly annuity is provided for:
    (1) An employee who retires because of age or disability;
    (2) An employee's spouse or divorced spouse; or
    (3) The widow, widower, child, parent, remarried widow or widower, 
or surviving divorced spouse of an employee.
    (b) Supplemental annuity. An employee who retires because of age or 
disability may also be entitled to a supplemental annuity.



Sec. 216.2  Definitions.

    Except as otherwise expressly noted, as used in this part--
    Age means an individual's age on the day preceding the anniversary 
date of his or her birth.
    Annuity means a payment due an entitled individual for a calendar 
month and made to him or her on the first day of the following month.
    Apply means to sign a form or statement that the Railroad Retirement 
Board accepts as an application for benefits under the rules set out in 
part 217 of this chapter.
    Attainment of age means that an individual attains a given age on 
the first moment of the day preceding the anniversary date of his or her 
birth corresponding to such numerical age.
    Board means the Railroad Retirement Board.
    Claimant means an individual who files an annuity application or for 
whom an annuity application is filed.
    Eligible means that an individual meets all the requirements for 
payment of an annuity but has not yet applied for one.
    Employee means an individual who is or has been in the service of an 
employer as here defined.
    Employer means a company, individual, or other entity determined to 
be a covered employer under the Railroad Retirement Act as provided by 
part 202 of this chapter.
    Entitled means that an individual has applied for and has 
established his or her rights to benefits.
    Railroad Retirement Act means the Railroad Retirement Act of 1974, 
as amended.
    Re-entitled annuity means an annuity to which an individual becomes 
entitled after an earlier-awarded annuity has been terminated. A re-
entitled annuity is usually awarded on the basis of different factors of 
eligibility from the initial annuity, and may be awarded without the 
filing of another application.
    Retirement age means, with respect to an employee who attains age 62 
before January 1, 2000 (age 60 in the case of a widow(er), remarried 
widow(er) or surviving divorced spouse) age 65. For an employee who 
attains age 62 (or age 60 in the case of a widow(er), remarried 
widow(er), or surviving divorced spouse) after December 31, 1999, 
retirement age means the age provided for in section 216(1) of the 
Social Security Act.
    Social Security Act means the Social Security Act as amended.
    Tier I benefit means the benefit component calculated using Social 
Security Act formulas and based upon earnings covered under both the 
Railroad Retirement Act and the Social Security Act.
    Tier II benefit means the benefit component calculated under a 
formula found in the Railroad Retirement Act and based only upon 
earnings and service in the railroad industry.
    Year of service means 12 calendar months, consecutive or otherwise, 
of service creditable to an employee as described in part 210 of this 
chapter.



Sec. 216.3  Other regulations related to this part.

    This part is related to a number of other parts. Part 217 of this 
chapter describes how to apply for an annuity. Part 218 indicates when 
annuities begin and when they terminate. Part 219 sets out what evidence 
is necessary to prove

[[Page 212]]

eligibility. Where eligibility for an annuity is based upon a family 
relationship to an employee (for example, a widow's annuity), the 
definition of such family relationship may be found in part 222 of this 
chapter. Part 225 of this chapter describes the computation of the 
primary insurance amount.



         Subpart B_Current Connection With the Railroad Industry



Sec. 216.11  General.

    A current connection with the railroad industry is required to 
qualify for certain types of railroad retirement benefits. The existence 
of a current connection is clear in most cases where entitlement or 
death immediately follows continuous years of railroad employment. 
However, there are cases in which the employee did not work for a 
railroad employer for a period of time before entitlement or death. In 
these situations, special tests are applied to determine whether the 
employee can be considered to have a current connection with the 
railroad industry for the purpose of determining his or her eligibility 
for an annuity or other benefits.



Sec. 216.12  When current connection is required.

    (a) A current connection is required to qualify an individual for 
the following types of railroad retirement benefits:
    (1) An employee occupational disability annuity as described in 
subpart D of this part;
    (2) A supplemental annuity as described in subpart E of this part;
    (3) An employee vested dual benefit in certain cases;
    (4) A survivor annuity as described in subparts G, H, and I of this 
part; and
    (5) A lump-sum death payment as described in part 234 of this 
chapter.
    (b) A current connection which was established when an employee's 
annuity began is effective for:
    (1) Any annuity under this part for which the employee later becomes 
eligible; and
    (2) Any survivor annuity under this part or a lump-sum death payment 
under part 234 of this chapter.



Sec. 216.13  Regular current connection test.

    An employee has a current connection with the railroad industry if 
he or she meets one of the following requirements:
    (a) The employee has creditable railroad service in at least 12 of 
the 30 consecutive months immediately preceding the earlier of:
    (1) The month his or her annuity begins; or
    (2) The month he or she dies.
    (b) The employee has creditable railroad service in at least 12 
months in a period of 30 consecutive months and does not work in any 
regular non-railroad employment in the interval between the month the 
30-month period ends and the earlier of:
    (1) The month his or her annuity begins; or
    (2) The month he or she dies.



Sec. 216.14  Regular non-railroad employment that will not break a 
current connection.

    Regular non-railroad employment will not break an employee's current 
connection if it is performed during the 30-month period described in 
Sec. 216.13(b), in or after the month the annuity begins, or in the 
month the employee dies.



Sec. 216.15  Special current connection test.

    (a) For survivor annuities. An employee who does not have a current 
connection under the regular test has a current connection only to 
qualify an individual for a survivor annuity if:
    (1) The employee would not be fully or currently insured under 
section 214 of the Social Security Act if his or her railroad 
compensation after 1936 were treated as social security earnings;
    (2) The employee has no quarters of coverage as defined in section 
213 of the Social Security Act; or
    (3) The employee received a pension or a retirement annuity that 
began before 1948 based on at least 114 months of service.
    (b) For survivor and supplemental annuities. An employee who does 
not have a current connection under the regular test has a current 
connection in order

[[Page 213]]

to pay a supplemental or survivor annuity if he or she meets all of the 
following requirements:
    (1) Has been credited with at least 25 years of railroad service;
    (2) Stopped working in the railroad industry ``involuntarily and 
without fault'' on or after October 1, 1975, or was on furlough, leave 
of absence or absent for injury on that date;
    (3) Did not decline an offer of employment in the same ``class or 
craft'' as his or her most recent railroad service; and
    (4) Was alive on October 1, 1981.
    (c) ``Involuntarily and without fault'' defined. An employee is 
considered to have stopped railroad employment involuntarily and without 
fault if:
    (1) The employee loses his or her job;
    (2) The employee could not, through the exercise of seniority 
rights, remain in railroad service in the same class or craft as his or 
her most recent railroad service, regardless of the location where that 
service would be performed; and
    (3) The employee did not lose his or her job because of poor job 
performance, misconduct, medical reasons or other action or inaction on 
the part of the employee.
    (d) Effect of separation allowance. An employee who accepts a 
separation allowance and in so doing relinquishes his or her seniority 
rights to railroad employment is deemed to have voluntarily terminated 
his or her railroad service. However, if the employee stopped railroad 
employment involuntarily and without fault, as defined in paragraph (c) 
of this section, receipt of a separation allowance will not affect a 
current connection under paragraph (b) of this section.
    (e) ``Class or craft'' defined. The terms``class or craft,'' as used 
in this section, have the same meaning as they do generally in the 
railroad industry.
    (f) For supplemental annuities only. An additional special current 
connection test is required for an individual who was receiving a 
disability annuity which terminated due to the individual's recovery 
from disability. If the individual becomes entitled to a new annuity, a 
new current connection test based on the new annuity beginning date must 
be made. This test is made using the rules contained in Sec. Sec. 
216.13 and 216.17.



Sec. 216.16  What is regular non-railroad employment.

    (a) Regular non-railroad employment is full or part-time employment 
for pay.
    (b) Regular non-railroad employment does not include any of the 
following:
    (1) Self-employment;
    (2) Temporary work provided as relief by an agency of a Federal, 
State, or local government;
    (3) Service inside or outside the United States for an employer 
under the Railroad Retirement Act, even if the employer does not conduct 
the main part of its business in the United States;
    (4) Involuntary military service not creditable under the Railroad 
Retirement Act;
    (5) Employment with the following agencies of the United States 
Government:
    (i) Department of Transportation;
    (ii) Interstate Commerce Commission;
    (iii) National Mediation Board;
    (iv) Railroad Retirement Board;
    (v) National Transportation Safety Board; or
    (vi) Surface Transportation Board.
    (6) Employment entered into after early retirement by an employee 
who is receiving an annuity under Conrail's voluntary annuity program. 
This program is provided under the Staggers Rail Act of 1980 (Pub. L. 
96-448); or
    (7) Employment with the Alaska Railroad so long as it is an 
instrumentality of the State of Alaska.

[56 FR 28692, June 24, 1991, as amended at 62 FR 11324, Mar. 12, 1997]



Sec. 216.17  What amount of regular non-railroad employment will break 
a current connection.

    The amount of regular non-railroad employment needed to break a 
current connection depends on when the applicable 30-month period ends 
(see Sec. 216.13 of this part), as follows:
    (a) If the 30-month period ends in the calendar year before or in 
the same calendar year as the annuity begins or the

[[Page 214]]

month the employee dies, the current connection is broken if the 
employee:
    (1) Works in each month in the interval after the end of the 30-
month period and before the earlier of the month the annuity begins or 
the employee dies; or
    (2) Works and earns at least $200 in wages in any 3 months within 
the interval described in paragraph (a)(1) of this section.
    (b) If the 30-month period ends more than a year before the calendar 
year in which the annuity begins or the employee dies, the current 
connection is broken if the employee:
    (1) Works in any 2 consecutive years wholly or partially within the 
interval after the end of the 30-month period and before the month the 
annuity begins or the employee dies, whichever is earlier; and
    (2) Earns at least $1,000 in wages in any year wholly or partially 
within the interval described in paragraph (b)(1) of this section (but 
not counting earnings during the 30-month period and after the annuity 
beginning date), even if that year is not one of the 2 consecutive years 
described in paragraph (b)(1) of this section.



           Subpart C_Railroad and Last Non-Railroad Employment



Sec. 216.21  General.

    To be eligible for an employee, a spouse, or a divorced spouse 
annuity, the Railroad Retirement Act requires that an applicant must 
stop work for pay performed as an employee for a railroad employer. In 
addition, no employee, spouse or divorced spouse annuity may be paid for 
any month in which the employee, spouse or divorced spouse annuitant 
works for pay for any railroad employer after the date his or her 
annuity began. No annuity may be paid to a widow or widower, surviving 
divorced spouse, remarried widow or widower, child, or parent for any 
month such individual works for pay for a railroad employer.



Sec. 216.22  Work as an employee which affects payment.

    (a) Work for a railroad employer. Work for pay as an employee of a 
railroad employer always prevents payment of an annuity.
    (b) Work for last non-railroad employer. Work for pay in the service 
of the last non-railroad employer by whom an individual is employed will 
reduce the amount of the tier II benefit of the employee, spouse and 
supplemental annuity as provided in part 230 of this chapter. An 
individual's last non-railroad employer is:
    (1) Any non-railroad employer from whom the individual last resigned 
(in point of time) in order to receive an annuity; and
    (2) Any additional non-railroad employer from whom the individual 
resigned in order to have an annuity become payable. Employment which an 
individual stops within 6 months of the date on which the individual 
files for an annuity will be presumed in the absence of evidence to the 
contrary to be service from which the individual resigned in order to 
receive an annuity.
    (c) Corporate officers. An officer of a corporation will be 
considered to be an employee of the corporation. A director of a 
corporation acting solely in his or her capacity as such director is not 
an employee of the corporation.



Sec. 216.23  Work which does not affect eligibility.

    An individual may engage in any of the following without adversely 
affecting his or her annuity:
    (a) Work for a railway labor organization. An individual may work 
for a local lodge or division of a railway labor organization if the pay 
is under $25 a month, unless the work performed is solely for the 
purpose of collecting insurance premiums.
    (b) Work without pay. Work performed for any person or entity for 
which no pay is received, or where the pay merely constitutes 
reimbursement for out-of-pocket expenses, or where the amount received 
consists only of free will donations and there is no agreement that such 
donation shall constitute remuneration for services, does not affect 
entitlement to an annuity.
    (c) Self-employment. Self-employment is work performed in an 
individual's own business, trade or profession as an independent 
contractor, rather than as an employee. An individual is not self-
employed if the business is incorporated. The designation or description

[[Page 215]]

of the relationship between the individual and another person as 
anything other than that of an employer and employee is immaterial. If 
the Board determines that an employer-employee relationship exists, the 
fact that the employee is designated as a partner, coadventurer, agent, 
independent contractor, or the like will be disregarded. An individual 
determined to be an employee of a railroad employer pursuant to part 203 
of this chapter is not self-employed. Whether an individual performing 
services is an employee depends upon the degree to which the recipient 
of services controls the individual's work. Control is determined in 
accordance with general legal principles delineating an employer-
employee relationship. Among the factors considered are:
    (1) Instructions. An individual required to comply with instructions 
about when, where, and how to work is ordinarily an employee. 
Instructions may be oral or in the form of manuals or written procedures 
which show how the desired result is to be accomplished. An individual 
who ordinarily works without receiving instructions because he or she is 
highly skilled or knowledgeable may nevertheless be an employee if the 
employer has a right to instruct the individual in performance of the 
work.
    (2) Training. Training provided an individual by an employer 
indicates that the employer wants the work to be performed in a 
particular method or manner, especially if the training is given 
periodically or at frequent intervals. An individual may be trained by 
an experienced employee working with him or her, by correspondence, by 
required attendance at meetings, or by other methods.
    (3) Integration into the employer's business. Integration of an 
individual's services into the business operations of an employer 
generally shows that the individual is subject to direction and control. 
When the success or continuation of a business depends to an appreciable 
degree upon the performance of certain services, the individuals who 
perform those services must necessarily be subject to a certain amount 
of control by the owner of the business.
    (4) Services rendered personally. A requirement that an individual 
personally work for the employer indicates that the employer is 
interested in the methods as well as the results, and that the employer 
intends to control the result by controlling who does the work.
    (5) Hiring, supervising, and payment of assistants. An employer 
generally hires, supervises, and pays assistants. An individual who 
hires, supervises, and pays other workers at the direction of the 
employer may be an employee acting as a representative of the employer. 
However, if an individual hires, supervises, and pays his or her own 
assistants pursuant to a contract under which the individual agrees to 
provide materials and labor and under which the individual is 
responsible only for the attainment of a result, this factor indicates 
an independent contractor status.
    (6) Continuing work relationship. A work relationship between an 
individual and an employer which continues over time indicates that the 
individual is an employee. A relationship may continue if the individual 
works at frequently recurring, though somewhat irregular intervals, 
either on call of the employer or when work is available.
    (7) Set hours of work. A requirement that an individual work for an 
employer during a specified period of the day, week, month or year, or 
for a specified number of hours daily indicates that the individual is 
an employee. An individual whose occupation renders fixed hours 
impractical may be an employee if required by the employer to work at 
certain times.
    (8) Full time required. A requirement that an individual devote full 
time to the employer's business indicates that the individual is an 
employee. What full time means may vary with the intent of the parties, 
the nature of the occupation, and customs in the locality. Full-time 
work may be required indirectly even though not specified in writing or 
orally. An individual required to produce a minimum volume of business 
for an employer may be compelled to devote full time to producing the 
work. Prohibiting work for

[[Page 216]]

any other employer may require an individual to work full time to earn a 
living However, part-time work performed on a regular basis, or on call 
of the employer, or when work is available, may also render an 
individual an employee.
    (9) Working on employer's premises. Working on the employer's 
premises may indicate that an individual is an employee where by nature 
the work could be done elsewhere, because the employer's place of 
business is physically within the employer's direction and supervision. 
Desk space, telephone, and stenographic services provided by an employer 
place the worker within the employer's direction and supervision unless 
the worker has the option not to use these facilities. Work done off the 
employer's premises does not by itself indicate that the worker is not 
an employee because some occupations require that work be performed away 
from the premises of the employer. Control over the place of work is 
indicated when the person or persons for whom the services are performed 
have the right to compel the worker to travel a designated route, to 
canvass a territory within a certain time, or to work at specific places 
as required.
    (10) Order or sequence set. Performing tasks in the order or 
sequence set by the employer indicates that the worker is an employee. 
Often, because of the nature of an occupation, the person or persons for 
whom the services are performed do not set the order of the services or 
set the order infrequently. It is sufficient to show control, however, 
if such person or persons retain the right to do so.
    (11) Oral or written reports. Regular oral or written reports 
submitted to the employer indicate that the worker is an employee, 
compelled to account to the employer for his or her actions.
    (12) Payment by hour, week, month. Payment at a fixed rate per hour, 
week, or month indicates that an individual is an employee. Payment by 
commission with a guaranteed minimum salary, or by a drawing account at 
stated intervals with no requirement to repay amounts which exceed the 
individual's earnings, also indicates that an individual is an employee. 
Payment in a lump sum for a completed job indicates that an individual 
is self-employed. The lump sum may be computed by the number of hours 
required to do the job at a fixed hourly rate, or by weekly or monthly 
installments toward a lump sum agreed upon in advance as the total cost. 
Payment made on a straight commission basis generally indicates that the 
worker is an independent contractor.
    (13) Payment of business and/or traveling expenses. Payment by the 
employer of expenses which an individual incurs in connection with the 
employer's business indicates that the individual is an employee.
    (14) Furnishing of tools and materials. The fact that the person or 
persons for whom the services are performed furnish significant tools, 
materials, and other equipment tends to show the existence of an 
employer-employee relationship.
    (15) Investment in facilities. If the worker invests in facilities 
which are used by the worker in performing services and which are not 
typically maintained by employees, such as an office rented by the 
worker from a party unrelated to the worker or to the employer, this 
factor tends to indicate that the worker is an independent contractor. 
On the other hand, if all facilities necessary to the work which an 
individual performs are furnished without charge by the employer, this 
factor indicates the existence of an employer-employee relationship. 
Facilities include equipment or premises necessary for the work, other 
than items such as tools, instruments, and clothing which may be 
commonly provided by an employee in a particular trade.
    (16) Realization of profit or loss. An individual not in a position 
to realize a profit or suffer a loss as a result of work performed for 
an employer is an employee. An individual has an opportunity for profit 
or loss if he or she:
    (i) Hires, directs, and pays assistants;
    (ii) Has his or her own office, equipment, materials, or other 
facilities for doing the work;
    (iii) Has continuing and recurring liabilities or obligations, and 
success or failure depends on the relation of receipts to expenditures; 
or
    (iv) Agrees to perform specific jobs for prices agreed upon in 
advance and

[[Page 217]]

pays expenses incurred in connection with the work.
    (17) Working for more than one firm at a time. If a worker performs 
more than de minimus services for a number of unrelated persons or firms 
at the same time, this factor generally indicates that the worker is an 
independent contractor. However, a worker who performs services for more 
than one person may be an employee of each of the persons, especially 
where such persons are part of the same service arrangement.
    (18) Making service available to the general public. The fact that 
an individual makes his or her services available to the general public 
on a regular and consistent basis rather than to one employer indicates 
that the individual is self-employed rather than an employee of any one 
firm. An individual may make services available to the public by working 
from his or her own office with assistants, from his or her own home, by 
holding business licenses, by a listing in a business directory, or by 
advertising.
    (19) Employer's right to discharge. The right to discharge a worker 
is a factor which indicates that the worker is an employee and the 
person who possesses the right is an employer. An employer exercises 
control through the threat of dismissal, which causes the worker to obey 
the employer's instructions. An employer's right to discharge exists 
even if it is restricted due to a collective bargaining agreement. An 
employer ordinarily cannot end a relationship without incurring 
liability with a self-employed individual who meets contract 
specifications.
    (20) Employee's right to terminate. The fact that an individual has 
the right to end his or her relationship with an employer at any time 
without incurring liability for work to be performed indicates that the 
individual is an employee. A self-employed individual is legally 
obligated to satisfactorily complete a specific job.



Sec. 216.24  Relinquishment of rights to return to work.

    (a) What return to work rights must be given up. Before an 
individual may receive an annuity based on age, he or she must give up 
any seniority or other rights to return to work for any railroad 
employer.
    (b) When right to return to work is ended. An individual's right to 
return to work for a railroad employer is ended whenever any of the 
following events occur:
    (1) The employer reports to the Board that the individual no longer 
has the right;
    (2) The individual or an authorized agent of that individual gives 
the employer an oral or written notice of the individual's wish to give 
up that right and:
    (i) The individual certifies to the Board that the right has been 
given up;
    (ii) The Board notifies the employer of the individual's 
certification; and
    (iii) The employer either confirms the individual's right has been 
given up or fails to reply within 10 days following the day the Board 
mailed the notice to the employer;
    (3) An event occurs which under the established rules or practices 
of the employer automatically ends that right;
    (4) The employer or the individual or both take an action which 
clearly and positively ends that right;
    (5) The individual never had that right and permanently stops 
working;
    (6) The Board gives up that right for the individual, having been 
authorized to do so by the individual;
    (7) The individual dies; or
    (8) The individual signs a statement that he or she gives up all 
rights to return to work in order to receive a separation allowance or 
severance pay.

(The information collection requirements contained in paragraph (b) were 
approved by the Office of Management and Budget under control number 
3220-0016)



                       Subpart D_Employee Annuity



Sec. 216.30  General.

    The Railroad Retirement Act provides annuities for employees who 
have reached a specified age and have been credited with a specified 
number of years of service. The Act also provides annuities for 
employees who become disabled. In addition, to be eligible for an 
annuity an employee must comply with the work restrictions outlined in 
subpart C of this part.

[[Page 218]]



Sec. 216.31  Who is eligible for an age annuity.

    The Railroad Retirement Act provides annuities based on the 
employee's age for employees who have been credited with at least 10 
years of railroad service.
    (a) Annuities based on 10 years of service. An employee with 10 
years of railroad service but less than 30 years of service is eligible 
for an annuity if he or she:
    (1) Has attained retirement age; or
    (2) Has attained age 62 (the annuity cannot begin prior to the first 
full month during which the employee is age 62) but is less than 
retirement age. All components of the annuity are reduced for each month 
the employee is under retirement age when the annuity begins.
    (b) Annuities based on 30 years of service. An employee who has been 
credited with 30 years of railroad service is eligible for an annuity at 
age 60 (the annuity cannot begin prior to the first full month the 
employee is age 60). The Tier I component of the annuity is reduced if 
the employee meets the following conditions:
    (1) The employee annuity begins before the month in which the 
employee is age 62; and either
    (2) He or she had not attained age 60, prior to July 1, 1984; or
    (3) He or she had not completed 30 years of railroad service prior 
to July 1, 1984.
    (c) Change from employee disability to age annuity. A disability 
annuity paid to an employee through the end of the month before the 
month in which the employee attains retirement age is converted to an 
age annuity beginning with the month in which he or she attains 
retirement age.



Sec. 216.32  Who is eligible for a disability annuity.

    The Railroad Retirement Act provides two types of disability 
annuities for employees who have been credited with at least 10 years of 
railroad service. An employee may receive an annuity if his or her 
disability prevents work in his or her regular railroad occupation. An 
employee who cannot be considered for a disability based on ability to 
work in his or her regular railroad occupation may receive an annuity if 
his or her disability prevents work in any regular employment.
    (a) Disability for work in regular railroad occupation. An employee 
disabled for work in his or her regular occupation, as defined in part 
220 of this chapter, is eligible for a disability annuity if he or she:
    (1) Has not attained retirement age; and
    (2) Has a current connection with the railroad industry; and has 
either:
    (3) Completed 20 years of service; or
    (4) Completed 10 years of service and is at least 60 years old.
    (b) Disabled for work in any regular employment. An employee 
disabled for work in any regular employment, as defined in part 220 of 
this chapter, is eligible for a disability annuity if he or she:
    (1) Is under retirement age; and
    (2) Has completed 10 years of service.



Sec. 216.33  What is required for payment of an age or disability 
annuity.

    In addition to the eligibility requirements listed above, an 
employee may be required to meet other conditions before payment of his 
or her annuity may begin.
    (a) To receive payment of an employee annuity based on age, an 
eligible employee must:
    (1) Apply to be entitled to an annuity; and
    (2) Give up the right to return to service with his or her last 
railroad employer.
    (b) If a disability annuity is converted to an age annuity when the 
annuitant attains retirement age, the age annuity cannot be paid until 
the employee gives up the right to return to work as described in 
subpart C of this part. The employee may authorize the Board to 
relinquish any such right on his or her behalf at the time when he or 
she applies for the disability annuity.
    (c) To receive payment of an employee annuity based on disability, 
and eligible employee must apply to be entitled to an annuity.
    (d) When requested, the employee must submit evidence to support his 
or

[[Page 219]]

her application, such as proof of age or evidence of disability.

(The information collection requirements contained in this section were 
approved by the Office of Management and Budget under control number 
3220-0002)



                     Subpart E_Supplemental Annuity



Sec. 216.40  General.

    An employee with a current connection with the railroad industry at 
the time of retirement may qualify for a supplemental annuity in 
addition to the regular employee annuity. Supplemental annuities are 
paid from a separate account funded by employer taxes in addition to 
those assessed for regular annuities. The Board reduces a supplemental 
annuity if the employee receives a private pension based on 
contributions from a railroad employer.



Sec. 216.41  Who is entitled to a supplemental annuity.

    An employee is entitled to a supplemental annuity if he or she:
    (a) Has been credited with railroad service in at least one month 
before October 1981;
    (b) Is entitled to the payment of an employee annuity awarded after 
June 30, 1966;
    (c) Has a current connection with the railroad industry when the 
employee annuity begins;
    (d) Has given up the right to return to work as shown in subpart C 
of this part; and either
    (e) Is age 65 or older and has completed 25 years of service; or
    (f) Is age 60 or older and under age 65, has completed 30 years of 
service, and is awarded an annuity on or after July 1, 1974.



Sec. 216.42  How a private railroad pension affects a supplemental 
annuity.

    (a) What is a private railroad pension. The Board determines whether 
a pension established by a railroad employer is a private pension that 
will cause a reduction in the employee's supplemental annuity. A private 
pension for purposes of this subpart is a plan that:
    (1) Is a written plan or arrangement which is communicated to the 
employees to whom it applies;
    (2) Is established and maintained by an employer for a defined group 
of employees; and
    (3) Provides for the payment of definitely determinable benefits to 
employees over a period of years, usually for life, after retirement or 
disability. Such a plan is sometimes referred to as a defined benefit 
plan.
    (b) Defined contribution plan. A plan under which the employer is 
obligated to make fixed contributions to the plan regardless of profits 
(sometimes known as a money purchase plan) is a private pension plan. A 
plan under which the employer's contributions are discretionary is not a 
private pension plan under this section.
    (c) Other than retirement benefits. A plan which provides benefits 
not customarily considered retirement benefits (such as unemployment 
benefits, sickness or hospitalization benefits) is not a private pension 
plan under this section.
    (d) Effective date of private railroad pension for supplemental 
annuity purposes. A private pension reduces a supplemental annuity 
payment effective on the first day of the month after the month the 
Board determines that it is a private pension as defined in paragraph 
(a) of this section.
    (e) Effect of private railroad pension. A supplemental annuity is 
reduced by the amount of any private pension the employee is receiving 
which is attributable to an employer's contributions, less any amount by 
which the private pension is reduced because of the supplemental 
annuity. The supplemental annuity is not reduced for the amount of a 
private pension attributable to the employee's contributions. The Board 
will determine the amount of a private pension for any month which is 
attributable to the employee's contributions.



Sec. 216.43  Effect of a supplemental annuity on other benefits.

    (a) Employee annuity. A supplemental annuity that begins after 
December 31, 1974, does not affect the payment of a regular employee 
annuity. A supplemental annuity beginning prior to 1975 causes a 
reduction in the employee annuity as provided by section 3(j) of the 
Railroad Retirement Act of 1937.

[[Page 220]]

    (b) Spouse or survivor annuity. The payment of a supplemental 
annuity does not affect the amount of a spouse or survivor annuity.
    (c) Residual lump-sum. The amount of a supplemental annuity is not 
deducted from the gross residual lump-sum benefit. See part 234 of this 
chapter for an explanation of the residual lump-sum benefit.



             Subpart F_Spouse and Divorced Spouse Annuities



Sec. 216.50  General.

    The Railroad Retirement Act provides annuities for the spouse, and 
divorced spouse, of an employee who is entitled to an employee annuity. 
A spouse may receive an annuity based on age, or on having a child of 
the employee in his or her care. A divorced spouse may only receive an 
annuity based on age. No spouse or divorced spouse annuity may be paid 
based upon disability.



Sec. 216.51  Who is eligible for a spouse annuity.

    (a) To be eligible for an annuity, a spouse must:
    (1) Be the husband or wife, as defined in part 222 of this chapter, 
of an employee who is entitled to an annuity described under subpart D 
of this part; and
    (2) Stop working for any railroad employer.
    (b) Where the employee's annuity began before January 1, 1975, the 
employee has completed less than 30 years of railroad service, and is 
age 65 or older, the spouse must be:
    (1) Age 65 or older;
    (2) Less than age 65 and have in his or her care a disabled child or 
minor child (a child under 18 years old if the spouse claimant is a 
wife, or under 16 years old if the spouse claimant is a husband) of the 
employee; or
    (3) Age 62 or older but under age 65. In such case, all annuity 
components are reduced for each month the spouse is under age 65 at the 
time the annuity begins.
    (c) Where the employee's annuity begins after December 31, 1974, the 
employee has completed 10 years but less than 30 years of railroad 
service, and has attained age 62, the spouse must be:
    (1) Retirement age or older;
    (2) Less than retirement age and have in his or her care a disabled 
child or a minor child (a child under 18 years old if the spouse 
claimant is a wife, or under 16 years old if the spouse claimant is a 
husband) of the employee; or
    (3) Age 62 or older but under retirement age. In such case, all 
annuity components are reduced for each month the spouse is under 
retirement age at the time the annuity begins.
    (d) Where the employee's annuity began after June 30, 1974, the 
employee has completed 30 years of railroad service, and is age 60 or 
older, the spouse must be:
    (1) Age 60 or older;
    (2) Less than age 60 and have in his or her care a disabled child or 
a minor child (a child under 18 years old if the spouse claimant is a 
wife, or under 16 years old if the spouse claimant is a husband) of the 
employee; or
    (3) Age 60 but less than retirement age. In such case, the tier I 
component is reduced if the following conditions are met:
    (i) The employee was under age 62 at the time his or her annuity 
began;
    (ii) The employee annuity began after June 30, 1984;
    (iii) The employee was under age 60 on June 30, 1984 or completed 30 
years of railroad service after June 30, 1984; and
    (iv) The spouse annuity begins after June 30, 1984.



Sec. 216.52  Who is eligible for an annuity as a divorced spouse.

    To be eligible for a divorced spouse annuity, the employee annuitant 
must be at least age 62 and the divorced spouse (see Sec. 222.22 of 
this chapter) must:
    (a) Be the divorced wife or husband of an employee;
    (b) Stop work for a railroad employer;
    (c) Not be entitled to an old-age or disability benefit under the 
Social Security Act based on a primary insurance amount that is equal to 
or greater than one-half of the employee's tier I primary insurance 
amount; and either
    (d) Have attained retirement age; or

[[Page 221]]

    (e) Have attained age 62 but be under retirement age. The annuity is 
reduced for each month the spouse is under retirement age at the time 
the annuity begins.



Sec. 216.53  What is required for payment.

    An eligible spouse or divorced spouse must:
    (a) Apply to be entitled to an annuity; and
    (b) Give up the right to return to work for a railroad employer.

(Approved by the Office of Management and Budget under control number 
3220-0016 and 3220-0042)



Sec. 216.54  Who is an employee's wife or husband.

    An employee's wife or husband is an individual who--
    (a) Is married to the employee; and
    (b) Has been married to the employee for at least one year 
immediately before the date the spouse applied for annuity;
    (c) Is the natural parent of the employee's child;
    (d) Was entitled to an annuity as a widow(er), a parent, or a 
disabled child under this part in the month before he or she married the 
employee; or
    (e) Could have been entitled to a benefit listed in paragraph (d) of 
this section, if the spouse had applied and been old enough in the month 
before he or she married the employee.



Subpart G_Widow(er), Surviving Divorced Spouse, and Remarried Widow(er) 
                                Annuities



Sec. 216.60  General.

    The Railroad Retirement Act provides annuities for the widow(er), 
surviving divorced spouse, or remarried widow(er) of an employee. The 
deceased employee must have completed 10 years of railroad service and 
have had a current connection with the railroad industry at the time of 
his or her death. A widow(er), surviving divorced spouse, or remarried 
widow(er) may receive an annuity based on age, on disability, or on 
having a child of the employee in his or her care.



Sec. 216.61  Who is eligible for an annuity as a widow(er).

    (a) A widow(er) of an employee who has completed 10 years of 
railroad service and had a current connection with the railroad industry 
at death is eligible for an annuity if he or she:
    (1) Has not remarried; and either
    (2) Has attained retirement age;
    (3) Is at least 50 but less than 60 years of age and became disabled 
as defined in part 220 of this chapter before the end of the period 
described in Sec. 216.68 (this results in a reduced annuity);
    (4) Is less than retirement age but has in his or her care a child 
who either is under age 18 (16 with respect to the tier I component) or 
is disabled and who is entitled to an annuity under subpart H of this 
part; or
    (5) Is at least 60 years of age but has not attained retirement age. 
(In this case, all components of the annuity are reduced for each month 
the widow(er) is age 62 or over but under retirement age when the 
annuity begins. For each month the widow(er) is at least age 60 but 
under age 62, all components of the annuity are reduced as if the 
widow(er) were age 62).



Sec. 216.62  Who is eligible for an annuity as a surviving divorced 
spouse.

    (a) A surviving divorced spouse of an employee who completed 10 
years of railroad service and had a current connection with the railroad 
industry at death, is eligible for an annuity if he or she:
    (1) Is unmarried;
    (2) Is not entitled to an old-age benefit under the Social Security 
Act that is equal to or higher than the surviving divorced spouse's 
annuity before any reduction for age; and either
    (3) Has attained retirement age;
    (4) Is at least 50 years of age but less than retirement age and is 
disabled as defined in part 220 of this chapter before the end of the 
period described in Sec. 216.68 (this results in a reduced annuity.);
    (5) Is less than retirement age but has in his or her care a child 
who either is under age 16 or is disabled and who is entitled to an 
annuity under subpart H of this part; or
    (6) Is at least 60 years of age but has not attained retirement age. 
In this

[[Page 222]]

case, the annuity is reduced for each month the surviving spouse is 
under retirement age when the annuity begins.
    (b) A disabled surviving spouse's annuity is converted to an annuity 
based on age beginning the month he or she becomes 60 years old. The 
annuity rate does not change.
    (c) If a surviving divorced spouse marries after attaining age 60 
(or age 50 if he or she is a disabled surviving divorced spouse), such 
marriage shall be deemed not to have occurred.



Sec. 216.63  Who is eligible for an annuity as a remarried widow(er).

    (a) A widow(er) of an employee who completed 10 years of railroad 
service and had a current connection with the railroad industry at death 
is eligible for an annuity as a remarried widow(er) if he or she:
    (1) Remarried either:
    (i) After having attained age 60 (after age 50 if disabled); or
    (ii) Before age 60 but the marriage terminated;
    (2) Is not entitled to an old-age benefit under the Social Security 
Act that is equal to or higher than the full amount of the remarried 
widow(er)'s annuity before any reduction for age; and
    (3) Has attained retirement age;
    (4) Is at least 50 but less than 60 years of age and is disabled as 
defined in part 220 of this chapter before the end of the period 
described in Sec. 216.68 (this results in a reduced annuity);
    (5) Has not attained retirement age but has in his or her care a 
child who either is under age 16 or is disabled, and who is entitled to 
an annuity under subpart H of this part; or
    (6) Is at least age 60 but has not attained retirement age. (In this 
case, the annuity is reduced for each month the remarried widow(er) is 
under retirement age when the annuity begins.)
    (b) An individual entitled to a widow(er)'s annuity may be entitled 
to an annuity as a remarried widow(er) if he or she:
    (1) Remarries after having attained age 60 (after age 50 if he or 
she has been determined to be disabled prior to his or her remarriage) 
and is not a surviving divorced spouse; or
    (2) Is entitled to an annuity based upon having a child of the 
employee in his or her care and marries an individual entitled to a 
retirement, disability, widow(er)'s, mother's, father's, parent's, or 
disabled child's benefit under the Railroad Retirement Act or Social 
Security Act.



Sec. 216.64  What is required for payment.

    An eligible widow(er), surviving divorced spouse, or remarried 
widow(er) must:
    (a) Apply to be entitled for an annuity; and
    (b) Submit evidence requested by the Board to support his or her 
application.

(Approved by the Office of Management and Budget under control number 
3220-0030)



Sec. 216.65  Who is an employee's widow(er).

    An individual who was married to the employee at the employee's 
death is the deceased employee's widow(er) if he or she:
    (a) Was married to the employee for at least 9 months before the day 
the employee died;
    (b) Is the natural parent of the employee's child;
    (c) Was married to the employee when either the employee or the 
widow(er) adopted the other's child, or they both legally adopted a 
child who was then under 18 years old;
    (d) Was married to the employee less than 9 months before the 
employee died but, at the time of marriage, the employee was reasonably 
expected to live for 9 months; and
    (1) The employee's death was accidental;
    (2) The employee died in the line of duty while he or she was 
serving active duty as a member of armed forces of the United States; or
    (3) The surviving spouse was previously married to the employee for 
at least 9 months;
    (e) Was entitled in the month before the month of marriage to 
either:
    (1) A benefit under section 202 of the Social Security Act as a 
widow, widower, spouse (divorced spouse, surviving divorced spouse), 
father, mother, parent, or disabled child; or
    (2) An annuity under the Railroad Retirement Act as a widow, 
widower,

[[Page 223]]

divorced spouse, or surviving divorced spouse, parent or disabled child; 
or
    (f) Could have been entitled to a benefit listed in paragraph (e) of 
this section, if the widow(er) had applied and been old enough to 
qualify therefor in the month before the month of marriage.



Sec. 216.66  Who is an employee's surviving divorced spouse.

    An individual who was married to the employee is the deceased 
employee's surviving divorced spouse if he or she:
    (a) Was married to the employee for a period of at least 10 years 
immediately before the date the divorce became final, and applies for an 
annuity based on age or disability; or
    (b) Applies for an annuity based on having a ``child in care'' and 
either:
    (1) Is the natural parent of the employee's child;
    (2) Was married to the employee at the time the employee or the 
surviving divorced spouse adopted the other's child who was then under 
18 years old; or
    (3) Was married to the employee at the time they adopted a child who 
was then under 18 years old.



Sec. 216.67  ``Child in care.''

    (a) Railroad Retirement Act. Part 222 of this chapter sets forth 
what is required to establish that a child is in an individual's care 
for purposes of the Railroad Retirement Act. This definition is used to 
establish eligibility for the tier II component of a female spouse or 
widow(er) annuity under that Act. Under this definition a child must be 
under age 18 or under a disability before any benefit is payable based 
upon having the child in care.
    (b) Social Security Act. In order to establish eligibility for the 
tier I components of a spouse or widow(er) annuity, and eligibility for 
a surviving divorced spouse annuity based upon having a child of the 
employee in care, the definition of ``child in care'' found in the 
Social Security Act is used. Under this definition, a child must be 
under age 16 or under a disability.



Sec. 216.68  Disability period for widow(er), surviving divorced spouse, 
or remarried widow(er).

    A widow(er), surviving divorced spouse, or remarried widow(er) who 
has a disability as defined in part 220 of this chapter is eligible for 
an annuity only if the disability began before the end of a period 
which:
    (a) Begins in the later of:
    (1) The month in which the employee died;
    (2) The last month for which the widow(er) or surviving divorced 
spouse was entitled to an annuity for having the employee's child in 
care; or
    (3) The last month for which the widow(er) or surviving divorced 
spouse was entitled to a previous annuity based on disability; and
    (b) Ends with the earlier of:
    (1) The month before the month in which the widow(er) or surviving 
divorced spouse or remarried widow(er) become 60 years old; or
    (2) The last day of the last month of a 7-year period (84 
consecutive months) following the month in which the period began.



                        Subpart H_Child's Annuity



Sec. 216.70  General.

    The Railroad Retirement Act provides an annuity for the child of a 
deceased employee but not for the child of a living employee. The Act 
does provide that the child of a living employee can establish another 
individual's eligibility for a spouse annuity or cause an increase in 
the annuities of an employee and spouse. The eligibility requirements 
described in this subpart also apply for the following purposes, except 
as otherwise indicated in this part:
    (a) To establish annuity eligibility for a spouse under subpart F of 
this part if he or she has the employee's eligible child in care;
    (b) To establish annuity eligibility for a widow(er), or surviving 
divorce spouse or remarried widow(er) under subpart G of this part if he 
or she has the employee's child in care; or
    (c) To provide an increase in the employee's annuity under the 
Social Security Overall Minimum Guaranty (see

[[Page 224]]

part 229) by including the eligible child.



Sec. 216.71  Who is eligible for a child's annuity.

    An individual is eligible for a child's annuity if the individual:
    (a) Is a child of an employee who has completed 10 years of railroad 
service and had a current connection with the railroad industry when he 
or she died;
    (b) Is not married at the time the application is filed;
    (c) Is dependent upon the employee as defined in part 222 of this 
chapter; and
    (d) Meets one of the following at the time the application is filed:
    (1) Is under age 18; or
    (2) Is age 18 or older and either:
    (i) Is disabled as defined in part 220 of this chapter before 
attaining age 22 (the disability must continue through the time of 
application for benefits);
    (ii) Is under age 19 and is a full-time student as defined in Sec. 
216.74 of this part; or
    (iii) Becomes age 19 in a month in which he or she is a full-time 
student and has not completed the requirement for, or received a diploma 
or certificate from, a secondary school.



Sec. 216.72  What is required for payment of a child's annuity.

    An eligible child of a deceased employee is entitled to an annuity 
upon applying therefor and submitting any evidence requested by the 
Board.

(Approved by the Office of Management and Budget under control number 
3220-0030)



Sec. 216.73  Who may be re-entitled to a child's annuity.

    If an individual's entitlement to a child's annuity has ended, the 
individual may be re-entitled if he or she has not married and he or she 
applies to be re-entitled. The re-entitlement may begin with:
    (a) The first month in which the individual is a full-time student 
if he or she is under age 19, or is age 19 and has not completed 
requirements for, or received a diploma or certificate from, a secondary 
school;
    (b) The first month the individual is disabled, if the disability 
began before he or she attained age 22 and continues through the time of 
application for benefits; or
    (c) The first month in which the individual is under a disability 
that began before the last day of a 7-year period (84 consecutive 
months) following the month in which the previous child's annuity ended, 
or the individual was no longer included as a disabled child in a 
railroad retirement annuity paid under the Social Security Overall 
Minimum Annuity (see part 229).



Sec. 216.74  When a child is a full-time elementary or secondary school 
student.

    (a) A child is a full-time elementary or secondary school student if 
he or she meets all of the following conditions:
    (1) The child is in full-time attendance at an elementary or 
secondary school; or
    (2) The child is instructed in elementary or secondary education at 
home in accordance with a home school law of the State or other 
jurisdiction in which the child resides; or
    (3) The child is in an independent study elementary or a secondary 
education program administered by the local school, district, or 
jurisdiction, which is in accordance with the law of the State or other 
jurisdiction in which he or she resides.
    (b) The child is in full-time attendance in a day or evening non-
correspondence course of at least 13 weeks duration and he or she is 
carrying a subject load that is considered full-time for day students 
under the institution's standards and practices. If he or she is in a 
home schooling program as described in paragraph (a)(2) of this section, 
he or she must be carrying a subject load that is considered full-time 
for day students under the standards and practices set by the State or 
other jurisdiction in which the student resides.
    (c) To be considered in full-time attendance, scheduled attendance 
must be at the rate of at least 20 hours per week unless one of the 
exceptions in paragraphs (c) (1) and (2) of this section applies. If the 
student is in an independent study program as described in paragraph 
(a)(3) of this section, the number of hours spent in school attendance 
is determined by combining

[[Page 225]]

the number of hours of attendance at a school facility with the agreed 
upon number of hours spent in independent study. The student may still 
be considered in full-time attendance if the scheduled rate of 
attendance is below 20 hours per week if the Board finds that:
    (1) The school attended does not schedule at least 20 hours per week 
and going to that particular school is the student's only reasonable 
alternative; or
    (2) The student's medical condition prevents him or her from having 
scheduled attendance of at least 20 hours per week. To prove that the 
student's medical condition prevents him or her from scheduling 20 hours 
per week, the Board may request that the student provide appropriate 
medical evidence or a statement from the school; or
    (3) The student is not attending classes, but is graduating in that 
month and classes ended the month before.
    (d) An individual is not a full-time student if, while attending an 
elementary or secondary school, he or she is paid compensation by an 
employer who has requested or required that the individual attend the 
school. An individual is not a full time student while he or she is 
confined in a penal institution or correctional facility because he or 
she committed a felony after October 19, 1980.
    (e) A student who reaches age 19 but has not completed the 
requirements for a secondary school diploma or certificate and who is a 
full-time elementary or secondary student, as defined in paragraph (a) 
of this section, will continue to be eligible for benefits until the 
first day of the first month following the end of the quarter or 
semester in which he or she is then enrolled, or if the school is not 
operated on a quarter or semester system, the earlier of:
    (1) The first day of the month following completion of the course(s) 
in which he or she was enrolled when age 19 was reached; or
    (2) The first day of the third month following the month in which he 
or she reached age 19.

[63 FR 17326, Apr. 9, 1998]



Sec. 216.75  When a child is a full-time student during a period of 
non-attendance.

    A student who has been in full-time attendance at an elementary or 
secondary school is considered a full-time student during a period of 
non-attendance (include part-time attendance) if:
    (a) The period of non-attendance is 4 consecutive months or less;
    (b) The student shows to the satisfaction of the Board that he or 
she intends to return, or the student does return, to full-time 
attendance at the end of the period; and
    (c) The student has not been expelled or suspended from the school.



                       Subpart I_Parent's Annuity



Sec. 216.80  General.

    The Railroad Retirement Act provides an annuity for the surviving 
parent of a deceased employee. The deceased employee must have completed 
10 years of railroad service and have had a current connection with the 
railroad industry at the time of his or her death. A parent may only 
receive an annuity based on age.



Sec. 216.81  Who is eligible for a parent's annuity.

    (a) Where the employee is not survived by a widow(er), or child who 
is or ever could be entitled to an annuity as described by subpart G or 
H of this part, a parent of the deceased employee is eligible for both 
the tier I and tier II components of an annuity if he or she:
    (1) Is age 60 or older;
    (2) Has not married since the employee died;
    (3) Received one-half of his or her support (as defined in part 222 
of this chapter) from the employee at the time the employee died; and
    (4) Files proof of support as provided for in paragraphs (b)(4) and 
(b)(5) of this section.
    (b) Where the employee is survived by a widow(er), or child who is 
or ever could be entitled to an annuity as described by subpart G or H 
of this part, a parent of the deceased employee is eligible for an 
annuity consisting of the tier I component alone if he or she:
    (1) Is age 60 or older;

[[Page 226]]

    (2) Has not married since the employee died;
    (3) Is not in receipt of an old age benefit under the Social 
Security Act equal to or exceeding the amount of the parent's tier I 
annuity amount before it is reduced for the family maximum but after the 
sole survivor minimum is considered;
    (4) Received at least one-half of his or her support (as defined in 
part 222 of this chapter) from the employee either:
    (i) When the employee died, or
    (ii) At the beginning of the period of disability if the employee 
has a period of disability (as explained in part 220 of this chapter) 
which did not end before death; and
    (5) Files proof of support with the Board within 2 years after 
either:
    (i) The month in which the employee filed an application for a 
period of disability if support is to be established as of the beginning 
of the period of disability; or
    (ii) The date of the employee's death if support is to be 
established at that point.
    (c) The Board may accept proof of support filed after the 2-year 
period for reasons which constitute good cause to do so as that term is 
defined in part 219 of this chapter.



Sec. 216.82  What is required for payment.

    An eligible parent must file an application and submit the evidence 
requested by the Board to be entitled to an annuity.

(Approved by the Office of Management and Budget under control number 
3220-0030)



             Subpart J_Eligibility for More Than One Annuity



Sec. 216.90  General.

    An individual may meet the eligibility provisions for more than one 
annuity described in this part. The Railroad Retirement Act generally 
requires that the total amount of annuities otherwise independently 
payable to one individual must be reduced if that individual is entitled 
to multiple annuities. Entitlement as a survivor includes entitlement as 
a widow(er), surviving divorced spouse, remarried widow(er), child, or 
parent.



Sec. 216.91  Entitlement as an employee and spouse, divorced spouse, 
or survivor.

    (a) General. If an individual is entitled to an annuity as a spouse, 
divorced spouse or survivor, and is also entitled to an employee 
annuity, then the spouse, divorced spouse or survivor annuity must be 
reduced by the amount of the employee annuity. However, this reduction 
does not apply (except as provided in paragraph (b) of this section) if 
the spouse, divorced spouse or survivor or the individual upon whose 
earnings record the spouse, divorced spouse or survivor annuity is based 
worked for a railroad employer or as an employee representative before 
January 1, 1975.
    (b) Tier I reduction. If an individual is entitled to an annuity as 
a spouse, divorced spouse or survivor, and is also entitled to an 
employee annuity, then the tier I component of the spouse, divorced 
spouse or survivor annuity must be reduced by the amount of the tier I 
component of the employee annuity. Where the spouse or survivor is 
entitled to a tier II component, then a portion of this reduction may be 
restored in the computation of this component.



Sec. 216.92  Entitlement as a spouse or divorced spouse and as a 
survivor.

    If an individual is entitled to both a spouse or divorced spouse and 
survivor annuity, only the larger annuity will be paid. However, if the 
individual so chooses, he or she can receive the smaller annuity rather 
than the larger annuity.



Sec. 216.93  Entitlement to more than one survivor annuity.

    If an individual is entitled to more than one survivor annuity, only 
the larger annuity will be paid. However, if the individual so chooses, 
he or she can receive the smaller annuity rather than the larger 
annuity.



Sec. 216.94  Entitlement to more than one divorced spouse annuity.

    If an individual is entitled to more than one annuity as a divorced 
spouse, only the larger annuity will be paid. However, if the individual 
so chooses, he or she can receive the smaller annuity rather than the 
larger annuity.

[[Page 227]]



PART 217_APPLICATION FOR ANNUITY OR LUMP SUM--Table of Contents




                            Subpart A_General

Sec.
217.1 Introduction.
217.2 Definitions.
217.3 Need to file an application.

                         Subpart B_Applications

217.5 When an application is a claim for an annuity or lump sum.
217.6 What is an application filed with the Board.
217.7 Claim filed with the Social Security Administration.
217.8 When one application satisfies the filing requirement for other 
          benefits.
217.9 Effective period of application.
217.10 Application filed after death.
217.11 ``Good cause'' for delay in filing application.

                     Subpart C_Filing An Application

217.15 Where to file.
217.16 Filing date.
217.17 Who may sign an application.
217.18 When application is not acceptable.
217.19 Representative of the claimant selected after application is 
          filed.
217.20 When a written statement is used to establish the filing date.
217.21 Deterred from filing.

                  Subpart D_Cancellation of Application

217.25 Who may cancel an application.
217.26 How to cancel an application.
217.27 Effect of cancellation.

                     Subpart E_Denial of Application

217.30 Reasons for denial of application.
217.31 Applicant's right to appeal denial.

    Authority: 45 U.S.C. 231d and 45 U.S.C. 231f.

    Source: 47 FR 7647, Feb. 22, 1982, unless otherwise noted.



                            Subpart A_General



Sec. 217.1  Introduction.

    This part prescribes how to apply for an annuity or lump-sum payment 
under this chapter. It contains the rules for the filing and 
cancellation of an application and the period of time the application is 
in effect. Eligibility requirements for an annuity and for a lump-sum 
payment are found respectively in parts 216 and 234 of this chapter.

[54 FR 13363, Apr. 3, 1989]



Sec. 217.2  Definitions.

    The following definitions are used in this part:
    Applicant means a person who signs an application for an annuity or 
lump sum for himself or herself or for some other person.
    Application refers only to a form described in Sec. 217.6.
    Apply or file means to sign a form or statement that the Railroad 
Retirement Board accepts as an application.
    Award means to process a form to make a payment. An annuity is 
awarded on the date the payment form is processed.
    Claimant means a person who files for an annuity or lump sum for 
himself or herself or the person for whom an application is filed.



Sec. 217.3  Need to file an application.

    In addition to meeting other requirements, a person must file an 
application to become entitled to an annuity or lump sum. Filing an 
application will--
    (a) Permit a formal decision on whether the person is entitled to an 
annuity or lump sum;
    (b) Protect a person's entitlement to an annuity for as many as 12 
months before the application is filed; and
    (c) Provide the right to appeal if the person is dissatisfied with 
the decision (see part 260 of this chapter).

(Approved by the Office of Management and Budget under control numbers 
3220-0030, 3220-0031 and 3220-0042)

[47 FR 7647, Feb. 22, 1982, as amended at 52 FR 11017, Apr. 6, 1987]



                         Subpart B_Applications



Sec. 217.5  When an application is a claim for an annuity or lump sum.

    An application is a claim for an annuity or lump sum if it meets all 
of the following conditions:
    (a) It is on an application form completed and filed with the Board 
as described in Sec. 217.6;

[[Page 228]]

    (b) It is signed by the claimant or by someone described in Sec. 
217.17 who can sign the application for the claimant;
    (c) It is filed with the Board on or before the date of death of the 
claimant. (See Sec. 217.10 for limited exceptions.)

(Approved by the Office of Management and Budget under control number 
3220-0002)

[47 FR 7647, Feb. 22, 1982, as amended at 52 FR 11017, Apr. 6, 1987]



Sec. 217.6  What is an application filed with the Board.

    (a) General. An application filed with the Board is generally one 
that is filed on a form set up by the Board for that purpose. See part 
200 of this chapter for a list of application forms.
    (b) Claim filed with the Social Security Administration. An 
application filed for benefits under title II of the Social Security Act 
on one of the forms set up by the Social Security Administration for 
that purpose (except an application for a disability insurance benefit 
that terminated before the employee completed his or her 120th month of 
creditable railroad service) is also considered an application for an 
annuity or lump sum if it is filed as shown in Sec. 217.7.
    (c) Claim filed with the Veterans Administration. An application 
filed with the Veterans Administration on one of its forms for survivor 
benefits under section 3005 of title 38, United States Code, is also 
considered an application for a survivor annuity.



Sec. 217.7  Claim filed with the Social Security Administration.

    (a) Claim is for life benefits. An application for life benefits 
under title II of the Social Security Act is an application for an 
annuity if the conditions either in paragraphs (a)(1), (2), and (3) or 
in paragraph (a)(4) of this section are met:
    (1) The application was filed because the applicant did not know he 
or she was eligible for an annuity under the Railroad Retirement Act. 
The Board must have or receive evidence indicating why the applicant 
thought that he or she lacked eligibility for an annuity.
    (2) The claimant would have been entitled to and would currently be 
entitled to an annuity under subpart B or D of part 216 of this chapter 
if the applicant had applied for the annuity on the date the social 
security application was filed.
    (3) The applicant asks the Board in a written statement to consider 
the application for social security benefits as an application for an 
employee or spouse annuity.
    (4) The application was filed because the employee had less than 10 
years of creditable railroad service, and having established entitlement 
to social security benefits and continued working in railroad service, 
subsequently acquired 10 years of railroad service.
    (b) Claim is for death benefits. An application for death benefits 
under title II of the Social Security Act is an application for an 
annuity or lump sum if--
    (1) The application is filed based on the death of an employee and 
the Board has jurisdiction for the payment of survivor benefits based on 
the compensation record of the deceased employee; and
    (2) The claimant is eligible for an annuity or a lump-sum death 
payment on the date the application is filed.



Sec. 217.8  When one application satisfies the filing requirement for 
other benefits.

    An annuity application filed with the Board is generally considered 
as an application for other benefits to which a person is or may be 
eligible. Therefore a claimant does not need to file another application 
to be entitled to any of the following types of benefits:
    (a) An employee age annuity if--
    (1) The employee's application for a disability annuity is denied 
and the employee is eligible for the age annuity on the date the 
application is filed; or
    (2) The employee is entitled to a disability annuity in the month 
before the month he or she is 65 years old.
    (b) An employee disability annuity if an application for an age 
annuity is denied and the employee is eligible for the disability 
annuity on the date the application is filed.
    (c) An accrued employee or supplemental annuity, or a residual lump 
sum, if a claimant is eligible for one of these payments when he or she 
files an

[[Page 229]]

application for a survivor annuity or lump-sum payment under this 
chapter.
    (d) A widow(er)'s annuity if the widow(er) was entitled to a spouse 
annuity in the month before the month the employee died.
    (e) A widow(er)'s annuity if the widow(er) was included in the 
computation of the employee's annuity under the social security overall 
minimum provision of the Railroad Retirement Act in the month before the 
month the employee died.
    (f) A child's annuity if the spouse of the employee had the child 
``in care'' and was entitled to a spouse annuity in the month before the 
month the employee died.
    (g) A child's annuity or child's full-time student annuity if the 
child of the employee was included in the computation of the employee's 
annuity under the social security overall minimum provision of the 
Railroad Retirement Act in the month before the month the employee died.
    (h) A widow(er)'s annuity based on age if the widow(er) was entitled 
to a widow(er)'s annuity based on disability in the month before the 
month in which he or she attains age 60.
    (i) A widow(er)'s annuity based on age or disability if a widow(er), 
who was receiving an annuity because he or she had the employee's child 
``in care'', is eligible for an age or disability annuity when he or she 
no longer has an eligible child ``in care''.
    (j) A spouse annuity based on age if a spouse, who was receiving an 
annuity because he or she had the employee's child ``in care'', is 
eligible for an unreduced age annuity when he or she no longer has an 
eligible child ``in care''.
    (k) A widow(er)'s annuity based upon having the employee's child 
``in care'' if during the time the widow(er) is entitled to an annuity 
based on disability, he or she has ``in care'' a child of the deceased 
employee.
    (l) A divorced spouse annuity if the divorced spouse was entitled to 
a spouse annuity reduced for age in the month before the month of the 
effective date of the final decree of divorce.
    (m) A divorced spouse annuity if the spouse claimant has remarried 
the employee during the six-month retroactive period of the spouse 
annuity application.
    (n) A divorced spouse annuity if the divorced spouse was entitled to 
a spouse annuity not reduced for age in the month before the month of 
the effective date of the final decree of divorce and would also be 
entitled to a divorced spouse annuity not reduced for age.
    (o) A surviving divorced spouse annuity if the surviving divorced 
spouse was entitled to a divorced spouse annuity in the month before the 
month the employee died.
    (p) A remarried widow(er)'s annuity if the remarried widow(er) was 
entitled to a widow(er)'s annuity in the month before the month of 
remarriage.
    (q) A remarried widow(er)'s annuity or a surviving divorced spouse 
annuity based on age or disability if the remarried widow(er) or 
surviving divorced spouse, who was receiving an annuity because he or 
she had the employee's child ``in care'', is eligible for an age or 
disability annuity when he or she no longer has an eligible child ``in 
care''.
    (r) A remarried widow(er)'s annuity or a surviving divorced spouse 
annuity based on age if the remarried widow(er) or the surviving 
divorced spouse was entitled to an annuity based on the disability in 
the month before the month in which he or she attains age 65.
    (s) A remarried widow(er)'s annuity or a surviving divorced spouse 
annuity based on age if the remarried widow(er) or surviving divorced 
spouse, who was receiving an annuity based on disability, is 60 years 
old or older when he or she recovers from the disability.
    (t) A benefit under title II of the Social Security Act unless the 
applicant restricts the application only to an annuity payable under the 
Railroad Retirement Act.
    (u) An accrued annuity due at the death of a spouse or divorced 
spouse if the claimant is entitled to an employee annuity on the same 
claim number.
    (v) A full-time student's annuity if the student was entitled to a 
child's annuity in the month before the month the child attained age 18.

[47 FR 7647, Feb. 22, 1982, as amended at 54 FR 13363, Apr. 3, 1989; 60 
FR 21982, May 4, 1995; 66 FR 27454, May 17, 2001]

[[Page 230]]



Sec. 217.9  Effective period of application.

    (a) When effective period ends. The effective period of an 
application ends on the date of the notice of an initial decision 
denying the claim. If a timely appeal is made (see part 260 of this 
chapter) the effective period of the application ends on the date of the 
notice of the decision of the referee, on the date of the notice of the 
final decision of the Board, or when court review of the denial has been 
completed. After the effective period of an application ends, the person 
must file a new application for any annuity or lump sum to which the 
claimant believes he or she is eligible.
    (b) Application filed before claimant is eligible--(1) General rule. 
Except as shown in paragraph (b)(2) and paragraph (b)(3) of this 
section, an application for an annuity must be denied if it is filed 
with the Board more than three months before the date an annuity can 
begin.
    (2) Application for disability annuity. If the Board determines that 
a claimant for a disability annuity is disabled under part 220 of this 
chapter, beginning with a date after the application is filed and before 
a final decision is made, the application is treated as though it were 
filed on the date the claimant became disabled. The claimant may be an 
employee, widow(er), surviving divorced spouse, remarried widow(er), or 
surviving child.
    (3) Application for spouse annuity filed simultaneously with 
employee disability annuity application. When the qualifying employee's 
annuity application effective period is determined by the preceding 
paragraph (b)(2) of this section, a spouse who meets all eligibility 
requirements may file an annuity application on the same date as the 
employee claimant. The spouse application will be treated as though it 
were filed on the later of the actual filing date or the employee's 
annuity beginning date.
    (c) Application filed after the claimant is eligible--(1) 
Application for lump-sum death payment. An application for a lump-sum 
death payment under part 234 of this chapter must be filed within two 
years after the death of the employee. This period may be extended under 
the Soldiers' and Sailors' Civil Relief Act of 1940, or when the 
applicant can prove ``good cause'' under Sec. 217.11 of this chapter 
for not filing within the time limit.
    (2) Application for annuity unpaid at death. An application for an 
annuity due but unpaid at death under part 234 of this chapter must be 
filed within two years after the death of the person entitled to the 
annuity. This period may be extended under the Soldiers' and Sailors' 
Civil Relief Act of 1940, or when the applicant can prove ``good cause'' 
under Sec. 217.11 of this chapter for not filing within the time limit.
    (3) Application for residual lump sum. An application for a residual 
lump sum under part 234 of this chapter may be filed at any time after 
the death of the employee.
    (4) Application for a period of disability. In order to be entitled 
to a period of disability under part 220 of this chapter, an employee 
must apply while he or she is disabled under part 220 or not later than 
12 months after the month in which the period of disability ends except 
that an employee who is unable to apply within the 12-month period after 
the period of disability ends because his or her physical condition 
limited his or her activities to the extent that he or she could not 
complete and sign an application or because he or she was mentally 
incompetent, may apply no later than 36 months after the period of 
disability ends.

(Approved by the Office of Management and Budget under control number 
3220-0002)

[47 FR 7647, Feb. 22, 1982, as amended at 54 FR 13363, Apr. 3, 1989; 67 
FR 42714, June 25, 2002]



Sec. 217.10  Application filed after death.

    (a) A survivor eligible for an annuity or lump sum under this 
chapter may file an application to establish a period of disability if 
the employee dies before filing an application for a disability annuity. 
A period of disability is defined in part 220 of this chapter. The 
application must be filed within three months after the month the 
employee died.
    (b) A person who could receive payment for the estate of a person 
who paid the burial expenses of the deceased employee may file an 
application if the person who paid the burial

[[Page 231]]

expenses dies before applying for the lump-sum death payment under part 
234 of this chapter. The application must be filed within the two-year 
period shown in Sec. 217.9 (c)(1).
    (c) A widow(er) or surviving divorced spouse may file an application 
for a spouse or divorced spouse annuity after the death of the employee 
if the widower(er) or surviving divorced spouse was eligible for a 
spouse or divorced spouse annuity in any month before the month the 
employee died. The spouse or divorced spouse annuity is payable from the 
beginning date set forth in part 218 of this chapter.

(Approved by the Office of Management and Budget under control numbers 
3220-0031 and 3220-0032)

[47 FR 7647, Feb. 22, 1982, as amended at 52 FR 11017, Apr. 6, 1987; 54 
FR 13364, Apr. 3, 1989]



Sec. 217.11  ``Good cause'' for delay in filing application.

    (a) An applicant has ``good cause'' for a delay in the filing of an 
application for a lump-sum death payment or an annuity unpaid at death, 
as shown in Sec. 217.9(c)(1) and (2), if the delay was due to--
    (1) Circumstances beyond the applicant's control, such as extended 
illiness, mental or physical incapacity, or communication difficulties; 
or
    (2) Incorrect or incomplete information furnished by the Board; or
    (3) Efforts by the applicant to secure evidence without realizing 
that evidence could be submitted after filing an application; or
    (4) Unusual or unavoidable circumstances which show that the 
applicant could not reasonably be expected to have been aware of the 
need to file an application within the set time limit.
    (b) An applicant does not have good cause for a delay in filing if 
he or she was informed of the need to file within the set time limit but 
neglected to do so or decided not to file.



                     Subpart C_Filing An Application



Sec. 217.15  Where to file.

    (a) Applicant in U.S. or Canada. An applicant who lives in the 
United States or Canada may file an application at any Board office in 
person or by mail. An applicant may also give the application to any 
Board field employee who is authorized to receive it at a place other 
than a Board office.
    (b) Application outside U.S. An applicant who lives outside the 
United States or Canada may file an application at any United States 
Foreign Service office. An applicant may also send the application to an 
office of the Board.



Sec. 217.16  Filing date.

    An application filed in a manner and form acceptable to the Board is 
officially filed with the Board on the earliest of the following dates:
    (a) On the date it is received at a Board office.
    (b) On the date it is delivered to a field employee of the Board as 
described in Sec. 217.15.
    (c) On the date it is received at any office of the U.S. Foreign 
Service.
    (d) On the date the application was mailed, as shown by the 
postmark, if using the date it is received will result in the loss or 
reduction of benefits.
    (e) On the date the Social Security Administration considers the 
application filed, if it is filed with the Social Security Adminstration 
or the Veterans Administration.



Sec. 217.17  Who may sign an application.

    An application may be signed according to the following rules:
    (a) A claimant who is 18 years old or older, competent (able to 
handle his or her own affairs), and physically able to sign the 
application, must sign in his or her own handwriting, except as provided 
in paragraph (e) of this section. A parent or a person standing in place 
of a parent must sign the application for a child who is not yet 18 
years old, except as shown in paragraph (d) of this section.
    (b) A claimant who is unable to write must make his or her mark. A 
Board representative or two other persons must sign as witnesses to a 
signature by mark.
    (c) A claimant's representative, as described in part 266 of this 
chapter, must sign the application if the claimant is incompetent 
(unable to handle his or her own affairs).

[[Page 232]]

    (d) A claimant who is a child between the ages of 16 and 18, is 
competent, as defined in paragraph (a) of this section, has no court 
appointed representative, and is not in the care of any person, may sign 
the application.
    (e) If it is necessary to protect a claimant from losing benefits 
and there is good cause for the claimant not personally signing the 
application, the Board may accept an application signed by someone other 
than a person described in paragraphs (a), (b), (c), and (d) of this 
section. A person who signs an application for someone else will be 
required to provide evidence of his or her authority to sign the 
application for the person claiming benefits under the following rules:
    (1) If the person who signs is a court-appointed representative, he 
or she must submit a certificate issued by the court showing authority 
to act for the claimant.
    (2) If the person who signs is not a court-appointed representative, 
he or she must submit a statement describing his or her relationship to 
the claimant. The statement must also describe the extent to which the 
person is responsible for the care of the claimant.
    (3) If the person who signs is the manager or principal officer of 
an institution which is responsible for the care of the claimant, he or 
she must submit a statement indicating the person's position of 
responsibility at the institution.
    (4) The Board may, at any time, in its sole discretion require 
additional evidence to establish the authority of a person to sign an 
application for someone else.

(Approved by the Office of Management and Budget under control numbers 
3220-0002, 3220-0030, 3220-0031 and 3220-0042)

[47 FR 7647, Feb. 22, 1982, as amended at 54 FR 13364, Apr. 3, 1989]



Sec. 217.18  When application is not acceptable.

    (a) Not properly signed. The Board will ask the applicant to prepare 
a corrected application if--
    (1) The original application was signed by someone other than the 
claimant or a person described in Sec. 217.17; or
    (2) The signature has been changed; or
    (3) The signature is not readable or does not appear to be 
authentic.
    (b) Incomplete or not readable. The Board will ask the applicant to 
prepare a supplemental application with certain items completed if--
    (1) Any entries on the application are not readable or appear to be 
incorrect; or
    (2) An important part of the application was not completed.
    (c) Obtaining corrected application. If an application is not 
properly signed, the applicant must prepare a new application with a 
corrected signature. If the Board receives the corrected application 
within 30 days after the applicant is asked to prepare it, the Board 
will use the filing date of the original application to pay benefits. If 
the Board receives the corrected application more than 30 days after the 
notice to the applicant, the Board will use the filing date of the 
corrected application to pay benefits.



Sec. 217.19  Representative of the claimant selected after application 
is filed.

    (a) Before benefits awarded. If the Board selects a representative 
for an incompetent claimant (see part 266 of this chapter) after an 
application is filed but before the benefit is awarded, a new benefit 
application must be filed by the representative. However, benefits will 
be paid using the filing date of the original benefit application.
    (b) After benefits awarded. If the Board selects a representative 
after a monthly annuity was awarded to another person, the 
representative must apply as a substitute payee on a form specifically 
designed for that purpose. A new annuity application is not required.



Sec. 217.20  When a written statement is used to establish the filing 
date.

    (a) Statement filed with the Board. A written statement indicating 
an intent to file a claim for an annuity or lump sum, filed with the 
Board as provided in Sec. Sec. 217.15 and 217.16, can establish the 
filing date of an application. A form set up by the Board to obtain 
information about persons who may be eligible for an annuity or lump sum 
in a particular

[[Page 233]]

case is not by itself considered a written statement for the purpose of 
this section. The Board will use the filing date of the written 
statement if all of the following requirements are met:
    (1) The statement gives a person's clear and positive intent to 
claim an annuity or lump sum for himself or herself or for some other 
person.
    (2) The claimant or a person described in Sec. 217.17 signs the 
statement.
    (3) The person who signed the statement files an application with 
the Board on one of the forms described in part 200 of this chapter 
within 90 days after the date a notice is sent advising the person of 
the need to file an application.
    (4) The claimant is alive when the application is filed except as 
provided in Sec. 217.10.
    (b) Statement filed with the Social Security Administration. A 
written statement filed with the Social Security Administration can be 
used to establish the filing date of an application if, assuming the 
statement were an application, the conditions under Sec. 217.7 are met 
and--
    (1) The statement gives a clear and positive intent to claim 
benefits under title II of the Social Security Act;
    (2) The claimant or a person described in Sec. 217.17 signs the 
statement;
    (3) The statement is sent to the Board by the Social Security 
Administration;
    (4) The person who signed the statement files an application with 
the Board on one of the forms described in part 200 of this chapter 
within 90 days after the date a notice is sent advising the person of 
the need to file an application; and
    (5) The claimant is alive when the application is filed except as 
provided in Sec. 217.10.
    (c) Telephone contact with the Board. If an individual telephones a 
Board office and advises a Board employee that he or she intends to file 
an application but cannot do so before the end of the month, the Board 
employee will prepare and sign a written statement which may be used to 
establish the filing date of an application if all of the following 
requirements are met:
    (1) The inquirer expresses a clear and positive intent to claim 
benefits for himself or herself or for some other person;
    (2) The prescribed application cannot be filed by the end of the 
current month;
    (3) The inquirer is either the potential claimant or the person who 
will file an application as representative payee therefor;
    (4) The inquiry is received by an office of the Board no more than 3 
months before eligibility exists;
    (5) It appears that a loss of benefits might otherwise result;
    (6) The telephone inquirer files an application with the Board on 
one of the forms described in part 200 of this chapter within 90 days 
after the date a notice is sent advising the person of the need to file 
an application; and
    (7) The claimant is alive when the application is filed, except as 
provided in Sec. 217.10 of the part.

[47 FR 7647, Feb. 22, 1982, as amended at 54 FR 13364, Apr. 3, 1989]



Sec. 217.21  Deterred from filing.

    A person who telephones or visits a Board office stating that he or 
she wishes to file for an annuity or lump sum, but puts off filing 
because of an action or lack of action by an employee of the Board, can 
establish a filing date based on that oral notice if the following 
conditions are met:
    (a) There is evidence which establishes that the employee of the 
Board failed to--
    (1) Tell the person that it was necessary to file an application on 
the proper form; or
    (2) Tell the person that a written statement could protect the 
filing date; or
    (3) Give the person the proper application form; or
    (4) Correctly inform the person of his or her eligibility.
    (b) The person files an application on one of the forms described in 
part 200 of this chapter within 90 days after the date a notice is sent 
advising the person of the need to file an application.
    (c) The claimant is alive when the application is filed except as 
provided in Sec. 217.10.

[[Page 234]]



                  Subpart D_Cancellation of Application



Sec. 217.25  Who may cancel an application.

    An application may be cancelled by the claimant or a person 
described in Sec. 217.17. If the claimant is deceased, the person who 
is or could be eligible for any annuity accrual under part 234 of this 
chapter may cancel the application for the annuity.



Sec. 217.26  How to cancel an application.

    An application may be cancelled under the following conditions:
    (a) Before an annuity is awarded. The application may be cancelled 
if--
    (1) The applicant files a written request with the Board at a place 
described in Sec. 217.15 asking that the application be cancelled or 
stating that he or she wants to withdraw the application;
    (2) The claimant is alive on the date the written request is filed 
or the claimant is deceased and the rights of no person other than the 
person requesting the cancellation will be adversely affected; and
    (3) The applicant files the written request on or before the date 
the annuity is awarded.
    (b) After an annuity is awarded. The application may be cancelled 
if--
    (1) The conditions in paragraph (a)(1) and (2) of this section are 
met;
    (2) Any other person who would lose benefits because of the 
cancellation consents to the cancellation in writing; and
    (3) All annuity payments already made based on the application being 
cancelled are repaid or will be recovered.



Sec. 217.27  Effect of cancellation.

    When a person cancels an application the effect is the same as 
though an application was never filed. When an employee cancels his or 
her application, any application filed by the employee's spouse is also 
cancelled. However, a request to cancel a survivor's application will 
cancel only the application of the survivor named in the written 
request. A person who cancels an application may reapply by filing a new 
application under this part.



                     Subpart E_Denial of Application



Sec. 217.30  Reasons for denial of application.

    The Board will deny each application filed by or for an employee, 
spouse or survivor for one or more of the following reasons:
    (a) The claimant does not meet the eligibility requirements for an 
annuity or lump sum under this chapter.
    (b) The applicant does not submit the evidence required under this 
chapter to establish eligibility for an annuity or lump sum.
    (c) The applicant files an application more than three months before 
the date on which the eligible person's benefit can begin except if the 
application is for an employee disability annuity or for a spouse 
annuity filed simultaneously with the employee's disability annuity 
application.

[47 FR 7647, Feb. 22, 1982, as amended at 67 FR 42714, June 25, 2002]



Sec. 217.31  Applicant's right to appeal denial.

    Each applicant is given the right to appeal the denial of his or her 
application if he or she does not agree with the Board's decision. The 
appeals process is explained in part 260 of this chapter.



PART 218_ANNUITY BEGINNING AND ENDING DATES--Table of Contents




                            Subpart A_General

Sec.
218.1 Introduction.
218.2 Definitions.
218.3 When an employee disappears.

                    Subpart B_When an Annuity Begins

218.5 General rules.
218.6 How to choose an annuity beginning date.
218.7 When chosen annuity beginning date is more than three months after 
          filing date.
218.8 When an individual may change the annuity beginning date.
218.9 When an employee annuity begins.
218.10 When a supplemental annuity begins.
218.11 When a spouse annuity begins.
218.12 When a divorced spouse annuity begins.
218.13 When a widow(er) annuity begins.

[[Page 235]]

218.14 When a child annuity begins.
218.15 When a parent annuity begins.
218.16 When a surviving divorced spouse annuity begins.
218.17 When a remarried widow(er) annuity begins.

 Subpart C_How Work and Special Payments Affect an Employee, Spouse, or 
                 Divorced Spouse Annuity Beginning Date

218.25 Introduction.
218.26 Work started after annuity beginning date.
218.27 Vacation pay.
218.28 Sick pay.
218.29 Pay for time lost.
218.30 Separation, displacement or dismissal allowance.

                     Subpart D_When an Annuity Ends

218.35 When an employee age annuity ends.
218.36 When an employee disability annuity ends.
218.37 When a supplemental annuity ends.
218.38 When a spouse annuity ends.
218.39 When a divorced spouse annuity ends.
218.40 When a widow(er) annuity ends.
218.41 When a child annuity ends.
218.42 When a parent annuity ends.
218.43 When a surviving divorced spouse annuity ends.
218.44 When a remarried widow(er) annuity ends.

    Authority: 45 U.S.C. 231f(b)(5).

    Source: 54 FR 30725, July 24, 1989, unless otherwise noted.



                            Subpart A_General



Sec. 218.1  Introduction.

    This part tells when a person's entitlement to a monthly railroad 
retirement annuity begins and ends. Ordinarily, an annuity begins on the 
earliest date permitted under the Railroad Retirement Act (Act). This 
part also tells when and how a person may select a later beginning date. 
Included is an explanation of how work and certain types of special 
payments affect the beginning date of an employee or spouse annuity.



Sec. 218.2  Definitions.

    As used in this part:
    Applicant means a person who signs an application for an annuity for 
himself, herself or for some other person.
    Application means a form described in part 217 of this chapter.
    Award means to process a form to make a payment.
    Claimant means the person for whom an annuity application is filed.
    Filing date means the date on which an application or written 
statement is filed with the Board.
    Tier I benefit means the benefit calculated using the Social 
Security formulas and is based upon earnings, both in and outside the 
railroad industry.
    Tier II benefit means the benefit calculated under a formula found 
in the Act and is based only upon railroad earnings.



Sec. 218.3  When an employee disappears.

    (a) General. If an employee who is entitled to an annuity 
disappears, the employee annuity ends on the last day of the month 
before the month of the disappearance.
    (b) Employee has a current connection. (1) The Board may pay 
survivor benefits from the month of the employee's disappearance if both 
of the following conditions are met at the time of the disappearance:
    (i) The employee has a current connection with the railroad industry 
as defined in part 216 of this chapter, and
    (ii) The employee's spouse is entitled, or would have been entitled 
if he or she had filed an application, to a spouse annuity in the month 
that the employee disappeared.
    (2) If the employee is later found to have been alive during any 
month for which a survivor annuity was paid, the amount of any incorrect 
payment must be recovered under the rules of part 255, Erroneous 
Payments, of this chapter. The incorrect payment is the amount of any 
survivor benefits which were paid minus any spouse benefits which were 
paid minus any spouse benefits that would have been paid.
    (c) Employee has no current connection. If the employee does not 
have a current connection and the employee's spouse is entitled to an 
annuity in the month of the employee's disappearance, the spouse annuity 
will continue to be paid until one of the following events occurs:
    (1) The employee's death is established.
    (2) The spouse annuity ends for another reason.

[[Page 236]]



                    Subpart B_When an Annuity Begins



Sec. 218.5  General rules.

    (a) An annuity begins either on the earliest date permitted by law, 
or on a specific date chosen by the applicant. If the applicant chooses 
a specific date, that date must not be before the earliest date 
permitted by law.
    (b) An annuity may not begin on the thirty-first day of a month, 
unless the claimant would lose benefits if the annuity begins on the 
first day of the following month. No annuity is payable for the thirty-
first day of any month.



Sec. 218.6  How to choose an annuity beginning date.

    (a) When application is filed. The applicant may choose an annuity 
beginning date by--
    (1) Naming the month, day and year in an application accepted by the 
Board; or
    (2) Including with the application a signed statement which tells 
the date (month, day and year) when the annuity should begin.
    (b) After application is filed. After an application is filed, the 
claimant may choose an annuity beginning date by submitting a signed 
statement which tells the month, day and year when the annuity should 
begin.

(Approved by the Office of Management and Budget under control numbers 
3220-0002, 3220-0030 and 3220-0042)



Sec. 218.7  When chosen annuity beginning date is more than three months 
after filing date.

    If the applicant for any type of annuity other than a disability 
annuity, or a spouse annuity based upon the disabled applicant's 
compensation, chooses an annuity beginning date in a month which is more 
than three months after the date the application is filed, the Board 
will deny the application as explained in part 217 of this chapter. The 
applicant must file a new application no earlier than three months 
before the month he or she wants the annuity to begin.

(Approved by the Office of Management and Budget under control numbers 
3220-0002, 3220-0030 and 3220-0042)



Sec. 218.8  When an individual may change the annuity beginning date.

    (a) Before annuity is awarded. A claimant may change the annuity 
beginning date if--
    (1) The claimant requests the change in a signed statement; and
    (2) The statement is received by the Board on or before the date of 
the claimant's death.
    (b) After annuity is awarded. An award can be reopened to change the 
annuity beginning date to a later date if--
    (1) The annuitant requests the change in a signed statement;
    (2) The statement is received by the Board on or before the date of 
the annuitant's death;
    (3) The annuitant shows that it is to his or her advantage to have a 
later annuity beginning date; and
    (4) All payments made for the period before the later annuity 
beginning date are recovered by cash refund or setoff.



Sec. 218.9  When an employee annuity begins.

    (a) Full-age annuity--employee has completed 10 years but less than 
30 years of service. An employee full-age annuity begins on the later of 
either the date chosen by the applicant or the earliest date permitted 
by law. The earliest date permitted by law is the latest of--
    (1) The day after the day the claimant last worked for a railroad 
employer;
    (2) The first day of the month in which the claimant attains full 
retirement age; or
    (3) The first day of the sixth month before the month in which the 
application is filed.
    (b) Reduced-age annuity--employee has completed 10 years but less 
than 30 years of service. An employee reduced-age annuity begins on the 
later of either the date chosen by the applicant, or the earliest date 
permitted by law. The earliest date permitted by law is the latest of--
    (1) The day after the day the claimant last worked for a railroad 
employer;
    (2) The first day of the first full month in which the claimant is 
age 62; or

[[Page 237]]

    (3) The first day of the month in which the application is filed if 
the claimant does not have a spouse (or divorced spouse) who would be 
entitled to a retroactive unreduced spouse (or divorced spouse) annuity. 
If the claimant has such a spouse (or divorced spouse) the claimant's 
annuity can begin on the first day of the month in which the spouse (or 
divorced spouse) annuity begins.
    (c) Disability annuity. An employee disability annuity begins on the 
later of either the date chosen by the applicant or the earliest date 
permitted by law. The earliest date permitted by law is the latest of--
    (1) The day after the day the claimant last worked for a railroad 
employer;
    (2) The first day of the twelfth month before the month in which the 
application is filed;
    (3) The first day of the sixth month after the month of disability 
onset; or
    (4) The first day of the month of disability onset if the claimant 
was previously entitled to an employee disability annuity which ended 
within five years of the current disability onset month.
    (d) Annuity based on at least 30 years of service. An employee 
annuity based on at least 30 years of service begins on the later of 
either the date chosen by the applicant or the earliest date permitted 
by law. The earliest date permitted by law is the latest of--
    (1) The day after the day the claimant last worked for a railroad 
employer;
    (2) The first day of the first full month in which the claimant is 
age 60 and will accept a reduced annuity;
    (3) The first day of the month in which the claimant attains age 62; 
or
    (4) The first day of the sixth month before the month in which the 
application is filed.

[54 FR 30725, July 24, 1989, as amended at 68 FR 39010, July 1, 2003]



Sec. 218.10  When a supplemental annuity begins.

    An employee supplemental annuity begins on the latest of--
    (a) The beginning date of the employee age or disability annuity;
    (b) The first day of the month in which the employee meets the age 
and years of service requirements as shown in part 216 of this chapter; 
or
    (c) The first day of the twelfth month before the month in which the 
employee disability annuitant under age 65 gives up the right to return 
to work as explained in part 216 of this chapter.



Sec. 218.11  When a spouse annuity begins.

    (a) A spouse annuity begins on the later of either the date chosen 
by the applicant or the earliest date permitted by law.
    (b) Earliest date permitted by law--(1) General rules. The earliest 
date permitted by law is the latest of--
    (i) The day after the day the claimant last worked for a railroad 
employer;
    (ii) The beginning date of the employee annuity;
    (iii) The first day of the month in which the claimant meets the 
marriage requirement as shown in part 216 of this chapter; or
    (iv) The first day of the month in which the employee annuitant 
meets the age requirement to qualify the claimant as shown in part 216 
of this chapter.
    (2) Full-age annuity. The earliest date permitted by law is the 
latest of--
    (i) The month shown in paragraph (b)(1) of this section;
    (ii) The first day of the month in which the claimant meets the age 
requirement as shown in part 216 of this chapter; or
    (iii) The first day of the sixth month before the month in which the 
application is filed.
    (3) ``Child in care'' annuity. The earliest date permitted by law is 
the latest of--
    (i) The month shown in paragraph (b)(1) of this section;
    (ii) The first day of the month in which the claimant becomes 
eligible for a spouse annuity based on having a ``child in care'' as 
shown in part 216 of this chapter; or
    (iii) The first day of the sixth month before the month in which the 
application is filed.
    (4) Reduced-age annuity. The earliest date permitted by law is the 
latest of--

[[Page 238]]

    (i) The month shown in paragraph (b)(1) of this section;
    (ii) The first day of the first full month in which the spouse is 
age 62 if the employee has less than 30 years of service;
    (iii) The first day of the month in which the spouse is age 60, if 
the employee has at least 30 years of service;
    (iv) The first day of the sixth month before the month in which the 
application is filed; or
    (v) The first day of the month in which the application is filed if 
beginning the annuity in an earlier month would increase the age 
reduction factor applied to the annuity.



Sec. 218.12  When a divorced spouse annuity begins.

    (a) A divorced spouse annuity begins on the later of either the date 
chosen by the applicant or the earliest date permitted by law.
    (b) Earliest date permitted by law--(1) General rules. The earliest 
date permitted by law is the latest of--
    (i) The day after the day the claimant last worked for a railroad 
employer;
    (ii) The beginning date of the employee annuity;
    (iii) The first day of the first full month in which the employee 
annuitant is age 62 if the employee has not been granted a period of 
disability;
    (iv) The first day of the month in which the employee annuitant 
attains age 62 if the employee has been granted a period of disability; 
or
    (v) The first day of the month in which the final decree of divorce 
is effective.
    (2) Full-age annuity. The earliest date permitted by law is the 
latest of--
    (i) The month shown in paragraph (b)(1) of this section;
    (ii) The first day of the month in which the claimant attains full 
retirement age;
    (iii) The first day of the twelfth month before the month in which 
the application is filed if the employee is a disability annuitant or 
has been granted a period of disability; or
    (iv) The first day of the sixth full month before the month in which 
the application is filed if the employee is not entitled to a disability 
annuity or a period of disability.
    (3) Reduced-age annuity. The earliest date permitted by law is the 
latest of--
    (i) The month shown in paragraph (b)(1) of this section;
    (ii) The first day of the first full month the claimant is age 62 if 
the application is filed in or before that month; or
    (iii) The first day of the month in which the application is filed.

[54 FR 30725, July 24, 1989, as amended at 68 FR 39010, July 1, 2003]



Sec. 218.13  When a widow(er) annuity begins.

    (a) A widow(er) annuity begins on the later of either the date 
chosen by the applicant or the earliest date permitted by law.
    (b) Earliest date permitted by law--(1) Full-age annuity. The 
earliest date permitted by law is the latest of--
    (i) The first day of the month in which the employee dies;
    (ii) The first day of the month in which the claimant attains full 
retirement age; or
    (iii) The first day of the sixth month before the month in which the 
application is filed.
    (2) Reduced-age annuity--(i) Widow(er) age 60 through age 62. The 
earliest date permitted by law is the latest of--
    (A) The first day of the month in which the employee dies;
    (B) The first day of the month in which the claimant attains age 60; 
or
    (C) The first day of the sixth month before the month in which the 
application is filed.
    (ii) Widow(er) over age 62 but under full retirement age. The 
earliest date permitted by law is the latest of--
    (A) The first day of the month in which the employee dies;
    (B) The first day of the month in which the claimant attains age 62 
and one month; or
    (C) The first day of the month in which the application is filed.
    (3) Disability annuity. The earliest date permitted by law is the 
latest of--
    (i) The first day of the month in which the employee dies;
    (ii) The first day of the month in which the claimant attains age 
50;

[[Page 239]]

    (iii) The first day of the twelfth month before the month in which 
the application is filed; or
    (iv) The first day of the sixth month after the month of disability 
onset.
    (4) ``Child in care'' annuity. The earliest date permitted by law is 
the latest of--
    (i) The first day of the month in which the employee dies;
    (ii) The first day of the month in which the claimant becomes 
eligible for a widow(er) annuity based on having a ``child in care'' as 
explained in part 216 of this chapter; or
    (iii) The first day of the sixth month before the month in which the 
application is filed.

[54 FR 30725, July 24, 1989, as amended at 68 FR 39010, July 1, 2003]



Sec. 218.14  When a child annuity begins.

    (a) A child annuity begins on the later of either the date chosen by 
the applicant or the earliest date permitted by law.
    (b) Earliest date permitted by law--(1) General rules. The earliest 
date permitted by law is the later of--
    (i) The first day of the month in which the employee dies; or
    (ii) The first day of the month in which the claimant becomes 
eligible for a child annuity as explained in part 216 of this chapter.
    (2) Child age annuity. The earliest date permitted by law is the 
later of--
    (i) The month shown in paragraph (b)(1) of this section; or
    (ii) The first day of the sixth month before the month in which the 
application is filed.
    (3) Child annuity based on full-time school attendance. The earliest 
date permitted by law is the latest of--
    (i) The month shown in paragraph (b)(1) of this section;
    (ii) The first day of the sixth month before the month in which the 
application is filed;
    (iii) The first day of the month in which the claimant is in full-
time school attendance at an elementary or secondary educational 
institution; or
    (iv) The first day of the month in which the claimant attains age 
18.
    (4) Child disability annuity. The earliest date permitted by law is 
the latest of--
    (i) The month shown in paragraph (b)(1) of this section;
    (ii) The first day of the sixth month before the month in which the 
application is filed;
    (iii) The first day of the month in which the claimant meets the 
definition of disability as explained in part 220; or
    (iv) The first day of the month in which the claimant attains age 
18.



Sec. 218.15  When a parent annuity begins.

    A parent annuity begins on the later of either the date chosen by 
the applicant or the earliest date permitted by law. The earliest date 
permitted by law is the latest of--
    (a) The first day of the month in which the employee dies;
    (b) The first day of the month in which the claimant attains age 60; 
or
    (c) The first day of the sixth month before the month in which the 
application is filed.



Sec. 218.16  When a surviving divorced spouse annuity begins.

    (a) A surviving divorced spouse annuity begins on the later of 
either the date chosen by the applicant or the earliest date permitted 
by law.
    (b) Earliest date permitted by law--(1) General rules. The earliest 
date permitted by law is the later of--
    (i) The first day of the month in which the employee dies; or
    (ii) The first day of the month in which the claimant becomes 
eligible for a surviving divorced spouse annuity as shown in part 216 of 
this chapter.
    (2) Full-age annuity. The earliest date permitted by law is the 
latest of--
    (i) The month shown in paragraph (b)(1) of this section;
    (ii) The first day of the month in which the claimant attains full 
retirement age; or
    (iii) The first day of the sixth month before the month in which the 
application is filed.
    (3) Reduced age annuity. The earliest date permitted by law is the 
latest of--
    (i) The month shown in paragraph (b)(1) of this section;
    (ii) The first day of the month in which the claimant attains age 
60; or
    (iii) The first day of the month in which the application is filed 
or the

[[Page 240]]

first day of the month preceding the month in which the application is 
filed if the employee died in that preceding month.
    (4) Disability annuity. The earliest date permitted by law is the 
latest of--
    (i) The month shown in paragraph (b)(1) of this section;
    (ii) The first day of the month in which the claimant attains age 
50;
    (iii) The first day of the twelfth month before the month in which 
the application is filed; or
    (iv) The first day of the sixth month after the month of disability 
onset.
    (5) ``Child in care'' annuity. The earliest date permitted by law is 
the latest of--
    (i) The month shown in paragraph (b)(1) of this section; or
    (ii) The first day of the sixth month before the month in which the 
application is filed.

[54 FR 30725, July 24, 1989, as amended at 68 FR 39010, July 1, 2003]



Sec. 218.17  When a remarried widow(er) annuity begins.

    (a) A remarried widow(er) annuity begins on the later of either the 
date chosen by the applicant or the earliest date permitted by law.
    (b) Earliest date permitted by law--(1) General rules. The earliest 
date permitted by law is the later of--
    (i) The first day of the month in which the employee dies; or
    (ii) The first day of the month in which the claimant becomes 
eligible for a remarried widow(er) annuity as shown in part 216 of this 
chapter.
    (2) Full-age annuity. The earliest date permitted by law is the 
latest of--
    (i) The month shown in paragraph (b)(1) of this section;
    (ii) The first day of the month in which the claimant attains full 
retirement age; or
    (iii) The first day of the sixth month before the month in which the 
application is filed.
    (3) Reduced-age annuity. The earliest date permitted by law is the 
latest of--
    (i) The month shown in paragraph (b)(1) of this section;
    (ii) The first day of the month in which the claimant attains age 
60: or
    (iii) The first day of the month in which the application is filed 
or the first day of the month preceding the month in which the 
application is filed if the employee died in that preceding month.
    (4) Disability annuity. The earliest date permitted by law is the 
latest of--
    (i) The month shown in paragraph (b)(1) of this section;
    (ii) The first day of the month in which the claimant attains age 
50;
    (iii) The first day of the twelfth month before the month in which 
the application is filed; or
    (iv) The first day of the sixth month after the month of disability 
onset.
    (5) ``Child in care'' annuity. The earliest date permitted by law is 
the latest of--
    (i) The month shown in paragraph (b)(1) of this section; or
    (ii) The first day of the sixth month before the month in which the 
application is filed.

[54 FR 30725, July 24, 1989, as amended at 68 FR 39010, July 1, 2003]



 Subpart C_How Work and Special Payments Affect an Employee, Spouse, or 
                 Divorced Spouse Annuity Beginning Date



Sec. 218.25  Introduction.

    The rules in this subpart apply only to an employee, spouse, 
divorced spouse, and supplemental annuity. They do not apply to any type 
of survivor annuity.



Sec. 218.26  Work started after annuity beginning date.

    (a) General. An annuity can begin only after an employee, spouse, or 
divorced spouse stops any work for a railroad employer. However, if the 
employee, spouse or divorced spouse starts work after an ``intent to 
retire'' is established, that work will have no effect on the annuity 
beginning date. However, an annuity cannot be paid for any month the 
employee, spouse or divorced spouse returns to work for a railroad 
employer.
    (b) Intent to retire--(1) Disability annuity. An ``intent to 
retire'' is established to pay a disability annuity when--
    (i) The employee files for a disability annuity; or

[[Page 241]]

    (ii) The employee gives up all rights to return to work for a 
railroad employee before starting any new work.
    (2) Age annuity. An ``intent to retire'' is established to pay an 
employee age, spouse or divorced spouse annuity when the employee, 
spouse or divorced spouse gives up all rights to return to work for a 
railroad employer before starting any new work.



Sec. 218.27  Vacation pay.

    (a) From railroad employer. Vacation pay may be credited to the 
vacation period due the employee or to the last day of actual work for 
the railroad employer. If the vacation pay is credited to the vacation 
period, the annuity can begin no earlier than the day after the vacation 
period ends. (Part 211 of this chapter discusses how vacation pay is 
credited as compensation.)
    (b) From non-railroad employer. Vacation pay will not affect the 
annuity beginning date.



Sec. 218.28  Sick pay.

    (a) From railroad employer. If the employee is carried on the 
payroll while sick, the annuity can begin no earlier than the day after 
the last day of sick pay. However, sick pay is not considered 
compensation and does not affect the annuity beginning date if it is a 
payment described in Sec. 211.2(c)(6) of these regulations.
    (b) From non-railroad employer. Sick pay will not affect the annuity 
beginning date.



Sec. 218.29  Pay for time lost.

    Pay for time lost because of personal injury must be credited to an 
actual period of time lost. The annuity can begin no earlier than the 
day after that period ends.



Sec. 218.30  Separation, displacement or dismissal allowance.

    (a) General. When an employee receives a separation, displacement or 
dismissal allowance from a railroad employer, the annuity beginning date 
depends on whether the payments are a separation allowance as described 
in paragraph (b) of this section, or monthly compensation payments as 
described in paragraph (c) of this section. (Part 211 of this chapter 
discusses how a separation, displacement or dismissal alowance is 
credited as compensation.)
    (b) Separation allowance. When an employee accepts a separation 
allowance, the employee gives up his or her job rights. Regardless of 
whether a separation allowance is paid in a lump sum or in installments, 
the annuity can begin as early as the day after the day the separation 
allowance is credited.
    (c) Monthly compensation payments. An employee who receives monthly 
compensation payments keeps his or her job rights while the payments are 
being made. The annuity cannot begin until after the end of the period 
for which payments are made.



                     Subpart D_When an Annuity Ends



Sec. 218.35  When an employee age annuity ends.

    An employee annuity based on age ends with the last day of the month 
before the month in which the employee dies.



Sec. 218.36  When an employee disability annuity ends.

    (a) Ending date. An employee annuity based on disability ends with 
the earliest of--
    (1) The last day of the month before the month in which the employee 
dies;
    (2) The last day of the second month following the month in which 
the employee's disability ends; or
    (3) The last day of the month before the month in which the employee 
attains full retirement age (the disability annuity is changed to an age 
annuity).
    (b) Effect of ended disability annuity on eligibility for a later 
annuity. The ending of a disability annuity will not affect an 
employee's rights to receive any annuity to which he or she later 
becomes entitled. When a disability annuity ends before an employee 
attains full retirement age, any additional railroad service the 
employee has after the disability annuity ends can be credited as if no 
annuity had previously been paid.

[54 FR 30725, July 24, 1989, as amended at 68 FR 39010, July 1, 2003]

[[Page 242]]



Sec. 218.37  When a supplemental annuity ends.

    A supplemental annuity ends when the employee age or disability 
annuity ends.



Sec. 218.38  When a spouse annuity ends.

    (a) General rules. A spouse annuity ends with the earliest of--
    (1) The last day of the month before the month in which the spouse 
dies;
    (2) The last day of the month before the month in which the employee 
dies or the employee's entitlement to an annuity ends;
    (3) The last day of the month before the month in which the spouse's 
marriage to the empoyee is ended by absolute divorce, annulment, or 
other judicial action (the spouse may be entitled to a divorced spouse 
annuity as explained in part 216 of this chapter); or
    (4) The month shown in paragraphs (b) and (d) of this section.
    (b) Annuity entitlement based on ``child in care.'' A spouse annuity 
based on having a ``child in care'' ends as shown in this paragraph if 
he or she is not also eligible for a full-age spouse annuity as 
explained in part 216 of this chapter. However, see also paragraph (c) 
of this section. If the spouse is eligible for a full-age spouse annuity 
when he or she is no longer entitled on the basis of a child, his or her 
annuity is changed to a spouse annuity based on age. A spouse annuity 
based on having a ``child in care'' ends with the earliest of--
    (1) The last day of the month shown in paragraphs (a) and (d) of 
this section;
    (2) The last day of the month before the month in which the child is 
no longer in the spouse's care, as explained in part 216 of this 
chapter;
    (3) The last day of the month before the month in which the child 
attains age 18 and is not disabled;
    (4) The last day of the month before the month in which the child 
marries;
    (5) The last day of the month before the month in which the child 
dies; or
    (6) The last day of the second month after the month in which the 
child's disability ends, if the child is over age 18.
    (c) Tier I benefit entitlement based on ``child in care.'' The tier 
I benefit of a spouse entitled because he or she has a ``child in care'' 
and is not otherwise entitled to a tier I benefit based on age, ends 
with the earliest of--
    (1) The last day of the month shown in paragraphs (a) and (d) of 
this section;
    (2) The last day of the month before the month in which the child is 
no longer in the spouse's care as explained in part 216 of this chapter;
    (3) The last day of the month before the month in which the child 
attains age 16 and is not disabled;
    (4) The last day of the month before the month in which the child 
marries;
    (5) The last day of the month before the month in which the child 
dies; or
    (6) The last day of the second month after the month in which the 
child's disability ends, if the child is over age 16.
    (d) Entitlement based on deemed marriage. If the spouse entitlement 
is based on a deemed valid marriage, the annuity ends with the earliest 
of--
    (1) The last day of the month shown in paragraphs (a) and (b) of 
this section;
    (2) The last day of the month before the month in which the deemed 
spouse enters a valid marriage with someone other than the employee; or
    (3) The last day of the month before the month in which the Board 
approves an award to someone else as the employee's legal spouse.



Sec. 218.39  When a divorced spouse annuity ends.

    A divorced spouse annuity ends with the earliest of the last day of 
the month before the month in which the--
    (a) Divorced spouse dies;
    (b) Employee's entitlement to an annuity ends;
    (c) Divorced spouse marries;
    (d) Employee dies; or
    (e) Divorced spouse becomes entitled to a retirement or disability 
insurance benefit under the Social Security Act based on a primary 
insurance amount which equals or exceeds the amount of the full divorced 
spouse annuity before reduction for age.

[[Page 243]]



Sec. 218.40  When a widow(er) annuity ends.

    (a) Entitlement based on age. When a widow(er)'s annuity is based on 
age, the annuity ends with the earliest of the last day of the month 
before the month in which--
    (1) The widow(er) dies;
    (2) The widow(er) remarries (the widow(er) may be entitled to 
benefits as a remarried widow(er) as explained in part 216 of this 
chapter);
    (3) The widow(er) becomes entitled to another survivor annuity in a 
larger amount, unless he or she elects to be paid the smaller annuity; 
or
    (4) The Board approves an award to someone else as the employee's 
legal widow(er) if entitlement is based on a deemed valid marriage.
    (b) Disabled widow(er). If entitlement is based on the widow(er)'s 
disability, the annuity ends with the earliest of--
    (1) The last day of the month shown in paragraph (a) of this 
section;
    (2) The last day of the second month following the month in which 
the disability ends; or
    (3) The last day of the month before the month in which the 
widow(er) attains age 60 (the disability annuitant then becomes entitled 
to an annuity based upon age).
    (c) Annuity entitlement based on ``child in care.'' A widow(er) 
annuity based on having a ``child in care'' ends as shown in this 
paragraph if he or she is not eligible for a widow(er) annuity based on 
age as explained in part 216 of this chapter. However, see also 
paragraph (d) of this section. If the widow(er) is eligible for a 
widow(er) annuity based on age, when he or she is no longer entitled on 
the basis of having a ``child in care,'' his or her annuity is changed 
to a widow(er) annuity based on age. A widow(er) annuity based on having 
a ``child in care'' ends with the earliest of--
    (1) The last day of the month shown in paragraph (a) of this 
section;
    (2) The last day of the month before the month in which the child is 
no longer in the widow(er)'s care as explained in part 216 of this 
chapter (in this case entitlement to the annuity does not terminate, but 
no annuity is payable while the child is no longer in care);
    (3) The last day of the month before the month in which the child 
attains age 18 and is not disabled;
    (4) The last day of the month before the month in which the 
widow(er) attains full retirement age (the ``child in care'' annuity is 
changed to an age annuity);
    (5) The last day of the month before the month in which the child 
marries;
    (6) The last day of the month before the month in which the child 
dies; or
    (7) The last day of the second month after the month in which the 
child's disability ends, if the child is over age 18.
    (d) Tier I benefit entitlement based on child in care. The tier I 
benefit of a widow(er), entitled because he or she has a ``child in 
care'' and is not otherwise entitled to a tier I benefit based on age, 
ends with the earliest of--
    (1) The last day of the month shown in paragraph (a) of this 
section;
    (2) The last day of the month before the month in which the child is 
no longer in the widow(er)'s care as explained in part 216 of this 
chapter;
    (3) The last day of the month before the month in which the child 
attains age 16 and is not disabled;
    (4) The last day of the month before the month in which the child 
marries;
    (5) The last day of the month before the month in which the child 
dies; or
    (6) The last day of the second month after the month in which the 
child's disability ends, if the child is over age 16.

[54 FR 30725, July 24, 1989, as amended at 68 FR 39010, July 1, 2003]



Sec. 218.41  When a child annuity ends.

    A child annuity ends with the earliest of--
    (a) The last day of the month before the month in which the child 
marries;
    (b) The last day of the month before the month in which the child 
dies;
    (c) The last day of the month before the month in which the child 
attains age 18 if the child is not eligible for an annuity as a disabled 
or student child;
    (d) The last day of the last month in which the child is considered 
a full-time student, as defined in part 216 of this chapter, if the 
child is a full-time student age 18 through 19; or

[[Page 244]]

    (e) The last day of the second month after the month in which the 
child's disability ends, if the child is over age 18.



Sec. 218.42  When a parent annuity ends.

    (a) Tier I. The tier I benefit of a parent annuity ends with the 
earliest of the last day of the month before the month in which the 
parent--
    (1) Dies;
    (2) Becomes entitled to an old age benefit under the Social Security 
Act that is equal to or larger than the tier I benefit of the parent 
annuity before any reduction for the family maximum, unless he or she is 
also entitled to a tier II benefit (reduction for the family maximum is 
discussed in part 228 of this chapter);
    (3) Becomes entitled to another survivor annuity in a larger amount, 
unless he or she elects to be paid the smaller annuity; or
    (4) Remarries after the employee's death, unless he or she marries a 
person who is entitled to Social Security or Railroad Retirement Act 
benefits as a divorced spouse, widow, widower, mother, father, parent, 
or disabled child.
    (b) Tier II. The tier II benefit of a parent annuity ends with the 
earliest of the last day of the month before the month in which the 
parent--
    (1) Dies;
    (2) Remarries after the employee's death; or
    (3) Becomes entitled to another survivor annuity in a larger amount, 
unless he or she elects to be paid the smaller annuity.



Sec. 218.43  When a surviving divorced spouse annuity ends.

    (a) Entitlement based on age. When the surviving divorced spouse 
annuity is based on age, the annuity ends with the earliest of the last 
day of the month before the month in which the surviving divorced 
spouse--
    (1) Dies;
    (2) Becomes entitled to an old age benefit under the Social Security 
Act that is equal to or larger than the amount of the full surviving 
divorced spouse annuity before reduction for age; or
    (3) Becomes entitled to a spouse or survivor annuity in a larger 
amount, unless he or she elects to be paid the smaller annuity.
    (b) Entitlement based on disability. When the surviving divorced 
spouse annuity is based on disability, the annuity ends with the 
earliest of--
    (1) The last day of the month shown in paragraph (a) of this 
section;
    (2) The last day of the second month following the month in which 
the disability ends; or
    (3) The last day of the month before the month in which the 
surviving divorced spouse attains full retirement age (the disability 
annuitant then becomes entitled based upon age).
    (c) Entitlement based on ``child in care.'' When the surviving 
divorced spouse annuity is based on having a ``child in care'' as 
explained in part 216 of this chapter, the annuity ends as shown in this 
paragraph unless he or she is at least age 60 and was married to the 
employee for at least 10 years. In that case, the surviving divorced 
spouse annuity based on having a child in care is changed to an annuity 
based on age. If the surviving divorced spouse is not entitled to an 
annuity based on age, the surviving divorced spouse annuity based on 
``child in care'' ends with the earliest of--
    (1) The last day of the month shown in paragraph (a) of this 
section;
    (2) The last day of the month before the month in which the child is 
no longer in the surviving divorced spouse's care, as explained in part 
216 of this chapter (in this case entitlement to the annuity does not 
terminate, but no annuity is payable while the child is no longer in 
care);
    (3) The last day of the month before the month in which the child 
attains age 16, unless the child is disabled;
    (4) The last day of the month before the month in which the 
surviving divorced spouse remarries unless the marriage is to an 
individual entitled to a retirement, disability, widow(er)'s, father's/
mother's, parent's or child's disability benefit under the Railroad 
Retirement Act or Social Security Act;
    (5) The last day of the second month after the month in which the 
child's disability ends, if the child is over age 16; or

[[Page 245]]

    (6) The last day of the month before the month in which the 
surviving divorced spouse attains full retirement age (the annuitant 
then becomes entitled to an annuity based upon age).

[54 FR 30725, July 24, 1989, as amended at 68 FR 39010, July 1, 2003]



Sec. 218.44  When a remarried widow(er) annuity ends.

    (a) Entitlement based on age. When the remarried widow(er) annuity 
is based on age, the annuity ends with the earliest of the last day of 
the month before the month in which the remarried widow(er)--
    (1) Dies;
    (2) Becomes entitled to an old age benefit under the Social Security 
Act that is equal to or larger than the amount of the full remarried 
widow(er) annuity before reduction for age or the family maximum (see 
part 228 of this chapter); or
    (3) Becomes entitled to a spouse or survivor annuity in a larger 
amount, unless he or she elects to be paid the smaller annuity.
    (b) Entitlement based on disability. When the remarried widow(er) 
annuity is based on disability, the annuity ends with the earliest of--
    (1) The last day of the month shown in paragraph (a) of this 
section;
    (2) The last day of the second month following the month in which 
the disability ends; or
    (3) The last day of the month before the month in which the 
remarried widow(er) attains full retirement age (the disability 
annuitant then becomes entitled to an annuity based upon age).
    (c) Entitlement based on ``child in care.'' When the remarried 
widow(er) annuity is based on having a ``child in care,'' as explained 
in part 216 of this chapter, the annuity ends as shown in this paragraph 
unless the remarried widow(er) is at least age 60. In that case, the 
remarried widow(er) annuity based on having a ``child in care'' is 
changed to an annuity based on age. If the remarried widow(er) is not 
entitled to an annuity based on age, the remarried widow(er) annuity 
based on having a ``child in care'' ends with the earliest of--
    (1) The last day of the month shown in paragraph (a) of this 
section;
    (2) The last day of the month before the month in which the child is 
no longer in the remarried widow(er)'s care, as explained in part 216 of 
this chapter (in this case entitlement to the annuity does not terminate 
but no annuity is payable while the child is no longer in care);
    (3) The last day of the month before the month in which the child 
attains age 16, unless the child is disabled;
    (4) The last day of the month before the month in which the 
remarried widow(er) remarries unless the marriage is to an individual 
entitled to a retirement, disability, widow(er)'s, father's/mother's, 
parent's or child's disability benefit under the Railroad Retirement Act 
or Social Security Act;
    (5) The last day of the second month after the month in which the 
child's disability ends, if the child is over age 16; or
    (6) The last day of the month before the month in which the 
remarried widow attains full retirement age (the annuitant then becomes 
entitled to an annuity based upon age).

[54 FR 30725, July 24, 1989, as amended at 68 FR 39010, July 1, 2003]



PART 219_EVIDENCE REQUIRED FOR PAYMENT--Table of Contents




                 Subpart A_General Evidence Requirements

Sec.
219.1 Introduction.
219.2 Definitions.
219.3 When evidence is required.
219.4 Who is responsible for furnishing evidence.
219.5 Where and how to provide evidence.
219.6 Records as evidence.
219.7 How the Board decides what is convincing evidence.
219.8 Preferred evidence and other evidence.
219.9 Evidence, information, and records filed with the Board.

                   Subpart B_Evidence of Age and Death

219.20 When evidence of age is required.
219.21 Types of evidence to prove age.
219.22 When evidence of death is required.
219.23 Evidence to prove death.
219.24 Evidence of presumed death.

[[Page 246]]

                   Subpart C_Evidence of Relationship

219.30 When evidence of marriage is required.
219.31 Evidence of a valid ceremonial marriage.
219.32 Evidence of a common-law marriage.
219.33 Evidence of a deemed valid marriage.
219.34 When evidence that a marriage has ended is required.
219.35 Evidence that a marriage has ended.
219.36 When evidence of a parent or child relationship is required.
219.37 Evidence of natural parent or child relationship.
219.38 Evidence of stepparent or stepchild relationship.
219.39 Evidence of relationship by legal adoption--parent or child.
219.40 Evidence of relationship by equitable adoption--child.
219.41 Evidence of relationship of grandchild or stepgrandchild.
219.42 When evidence of child's dependency is required.
219.43 Evidence of child's dependency.
219.44 Evidence of relationship of a person other than a parent or 
          child.

                  Subpart D_Other Evidence Requirements

219.50 When evidence of ``living with'' is required.
219.51 Evidence to prove ``living with''.
219.52 When evidence of having a child in care is required.
219.53 Evidence of having a child in care.
219.54 When evidence of school attendance is required.
219.55 Evidence of school attendance for child age 18.
219.56 When evidence of a parent's support is required.
219.57 Evidence of a parent's support.
219.58 When evidence regarding payment of burial expenses is required.
219.59 Evidence of responsibility for or payment of burial expenses.
219.60 When evidence of the employee's permanent home is required.
219.61 Evidence of where the employee had a permanent home.
219.62 When evidence of ``good cause'' is required.
219.63 What evidence is required to establish ``good cause''.
219.64 When evidence may be required for other reasons.
219.65 Other types of evidence that may be required.

    Authority: 45 U.S.C 231f.

    Source: 54 FR 31942, Aug. 3, 1989, unless otherwise noted.



                 Subpart A_General Evidence Requirements



Sec. 219.1  Introduction.

    As described in parts 216 (Eligibility for an Annuity), 234 (Lump-
Sum Payments), and 222 (Family Relationships), certain requirements must 
be met before benefits may be paid under the Railroad Retirement Act. 
This part contains the basic rules for evidence that is required to 
support a claimant's claim for monthly or lump-sum benefit payments 
under the Railroad Retirement Act. Part 219 describes when evidence is 
required and what types of documents can be used as evidence. Part 222 
defines and explains family relationships for which evidence 
requirements are stated in part 219. Special evidence requirements for 
disability annuities are found in part 220 of this chapter.



Sec. 219.2  Definitions.

    As used in this subpart--
    Annuity means a recurring payment due an entitled person for a 
calendar month and made to him or her on the first day of the following 
month.
    Apply means to sign a form or statement that the Board accepts as an 
application.
    Claimant means the person who files an application for an annuity or 
lump-sum payment for himself, herself, or some other person.
    Benefit means any employee annuity, spouse annuity, survivor 
annuity, or lump-sum payment under the Railroad Retirement Act.
    Convincing evidence means one or more pieces of evidence that proves 
to the satisfaction of the Board that an individual meets a requirement 
for eligibility for benefits. See Sec. 219.7 for guides the Board uses 
in deciding whether evidence is convincing.
    Eligible means that a person meets all of the requirements for 
payment of benefits but has not yet applied therefor.
    Entitled means that a person has applied for and has proved his or 
her right to payment of benefits.
    Evidence means any record or document or testimony that helps to 
show whether a person is eligible for benefits. It may also be used to 
establish

[[Page 247]]

whether the person is still entitled to benefits.
    Representative means a person who acts on behalf of a claimant in 
regard to his or her claim for benefits from the Board and in the 
presentation of evidence to support the claim.



Sec. 219.3  When evidence is required.

    (a) To prove initial eligibility. The Board will ask for evidence to 
prove a claimant is eligible for benefits when he or she applies for 
benefits. Usually the Board will ask the claimant to furnish specific 
kinds of evidence or information by a certain date to prove initial 
eligibility for benefits. If evidence or information is not received by 
that date, the Board may decide that the claimant is not eligible for 
benefits and will deny his or her application.
    (b) To prove continued entitlement. After a claimant establishes 
entitlement to an annuity, the Board may ask that annuitant to produce 
by a certain date information or evidence needed to decide whether he or 
she may continue to receive an annuity or whether the annuity should be 
reduced or stopped. If the information is not received by the date 
specified, the Board may decide that the person is no longer entitled to 
benefits or that his or her annuity should be stopped or reduced.



Sec. 219.4  Who is responsible for furnishing evidence.

    (a) Claimant or representative responsible. When evidence is 
required to prove a person's eligibility for or right to continue to 
receive annuity or lump-sum payments, that claimant or his or her 
representative is responsible for obtaining and submitting the evidence 
to the Board.
    (b) What to do when required evidence will be delayed. When the 
required evidence cannot be furnished within the specified time, the 
claimant or representative who was asked to furnish the evidence or 
information should notify the Board and explain why there will be a 
delay. If the delay is caused by illness, failure to receive the 
information from another source, or a similar situation, the claimant 
will be allowed a reasonable time to secure the evidence or information. 
If the information is not received within a reasonable time as 
determined by the Board, the claimant or representative who was asked to 
furnish the evidence or information will be notified of the effect that 
his or her failure to furnish the evidence or information will have on 
the claimant's eligibility to receive or continue to receive payments.



Sec. 219.5  Where and how to provide evidence.

    (a) When Board office is accessible. A claimant or representative 
should give his or her evidence to an employee of the Railroad 
Retirement Board office where he or she files the application. An 
employee of the Board will tell the claimant or representative what is 
needed and how to get it.
    (b) When Board office is not accessible. A claimant who lives in an 
area where there is no Board office or who is unable to travel to a 
Board office may send evidence to the Board office nearest to where the 
claimant lives. A claimant who lives outside the United States may take 
evidence to the American embassy or consulate or other Foreign Service 
Office nearest to where he or she lives or send it to the headquarters 
of the Board.



Sec. 219.6  Records as evidence.

    (a) General. If a claimant or an annuitant provides an original 
document or record as evidence to prove eligibility or continued 
entitlement to payments, where possible, a Board employee will make a 
photocopy or transcript of these original documents or records and 
return the original documents to the person who furnished them. A 
claimant may also submit certified copies of original records as 
described in paragraph (c) of this section. The Board may also accept 
uncertified copies as described in paragraph (d) of this section.
    (b) Foreign-language documents. If the evidence submitted is a 
foreign-language document, the Board may require that the record be 
translated. An acceptable translation includes, but is not limited to, a 
translation certified by a United States consular official or employee 
of the Department of State authorized to certify evidence, or by an 
employee of the Board or the Social Security Administration.

[[Page 248]]

    (c) Certified copies of original records. The Board will accept 
copies of original records or extracts from records if they are 
certified as true and exact copies of the original by--
    (1) The official custodian of the record;
    (2) A Veterans Administration employee, if the evidence was given to 
that agency to obtain veterans benefits;
    (3) A Social Security Administration employee, if the evidence was 
given to that agency to obtain social security benefits;
    (4) A United States Consular Officer, an employee of the Department 
of State, or an employee of the Immigration and Naturalization Service 
authorized to certify evidence received outside the United States; or
    (5) An employee of a state agency or state welfare office authorized 
to certify copies of original records in the agency's or office's files.
    (d) Uncertified copies and facsimiles. In lieu of certified paper 
copies of records or extracts from such official sources as listed in 
paragraph (c) of this section, the Board will accept facsimile copies of 
such records or extracts when the official custodian of such records 
transmits the facsimile directly to an office of the Board and the 
source of the transmittal is clearly identified on the facsimile.

[54 FR 31942, Aug. 3, 1989, as amended at 65 FR 19829, Apr. 13, 2000]



Sec. 219.7  How the Board decides what is convincing evidence.

    When the Board receives evidence, a Board representative examines it 
to see if it is convincing evidence. If it is, no other evidence is 
needed. In deciding whether the evidence is convincing, the Board 
representative decides whether--
    (a) The information contained in the evidence was given by a person 
in a position to know the facts;
    (b) There was any reason to give false information when the evidence 
was created;
    (c) The information contained in the evidence was given under oath, 
or in the presence of witnesses, or with the knowledge that there was a 
penalty for giving false information;
    (d) The evidence was created at the time the event took place or 
shortly after;
    (e) The evidence has been altered or has any erasures on it; and
    (f) The information contained in the evidence agrees with other 
available evidence, including existing Board records.



Sec. 219.8  Preferred evidence and other evidence.

    (a) Preferred evidence. When a claimant submits the type of evidence 
shown as preferred in subparts B and C of this part, the Board will 
generally find it is convincing evidence. This means that unless there 
is information in the Board's records that raises a doubt about the 
evidence, other evidence to prove the same fact will not be needed.
    (b) Other evidence. If preferred evidence is not available, the 
Board will consider any other evidence a claimant furnishes. If the 
other evidence consists of several different records or documents which 
all show the same information, the Board may determine that it is 
convincing evidence even though it is not preferred evidence. If the 
other evidence is not convincing by itself, the claimant will be asked 
to submit additional evidence. If the additional evidence shows the same 
information all the evidence considered together may be convincing 
evidence.
    (c) Board decision. When the Board has convincing evidence of the 
facts that must be proven, or when it is clear that the evidence 
provided does not prove the necessary facts, the Board will make a 
formal decision about the applicant's rights to benefits.



Sec. 219.9  Evidence, information, and records filed with the Board.

    The Railroad Retirement Act provides criminal penalties for any 
persons who misrepresent the facts or make false statements to obtain 
payments for themselves or someone else. All evidence and documents 
given to the Board are kept confidential and are not disclosed to anyone 
but the person who submitted them, except under the rules described in 
part 200 of this chapter.

[[Page 249]]



                   Subpart B_Evidence of Age and Death



Sec. 219.20  When evidence of age is required.

    (a) Evidence of age is required when an employee applies for an 
annuity under the Railroad Retirement Act or for Medicare coverage under 
title XVIII of the Social Security Act.
    (b) Evidence of age is also required from a person who applies for a 
spouse's or divorced spouse's, widow's, widower's, surviving divorced 
spouse's, parent's, or child's annuity under the Railroad Retirement 
Act, or for Medicare coverage under title XVIII of the Social Security 
Act.



Sec. 219.21  Types of evidence to prove age.

    (a) Preferred evidence. The best type of evidence to prove a 
claimant's age is--
    (1) A birth certificate recorded before age 5;
    (2) A church record of birth or baptism recorded before age 5; or
    (3) Notification of registration of birth made before age 5.
    (b) Other evidence of age. If an individual cannot obtain preferred 
evidence of age, he or she will be asked to submit other convincing 
evidence to prove age. The other evidence may be one or more of the 
following records, with the records of highest value listed first:
    (1) Hospital birth record or certificate.
    (2) Physician's or midwife's birth record.
    (3) Bible or other family record.
    (4) Naturalization record.
    (5) Military record.
    (6) Immigration record.
    (7) Passport.
    (8) Selective service registration record.
    (9) Census record.
    (10) School record.
    (11) Vaccination record.
    (12) Insurance record.
    (13) Labor union or fraternal record.
    (14) Employer's record.
    (15) Marriage record.
    (16) A statement signed by the individual giving the reason why he 
or she cannot obtain other convincing evidence of age and the sworn 
statements of two other persons who have personal knowledge of the age 
that the individual is trying to prove.

(Approved by the Office of Management and Budget under control number 
3220-0106)



Sec. 219.22  When evidence of death is required.

    (a) When evidence of the employee's death is required. Evidence to 
prove the employee's death is always required for payment of any type of 
survivor annuity or lump-sum payment based on the deceased employee's 
record. See parts 216 and 234 for types of survivor payments.
    (b) When evidence to prove death of other persons is required. 
Evidence to prove the death of persons other than the empoyee is 
required when--
    (1) A claimant, who is eligible for survivor benefits, dies after 
the employee;
    (2) A residual lump sum (see part 234 of this chapter) is payable 
and a person whom the employee named to receive all or part of this 
payment dies before the employee, or such person dies after the employee 
but before receiving his or her share of the benefit; or
    (3) There is reasonable doubt of the death of--
    (i) Any person who, if alive, has priority over the applicant;
    (ii) Any spouse whose death is alleged to have ended a previous 
marriage, if a later marriage in question cannot be presumed valid under 
state law; or
    (iii) Any person the termination of whose entitlement would increase 
payments to other entitled persons.



Sec. 219.23  Evidence to prove death.

    (a) Preferred evidence of death. The best evidence of a person's 
death is--
    (1) A certified copy of or extract from the public record of death, 
or verdict of the coroner's jury of the state or community where death 
occurred; or a certificate or statement of death issued by a local 
registrar or public health official;
    (2) A signed statement of the funeral director, attending physician, 
or official of an institution where death occurred;
    (3) A certified copy of, or extract from, an official report or 
finding of

[[Page 250]]

death made by an agency or department of the United States or of a 
state; or
    (4) If death occurred outside the United States, an official report 
of death by a United States Consul or other authorized employee of the 
State Department, or a certified copy of the public record of death in a 
foreign country.
    (b) Other evidence of death. If the preferred evidence of death 
cannot be obtained, the individual who must furnish evidence of death 
will be asked to explain the reason therefor and to submit other 
convincing evidence, such as sworn statements of at least two persons 
who have personal knowledge of the death. These persons must be able to 
swear to the date, time, place, and cause of death.

(Approved by the Office of Management and Budget under control number 
3220-0077)



Sec. 219.24  Evidence of presumed death.

    When a person cannot be proven dead but evidence of death is needed, 
the Board may presume he or she died at a certain time if the Board 
receives the following evidence:
    (a) A certified copy of, or extract from, an official report or 
finding by an agency or department of the United States that a missing 
person is presumed to be dead as stated in Federal law (5 U.S.C. 5565). 
Unless other evidence is submitted showing an actual date of death, the 
Board will use the date on which the person was reported missing as the 
date of death.
    (b) Signed statements by those in a position to know that facts and 
other records which show that the person has been absent from his or her 
residence for no apparent reason and has not been heard from for at 
least 7 years. If there is no evidence available that that person 
continued in life after the date of disappearance, the Board will use as 
the date of death the date the person disappeared.
    (c) When a person has been missing for less than 7 years but may be 
presumed dead due to drowning or common disaster (fire, accident, etc.), 
signed statements from the applicant and individuals who know the 
circumstances surrounding the occurrence leading to the person's 
disappearance. The best evidence is statements from individuals who 
witnessed the occurrence or saw the missing person at the scene of the 
occurrence shortly before it happened.



                   Subpart C_Evidence of Relationship



Sec. 219.30  When evidence of marriage is required.

    (a) When an application is filed for benefits. Documentary evidence 
of marriage is required when an individual files for a monthly annuity, 
lump-sum death payment, residual lump sum, or Medicare coverage, as the 
wife, husband, widow, widower, divorced spouse or surviving divorced 
spouse, or stepparent of the employee. A claimant may also be required 
to submit evidence of another person's marriage when that person's 
marriage is necessary to determine the applicant's entitlement to 
benefits under the Railroad Retirement Act.
    (b) State law. In deciding whether the marriage to the employee is 
valid or not, in a case where the employee is living, the Board will 
follow the law of the state where the employee had a permanent home when 
the applicant filed an application; in a case where the employee is 
dead, the Board will follow the law of the state where the employee had 
a permanent home when he or she died.
    (c) Types of evidence. What evidence will be required depends on 
whether the employee's marriage was a ceremonial marriage, a common-law 
marriage, or a marriage that can be deemed to be valid.



Sec. 219.31  Evidence of a valid ceremonial marriage.

    (a) Preferred evidence. Preferred evidence of a ceremonial marriage 
is--
    (1) A copy of the public record of the marriage, certified by the 
custodian of the record or by a Board employee;
    (2) A copy of a church record of the marriage certified by the 
custodian of the record or by a Board employee; or
    (3) The original certificate of marriage.
    (b) Other evidence of a ceremonial marriage. If preferred evidence 
of a ceremonial marriage cannot be obtained, the

[[Page 251]]

applicant must state the reason therefor in writing and submit either--
    (1) A sworn statement of the clergyman or official who performed the 
marriage ceremony; or
    (2) Other convincing evidence, such as the sworn statements of at 
least two persons who have direct knowledge of the marriage, preferably 
eyewitnesses to the marriage ceremony.

(Approved by the Office of Management and Budget under control number 
3220-0140)



Sec. 219.32  Evidence of a common-law marriage.

    (a) Preferred evidence. Evidence of a common-law marriage must give 
the reasons why the informant believes that a marriage exists. If the 
information described in this paragraph is not furnished on a form 
provided by the Board, it must be submitted in the form of a sworn 
statement. Preferred evidence of a common-law marriage is one of the 
following:
    (1) If both the husband and wife are alive, each shall sign a 
statement and get signed statements from one blood relative of each. The 
statement of another individual may be submitted for each statement the 
husband or wife is unable to get from a relative. Each signed statement 
should show--
    (i) That the husband and wife believed they were married;
    (ii) The basis for this belief; and
    (iii) That the husband and wife have presented themselves to the 
public as husband and wife.
    (2) If either the husband or wife is dead, the surviving spouse 
shall furnish a signed statement and signed statements from two blood 
relatives of the dead spouse. The surviving spouse's statement should 
show that he or she and the dead spouse believed themselves to be 
married, the basis for this belief, and that they presented themselves 
to the public as husband and wife. The statements from relatives of the 
dead spouse should support the surviving spouse's statement.
    (3) If both husband and wife are dead, the applicant shall get a 
signed statement from one blood relative of each dead spouse. Each 
statement should show that the husband and wife believed themselves to 
be married, the basis for this belief, and that they presented 
themselves to the public as husband and wife.
    (4) Statements by relatives and other individuals described in 
paragraphs (a)(1), (2) and (3) of this section are not required when--
    (i) The husband and wife entered into a ceremonial marriage which 
was void because of a legal impediment to the marriage;
    (ii) After the impediment was removed, the husband and wife 
continued to live together as man and wife until the employee filed an 
application or one of them died; and
    (iii) A valid common-law marriage was established, under the law of 
the State in which they lived, by their continuing to live together as 
man and wife.
    (b) Other evidence of common-law marriage. When preferred evidence 
of a common-law marriage cannot be obtained, the claimant will be asked 
to explain the reason therefor and to furnish other convincing evidence 
of the marriage.

(Approved by the Office of Management and Budget under control number 
3220-0021)



Sec. 219.33  Evidence of a deemed valid marriage.

    (a) Preferred evidence. Preferred evidence of a deemed valid 
marriage is--
    (1) Evidence of a ceremonial marriage as described in Sec. 219.31;
    (2) If both the employee and spouse are alive, the spouse's signed 
statement that he or she went through the ceremony in good faith and his 
or her reasons for believing the marriage was valid; or if the employee 
is dead, the widow or widower's signed statement to that effect;
    (3) If required to remove a reasonable doubt, the signed statements 
of other persons who have information about what the parties knew about 
any previous marriage or other facts showing whether the parties went 
through the marriage ceremony in good faith; and
    (4) Evidence that the parties were living in the same household when 
the employee applied for payments; or, if the employee is dead, when he 
or she died. See Sec. 219.51 for the evidence required to demonstrate 
living in the same household.

[[Page 252]]

    (b) Other evidence of a deemed valid marriage. If preferred evidence 
of a deemed valid marriage cannot be obtained, the claimant must explain 
the reason therefor and submit other convincing evidence of the 
marriage.

(Approved by the Office of Management and Budget under control number 
3220-0140)



Sec. 219.34  When evidence that a marriage has ended is required.

    Evidence of how a previous marriage ended may be required to 
determine whether a later marriage is valid. If a widow or widower 
remarried after the employee's death and that marriage was annulled, 
evidence of the annulment is required. If the claimant is a divorced 
spouse or surviving divorced spouse, evidence to prove a final or 
absolute divorce from the employee may be required.



Sec. 219.35  Evidence that a marriage has ended.

    (a) Preferred evidence. Preferred evidence that a marriage has ended 
is--
    (1) A certified copy of the decree of divorce or annulment; or
    (2) Evidence of the death (See Sec. 219.23) of a party to the 
marriage.
    (b) Other evidence that a marriage has ended. If preferred evidence 
that the marriage has ended cannot be obtained, the claimant must 
explain the reason therefor and submit other convincing evidence that 
the marriage has ended.

(Approved by the Office of Management and Budget under control numbers 
3220-0021 and 3220-0140)



Sec. 219.36  When evidence of a parent or child relationship is required.

    (a) When parent or child applies. A person who applies for a 
parent's or child's annuity or for Medicare coverage is required to 
submit evidence of his or her relationship to the deceased employee.
    (b) When individual with child in care applies. An individual who 
applies for an annuity because he or she has a child of the employee in 
care is required to submit evidence of the child's relationship to the 
employee.
    (c) Evidence required depends on relationship. The evidence the 
Board will require depends on whether the person is the employee's 
natural child, adopted child, stepchild, grandchild, or stepgrandchild; 
or whether the person is the employee's natural parent or adopting 
parent.



Sec. 219.37  Evidence of natural parent or child relationship.

    (a) Preferred evidence. If the claimant is the natural parent of the 
employee, preferred evidence of the ralationship is a copy of the 
employee's public or religious birth record. If the claimant is the 
natural child of the employee, preferred evidence of the relationship is 
a copy of the child's public or religious birth record.
    (b) Other evidence of parent or child relationship. (1) When 
preferred evidence of a parent or child relationship cannot be obtained, 
the Board may ask the applicant for evidence of the employee's marriage 
or of the marriage of the employee's parents if that is needed to remove 
any reasonable doubt of the relationship.
    (2) To show that a person is the child of the employee, the person 
may be asked for evidence that he or she would be able to inherit the 
employee's personal property under the law of the state where the 
employee died or had a permanent home.
    (3) In some instances the Board may ask for a signed statement from 
the employee that a person is his or her natural child, or for a copy of 
a court order showing that the person has been declared to be the child 
of the employee, or for a copy of a court order requiring the employee 
to contribute to the person's support because the person is his or her 
child, or for any other supporting evidence which may be required in 
order to establish that the person is the child of the employee.



Sec. 219.38  Evidence of stepparent or stepchild relationship.

    If the claimant is a stepparent or stepchild of the employee, the 
Board will ask for the evidence described in Sec. 219.37 or Sec. 
219.39 which shows the person's natural or adoptive relationship to the 
employee's husband, wife, widow, or widower. The Board will also ask for 
evidence of the husband's, wife's, widow's or widower's marriage to the 
employee (See Sec. Sec. 219.30-219.33).

[[Page 253]]



Sec. 219.39  Evidence of relationship by legal adoption--parent or child.

    (a) Preferred evidence. Preferred evidence of legal adoption is--
    (1) A copy of the decree or order of adoption, certified by the 
custodian of the record;
    (2) A photocopy of the decree or order of adoption; or
    (3) If the widow or widower adopted the child after the employee's 
death, the evidence described in paragraph (a)(1) or (2) of this 
section; the widow's or widower's statement as to whether the child was 
living in the same household with the employee when the employee died 
(see Sec. Sec. 219.50 and 219.51); what support, if any, the child was 
getting from another person or organization; and if the widow or widower 
had a deemed valid marriage with the employee, evidence of that marriage 
(see Sec. 219.33).
    (b) Other evidence of legal adoption. In some states the record of 
adoption proceedings is sealed and cannot be obtained without a court 
order. In this event, the Board will accept as proof of adoption an 
official notice received by the adopting parents at the time of adoption 
that the adoption has been completed or a birth certificate issued as a 
result of the adoption proceeding.



Sec. 219.40  Evidence of relationship by equitable adoption--child.

    (a) Preferred evidence. If the claimant is a person who claims to be 
the equitably adopted child of the employee (or of the employee's wife, 
widow, widower, or husband), as defined in part 222 of this chapter, the 
Board will ask for evidence of the agreement to adopt if it is in 
writing. The Board will also ask for written statements from the child's 
natural parents as well as adopting parents concerning the child's 
relationship to the adopting parents.
    (b) Other evidence. If the agreement to adopt was not in writing, 
the Board will require other convincing evidence about the child's 
relationship to the adopting parents.

(Approved by the Office of Management and Budget under control number 
3220-0040)



Sec. 219.41  Evidence of relationship of grandchild or stepgrandchild.

    If the child is the grandchild or stepgrandchild of the employee, 
the Board will require the kind of evidence described in Sec. Sec. 
219.36-219.38 that shows that child's relationship to his or her parents 
and his or her parents' relationship to the employee.



Sec. 219.42  When evidence of child's dependency is required.

    Evidence of a child's dependency on the employee is required when--
    (a) The employee is receiving an annuity that can be increased under 
the social security overall minimum (see part 229 of this chapter) by 
including a child, grandchild or a spouse who has a child in his or her 
care;
    (b) A wife under age 65 applies for a full spouse annuity because 
she has a child or a grandchild of the employee in her care; or
    (c) A child or someone in behalf of a child applies for a child's 
annuity based on the deceased employee's record.



Sec. 219.43  Evidence of child's dependency.

    (a) When the dependency requirement must be met. Usually the 
dependency requirement must be met at one of the times shown in part 222 
of this chapter.
    (b) Natural or adopted. If the child is the employee's natural or 
adopted child, the Board may ask for the following evidence:
    (1) A signed statement by someone who knows the facts that confirms 
that the child is the natural or adopted child.
    (2) If the child was adopted by someone else while the employee was 
alive but the adoption was annulled, the Board may require a certified 
copy of the annulment decree or other convincing evidence of the 
annulment.
    (3) A signed statement by someone having personal knowledge of the 
circumstances showing when and where the child lived with the employee 
and when and why they may have lived apart; and showing what 
contributions the employee made to the child's support and how the 
contributions were made.

[[Page 254]]

    (c) Stepchild. If the child is the employee's stepchild, the Board 
may ask for the following evidence;
    (1) A signed statement by someone having personal knowledge of the 
circumstances showing when and where the child lived with the employee 
and when and why they may have lived apart.
    (2) A signed statement by someone having personal knowledge of the 
circumstances showing what contributions the employee made to the 
child's support, the child's ordinary living costs and the income and 
support the child received from any other source during the relevant 
time as required by Sec. 222.55 of this chapter.
    (d) Grandchild or stepgrandchild. If the child is the employee's 
grandchild or stepgrandchild, the Board will require the evidence 
described in paragraph (c) of this section. The Board will also require 
evidence of the employee's death or disability.

(Approved by the Office of Management and Budget under control number 
3220-0099)



Sec. 219.44  Evidence of relationship of a person other than a parent 
or child.

    (a) Claimants other than child or parent. When any person other than 
a child or parent applies for benefits due because of the employee's 
death or because of the death of a beneficiary, the Board may ask the 
claimant for evidence of relationship.
    (b) Evidence required. The type of evidence required is dependent 
upon the amount payable and the claimant's relationship to the deceased 
employee or beneficiary.
    (c) More than one eligible and claimants agree on relationship. If 
there is more than one person eligible for benefits, and all eligible 
persons agree on the relationship of each other eligible person, only 
one of the persons will be asked to furnish proof of relationship. For 
example, if brothers and sisters of a deceased employee file 
applications for the residual lump sum or annuity payments due but 
unpaid at death, only one of them need file proof of relationship if 
their applications indicate that there is no dispute as to who are the 
brothers and sisters of the employee.



                  Subpart D_Other Evidence Requirements



Sec. 219.50  When evidence of ``living with'' is required.

    Evidence of ``living with'' (see part 222 of this chapter on Family 
Relationships) is required when--
    (a) The employee's spouse applies for a spouse's annuity as a deemed 
spouse; or
    (b) The employee's legal widow or widower applies for a lump-sum 
death payment, annuity payments due the employee but unpaid at death, or 
a residual lump-sum death payment on the basis of that relationship, or 
the employee's deemed widow or widower applies for a widow's or 
widower's annuity.



Sec. 219.51  Evidence to prove ``living with''.

    The following evidence may be required:
    (a) If the employee is alive, both the employee and his or her 
spouse must sign a statement that they are living together in the same 
household when the spouse applies for a spouse's annuity as a deemed 
spouse.
    (b) If the employee is dead, the widow or widower must sign a 
statement showing whether he or she was living together in the same 
household with the employee when the employee died.
    (c) If the employee and spouse, widow or widower were temporarily 
living apart, a signed statement is required explaining where each was 
living, how long the separation lasted, and the reason for separation. 
If more evidence is required to remove any reasonable doubt about the 
temporary nature of the separation, the Board may ask for sworn 
statements of other persons having personal knowledge of the facts or 
for other convincing evidence.
    (d) If the employee and spouse, widow, or widower were not living in 
the same household, the Board may ask for evidence that the employee was 
contributing to or under court order to contribute to the support of his 
or her spouse, widow, or widower. Evidence of contributions or a 
certified copy of the order for support may be requested. The court 
order for support must be in effect on the day the spouse applies for

[[Page 255]]

a spouse's annuity or, if the employee is dead, the day of the 
employee's death. This type of evidence does not apply for purposes of 
establishing a deemed valid marriage. (See part 222 of this chapter.) A 
deemed spouse, widow, or widower must furnish evidence as described in 
paragraphs (a) and (b) of this section.

(Approved by the Office of Management and Budget under control number 
3220-0030)



Sec. 219.52  When evidence of having a child in care is required.

    A person who applies for a spouse's, widow's or widower's, or 
surviving divorced spouse's annuity on the basis of caring for a child, 
or for an increase under the social security overall minimum guaranty 
provision based on caring for a child, is required to furnish evidence 
that he or she has in care an eligible child of the employee as 
described in part 222 of this chapter. What evidence the Board will 
require depends upon whether the child is living with the applicant or 
with someone else.



Sec. 219.53  Evidence of having a child in care.

    (a) Preferred evidence of having a child in care. Preferred evidence 
of having a child in care is--
    (1) If the child is living with the applicant, the claimant's signed 
statement showing that the child is living with him or her.
    (2) If the child is living with someone else--
    (i) The claimant's signed statement showing with whom the child is 
living and why. The claimant must also show when the child last lived 
with him or her, how long the separation will last, and what care and 
contributions he or she provides for the child; and
    (ii) The signed statement of the person with whom the child is 
living showing what care the claimant provides and the sources and 
amounts of support received by the child. If the child is in an 
institution, an official thereof should sign the statement. A copy of 
any court order or written agreement showing who has custody of the 
child should be provided to the Board.
    (b) Other evidence. If the preferred evidence described in paragraph 
(a) of this section cannot be obtained, the Board will require other 
convincing evidence that the applicant has the child in care.

(Approved by the Office of Management and Budget under control numbers 
3220-0030 and 3220-0042)



Sec. 219.54  When evidence of school attendance is required.

    If a child age 18 applies for payments as a student, the Board will 
require evidence that the child is attending elementary or secondary 
school. After the child has started his or her school attendance, the 
Board may also ask for evidence that he or she is continuing to attend 
school full time. To be acceptable to the Board, the child must submit 
the evidence of school attendance within 90 days of the date the 
evidence is requested by the Board.



Sec. 219.55  Evidence of school attendance for child age 18.

    The child will be asked to submit (on a form furnished by the Board 
or other form acceptable to the Board) the following evidence:
    (a) A signed statement that he or she is attending school full-time 
and is not being paid by an employer to attend school; and
    (b) A statement from an official of the school verifying that the 
child is attending school full-time. The Board may also accept as 
evidence a letter of acceptance from the school, receipted bill, or 
other evidence showing that the child has enrolled or been accepted at 
that school or is continuing in full-time attendance.

(Approved by the Office of Management and Budget under control numbers 
3220-0030, 3220-0083, and 3220-0123)



Sec. 219.56  When evidence of a parent's support is required.

    If a person applies for a parent's annuity, the Board will require 
evidence to show that the parent received at least one-half of his or 
her support from the employee in the one-year period before--
    (a) The employee died; or
    (b) The beginning of a period of disability if the employee had a 
period of disability which did not end before his or her death.

[[Page 256]]



Sec. 219.57  Evidence of a parent's support.

    (a) The Board will require the parent's signed statement showing his 
or her income, any other sources of support, the amount from each source 
and his or her expenses during the one-year period.
    (b) The Board may also ask the parent for signed statements from 
other people who know the facts about his or her sources of support.
    (c) If the statements described in paragraphs (a) and (b) of this 
section cannot be obtained, the Board will require other convincing 
evidence that the parent is receiving one-half of his or her support 
from the employee.

(Approved by the Office of Management and Budget under control number 
3220-0099)



Sec. 219.58  When evidence regarding payment of burial expenses is 
required.

    If a person applies for the lump-sum death payment because he or she 
is responsible for paying the funeral home or burial expenses of the 
employee or because he or she has paid some or all of these expenses, 
the Board will require evidence of such payment.



Sec. 219.59  Evidence of responsibility for or payment of burial 
expenses.

    The Board will ask for the following evidence:
    (a) The claimant's signed statement showing--
    (1) That he or she accepted responsibility for the funeral home 
expenses or paid some or all of these expenses or other burial expenses; 
or the name and address of the person who accepted responsibility for or 
paid these expenses;
    (2) Total funeral home expenses and, if necessary, the total of 
other burial expenses; and if someone else paid part of the expenses, 
that person's name, address, and the amount he or she paid;
    (3) The amount of cash or property the applicant expects to receive 
as repayment for any burial expenses he or she paid; and whether anyone 
has applied for any burial allowance from the Veterans Administration or 
other governmental agency for these expenses; and
    (4) If the claimant is an owner or official of a funeral home, a 
signed statement from anyone, other than employee of the home, who 
helped make the burial arrangements showing whether he or she accepted 
responsibility for paying the burial expenses.
    (b) Unless the claimant is an owner or official of a funeral home, a 
signed statement from the owner or official of the funeral home which 
handled the deceased employee's funeral and, if necessary, from those 
who supplied other burial goods or services which shows--
    (1) The name and address of everyone who accepted responsibility for 
or paid any part of the burial expenses; and
    (2) Information which the owner or official of the funeral home and, 
if necessary, any other supplier has about the expenses and payments 
described in paragraphs (a)(2) and (a)(3) of this section.

(Approved by the Office of Management and Budget under control number 
3220-0031)



Sec. 219.60  When evidence of the employee's permanent home is required.

    The Board may ask for evidence to prove where the employee had a 
permanent home at the time of filing an application or, if earlier, at 
the time the employee died if--
    (a) The claimant is applying for payments as the employee's wife, 
husband, widow, widower, parent, or child; and
    (b) The claimant's relationship to the employee depends upon the 
laws of the state where the employee had his or her permanent home when 
his or her wife or husband applied for an annuity or when the employee 
died.



Sec. 219.61  Evidence of where the employee had a permanent home.

    The Board will ask for the following evidence to establish the 
employee's permanent home:
    (a) The claimant's signed statement showing what the employee 
considered to be his or her permanent home.
    (b) If the statement in paragraph (a) of this section or other 
evidence raises a reasonable doubt in establishing the employee's 
permanent home, evidence of where the employee paid personal property 
taxes, real estate taxes, or income taxes; or evidence where the 
employee voted; or other convincing evidence.

[[Page 257]]



Sec. 219.62  When evidence of ``good cause'' is required.

    The principle of ``good cause'', as defined in part 217 of this 
chapter, is applied by the Board in determining whether to allow an 
application which is submitted more than two years after the employee's 
death as acceptable for the lump-sum death payment or for an annuity 
unpaid at death, or to accept the proof of support required for 
entitlement to a parent's annuity if such proof is filed more than two 
years after the employee's death.



Sec. 219.63  What evidence is required to establish ``good cause''.

    The Board will ask for the following evidence of ``good cause'':
    (a) The claimant's signed statement explaining why he or she did not 
file the application for lump-sum death payment or annuity unpaid at 
death or the parent's proof of support within the specified two-year 
period.
    (b) If the statement in paragraph (a) of this section or other 
evidence raises a reasonable doubt as to whether there was good cause, 
other convincing evidence to establish ``good cause''.



Sec. 219.64  When evidence may be required for other reasons.

    (a) The Board will require evidence of the appointment of a legal 
representative when--
    (1) The employee's estate is entitled to a lump-sum death payment, 
annuity unpaid at death, or residual lump sum, and an executor or 
administrator has been appointed for the estate; or
    (2) A minor child or incompetent is entitled to an annuity or lump-
sum payment and a guardian, trustee, committee, or conservator has been 
appointed to act in his or her behalf.
    (b) The Board will require evidence of an annuitant's earnings when 
the information that he or she furnished the Board does not agree with 
the earnings data furnished by the Social Security Administration or 
secured from other sources, and the annuitant maintains that the 
earnings data from the Social Security Administration or from other 
sources is not correct.
    (c) The Board will require evidence to establish the amounts paid as 
a public service pension, public disability benefit, or worker's 
compensation to an employee, spouse, widow, or widower when the pension, 
public disability benefit, or worker's compensation affects the amount 
of his or her annuity.

(Approved by the Office of Management and Budget under control numbers 
3220-0002, 3220-0136, and 3220-0154)
    (d) The Board will require evidence to reconcile discrepancies 
between the information furnished by the claimant and information 
already in the records of the Board, the Social Security Administration, 
or other public agencies. Such discrepancies may be differences in name, 
date or place of birth, periods of employment, or other identifying 
data.



Sec. 219.65  Other types of evidence that may be required.

    (a) The Board may ask for a statement from an employer listing the 
annuitant's earnings by months and explaining any payments made to the 
annuitant when he or she was not working.
    (b) The Board may ask for copies of award notices from a public 
agency showing the amounts of periodic payments and the period covered 
by each payment.
    (c) The Board may ask for a statement from the applicant explaining 
discrepancies and may ask for sworn statements from persons who have 
personal knowledge of the facts or for any other convincing evidence.
    (d) The Board may ask for proof of the court appointment of a legal 
representative, such as:
    (1) Certified copy of letters of appointment;
    (2) ``Short'' certificate;
    (3) Certified copy of order of appointment; or
    (4) Any official document issued by the clerk or other proper 
official of the appointing court.



PART 220_DETERMINING DISABILITY--Table of Contents




                            Subpart A_General

Sec.
220.1 Introduction of part.
220.2 The basis for the Board's disability decision.

[[Page 258]]

220.3 Determinations by other organizations and agencies.

        Subpart B_General Definitions of Terms Used In This Part

220.5 Definitions as used in this part.

 Subpart C_Disability Under the Railroad Retirement Act for Work in an 
                 Employee's Regular Railroad Occupation

220.10 Disability for work in an employee's regular railroad occupation.
220.11 Definitions as used in this subpart.
220.12 Evidence considered.
220.13 Establishment of permanent disability for work in regular 
          railroad occupation.
220.14 Weighing of evidence.
220.15 Effects of work on occupational disability.
220.16 Responsibility to notify the Board of events which affect 
          disability.
220.17 Recovery from disability for work in the regular occupation.
220.18 The reentitlement period.
220.19 Payment of the disability annuity during the trial work period 
          and the reentitlement period.
220.20 Notice that an annuitant is no longer disabled.
220.21 Initial evaluation of a previous occupational disability.

 Subpart D_Disability Under the Railroad Retirement Act for Any Regular 
                               Employment

220.25 General.
220.26 Disability for any regular employment, defined.
220.27 What is needed to show an impairment.
220.28 How long the impairment must last.
220.29 Work that is considered substantial gainful activity.
220.30 Special period required for eligibility of widow(er)s.

 Subpart E_Disability Determinations Governed by the Regulations of the 
                     Social Security Administration

220.35 Introduction.
220.36 Period of disability.
220.37 When a child's disability determination is governed by the 
          regulations of the Social Security Administration.
220.38 When a widow(er)'s disability determination is governed by the 
          regulations of the Social Security Administration.
220.39 Disability determination for a surviving divorced spouse or 
          remarried widow(er).

                    Subpart F_Evidence of Disability

220.45 Providing evidence of disability.
220.46 Medical evidence.
220.47 Purchase of existing medical evidence.
220.48 If the claimant fails to submit medical or other evidence.

                   Subpart G_Consultative Examinations

220.50 Consultative examinations at the Board's expense.
220.51 Notice of the examination.
220.52 Failure to appear at a consultative examination.
220.53 When the Board will purchase a consultative examination and how 
          it will be used.
220.54 When the Board will not purchase a consultative examination.
220.55 Purchase of consultative examinations at the reconsideration 
          level.
220.56 Securing medical evidence at the hearings officer hearing level.
220.57 Types of purchased examinations and selection of sources.
220.58 Objections to the designated physician or psychologist.
220.59 Requesting examination by a specific physician, psychologist or 
          institution--hearings officer hearing level.
220.60 Diagnostic surgical procedures.
220.61 Informing the examining physician or psychologist of examination 
          scheduling, report content and signature requirements.
220.62 Reviewing reports of consultative examinations.
220.63 Conflict of interest.
220.64 Program integrity.

                   Subpart H_Evaluation of Disability

220.100 Evaluation of disability for any regular employment.
220.101 Evaluation of mental impairments.
220.102 Non-severe impairment(s), defined.
220.103 Two or more unrelated impairments--initial claims.
220.104 Multiple impairments.
220.105 Initial evaluation of a previous disability.

                    Subpart I_Medical Considerations

220.110 Listing of Impairments in appendix 1 of this part.
220.111 Medical equivalence.
220.112 Conclusions by physicians concerning the claimant's disability.
220.113 Symptoms, signs, and laboratory findings.
220.114 Evaluation of symptoms, including pain.
220.115 Need to follow prescribed treatment.

[[Page 259]]

                 Subpart J_Residual Functional Capacity

220.120 The claimant's residual functional capacity.
220.121 Responsibility for assessing and determining residual functional 
          capacity.

                   Subpart K_Vocational Considerations

220.125 When vocational background is considered.
220.126 Relationship of ability to do work and residual functional 
          capacity.
220.127 When the only work experience is arduous unskilled physical 
          labor.
220.128 Age as a vocational factor.
220.129 Education as a vocational factor.
220.130 Work experience as a vocational factor.
220.131 Work which exists in the national economy.
220.132 Physical exertion requirements.
220.133 Skill requirements.
220.134 Medical-vocational guidelines in appendix 2 of this part.
220.135 Exertional and nonexertional limitations.

                 Subpart L_Substantial Gainful Activity

220.140 General.
220.141 Substantial gainful activity, defined.
220.142 General information about work activity.
220.143 Evaluation guides for an employed claimant.
220.144 Evaluation guides for a self-employed claimant.
220.145 Impairment-related work expenses.

           Subpart M_Disability Annuity Earnings Restrictions

220.160 How work for a railroad employer affects a disability annuity.
220.161 How work affects an employee disability annuity.
220.162 Earnings report.
220.163 Employee penalty deductions.
220.164 Employee end-of-year adjustment.

  Subpart N_Trial Work Period and Reentitlement Period for Annuitants 
                   Disabled for Any Regular Employment

220.170 The trial work period.
220.171 The reentitlement period.

 Subpart O_Continuing or Stopping Disability Due to Substantial Gainful 
                     Activity or Medical Improvement

220.175 Responsibility to notify the Board of events which affect 
          disability.
220.176 When disability continues or ends.
220.177 Terms and definitions.
220.178 Determining medical improvement and its relationship to the 
          annuitant's ability to do work.
220.179 Exceptions to medical improvement.
220.180 Determining continuation or cessation of disability.
220.181 The month in which the Board will find that the annuitant is no 
          longer disabled.
220.182 Before a disability annuity is stopped.
220.183 Notice that the annuitant is not disabled.
220.184 If the annuitant becomes disabled by another impairment(s).
220.185 The Board may conduct a review to find out whether the annuitant 
          continues to be disabled.
220.186 When and how often the Board will conduct a continuing 
          disability review.
220.187 If the annuitant's medical recovery was expected and the 
          annuitant returned to work.

Appendix 1 to Part 220--Listing of Impairments
Appendix 2 to Part 220--Medical-Vocational Guidelines
Appendix 3 to Part 220--Railroad Retirement Board Occupational 
          Disability Standards

    Authority: 45 U.S.C. 231a; 45 U.S.C. 231f.

    Source: 56 FR 12980, Mar. 28, 1991, unless otherwise noted.



                            Subpart A_General



Sec. 220.1  Introduction of part.

    (a) This part explains how disability determinations are made by the 
Railroad Retirement Board. In some determinations of disability 
entitlement, as described below, the Board makes the decision of 
disability under the Railroad Retirement Act based on the regulations 
set out in this part. However, in certain other determinations of 
disability entitlement (as also described below) the Board has the 
authority to decide whether the claimant is disabled as that term is 
defined in the Social Security Act and the regulations of the Social 
Security Administration.
    (b) In order for a claimant to become entitled to a railroad 
retirement annuity based on disability for his or her regular railroad 
occupation, or to become entitled to a railroad retirement annuity based 
on disability for any regular employment as an employee, widow(er), or 
child, he or she must be disabled as those terms are defined in the 
Railroad Retirement Act. In order

[[Page 260]]

for a claimant to become entitled to a period of disability, to early 
Medicare coverage based on disability, to benefits under the social 
security overall minimum, or to a disability annuity as a surviving 
divorced spouse or remarried widow(er), the claimant must be found 
disabled as that term is defined in the Social Security Act.



Sec. 220.2  The basis for the Board's disability decision.

    (a) The Board makes disability decisions for claims of disability 
under the Railroad Retirement Act. These decisions are based either on 
the rules contained in the Board's regulations in this part or the rules 
contained in the regulations of the Social Security Administration, 
whichever is controlling.
    (b) A disability decision is made only if the claimant meets other 
basic eligibility requirements for the specific disability benefit for 
which he or she is applying. For example, a claimant for an occupational 
disability annuity must first meet the eligibility requirements for that 
annuity, as explained in part 216 of this chapter, in order for the 
Board to make a disability decision.



Sec. 220.3  Determinations by other organizations and agencies.

    Determinations of the Social Security Administration or any other 
governmental or non-governmental agency about whether or not a claimant 
is disabled under the laws, regulations or standards administered by 
that agency shall be considered by the Board but are not binding on the 
Board.



        Subpart B_General Definitions of Terms Used in This Part



Sec. 220.5  Definitions as used in this part.

    Act means the Railroad Retirement Act of 1974.
    Application refers only to a form described in part 217 of this 
chapter.
    Board means the Railroad Retirement Board.
    Claimant means the person for whom an application for an annuity, 
period of disability or Medicare coverage is filed.
    Eligible means that a person would meet all the requirements for 
payment of an annuity but has not yet applied.
    Employee is defined in part 203 of this title.
    Entitled means that a person has applied and has proven his or her 
right to have the annuity, period of disability, or Medicare coverage 
begin.
    Medical source refers to both a treating source and a source of 
record.
    Review physician means a medical doctor either employed by or under 
contract to the Board who upon request reviews medical evidence and 
provides medical advice.
    Social security overall minimum refers to the provision of the 
Railroad Retirement Act which guarantees that the total monthly 
annuities payable to an employee and his or her family will not be less 
than the total monthly amount which would be payable under the Social 
Security Act if the employee's railroad service were credited as 
employment under the Social Security Act.
    Source of record means a hospital, clinic or other source that has 
provided a claimant with medical treatment or evaluation, as well as a 
physician or psychologist who has treated or evaluated a claimant but 
does not have an ongoing relationship with him or her.
    Treating source means the claimant's own physician or psychologist 
who has provided the claimant with medical treatment or evaluation and 
who has an ongoing treatment relationship with him or her.



 Subpart C_Disability Under the Railroad Retirement Act for Work in an 
                 Employee's Regular Railroad Occupation



Sec. 220.10  Disability for work in an employee's regular railroad 
occupation.

    (a) In order to receive an occupational disability annuity an 
eligible employee must be found by the Board to be disabled for work in 
his or her regular railroad occupation because of a permanent physical 
or mental impairment. In this subpart the Board describes in general 
terms how it evaluates a claim for an occupational disability annuity. 
In accordance with section 2(a)(2) of the Railroad Retirement Act this 
subpart was developed with the cooperation of employers and

[[Page 261]]

employees. This subpart is supplemented by an Occupational Disability 
Claims Manual (Manual) \1\ which was also developed with the cooperation 
of employers and employees.
---------------------------------------------------------------------------

    \1\ The Manual may be obtained from the Board's headquarters at 844 
North Rush Street, Chicago, IL 60611.
---------------------------------------------------------------------------

    (b) In accordance with section 2(a)(2) of the Railroad Retirement 
Act, the Board shall select two physicians, one from recommendations 
made by representatives of employers and one from recommendations made 
by representatives of employees. These individuals shall comprise the 
Occupational Disability Advisory Committee (Committee). This Committee 
shall periodically review, as necessary, this subpart and the Manual and 
make recommendations to the Board with respect to amendments to this 
subpart or to the Manual. The Board shall confer with the Committee 
before it amends either this subpart or the Manual.

[63 FR 7541, Feb. 13, 1998]



Sec. 220.11  Definitions as used in this subpart.

    Functional capacity test means one of a number of tests which 
provide objective measures of a claimant's maximal work ability and 
includes functional capacity evaluations which provide a systematic 
comprehensive assessment of a claimant's overall strength, mobility, 
endurance and capacity to perform physically demanding tasks, such as 
standing, walking, lifting, crouching, stooping or bending, climbing or 
kneeling.
    Independent Case Evaluation (ICE) means the process for evaluating 
claims not covered by appendix 3 of this part.
    Permanent physical or mental impairment means a physical or mental 
impairment or combination of impairments that can be expected to result 
in death or has lasted or can be expected to last for a continuous 
period of not less than 12 months.
    Regular railroad occupation means an employee's railroad occupation 
in which he or she has engaged in service for hire in more calendar 
months than the calendar months in which he or she has been engaged in 
service for hire in any other occupation during the last preceding five 
calendar years, whether or not consecutive; or has engaged in service 
for hire in not less than one-half of all of the months in which he or 
she has been engaged in service for hire during the last preceding 15 
consecutive calendar years. If an employee last worked as an officer or 
employee of a railway labor organization and if continuance in such 
employment is no longer available to him or her, the ``regular 
occupation'' shall be the position to which the employee holds seniority 
rights or the position which he or she left to work for a railway labor 
organization.
    Residual functional capacity has the same meaning as found in Sec. 
220.120.

[63 FR 7541, Feb. 13, 1998]



Sec. 220.12  Evidence considered.

    The regulations explaining the employee's responsibility to provide 
evidence of disability, the kind of evidence, what medical evidence 
consists of, and the consequences of refusing or failing to provide 
evidence or to have a medical examination are found in Sec. 220.45 
through Sec. 220.48. The regulations explaining when the employee may 
be requested to report for a consultative examination are found in Sec. 
220.50 and Sec. 220.51. The regulations explaining how the Board 
evaluates conclusions by physicians concerning the employee's 
disability, how the Board evaluates the employee's symptoms, what 
medical findings consist of, and the need to follow prescribed treatment 
are found in Sec. 220.112 through Sec. 220.115.

[56 FR 12980, Mar. 28, 1991. Redesignated at 63 FR 7541, Feb. 13, 1998]



Sec. 220.13  Establishment of permanent disability for work in regular 
railroad occupation.

    The Board will presume that a claimant who is not allowed to 
continue working for medical reasons by his employer has been found, 
under standards contained in this subpart, disabled unless the Board 
finds that no person could reasonably conclude on the basis of evidence 
presented that the claimant can no longer perform his or her regular 
railroad occupation for medical reasons. (See Sec. 220.21 if the 
claimant is

[[Page 262]]

not currently disabled, but was previously occupationally disabled for a 
specified period of time in the past). The Board uses the following 
evaluation process in determining disability for work in the regular 
occupation:
    (a) The Board evaluates the employee's medically documented physical 
and mental impairment(s) to determine if the employee has an impairment 
which is listed in the Listing of Impairments in appendix 1 of this 
part. That Listing describes impairments which are considered severe 
enough to prevent a person from doing any substantial gainful activity. 
If the Board finds that an employee has an impairment which is listed or 
is equal to one which is listed, it will find the employee disabled for 
work in his or her regular occupation without considering the duties of 
his or her regular occupation.
    (b) If the Board finds that the claimant does not have an impairment 
described in paragraph (a) of this section, it will--
    (1) Determine the employee's regular railroad occupation, as defined 
in Sec. 220.11, based upon the employee's own description of his or her 
job;
    (2) Evaluate whether the claimant is disabled as follows:
    (i) The Board first determines whether the employee's regular 
railroad occupation is an occupation covered under appendix 3 of this 
part. Second, the Board will determine whether the employee's claimed 
impairment(s) is covered under appendix 3 of this part. If claimant's 
regular railroad occupation or impairment(s) is not covered under 
appendix 3 of this part, then the Board will determine if the employee 
is disabled under ICE as set forth in paragraph (b)(2)(iv) of this 
section.
    (ii)(A) If the Board determines that, in accordance with paragraph 
(b)(2)(i) of this section, appendix 3 of this part applies, then the 
Board will confirm the existence of the employee's impairment(s) using--
    (1) The ``highly recommended'' and ``recommended'' tests set forth 
in appendix 3 of this part that relate to the body part affected by the 
claimant's impairment(s); or
    (2) By using valid diagnostic tests accepted by the medical 
community as described in Sec. 220.27.
    (B) If the employee's impairment(s) cannot be confirmed because 
there are significant differences in objective tests such as imaging 
study, electrocardiograms or other test results, and these differences 
cannot be readily resolved, the Board will determine if the employee is 
disabled under ICE as set forth in paragraph (b)(2)(iv) of this section. 
However, if the employee's impairment(s) cannot be confirmed, and there 
are no significant differences in objective medical tests which cannot 
be readily resolved, then the employee will be found not disabled.
    (iii) Once the impairment(s) is confirmed, as provided for in 
paragraph (b)(2)(ii) of this section, the Board will apply appendix 3 of 
this part. If appendix 3 of this part dictates a ``D'' (disabled) 
finding, the Board will find the claimant disabled.
    (iv) If the Board does not find the employee disabled using the 
standards in appendix 3 of this part, then the Board will determine if 
the employee is disabled using ICE. To evaluate a claim under ICE the 
Board will use the following steps:
    (A) Step 1. The Board will determine if the medical evidence is 
complete. Under this step the Board may request the claimant to take 
additional medical tests such as a functional capacity test or other 
consultative examinations;
    (B) Step 2. If the employee's impairment(s) has not been confirmed, 
as provided for in paragraph (b)(2)(ii)(A)(2) of this section, the Board 
will next confirm the employee's impairment(s), as described in 
paragraph (b)(2)(ii)(A)(2) of this section;
    (C) Step 3. The Board will determine whether the opinions among the 
physicians regarding medical findings are consistent, by reviewing the 
employee's medical history, physical and mental examination findings, 
laboratory or

[[Page 263]]

other test results, and other information provided by the employee or 
obtained by the Board. If such records reveal that there are significant 
differences in the medical findings, significant differences in opinions 
concerning the residual functional capacity evaluations among treating 
physicians, or significant differences between the results of functional 
capacity evaluations and residual functional capacity examinations, then 
the Board may request additional evidence from treating physicians, 
additional consultative examinations and/or residual functional capacity 
tests to resolve the inconsistencies;
    (D) Step 4. When the Board determines that there is concordance of 
medical findings, then the Board will assess the quality of the evidence 
in accordance with Sec. 220.112, which describes the weight to be given 
to the opinions of various physicians, and Sec. 220.114, which 
describes how the Board evaluates symptoms such as pain. The Board will 
also assess the weight of evidence by utilizing Sec. 220.14, which 
outlines factors to be used in determining the weight to be attributed 
to certain types of evidence. If, after assessment, the Board determines 
that there is no substantial objective evidence of an impairment, the 
Board will determine that the employee is not disabled;
    (E) Step 5. Next, the Board determines the physical and mental 
demands of the employee's regular railroad occupation. In determining 
the job demands of the employee's regular railroad occupation, the Board 
will not only consider the employee's own description of his or her 
regular railroad occupation, but shall also consider the employer's 
description of the physical requirements and environmental factors 
relating to the employee's regular railroad occupation, as provided by 
the employer on the appropriate form set forth in appendix 3 of this 
part, and consult other sources such as the Dictionary of Occupational 
Titles and the job descriptions of occupations found in the Occupational 
Disability Claims Manual, as provided for in Sec. 220.10;
    (F) Step 6. Based upon the assessment of the evidence in paragraph 
(b)(2)(iv)(D) of this section, the Board shall determine the employee's 
residual functional capacity. The Board will then compare the job 
demands of the employee's regular railroad occupation, as determined in 
paragraph (b)(2)(iv)(E) of this section. If the demands of the 
employee's regular railroad occupation exceed the employee's residual 
functional capacity, then the Board will find the employee disabled. If 
the demands do not exceed the employee's residual functional capacity, 
then the Board will find the employee not disabled.

[56 FR 12980, Mar. 28, 1991, as amended at 63 FR 7541, Feb. 13, 1998]



Sec. 220.14  Weighing of evidence.

    (a) Factors which support greater weight. Evidence will generally be 
given more weight if it meets one or more of the following criteria:
    (1) The residual functional capacity evaluation is based upon 
functional objective tests with high validity and reliability;
    (2) The medical evidence shows multiple impairments which have a 
cumulative effect on the employee's residual functional capacity;
    (3) Symptoms associated with limitations are consistent with 
objective findings;
    (4) There exists an adequate trial of therapies with good 
compliance, but poor outcome;
    (5) There exists consistent history of conditions between treating 
physicians and other health care providers.
    (b) Factors which support lesser weight. Evidence will generally be 
given lesser weight if it meets one or more of the following criteria:
    (1) There is an inconsistency between the diagnoses of the treating 
physicians;
    (2) There is inconsistency between reports of pain and functional 
impact;
    (3) There is inconsistency between subjective symptoms and physical 
examination findings;
    (4) There is evidence of poor compliance with treatment regimen, 
keeping appointments, or cooperating with treatment;
    (5) There is evidence of exam findings which is indicative of 
exaggerated or potential malingering response;

[[Page 264]]

    (6) The evidence consists of objective findings of exams that have 
poor reliability or validity;
    (7) The evidence consists of imaging findings which are nonspecific 
and largely present in the general population;
    (8) The evidence consists of a residual functional capacity 
evaluation which is supported by limited objective data without 
consideration for functional capacity testing.

[63 FR 7542, Feb. 13, 1998]



Sec. 220.15  Effects of work on occupational disability.

    (a) Disability onset when the employee works despite impairment. An 
employee who has stopped work in his or her regular occupation due to a 
permanent physical or mental impairment(s) may make an effort to return 
to work in his or her regular occupation. If the employee is 
subsequently forced to stop that work after a short time because of his 
or her impairment(s), the Board will generally consider that work as an 
unsuccessful work attempt. In this situation, the Board may determine 
that the employee became disabled for work in his or her regular 
occupation before the last date the employee worked in his or her 
regular occupation. No annuity will be payable, however, until after the 
last date worked.
    (b) Occupational disability annuitant work restrictions. The 
restrictions which apply to an annuitant who is disabled for work in his 
or her regular occupation are found in Sec. Sec. 220.160 through 
220.164.



Sec. 220.16  Responsibility to notify the Board of events which affect 
disability.

    If the annuitant is entitled to a disability annuity because he or 
she is disabled for work in his or her regular occupation, the annuitant 
should promptly tell the Board if--
    (a) His or her impairment(s) improves;
    (b) He or she returns to any type of work;
    (c) He or she increases the amount of work; or
    (d) His or her earnings increase.



Sec. 220.17  Recovery from disability for work in the regular occupation.

    (a) General. Disability for work in the regular occupation will end 
if--
    (1) There is medical improvement in the annuitant's impairment(s) to 
the extent that the annuitant is able to perform the duties of his or 
her regular occupation; or
    (2) The annuitant demonstrates the ability to perform the duties of 
his or her regular occupation. The Board provides a trial work period 
before terminating a disability annuity because of the annuitant's 
return to work.
    (b) Definition of the trial work period. The trial work period is a 
period during which the annuitant may test his or her ability to work 
and still be considered occupationally disabled. It begins and ends as 
described in paragraph (e) of this section. During this period, the 
annuitant may perform ``services'' (see paragraph (c) of this section) 
in as many as 9 months, but these months do not have to be consecutive. 
The Board will not consider those services as showing that the 
annuitant's occupational disability has ended until the annuitant has 
performed services in at least 9 months. However, after the trial work 
period has ended, the Board will consider the work the annuitant did 
during the trial work period in determining whether the annuitant's 
occupational disability has ended at any time after the trial work 
period.
    (c) What the Board means by services in an occupational disability 
case. When used in this section, ``services'' means any activity which, 
even though it may not be substantial gainful activity as defined in 
Sec. 220.141, is--
    (1) Done by a person in employment or self-employment for pay or 
profit, or is the kind normally done for pay or profit; and
    (2) The activity is a return to the same duties of the annuitant's 
regular occupation or the activity so closely approximates the duties of 
the regular occupation as to demonstrate the ability to perform those 
duties.
    (d) Limitations on the number of trial work periods. The annuitant 
may have only one trial work period during each period in which he or 
she is occupationally disabled.

[[Page 265]]

    (e) When the trial work period begins and ends. (1) The trial work 
period begins with whichever of the following calendar months is the 
latest--
    (i) The annuity beginning date;
    (ii) The month after the end of the appropriate waiting period; or
    (iii) The month the application for disability is filed.
    (2) The trial work period ends with the close of whichever of the 
following calendar months is the earlier--
    (i) The ninth month (whether or not the months have been 
consecutive) in which the annuitant performed services; or
    (ii) The month in which new evidence, other than evidence relating 
to any work the annuitant did during the trial work period, shows that 
the annuitant is not disabled, even though the annuitant has not worked 
a full nine months. The Board may find that the annuitant's disability 
has ended at any time during the trial work period if the medical or 
other evidence shows that the annuitant is no longer disabled.



Sec. 220.18  The reentitlement period.

    (a) General. The reentitlement period is an additional period after 
the nine months of trial work during which the annuitant may continue to 
test his or her ability to work if the annuitant has a disabling 
impairment.
    (b) When the reentitlement period begins and ends. The reentitlement 
period begins with the first month following completion of nine months 
of trial work but cannot begin earlier than December 1, 1980. It ends 
with whichever is earlier--
    (1) The month before the first month in which the annuitant's 
impairment(s) no longer exists or is not medically disabling; or
    (2) The last day of the 36th month following the end of the 
annuitant's trial work period.
    (c) When the annuitant is not entitled to a reentitlement period. 
The annuitant is not entitled to a reentitlement period if--
    (1) The annuitant is not entitled to a trial work period; or
    (2) The annuitant's disability ended before the annuitant completed 
nine months of trial work in that period in which he or she was 
disabled.



Sec. 220.19  Payment of the disability annuity during the trial work 
period and the reentitlement period.

    (a) The employee who is entitled to an occupational disability 
annuity will not be paid an annuity for each month in the trial work 
period or reentitlement period in which he or she--
    (1) Works for an employer covered by the Railroad Retirement Act 
(see Sec. 220.160); or
    (2) Earns more than $400 (after deduction of impairment-related work 
expenses) in employment or self-employment (see Sec. Sec. 220.161 and 
220.164). See Sec. 220.145 for the definition of impairment-related 
work expenses.
    (b) If the employee's occupational disability annuity is stopped 
because of work during the trial work period or reentitlement period, 
and the employee discontinues that work before the end of either period, 
the disability annuity may be started again without a new application 
and a new determination of disability.



Sec. 220.20  Notice that an annuitant is no longer disabled.

    The regulation explaining the Board's responsibilities in notifying 
the annuitant, and the annuitant's rights when the disability annuity is 
stopped is found in Sec. 220.183.



Sec. 220.21  Initial evaluation of a previous occupational disability.

    (a) In some cases, the Board may determine that a claimant is not 
currently disabled for work in his or her regular occupation but was 
previously disabled for a specified period of time in the past. This can 
occur when--
    (1) The disability application was filed before the claimant's 
occupational disability ended, but the Board did not make the initial 
determination of occupational disability until after the claimant's 
disability ended; or
    (2) The disability application was filed after the claimant's 
occupational disability ended but no later than the 12th month after the 
month the disability ended.
    (b) When evaluating a claim for a previous occupational disability, 
the Board follows the steps in Sec. 220.13 to determine whether an 
occupational disability existed, and follows the steps in

[[Page 266]]

Sec. Sec. 220.16 and 220.17 to determine when the occupational 
disability ended.

    Example 1: The claimant sustained multiple fractures to his left leg 
in an automobile accident which occurred on June 16, 1982. For a period 
of 18 months following the accident the claimant underwent 2 surgical 
procedures which restored the functional use of his leg. After a 
recovery period following the last surgery, the claimant returned to his 
regular railroad job on February 1, 1984. The claimant, although fully 
recovered medically and regularly employed, filed an application on 
December 3, 1984 for a determination of occupational disability for the 
period June 16, 1982 through January 31, 1984. The Board reviewed his 
claim in January 1985 and determined that he was occupationally disabled 
for the prior period which began on June 16, 1982 and continued through 
January 31, 1984. A disability annuity is payable to the employee only 
for the period December 1, 1983 through January 31, 1984. An annuity may 
not begin any earlier than the 1st day of the 12th month before the 
month in which the application was filed. (See part 218 of this chapter 
for the rules on when an annuity may begin).
    Example 2: The claimant is occupationally disabled using the same 
medical facts disclosed above, beginning June 16, 1982 (the date of the 
automobile accident). The claimant files an application for an 
occupational disability annuity, dated December 1, 1983. However, as of 
February 1, 1984, and before the Board makes a disability determination, 
the claimant returns to his regular railroad job and is no longer 
considered occupationally disabled. The Board reviews the claimant's 
application in May of 1984 and finds him occupationally disabled for the 
period June 16, 1982 through January 31, 1984. A disability annuity is 
payable to the employee from December 1, 1982 through January 31, 1984. 
(See part 218 of this chapter for the rules on when an annuity may 
begin).



 Subpart D_Disability Under the Railroad Retirement Act for Any Regular 
                               Employment



Sec. 220.25  General.

    The definition and discussion of disability for any regular 
employment are found in Sec. Sec. 220.26 through 220.184.



Sec. 220.26  Disability for any regular employment, defined.

    An employee, widow(er), or child is disabled for any regular 
employment if he or she is unable to do any substantial gainful activity 
because of a medically determinable physical or mental impairment which 
meets the duration requirement defined in Sec. 220.28. In the case of a 
widow(er), the permanent physical or mental impairment must have 
prevented work in any regular employment before the end of a specific 
period (see Sec. 220.30). In the case of a child, the permanent 
physical or mental impairment must have prevented work in any regular 
employment since before age 22. To meet this definition of disability, a 
claimant must have a severe impairment, which makes him or her unable to 
do any previous work or other substantial gainful activity which exists 
in the national economy. To determine whether a claimant is able to do 
any other work, the Board considers a claimant's residual functional 
capacity, age, education and work experience. See Sec. 220.100 for the 
process by which the Board evaluates disability for any regular 
employment. This process applies to employees, widow(er)s, or children 
who apply for annuities based on disability for any regular employment. 
This process does not apply to surviving divorced spouses or remarried 
widow(er)s who apply for annuities based on disability.



Sec. 220.27  What is needed to show an impairment.

    A physical or mental impairment must result from anatomical, 
physiological, or psychological abnormalities which can be shown by 
medically acceptable clinical and laboratory diagnostic techniques. A 
physical or mental impairment must be established by medical evidence 
consisting of signs, symptoms, and laboratory findings, not only by the 
claimant's statement of symptoms. (See Sec. 220.113 for further 
information about what is meant by symptoms, signs, and laboratory 
findings.) (See also Sec. 220.112 for the effect of a medical opinion 
about whether or not a claimant is disabled.)



Sec. 220.28  How long the impairment must last.

    Unless the claimant's impairment is expected to result in death, it 
must have lasted or must be expected to last for a continuous period of 
at least 12 months. This is known as the duration requirement.

[[Page 267]]



Sec. 220.29  Work that is considered substantial gainful activity.

    Work is considered to be substantial gainful activity if it--
    (a) Involves doing significant and productive physical or mental 
duties; and
    (b) Is done or is intended to be done for pay or profit. (See Sec. 
220.141 for a detailed explanation of what is substantial gainful 
activity.)



Sec. 220.30  Special period required for eligibility of widow(er)s.

    In order to be found disabled for any regular employment, a 
widow(er) must have a permanent physical or mental impairment which 
prevented work in any regular employment since before the end of a 
specific period as defined in part 216 of this chapter.



 Subpart E_Disability Determinations Governed by the Regulations of the 
                     Social Security Administration



Sec. 220.35  Introduction.

    In addition to its authority to decide whether a claimant is 
disabled under the Railroad Retirement Act, the Board has authority in 
certain instances to decide whether a claimant is disabled as that term 
is defined in the Social Security Act. In making these decisions the 
Board must apply the regulations of the Social Security Administration 
in the same manner as does the Secretary of Health and Human Services in 
making disability decisions under the Social Security Act. Regulations 
of the Social Security Administration concerning disability are found at 
part 404, subpart P of this title.



Sec. 220.36  Period of disability.

    (a) General. In order to receive an annuity based upon a disability, 
an employee must be found disabled under the Railroad Retirement Act. If 
an employee is found disabled under the Railroad Retirement Act, the 
Board will determine whether he is disabled under the Social Security 
Act to qualify for a period of disability as defined in that Act.
    (b) Period of disability--(1) Definition and effect. A period of 
disability is a continuous period of time during which an employee is 
disabled as that term is defined in Sec. 404.1505 of this title. A 
period of disability established by the Board--
    (i) Preserves the disabled employee's earnings record as it is when 
the period begins;
    (ii) Protects the insured status required for entitlement to social 
security overall minimum;
    (iii) May cause an increase in the rate of an employee, spouse, or 
survivor annuity; or
    (iv) May permit a disabled employee to receive Medicare benefits in 
addition to an annuity under the Railroad Retirement Act.
    (2) Effect on benefits. The establishment of a period of disability 
for the employee will never cause a denial or reduction in benefits 
under the Railroad Retirement Act or Social Security Act, but it will 
always be used to establish Medicare entitlement before age 65.
    (3) Who may establish a period of disability. The Railroad 
Retirement Board or the Social Security Administration may establish a 
period of disability. However, the decision of one agency is not binding 
upon the other agency.
    (4) When the Board may establish a period of disability. The Board 
has independent authority to decide whether or not to establish a period 
of disability for any employee who was awarded an annuity under the 
Railroad Retirement Act, or who--
    (i) Has applied for a disability annuity; and
    (ii) Has at least 10 years of railroad service.
    (5) When an employee is entitled to a period of disability. An 
employee is entitled to a period of disability if he or she meets the 
following requirements:
    (i) The employee is disabled under the Social Security Act, as 
described in Sec. 404.1505 of this title.
    (ii) The employee is insured for a period of disability under Sec. 
404.130 of this title based on combined railroad and social security 
earnings.
    (iii) The employee files an application as shown in subparagraph 
(b)(6) of this section.

[[Page 268]]

    (iv) At least 5 consecutive months elapse from the month in which 
the period of disability begins and before the month in which it would 
end.
    (6) Application for a period of disability. (i) An application for 
an employee disability annuity under the Railroad Retirement Act or an 
employee disability benefit under the Social Security Act is also an 
application for a period of disability.
    (ii) An employee who is receiving an age annuity or who was 
previously denied a period of disability must file a separate 
application for a period of disability.
    (iii) In order to be entitled to a period of disability, an employee 
must apply while he or she is disabled or not later than 12 months after 
the month in which the period of disability ends.
    (iv) An employee who is unable to apply within the 12-month period 
after the period of disability ends because his or her physical 
condition limited his or her activities to the extent that he or she 
could not complete and sign an application or because he or she was 
mentally incompetent, may apply no later than 36 months after the period 
of disability ends.
    (v) A period of disability can also be established on the basis of 
an application filed within 3 months after the month a disabled employee 
died.
    (c) Social security overall minimum. The social security overall 
minimum provision of the Railroad Retirement Act guarantees that the 
total monthly annuities payable to an employee and his or her family 
will not be less than the total monthly benefit which would be payable 
under the Social Security Act if the employee's railroad service were 
credited as employment under the Social Security Act.

(The information collection requirements contained in paragraph (b)(6) 
were approved by the Office of Management and Budget under control 
number 3220-0002)



Sec. 220.37  When a child's disability determination is governed by 
the regulations of the Social Security Administration.

    (a) In order to receive an annuity based upon disability, a child of 
a deceased employee must be found disabled under the Railroad Retirement 
Act. However, in addition to this determination, the child must be found 
disabled under the Social Security Act in order to qualify for Medicare 
based upon disability.
    (b) Although the child of a living employee may not receive an 
annuity under the Railroad Retirement Act, he or she, if found disabled 
under the Social Security Act, may qualify for the following:
    (1) Inclusion as a disabled child in the employee's annuity rate 
under the social security overall minimum.
    (2) Entitlement to Medicare based upon disability.



Sec. 220.38  When a widow(er)'s disability determination is governed 
by the regulations of the Social Security Administration.

    In order to receive an annuity based upon disability, a widow(er) 
must be found disabled under the Railroad Retirement Act. However, in 
addition to this determination, the widow(er) must be found disabled 
under the Social Security Act in order to qualify for early Medicare 
based upon disability.



Sec. 220.39  Disability determination for a surviving divorced spouse 
or remarried widow(er).

    A surviving divorced spouse or a remarried widow(er) must be found 
disabled under the Social Security Act in order to qualify for both an 
annuity under the Railroad Retirement Act and early Medicare based upon 
disability. Disability determinations for surviving divorced spouses and 
remarried widow(er)s are governed by the applicable regulations of the 
Social Security Administration, found at Sec. 404.1577 of this title.



                    Subpart F_Evidence of Disability



Sec. 220.45  Providing evidence of disability.

    (a) General. The claimant for a disability annuity is responsible 
for providing evidence of the claimed disability and the effect of the 
disability on the ability to work. The Board will assist the claimant, 
when necessary, in obtaining the required evidence. At its discretion, 
the Board will arrange for an examination by a consultant at the

[[Page 269]]

expense of the Board as explained in Sec. Sec. 220.50 and 220.51.
    (b) Kind of evidence. The claimant must provide medical evidence 
showing that he or she has an impairment(s) and how severe it is during 
the time the claimant claims to be disabled. The Board will consider 
only impairment(s) the claimant claims to have or about which the Board 
receives evidence. Before deciding that the claimant is not disabled, 
the Board will develop a complete medical history (i.e., evidence from 
the records of the claimant's medical sources) covering at least the 
preceding 12 months, unless the claimant says that his or her disability 
began less than 12 months before he or she filed an application. The 
Board will make every reasonable effort to help the claimant in getting 
medical reports from his or her own medical sources when the claimant 
gives the Board permission to request them. Every reasonable effort 
means that the Board will make an initial request and, after 20 days, 
one follow-up request to the claimant's medical source to obtain the 
medical evidence necessary to make a determination before the Board 
evaluates medical evidence obtained from another source on a 
consultative basis. The medical source will have 10 days from the 
follow-up request to reply (unless experience indicates that a longer 
period is advisable in a particular case). In order to expedite 
processing the Board may order a consultative exam from a non-treating 
source while awaiting receipt of medical source evidence. If the Board 
ask the claimant to do so, he or she must contact the medical sources to 
help us get the medical reports. The Board may also ask the claimant to 
provide evidence about his or her--
    (1) Age;
    (2) Education and training;
    (3) Work experience;
    (4) Daily activities both before and after the date the claimant 
says that he or she became disabled;
    (5) Efforts to work; and
    (6) Any other evidence showing how the claimant's impairment(s) 
affects his or her ability to work. (In Sec. Sec. 220.125 through 
220.134, we discuss in more detail the evidence the Board needs when it 
considers vocational factors.)

(Approved by the Office of Management and Budget under control numbers 
3220-0002, 3220-0030, 3220-0106 and 3220-0141)



Sec. 220.46  Medical evidence.

    (a) Acceptable sources. The Board needs reports about the claimant's 
impairment(s) from acceptable medical sources. Acceptable medical 
sources are--
    (1) Licensed physicians;
    (2) Licensed osteopaths;
    (3) Licensed or certified psychologists;
    (4) Licensed optometrists for the measurement of visual acuity and 
visual fields (a report from a physician may be needed to determine 
other aspects of eye diseases); and
    (5) Persons authorized to furnish a copy or summary of the records 
of a medical facility. Generally, the copy or summary should be 
certified as accurate by the custodian or by any authorized employee of 
the Railroad Retirement Board, Social Security Administration, 
Department of Veterans Affairs, or State agency.
    (b) Medical reports. Medical reports should include--
    (1) Medical history;
    (2) Clinical findings (such as the results of physical or mental 
status examinations);
    (3) Laboratory findings (such as blood pressure, x-rays);
    (4) Diagnosis (statement of disease or injury based on its signs and 
symptoms);
    (5) Treatment prescribed, with response to treatment and prognosis; 
and
    (6)(i) Statements about what the claimant can still do despite his 
or her impairment(s) based on the medical source's findings on the 
factors under paragraph (b)(1) through (5) of this section (except in 
disability claims for remarried widow's and surviving divorced spouses). 
(See Sec. 220.112).
    (ii) Statements about what the claimant can still do (based on the 
medical source's findings on the factors under paragraph (b)(1) through 
(5) of this section) should describe--
    (A) The medical source's opinion about the claimant's ability, 
despite his or her impairment(s), to do work-

[[Page 270]]

related activities such as sitting, standing, moving about, lifting, 
carrying, handling objects, hearing, speaking, and traveling; and
    (B) In cases of mental impairment(s), the medical source's opinion 
about the claimant's ability to reason or make occupational, personal, 
or social adjustments. (See Sec. 220.112).
    (c) Completeness. The medical evidence, including the clinical and 
laboratory findings, must be complete and detailed enough to allow the 
Board to make a determination about whether or not the claimant is 
disabled. It must allow the Board to determine--
    (1) The nature and limiting effects of the claimant's impairment(s) 
for any period in question;
    (2) The probable duration of the claimant's impairment(s); and
    (3) The claimant's residual functional capacity to do work-related 
physical and mental activities.
    (d) Evidence from physicians. A statement by or the opinion of the 
claimant's treating physician will not determine whether the claimant is 
disabled. However, the medical evidence provided by a treating physician 
will be considered by the Board in making a disability decision. A 
treating physician is a doctor to whom the claimant has been going for 
treatment on a continuing basis. The claimant may have more than one 
treating physician. The Board may use consulting physicians or other 
medical consultants for specialized examinations or tests, to obtain 
more complete evidence, and to resolve any conflicts. A consulting 
physician is a doctor (often a specialist) to whom the claimant is 
referred for an examination once or on a limited basis. (See Sec. 
220.50 for an explanation of when the Board may request a consultative 
examination.)
    (e) Information from other sources. Information from other sources 
may also help the Board understand how an impairment affects the 
claimant's ability to work. Other sources include--
    (1) Public and private social welfare agencies;
    (2) Observations by nonmedical sources;
    (3) Other practitioners (for example, naturopaths, chiropractors, 
audiologists, etc.); and
    (4) Railroad and nonrailroad employers.

(Approved by the Office of Management and Budget under control number 
3220-0038)



Sec. 220.47  Purchase of existing medical evidence.

    The Board needs specific medical evidence to determine whether a 
claimant is disabled. The claimant is responsible for providing that 
evidence. However, at its discretion, the Board will pay the reasonable 
cost to obtain medical evidence that it needs and requests from 
physicians not employed by the Federal government and other non-Federal 
providers of medical services.



Sec. 220.48  If the claimant fails to submit medical or other evidence.

    The Board may request a claimant to submit medical or other 
evidence. If the claimant does not submit that evidence, the Board will 
make a decision on other evidence which is either already available in 
the claimant's case or which the Board may develop from other sources, 
including reports of consultative examinations.



                   Subpart G_Consultative Examinations



Sec. 220.50  Consultative examinations at the Board's expense.

    A consultative examination is a physical or mental examination or 
test purchased for a claimant at the Board's request and expense. If the 
claimant's medical sources cannot provide sufficient medical evidence 
about the claimant's impairment(s) in order to enable the Board to 
determine whether the claimant is disabled, the Board may ask the 
claimant to have one or more consultative examinations or tests. The 
decision to purchase a consultative examination will be made on an 
individual case basis in accordance with the provisions of Sec. Sec. 
220.53 through 220.56. Selection of the source for the examination will 
be consistent with the provisions of Sec. 220.64 (Program Integrity).

(Approved by the Office of Management and Budget under control number 
3220-0124)

[[Page 271]]



Sec. 220.51  Notice of the examination.

    If the Board arranges for an examination or test, the claimant will 
be provided with reasonable notice of the date, time, and place of the 
examination or test and the name of the person who will do it. The Board 
will also give the examiner any necessary background information about 
the claimant's impairment(s).



Sec. 220.52  Failure to appear at a consultative examination.

    (a) General. The Board may find that the claimant is not disabled if 
he or she does not have good reason for failing or refusing to take part 
in a consultative examination or test which was arranged by the Board. 
If the individual is already receiving an annuity and does not have a 
good reason for failing or refusing to take part in a consultative 
examination or test which the Board arranged, the Board may determine 
that the individual's disability has stopped because of his or her 
failure or refusal. The claimant for whom an examination or test has 
been scheduled should notify the Board as soon as possible before the 
scheduled date of the examination or test if he or she has any reason 
why he or she cannot go to the examination or test. If the Board finds 
that the claimant has a good reason for failure to appear, another 
examination or test will be scheduled.
    (b) Examples of good reasons for failure to appear. Some examples of 
good reasons for not going to a scheduled examination or test include--
    (1) Illness on the date of the scheduled examination or test;
    (2) Failure to receive notice or timely notice of an examination or 
test;
    (3) Receipt of incorrect or incomplete information about the 
examination or test; or
    (4) A death or serious illness in the claimant's immediate family.
    (c) Objections by a claimant's physician. The Board should be 
notified immediately if the claimant is advised by his or her treating 
physician not to take an examination or test. In some cases, the Board 
may be able to secure the information which is needed in another way or 
the treating physician may agree to another type of examination for the 
same purpose.



Sec. 220.53  When the Board will purchase a consultative examination 
and how it will be used.

    (a)(1) General. The decision to purchase a consultative examination 
for a claimant will be made after full consideration is given to whether 
the additional information needed (e.g., clinical findings, laboratory 
tests, diagnosis, and prognosis, etc.) is readily available from the 
records of the claimant's medical sources. Upon filing an application 
for a disability annuity, a claimant will be required to obtain from his 
or her medical source(s) information regarding the claimed impairments. 
The Board will seek clarification from a medical source who has provided 
a report when that report contains a conflict or ambiguity, or does not 
contain all necessary information or when the information supplied is 
not based on objective evidence. The Board will not, however, seek 
clarification from a medical source when it is clear that the source 
either cannot or will not provide the necessary findings, or cannot 
reconcile a conflict or ambiguity in the findings provided from the 
source's records. Therefore, before purchasing a consultative 
examination, the Board will consider not only existing medical reports, 
but also the background report containing the claimant's allegations and 
information about the claimant's vocational background, as well as other 
pertinent evidence in his or her file.
    (2) When the Board purchases a consultative examination, we will use 
the report from the consultative examination to try to resolve a 
conflict or ambiguity if one exists. The Board will do this by comparing 
the persuasiveness and value of the evidence. The Board will also use a 
consultative examination to secure needed medical evidence the file does 
not contain such as clinical findings, laboratory tests, a diagnosis or 
prognosis necessary for decision.
    (b) Situations requiring a consultative examination. A consultative 
examination may be purchased when the evidence as a whole, both medical 
and non-medical, is not sufficient to support a decision on the claim. 
In addition, other situations, such as one or more of the following, 
will normally

[[Page 272]]

require a consultative examination (these situations are not all-
inclusive):
    (1) The specific additional evidence needed for adjudication has 
been pinpointed and high probability exists for obtaining it through 
purchase.
    (2) The additional evidence needed is not contained in the records 
of the claimant's treating sources.
    (3) Evidence that may be needed from the claimant's treating or 
other medical sources cannot be obtained for reasons beyond his or her 
control, such as death or noncooperation of the medical source.
    (4) Highly technical or specialized medical evidence which is needed 
is not available from the claimant's treating sources.
    (5) A conflict, inconsistency, ambiguity or insufficiency in the 
evidence must be resolved.
    (6) There is an indication of a change in the claimant's condition 
that is likely to affect his or her ability to function, but current 
severity is not documented.
    (7) Information provided by any source appears not to be supported 
by objective evidence.



Sec. 220.54  When the Board will not purchase a consultative examination.

    A consultative examination will not be purchased in the following 
situations (these situations are not all-inclusive):
    (a) In disabled widow(er) benefit claims, when the alleged month of 
disability is after the end of the 7-year period specified in Sec. 
216.38 and there is no possibility of establishing an earlier onset, or 
when the 7-year period expired in the past and all the medical evidence 
in the claimant's file establishes that he or she was not disabled on or 
before the expiration date.
    (b) When any issues about the actual performance of substantial 
gainful activity have not been resolved.
    (c) In childhood disability claims, when it is determined that the 
claimant's alleged childhood disability did not begin before the month 
of attainment of age 22. In this situation, the claimant could not be 
entitled to benefits as a disabled child unless found disabled before 
age 22.
    (d) When, on the basis of the claimant's allegations and all 
available medical reports in his or her case file, it is apparent that 
he or she does not have an impairment which will have more than a 
minimal effect on his or her capacity to work.
    (e) Childhood disability claims filed concurrently with the 
employee's claim and entitlement cannot be established for the employee.
    (f) Survivors childhood disability claims where entitlement is 
precluded based on non-disability factors.



Sec. 220.55  Purchase of consultative examinations at the 
reconsideration level.

    (a) When a claimant requests a review of the Board's initial 
determination at the reconsideration level of review, consultative 
medical examinations will be obtained when needed, but not routinely. A 
consultative examination will not, if possible, be performed by the same 
physician or psychologist used in the initial claim.
    (b) Where the evidence tends to substantiate an affirmation of the 
initial denial but the claimant states that the treating physician or 
psychologist considers him or her to be disabled, the Board will assist 
the claimant in securing medical reports or records from the treating 
physician.



Sec. 220.56  Securing medical evidence at the hearings officer hearing 
level.

    (a) Where there is a conflict in the medical evidence at the hearing 
level of review before a hearings officer, the hearings officer will try 
to resolve it by comparing the persuasiveness and value of the 
conflicting evidence. The hearings officer's reasoning will be explained 
in the decision rationale. Where such resolution is not possible, the 
hearings officer will secure additional medical evidence (e.g., clinical 
findings, laboratory test, diagnosis, prognosis, etc.) to resolve the 
conflict. Even in the absence of a conflict, the hearings officer will 
also secure additional medical evidence when the file does not contain 
findings, laboratory tests, a diagnosis, or a prognosis necessary for a 
decision.
    (b) Before requesting a consultative examination, the hearings 
officer will

[[Page 273]]

ascertain whether the information is available as a result of a recent 
examination by any of the claimant's medical sources. If it is, the 
hearings officer will request the evidence from that medical 
practitioner. If contact with the medical source is not productive for 
any reason, or if there is no recent examination by a medical source, 
the hearings officer will obtain a consultative examination.



Sec. 220.57  Types of purchased examinations and selection of sources.

    (a) Additional evidence needed for disability determination. The 
types of examinations and tests the Board will purchase depends upon the 
additional evidence needed for the disability determination. The Board 
will purchase only the specific evidence needed. For example, if special 
tests (such as X-rays, blood studies, or EKG) will furnish the 
additional evidence needed for the disability determination, a more 
comprehensive medical examination will not be authorized.
    (b) The physician or psychologist selected to do the examination or 
test must be qualified. The physician's or psychologist's qualifications 
must indicate that the physician or psychologist is currently licensed 
in the State and has the training and experience to perform the type of 
examination or test requested. The physician or psychologist may use 
support staff to help perform the examination. Any such support staff 
must meet appropriate licensing or certification requirements of the 
State. See also Sec. 220.64.



Sec. 220.58  Objections to the designated physician or psychologist.

    A claimant or his or her representative may object to his or her 
being examined by a designated physician or psychologist. If there is a 
good reason for the objection, the Board will schedule the examination 
with another physician or psychologist. A good reason may be where the 
consultative examination physician or psychologist had previously 
represented an interest adverse to the claimant. For example, the 
physician or psychologist may have represented the claimant's employer 
in a worker's compensation case or may have been involved in an 
insurance claim or legal action adverse to the claimant. Other things 
the Board will consider are: language barrier, office location of 
consultative examination physician or psychologist (2nd floor, no 
elevator, etc.), travel restrictions, and examination by the physician 
or psychologist in connection with a previous unfavorable determination. 
If the objection is because a physician or psychologist allegedly 
``lacks objectivity'' (in general, but not in relation to the claimant 
personally) the Board will review the allegations. To avoid a delay in 
processing the claimant's claim, the consultative examination in such a 
case will be changed to another physician or psychologist while a review 
is being conducted. Any objection to use of the substitute physician or 
psychologist will be handled in the same manner. However, if the Board 
or the Social Security Administration had previously conducted such a 
review and found that the reports of the consultative physician or 
psychologist in question conform to the Board's guidelines, then the 
Board will not change the claimant's examination.



Sec. 220.59  Requesting examination by a specific physician, 
psychologist or institution--hearings officer hearing level.

    In an unusual case, a hearings officer may have reason to request an 
examination by a particular physician, psychologist or institution. Some 
examples include the following:
    (a) Conflicts in the existing medical evidence require resolution by 
a recognized authority in a particular specialty:
    (b) The impairment requires hospitalization for diagnostic purposes; 
or
    (c) The claimant's treating physician or psychologist is in the best 
position to submit a meaningful report.



Sec. 220.60  Diagnostic surgical procedures.

    The Board will not order diagnostic surgical procedures such as 
myelograms and arteriograms for the evaluation of disability under the 
Board's disability program. In addition, the Board

[[Page 274]]

will not order procedures such as cardiac catheterization and surgical 
biopsy. However, if any of these procedures have been performed as part 
of a workup by the claimant's treating physician or other medical 
source, the results may be secured and used to help evaluate an 
impairment(s)'s severity.



Sec. 220.61  Informing the examining physician or psychologist of 
examination scheduling, report content and signature requirements.

    Consulting physicians or psychologists will be fully informed at the 
time the Board contacts them of the following obligations:
    (a) General. In scheduling full consultative examinations, 
sufficient time should be allowed to permit the examining physician to 
take a case history and perform the examination (including any needed 
tests).
    (b) Report content. The reported results of the claimant's medical 
history, examination, pertinent requested laboratory findings, 
discussions and conclusions must conform to accepted professional 
standards and practices in the medical field for a complete and 
competent examination. The facts in a particular case and the 
information and findings already reported in the medical and other 
evidence of record will dictate the extent of detail needed in the 
consultative examination report for that case. Thus, the detail and 
format for reporting the results of a purchased examination will vary 
depending upon the type of examination or testing requested. The 
reporting of information will differ from one type of examination to 
another when the requested examination relates to the performance of 
tests such as ventilatory function tests, treadmill exercise tests, or 
audiological tests. The medical report must be complete enough to help 
the Board determine the nature, severity, duration of the impairment, 
and residual functional capacity. Pertinent points in the claimant's 
medical history, such as a description of chest pain, will reflect the 
claimant's statements of his or her symptoms, not simply the physician's 
or psychologist's statements or conclusions. The examining physician's 
or psychologist's report of the consultative examination will include 
the objective medical facts.
    (c) Elements of a complete examination. A complete examination is 
one which involves all the elements of a standard examination in the 
applicable medical specialty. When a complete examination is involved, 
the report will include the following elements:
    (1) The claimant's major or chief complaint(s).
    (2) A detailed description, within the area of speciality of the 
examination, of the history of the claimant's major complaint(s).
    (3) A description, and disposition, of pertinent ``positive,'' as 
well as ``negative,'' detailed findings based on the history, 
examination and laboratory test(s) related to the major complaint(s) and 
any other abnormalities reported or found during examination or 
laboratory testing.
    (4) The results of laboratory and other tests (e.g., x-rays) 
performed according to the requirements stated in the Listing of 
Impairments (see appendix 1 of this part).
    (5) The diagnosis and prognosis for the claimant's impairment(s).
    (6) A statement as to what the claimant can still do despite his or 
her impairment(s) (except in disability claims for remarried widows and 
widowers, and surviving divorced spouses). This statement must describe 
the consultative physician's or psychologist's opinion concerning the 
claimant's ability, despite his or her impairment(s), to do basic work 
activities such as sitting, standing, lifting, carrying, handling 
objects, hearing, speaking, and traveling: and, in cases of mental 
impairment(s), the consultative physician's or psychologist's opinion as 
to the claimant's ability to reason or make occupational, personal, or 
social adjustments.
    (7) When less than a complete examination is required (for example, 
a specific test or study is needed), not every element is required.
    (d) Signature requirements. All consultative examination reports 
will be personally reviewed and signed by the physician or psychologist 
who actually performed the examination. This attests to the fact that 
the physician or psychologist doing the examination or

[[Page 275]]

testing is solely responsible for the report contents and for the 
conclusions, explanations or comments provided with respect to the 
history, examination and evaluation of laboratory test results.



Sec. 220.62  Reviewing reports of consultative examinations.

    (a) The Board will review the report of the consultative examination 
to determine whether the specific information requested has been 
furnished. The Board will consider these factors in reviewing the 
report:
    (1) Whether the report provides evidence which serves as an adequate 
basis for decision-making in terms of the impairment it assesses.
    (2) Whether the report is internally consistent. Whether all the 
diseases, impairments and complaints described in the history are 
adequately assessed and reported in the physical findings. Whether the 
conclusions correlate the findings from the claimant's medical history, 
physical examination and laboratory tests and explain all abnormalities.
    (3) Whether the report is consistent with the other information 
available to the Board within the specialty of the examination 
requested. Whether the report fails to mention an important or relevant 
complaint within the speciality that is noted on other evidence in the 
file (e.g., blindness in one eye, amputations, flail limbs or claw 
hands, etc.).
    (4) Whether the report is properly signed.
    (b) If the report is inadequate or incomplete, the Board will 
contact the examining consultative physician or psychologist, give an 
explanation of the Board's evidentiary needs, and ask that the physician 
or psychologist furnish the missing information or prepare a revised 
report.
    (c) Where the examination discloses new diagnostic information or 
test results which are significant to the claimant's treatment, the 
Board will consider referral of the consultative examination report to 
the claimant's treating physician or psychologist.
    (d) The Board will take steps to ensure that consultative 
examinations are scheduled only with medical sources who have the 
equipment required to provide an adequate assessment and record of the 
level of severity of the claimant's alleged impairments.



Sec. 220.63  Conflict of interest.

    All implications of possible conflict of interest between Board 
medical consultants and their medical practices will be avoided. Board 
review physicians or psychologists will not perform consultative 
examinations for the Board's disability programs without prior approval. 
In addition, they will not acquire or maintain, directly or indirectly, 
including any member of their families, any financial interest in a 
medical partnership or similar relationship in which consultative 
examinations are provided. Sometimes one of the Board's review 
physicians or psychologists will have prior knowledge of a case (e.g., 
the claimant was a patient). Where this is so, the physician or 
psychologist will not participate in the review or determination of the 
case. This does not preclude the physician or psychologist from 
submitting medical evidence based on prior treatment or examination of 
the claimant.



Sec. 220.64  Program integrity.

    The Board will not use in its program any individual or entity who 
is excluded, suspended, or otherwise barred from participation in the 
Medicare or Medicaid programs, or any other Federal or Federally-
assisted program; who has been convicted, under Federal or State law, in 
connection with the delivery of health care services, of fraud, theft, 
embezzlement, breach of fiduciary responsibility or financial abuse; who 
has been convicted under Federal or State law of unlawful manufacture, 
distribution, prescription, or dispensing of a controlled substance; 
whose license to provide health care services is revoked or suspended by 
any State licensing authority for reasons bearing on professional 
competence, professional conduct, or financial integrity; who has 
surrendered such a license while formal disciplinary proceedings 
involving professional conduct were pending; or who has had a civil 
monetary assessment or penalty imposed on such individual or entity

[[Page 276]]

for any activity described in this section or as a result of formal 
disciplinary proceedings. Also see Sec. Sec. 220.53 and 220.57(b).



                   Subpart H_Evaluation of Disability



Sec. 220.100  Evaluation of disability for any regular employment.

    (a) General. The Board uses a set evaluation process, explained in 
paragraph (b) of this section, to determine whether a claimant is 
disabled for any regular employment. This evaluation process applies to 
employees, widow(er)s, and children who have applied for annuities under 
the Railroad Retirement Act based on disability for any regular 
employment. Regular employment means substantial gainful activity as 
that term is defined in Sec. 220.141.
    (b) Steps in evaluating disability. A set order is followed to 
determine whether disability exists. The duration requirement, as 
described in Sec. 220.28, must be met for a claimant to be found 
disabled. The Board reviews any current work activity, the severity of 
the claimant's impairment(s), the claimant's residual functional 
capacity, and the claimant's age, education, and work experience. If the 
Board finds that the claimant is disabled or is not disabled at any step 
in the process, the Board does not review further. (See Sec. 220.105 if 
the claimant is not currently disabled but was previously disabled for a 
specified period of time in the past.) The steps are as follows:
    (1) Claimant is working. If the claimant is working, and the work is 
substantial gainful activity, the Board will find that he or she is not 
disabled regardless of his or her impairments, age, education, or work 
experience. If the claimant is not performing substantial gainful 
activity, the Board will follow paragraph (2) of this section.
    (2) Impairment(s) not severe. If the claimant does not have an 
impairment or combination of impairments which significantly limit his 
or her physical or mental ability to do basic work activities, the Board 
will find that the claimant is not disabled without consideration of 
age, education, or work experience. If the claimant has an impairment or 
combination of impairments which significantly limit his or her ability 
to do basic work activities, the Board will follow paragraph (3) of this 
section. (See Sec. 220.102(b) for a definition of basic work 
activities.)
    (3) Impairment(s) meets or equals one in the Listing of Impairments. 
If the claimant has an impairment or combination of impairments which 
meets the duration requirement and such impairment is listed or is 
medically equal to one which is listed in the Listing of Impairments, 
the Board will find the claimant disabled without considering his or her 
age, education or work experience. (The Listing of Impairments is 
contained in appendix 1 of this part.) If the claimant's impairment or 
combination of impairments is not listed or is not medically equal to 
one which is listed in the Listing of Impairments, the Board will follow 
paragraph (4) of this section. (Medical equivalence is discussed in 
Sec. 220.111).
    (4) Impairment(s) must prevent past relevant work. If the claimant's 
impairment or combination of impairments is not listed or is not 
medically equal to one which is listed in the Listing of Impairments, 
the Board will then review the claimant's residual functional capacity 
(see Sec. 220.120) and the physical and mental demands of past relevant 
work (see Sec. 220.130). If the Board determines that the claimant is 
still able to do his or her past relevant work, the Board will find that 
he or she is not disabled. If the claimant is unable to do his or her 
past relevant work, the Board will follow paragraph (5) of this section.
    (5) Impairment(s) must prevent any other work. (i) If the claimant 
is unable to do his or her past relevant work because of his or her 
impairment or combination of impairments, the Board will review the 
claimant's residual functional capacity and his or her age, education 
and work experience to determine if the claimant is able to do any other 
work. If the claimant cannot do other work, the Board will find him or 
her disabled. If the claimant can do other work, the Board will find the 
claimant not disabled.
    (ii) If the claimant has only a marginal education (see Sec. 
220.129) and long work experience (i.e., 35 years or more)

[[Page 277]]

in which he or she only did arduous unskilled physical labor, and the 
claimant can no longer do this kind of work, the Board will use a 
different rule (see Sec. 220.127) to determine disability.
    (c) Once a claimant has been found eligible to receive a disability 
annuity, the Board follows a somewhat different order of evaluation to 
determine whether the claimant's eligibility continues as explained in 
Sec. 220.180.



Sec. 220.101  Evaluation of mental impairments.

    (a) General. The steps outlined in Sec. 220.100 apply to the 
evaluation of physical and mental impairments. In addition, in 
evaluating the severity of a mental impairment(s), the Board will follow 
a special procedure at each administrative level of review. Following 
this procedure will assist the Board in--
    (1) Identifying additional evidence necessary for the determination 
of impairment severity;
    (2) Considering and evaluating aspects of the mental impairment(s) 
relevant to the claimant's ability to work; and
    (3) Organizing and presenting the findings in a clear, concise, and 
consistent manner.
    (b) Use of the procedure to record pertinent findings and rate the 
degree of functional loss. (1) This procedure requires the Board to 
record the pertinent signs, symptoms, findings, functional limitations, 
and effects of treatment contained in the claimant's case record. This 
will assist the Board in determining if a mental impairment(s) exists. 
Whether or not a mental impairment(s) exists is decided in the same way 
the question of a physical impairment is decided, i.e., the evidence 
must be carefully reviewed and conclusions supported by it. The mental 
status examination and psychiatric history will ordinarily provide the 
needed information. (See Sec. 220.27 for further information about what 
is needed to show an impairment.)
    (2) If the Board determines that a mental impairment(s) exists, this 
procedure then requires the Board to indicate whether certain medical 
findings which have been found especially relevant to the ability to 
work are present or absent.
    (3) The procedure then requires the Board to rate the degree of 
functional loss resulting from the impairment(s). Four areas of function 
considered by the Board as essential to work have been identified, and 
the degree of functional loss in those areas must be rated on a scale 
that ranges from no limitation to a level of severity which is 
incompatible with the ability to perform those work-related functions.

For the first two areas (activities of daily living and social 
functioning), the rating is done based upon the following five-point 
scale; none, slight, moderate, marked, and extreme. For the third area 
(concentration, persistence, or pace), the following five-point scale is 
used: never, seldom, often, frequent, and constant. For the fourth area 
(deterioration or decompensation in work or work-like settings), the 
following four-point scale is used: never, once or twice, repeated 
(three or more), and continual. The last two points for each of these 
scales represent a degree of limitation which is incompatible with the 
ability to perform the work-related function.
    (c) Use of the procedure to evaluate mental impairments. Following 
the rating of the degree of functional loss resulting from the 
impairment(s), the Board then determines the severity of the mental 
impairment(s).
    (1) If the four areas considered by the Board as essential to work 
have been rated to indicate a degree of limitation as ``none'' or 
``slight'' in the first and second area, ``never'' or ``seldom'' in the 
third area, and ``never'' in the fourth area, the Board can generally 
conclude that the impairment(s) is not severe, unless the evidence 
otherwise indicates that there is significant limitation of the 
claimant's mental ability to do basic work activities (see Sec. 
220.102).
    (2) If the claimant's mental impairment(s) is severe, the Board must 
then determine if it meets or equals a listed mental impairment. This is 
done by comparing the Board's prior conclusions based on this procedure 
(i.e., the presence of certain medical findings considered by the Board 
as especially relevant to a claimant's ability to

[[Page 278]]

work and the Board's rating of functional loss resulting from the mental 
impairment(s)) against the criteria of the appropriate listed mental 
disorder(s).
    (3) If the claimant has a severe impairment(s), but the 
impairment(s) neither meets nor equals the Listings, the Board will then 
do a residual functional capacity assessment for those claimants 
(employees, widow(er)s, and children) whose applications are based on 
disability for any regular employment under the Railroad Retirement Act.
    (4) At all adjudicative levels, the Board will, in each case, 
incorporate the pertinent findings and conclusions based on this 
procedure in its decision rationale. The Board's rationale must show the 
significant history, including examination, laboratory findings, and 
functional limitations that the Board considered in reaching conclusions 
about the severity of the mental impairment(s).



Sec. 220.102  Non-severe impairment(s), defined.

    (a) Non-severe impairment(s). An impairment or combination of 
impairments is not severe if it does not significantly limit the 
claimant's physical or mental ability to do basic work activities.
    (b) Basic work activities. Basic work activities means the ability 
and aptitudes necessary to do most jobs. Examples of these include--
    (1) Physical functions such as walking, standing, sitting, lifting, 
pushing, pulling, reaching, carrying, or handling;
    (2) Capacities for seeing, hearing, and speaking;
    (3) Understanding, carrying out, and remembering simple 
instructions;
    (4) Use of judgment;
    (5) Responding appropriately to supervision, co-workers and usual 
work situations; and
    (6) Dealing with changes in a routine work setting.



Sec. 220.103  Two or more unrelated impairments--initial claims.

    (a) Unrelated severe impairments. Two or more unrelated severe 
impairments cannot be combined to meet the 12-month duration test. If 
the claimant has a severe impairment(s) and then develops another 
unrelated severe impairment(s) but neither one is expected to last for 
12 months, he or she cannot be found disabled even though the 2 
impairments in combination last for 12 months.
    (b) Concurrent impairments. If the claimant has 2 or more concurrent 
impairments which, when considered in combination, are severe, the board 
must also determine whether the combined effect of the impairments can 
be expected to continue to be severe for 12 months. If 1 or more of the 
claimant's impairments improves or is expected to improve within 12 
months, so that the combined effect of the claimant's impairments is no 
longer severe, he or she will be found to not meet the 12-month duration 
test.



Sec. 220.104  Multiple impairments.

    To determine whether the claimant's physical or mental impairment or 
impairments are of a sufficient medical severity that such impairment or 
impairments could be the basis of eligiblity under the law, the combined 
effect of all of the claimant's impairments are considered regardless of 
whether any such impairment, if considered separately, would be of 
sufficient severity. If a medically severe combination of impairments is 
found, it will be considered throughout the disability evaluation 
process. If a medically severe combination of impairments is not found, 
the claimant will be determined to be not disabled.



Sec. 220.105  Initial evaluation of a previous disability.

    (a) In some cases, the Board may determine that a claimant is not 
currently disabled but was previously disabled for a specified period of 
time in the past. This can occur when--
    (1) The disability application was filed before the claimant's 
disability ended but the Board did not make the initial determination of 
disability until after the claimant's disability ended; or
    (2) The disability application was filed after the claimant's 
disability ended but no later than the 12th month after the month the 
disability ended.

[[Page 279]]

    (b) When evaluating a claim for a previous disability, the Board 
follows the steps in Sec. 220.100 to determine whether a disability 
existed, and follows the steps in Sec. 220.180 to determine when the 
disability ended.

    Example 1. The claimant sustained multiple fractures to his left leg 
in an automobile accident which occurred on June 16, 1982. For a period 
of 18 months following the accident the claimant underwent 2 surgical 
procedures which restored the functional use of his leg. After a 
recovery period following the last surgery, the claimant returned to 
work on February 1, 1984.
    The claimant, although fully recovered medically and regularly 
employed, filed an application on December 3, 1984 for a determination 
of disability for the period June 16, 1982 through January 31, 1984. The 
Board reviewed his claim in January 1985 and determined that he was 
disabled for the prior period which began June 16, 1982 and continued 
through January 31, 1984. A disability annuity is payable to the 
employee only for the period December 1, 1983 through January 31, 1984.
    An annuity may not begin any earlier than the 1st of the 12th month 
before the month in which the application was filed (See part 218 of 
this chapter for the rules on when an annuity may begin).
    Example 2: The claimant is disabled using the same medical facts 
disclosed above, beginning June 16, 1982 (the date of the automobile 
accident). The claimant files an application for a disability annuity, 
dated December 1, 1983. However, as of February 1, 1984, and before the 
Board makes a disability determination, the claimant returns to full-
time work and is no longer considered disabled. The Board reviews the 
claimant's application in May 1984 and finds him disabled for the period 
June 16, 1982 through January 31, 1984. A disability annuity is payable 
to the employee from December 1, 1982 through January 31, 1984. (See 
part 218 of this chapter for the rules on when an annuity may begin).



                    Subpart I_Medical Considerations



Sec. 220.110  Listing of Impairments in appendix 1 of this part.

    (a) Purpose of the Listing of Impairments. The Listing of 
Impairments describes, for each of the major body systems, impairments 
which are considered severe enough to prevent a person from doing any 
substantial gainful activity. Most of the listed impairments are 
permanent or expected to result in death, or a specific statement of 
duration is made. For all others, the evidence must show that the 
impairment has lasted or is expected to last for a continuous period of 
at least 12 months.
    (b) Adult and childhood listings. The Listing of Impairments 
consists of two parts:
    (1) Part A contains medical criteria that apply to claimants age 18 
and over. The medical criteria in part A may also be applied in 
evaluating impairments in claimants under age 18 if the disease 
processes have a similar effect on adults and younger persons.
    (2) Part B contains additional medical criteria that apply only to 
the evaluation of impairments of disabled children who are between the 
ages of 16 and 18. Certain criteria in part A do not give appropriate 
consideration to the particular effects of the disease processes in 
childhood: i.e., when the disease process is generally found only in 
children or when the disease process differs in its effect on children 
than on adults. Additional criteria are included in part B, and the 
impairment categories are, to the extent possible, numbered to maintain 
a relationship with their counterparts in part A. In evaluating 
disability for a child between 16 and 18, part B will be used first. If 
the medical criteria in part B do not apply, then the medical criteria 
in part A will be used.
    (c) How to use the Listing of Impairments. Each section of the 
Listing of Impairments has a general introduction containing definitions 
of key concepts used in that section. Certain specific medical findings, 
some of which are required in establishing a diagnosis or in confirming 
the existence of the impairment for the purpose of this Listing, are 
also given in the narrative introduction. If the medical findings needed 
to support a diagnosis are not given in the introduction or elsewhere in 
the Listing, the diagnosis must still be established on the basis of 
medically acceptable clinical and laboratory techniques. Following the 
introduction in each section, the required level of severity of 
impairment is shown under ``Category of Impairments'' by one or more 
sets of medical findings. The medical findings consist of symptoms, 
signs, and laboratory findings.

[[Page 280]]

    (d) Diagnosis of impairments. The Board will not consider the 
claimant's impairment to be one listed in appendix 1 of this part solely 
because it has the diagnosis of a listed impairment. It must also have 
the findings shown in the Listing of that impairment.
    (e) Addiction to alcohol or drugs. If a claimant has a condition 
diagnosed as addiction to alcohol or drugs, this will not, by itself, be 
a basis for determining whether the claimant is, or is not, disabled. As 
with any other medical condition, the Board will decide whether the 
claimant is disabled based on symptoms, signs, and laboratory findings.
    (f) Symptoms as criteria of listed impairment(s). Some listed 
impairment(s) include symptoms usually associated with those 
impairment(s) as criteria. Generally, when a symptom is one of the 
criteria in a listed impairment, it is only necessary that the symptom 
be present in combination with the other criteria. It is not necessary, 
unless the listing specifically states otherwise, to provide information 
about the intensity, persistence or limiting effects of the symptom as 
long as all other findings required by the specific listing are present.

[56 FR 12980, Mar. 28, 1991, as amended at 68 FR 60291, Oct. 22, 2003]



Sec. 220.111  Medical equivalence.

    (a) How medical equivalence is determined. The Board will decide 
that the claimant's impairment(s) is medically equivalent to a listed 
impairment in appendix 1 of this part if the medical findings are at 
least equal in severity and duration to the listed findings. The Board 
compares the symptoms, signs, and laboratory findings about the 
claimant's impairment(s), as shown in the medical evidence in his or her 
claim, with the medical criteria shown with the listed impairment. If 
the claimant's impairment is not listed, the Board will consider the 
listed impairment most like the claimant's impairment to decide whether 
his or her impairment is medically equal. If the claimant has more than 
one impairment, and none of them meets or equals a listed impairment, 
the Board will review the symptoms, signs, and laboratory findings about 
the claimant's impairments to determine whether the combination of his 
or her impairments is medically equal to any listed impairment.
    (b) Medical equivalence must be based on medical findings. The Board 
will base its decision about whether the claimant's impairment(s) is 
medically equal to a listed impairment on medical evidence only. Any 
medical findings in the evidence must be supported by medically 
acceptable clinical and laboratory diagnostic techniques. The Board will 
also consider the medical opinion given by one or more physicians 
employed or engaged by the Board or the Social Security Administration 
to make medical judgments.



Sec. 220.112  Conclusions by physicians concerning the claimant's 
disability.

    (a) General. Under the statute, the Board is responsible for making 
the decision about whether a claimant meets the statutory definition of 
disability. A claimant can only be found disabled if he or she is unable 
to do any substantial gainful activity by reason of any 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. (See Sec. 220.28). A 
claimant's impairment must result from anatomical, physiological, or 
psychological abnormalities which are demonstrable by medically 
acceptable clinical and laboratory diagnostic techniques. (See Sec. 
220.27). The decision as to whether a claimant is disabled may involve 
more than medical considerations and the Board may have to consider such 
factors as age, education and past work experience. Such vocational 
factors are not within the expertise of medical sources.
    (b) Medical opinions that are conclusive. A medical opinion by a 
treating source will be conclusive as to the medical issues of the 
nature and severity of a claimant's impairment(s) where the Board finds 
that (1) it is fully supported by medically acceptable clinical and 
laboratory diagnostic techniques and (2) it is not inconsistent with the 
other substantial medical evidence of record. A medical opinion that

[[Page 281]]

is not fully supported will not be conclusive.
    (c) Medical opinions that are not fully supported. If an opinion by 
a treating source(s) is not fully supported, the Board will make every 
reasonable effort (i.e., an initial request and, after 20 days, one 
follow-up request) to obtain from the claimant's treating source(s) the 
relevant evidence that supports the medical opinion(s) before the Board 
makes a determination as to whether a claimant is disabled.

    Example: In a case involving an organic mental disorder caused by 
trauma to the head, a consultative physician, upon interview with the 
claimant, found only mild disorientation as to time and place. The 
claimant's treating physician reports that the claimant, as the result 
of his impairment, has severe disorientation as to time and place. The 
treating physician supplies office notes which follow the course of the 
claimant's illness from the date of injury to the present. These notes 
indicate that the claimant's condition is such that he has some ``good 
days'' on which he appears to be unimpaired, but generally support the 
treating physician's opinion that the claimant is severely impaired. In 
this case the treating physician's opinion will be given some weight 
over that of the consultative physician.

    (d) Inconsistent medical opinions. Where the Board finds that the 
opinion of a treating source regarding medical issues is inconsistent 
with the evidence of record, including opinions of other sources that 
are supported by medically acceptable clinical and laboratory diagnostic 
techniques, the Board must resolve the inconsistency. If necessary to 
resolve the inconsistency, the Board will secure additional independent 
evidence and/or further interpretation or explanation from the treating 
source(s) and/or the consultative physician or psychologist. The Board's 
determination will be based on all the evidence in the case record, 
including the opinions of the medical sources. In resolving an 
inconsistency, the Board will give some extra weight to the treating 
source's supported opinion(s) which interprets the medical findings 
about the nature and severity of the impairment(s).

    Example: In a case involving arthritis of the shoulder, where the X-
rays confirm bone destruction, the examinations indicate minimal 
swelling and inflammation, but the treating source supplies evidence of 
greater restriction in the range of motion than found by the 
consultative physician, the Board will ask the treating source for 
further interpretation of the range of motion studies. If the treating 
source supplies a reasonable explanation. e.g., that the individual's 
condition is subject to periods of aggravation, the treating source's 
explanation will be given some extra weight over that of the 
consultative physician.

    (e) Medical opinions that will not be considered conclusive nor 
given extra weight. The Board will not consider as conclusive nor give 
extra weight to medical opinions which are not in accord with the 
statutory or regulatory standards for establishing disability. Thus, 
opinions that the individual's impairments meet the Listing of 
Impairments in appendix 1 of this part, where the medical findings which 
are the basis for that conclusion would not meet the specific criteria 
applicable to the particular impairment as set out in the Listing will 
not be conclusive nor given extra weight. Likewise, an opinion(s) as to 
the individual's residual functional capacity which is not in accord 
with regulatory requirements set forth in Sec. Sec. 220.120 and 220.121 
will not be conclusive nor given extra weight.

    Example 1: A medical opinion that an impairment meets listing 2.02 
but the medical findings show that the individual's visual acuity in the 
better eye after best correction is 20/100, would not be conclusive nor 
would it be given extra weight since listing 2.02 requires that the 
remaining vision in the better eye after best correction be 20/200 or 
less.
    Example 2: A medical opinion that the individual is limited to light 
work when the evidence shows that he or she can lift a maximum of 50 
pounds and lift 25 pounds frequently will not be considered as 
conclusive nor given extra weight. This is because the individual's 
exertional capacity exceeds the criteria set forth in the regulations 
for light work.

[56 FR 12980, Mar. 28, 1991, as amended at 68 FR 60291, Oct. 22, 2003]



Sec. 220.113  Symptoms, signs, and laboratory findings.

    Medical findings consist of symptoms, signs, and laboratory 
findings:
    (a) Symptoms are the claimant's own description of his or her 
physical or mental impairment(s). The claimant's

[[Page 282]]

statements alone are not enough to establish that there is a physical or 
mental impairment(s).
    (b) Signs are anatomical, physiological, or psychological 
abnormalities which can be observed, apart from the claimant's own 
statements (symptoms). Signs must be shown by medically acceptable 
clinical diagnostic techniques. Psychiatric signs are medically 
demonstrable phenomena which indicate specific abnormalities of 
behavior, affect, thought, memory, orientation and contact with reality. 
They must also be shown by observable facts that can be medically 
described and evaluated.
    (c) Laboratory findings are anatomical, physiological, or 
psychological phenomena which can be shown by the use of medically 
acceptable laboratory diagnostic techniques. Some of these diagnostic 
techniques include chemical tests, electrophysiological studies 
(electrocardiogram, electroencephalogram, etc.) x-rays, and 
psychological tests.



Sec. 220.114  Evaluation of symptoms, including pain.

    (a) General. In determining whether the claimant is disabled, the 
Board considers all of the claimant's symptoms, including pain, and the 
extent to which the claimant's symptoms can reasonably be accepted as 
consistent with the objective medical evidence and other evidence. By 
objective medical evidence, the Board means medical signs and laboratory 
findings as defined in Sec. Sec. 220.113(b) and (c) of this part. By 
other evidence, the Board means the kinds of evidence described in 
Sec. Sec. 220.45 and 220.46 of this part. These include statements or 
reports from the claimant, the claimant's treating or examining 
physician or psychologist, and others about the claimant's medical 
history, diagnosis, prescribed treatment, daily activities, efforts to 
work, and any other evidence showing how the claimant's impairment(s) 
and any related symptoms affect the claimant's ability to work. The 
Board will consider all of the claimant's statements about his or her 
symptoms, such as pain, and any description by the claimant, the 
claimant's physician, or psychologist, or other persons about how the 
symptoms affect the claimant's activities of daily living and ability to 
work. However, statements alone about the claimant's pain or other 
symptoms will not establish that the claimant is disabled; there must be 
medical signs and laboratory findings which show that the claimant has a 
medical impairment(s) which could reasonably be expected to produce the 
pain or other symptoms alleged and which, when considered with all of 
the other evidence (including statements about the intensity and 
persistence of the claimant's pain or other symptoms which may 
reasonably be accepted as consistent with the medical signs and 
laboratory findings), would lead to a conclusion that the claimant is 
disabled. In evaluating the intensity and persistence of the claimant's 
symptoms, including pain, the Board will consider all of the available 
evidence, including the claimant's medical history, the medical signs 
and laboratory findings and statements about how the claimant's symptoms 
affect the claimant. (Section 220.112(b) of this part explains how the 
Board considers opinions of the claimant's treating source and other 
medical opinions on the existence and severity of the claimant's 
symptoms, such as pain.) The Board will then determine the extent to 
which the claimant's alleged functional limitations and restrictions due 
to pain or other symptoms can reasonably be accepted as consistent with 
the medical signs and laboratory findings and other evidence to decide 
how the claimant's symptoms affect the claimant's ability to work.
    (b) Need for medically determinable impairment that could reasonably 
be expected to produce symptoms, such as pain. The claimant's symptoms, 
such as pain, fatigue, shortness of breath, weakness, or nervousness, 
will not be found to affect the claimant's ability to do basic work 
activities unless medical signs or laboratory findings show that a 
medically determinable impairment(s) is present. Medical signs and 
laboratory findings, established by medically acceptable clinical or 
laboratory diagnostic techniques, must show the existence of a medical 
impairment(s) which results from anatomical,

[[Page 283]]

physiological, or psychological abnormalities and which could reasonably 
be expected to produce the pain or other symptoms alleged. The finding 
that the claimant's impairment(s) could reasonably be expected to 
produce the claimant's pain or other symptoms does not involve a 
determination as to the intensity, persistence, or functionally limiting 
effects of the claimant's symptoms. The Board will develop evidence 
regarding the possibility of a medically determinable mental impairment 
when the Board has information to suggest that such an impairment 
exists, and the claimant alleges pain or other symptoms but the medical 
signs and laboratory findings do not substantiate any physical 
impairment(s) capable of producing the pain or other symptoms.
    (c) Evaluating the intensity and persistence of symptoms, such as 
pain, and determining the extent to which the claimant's symptoms limit 
his or her capacity for work.--(1) General. When the medical signs or 
laboratory findings show that the claimant has a medically determinable 
impairment(s) that could reasonably be expected to produce the 
claimant's symptoms, such as pain, the Board must then evaluate the 
intensity and persistence of the claimant's symptoms so that it can 
determine how the claimant's symptoms limit the claimant's capacity for 
work. In evaluating the intensity and persistence of the claimant's 
symptoms, the Board considers all of the available evidence, including 
the claimant's medical history, the medical signs and laboratory 
findings, and statements from the claimant, the claimant's treating or 
examining physician or psychologist, or other persons about how the 
claimant's symptoms affect the claimant. The Board also considers the 
medical opinions of the claimant's treating source and other medical 
opinions as explained in Sec. 220.112 of this part. Paragraphs (c)(2) 
through (c)(4) of this section explain further how the Board evaluates 
the intensity and persistence of the claimant's symptoms and how it 
determines the extent to which the claimant's symptoms limit the 
claimant's capacity for work, when the medical signs or laboratory 
findings show that the claimant has a medically determinable 
impairment(s) that could reasonably be expected to produce the 
claimant's symptoms, such as pain.
    (2) Consideration of objective medical evidence. Objective medical 
evidence is evidence obtained from the application of medically 
acceptable clinical and laboratory diagnostic techniques, such as 
evidence of reduced joint motion, muscle spasm, sensory deficit or motor 
disruption. Objective medical evidence of this type is a useful 
indicator to assist the Board in making reasonable conclusions about the 
intensity and persistence of the claimant's symptoms and the effect 
those symptoms, such as pain, may have on the claimant's ability to 
work. The Board must always attempt to obtain objective medical evidence 
and, when it is obtained, the Board will consider it in reaching a 
conclusion as to whether the claimant is disabled. However, the Board 
will not reject the claimant's statements about the intensity and 
persistence of the claimant's pain or other symptoms or about the effect 
the claimant's symptoms have on the claimant's ability to work solely 
because the available objective medical evidence does not substantiate 
the claimant's statements.
    (3) Consideration of other evidence. Since symptoms sometimes 
suggest a greater severity of impairment than can be shown by objective 
medical evidence alone, the Board will carefully consider any other 
information the claimant may submit about his or her symptoms. The 
information that the claimant, the claimant's treating or examining 
physician or psychologist, or other persons provide about the claimant's 
pain or other symptoms (e.g., what may precipitate or aggravate the 
claimant's symptoms, what medications, treatments or other methods he or 
she uses to alleviate them, and how the symptoms may affect the 
claimant's pattern of daily living) is also an important indicator of 
the intensity and persistence of the claimant's symptoms. Because 
symptoms, such as pain, are subjective and difficult to quantify, any 
symptom-related functional limitations and restrictions which the 
claimant, his or her treating or examining physician or psychologist, or 
other persons report,

[[Page 284]]

which can reasonably be accepted as consistent with the objective 
medical evidence and other evidence, will be taken into account as 
explained in paragraph (c)(4) of this section in reaching a conclusion 
as to whether the claimant is disabled. The Board will consider all of 
the evidence presented, including information about the claimant's prior 
work record, the claimant's statements about his or her symptoms, 
evidence submitted by the claimant's treating, examining or consulting 
physician or psychologist, and observations by Board employees and other 
persons. Section 220.112 of this part explains in detail how the Board 
considers and weighs treating source and other medical opinions about 
the nature and severity of the claimant's impairment(s) and any related 
symptoms, such as pain. Factors relevant to the claimant's symptoms, 
such as pain, which the Board will consider include:
    (i) The claimant's daily activities;
    (ii) The location, duration, frequency, and intensity of the 
claimant's pain or other symptoms;
    (iii) Precipitating and aggravating factors;
    (iv) The type, dosage, effectiveness, and side effects of any 
medication the claimant takes or has taken to alleviate the claimant's 
pain or other symptoms;
    (v) Treatment, other than medication, the claimant receives or has 
received for relief of pain or other symptoms;
    (vi) Any measures the claimant uses or has used to relieve pain or 
other symptoms (e.g., lying flat on the claimant's back, standing for 15 
to 20 minutes every hour, sleeping on a board, etc.); and
    (vii) Other factors concerning the claimant's functional limitations 
and restrictions due to pain or other symptoms.
    (4) How the Board determines the extent to which symptoms, such as 
pain, affect the claimant's capacity to perform basic work activities. 
In determining the extent to which the claimant's symptoms, such as 
pain, affect the claimant's capacity to perform basic work activities, 
the Board considers all of the available evidence described in 
paragraphs (c)(1) through (c)(3) of this section. The Board will 
consider the claimant's statements about the intensity, persistence, and 
limiting effects of the claimant's symptoms, and the Board will evaluate 
the claimant's statements in relation to the objective medical evidence 
and other evidence, in reaching a conclusion as to whether the claimant 
is disabled. The Board will consider whether there are any 
inconsistencies in the evidence and the extent to which there are any 
conflicts between the claimant's statements and the rest of the 
evidence, including the claimant's medical history, the medical signs 
and laboratory findings, and statements by the claimant's treating or 
examining physician or psychologist or other persons about how the 
claimant's symptoms affect the claimant. The claimant's symptoms, 
including pain, will be determined to diminish the claimant's capacity 
for basic work activities to the extent that the claimant's alleged 
functional limitations and restrictions due to symptoms, such as pain, 
can reasonably be accepted as consistent with the objective medical 
evidence and other evidence.
    (d) Consideration of symptoms in the disability determination 
process. The Board follows a set order of steps to determine whether the 
claimant is disabled. If the claimant is not doing substantial gainful 
activity, the Board considers the claimant's symptoms, such as pain, to 
evaluate whether the claimant has a severe physical or mental 
impairment(s), and at each of the remaining steps in the process. 
Section 220.100 explains this process in detail. The Board also 
considers the claimant's symptoms, such as pain, at the appropriate 
steps in the Board's review when the Board considers whether the 
claimant's disability continues. Subpart O of this part explains the 
procedure the Board follows in reviewing whether the claimant's 
disability continues.
    (1) Need to establish a severe medically determinable impairment(s). 
The claimant's symptoms, such as pain, fatigue, shortness of breath, 
weakness, or nervousness, are considered in making a determination as to 
whether the claimant's impairment or combination of impairment(s) is 
severe. (See Sec. 220.100(b)(2) of this part).

[[Page 285]]

    (2) Decision whether the Listing of Impairments is met. Some listed 
impairment(s) include symptoms, such as pain, as criteria. Section 
220.100(f) of this part explains how the Board considers the claimant's 
symptoms when the claimant's symptoms are included as criteria for a 
listed impairment.
    (3) Decision whether the Listing of Impairments is equaled. If the 
claimant's impairment is not the same as a listed impairment, the Board 
must determine whether the claimant's impairment(s) is medically 
equivalent to a listed impairment. Section 220.111 of this part explains 
how the Board makes this determination. Under Sec. 220.111(b) of this 
part, the Board will consider equivalence based on medical evidence 
only. In considering whether the claimant's symptoms, signs, and 
laboratory findings are medically equal to the symptoms, signs, and 
laboratory findings of a listed impairment, the Board will look to see 
whether the claimant's symptoms, signs, and laboratory findings are at 
least equal in severity to the listed criteria. However, the Board will 
not substitute the claimant's allegations of pain or other symptoms for 
a missing or deficient sign or laboratory finding to raise the severity 
of the claimant's impairment(s) to that of a listed impairment. If the 
symptoms, signs, and laboratory findings of the claimant's impairment(s) 
are equivalent in severity to those of a listed impairment, the Board 
will find the claimant disabled. If it does not, the Board will consider 
the impact of the claimant's symptoms on the claimant's residual 
functional capacity. (See paragraph (d)(4) of this section.)
    (4) Impact of symptoms (including pain) on residual functional 
capacity. If the claimant has a medically determinable severe physical 
or mental impairment(s), but the claimant's impairment(s) does not meet 
or equal an impairment listed in Appendix 1 of this part, the Board will 
consider the impact of the claimant's impairment(s) and any related 
symptoms, including pain, on the claimant's residual functional 
capacity. (See Sec. 220.120 of this part.)

[68 FR 60291, Oct. 22, 2003]



Sec. 220.115  Need to follow prescribed treatment.

    (a) What treatment the claimant must follow. In order to get a 
disability annuity, the claimant must follow treatment prescribed by his 
or her physician if this treatment can restore the claimant's ability to 
work.
    (b) When the claimant does not follow prescribed treatment. If the 
claimant does not follow the prescribed treatment without a good reason, 
the Board will find him or her not disabled or, if the claimant is 
already receiving a disability annuity, the Board will stop paying the 
annuity.
    (c) Acceptable reasons for failure to follow prescribed treatment. 
The following are examples of a good reason for not following treatment:
    (1) The specific medical treatment is contrary to the established 
teaching and tenets of the claimant's religion.
    (2) The prescribed treatment would be cataract surgery for one eye, 
when there is an impairment of the other eye resulting in a severe loss 
of vision and is not subject to improvement through surgery.
    (3) Surgery was previously performed with unsuccessful results and 
the same surgery is again being recommended for the same impairment.
    (4) The treatment because of its magnitude (e.g., open heart 
surgery), unusual nature (e.g., organ transplant), or other reason is 
very risky for the claimant.
    (5) The treatment involves amputation of an extremity, or a major 
part of an extremity.



                 Subpart J_Residual Functional Capacity



Sec. 220.120  The claimant's residual functional capacity.

    (a) General. The claimant's impairment(s), and any related symptoms, 
such as pain, may cause physical and mental limitations that affect what 
the claimant can do in a work setting. The claimant's residual 
functional capacity is what the claimant can still do despite the 
claimant's limitations. If the claimant has more than one impairment, 
the Board will consider all of the claimant's impairment(s) of which

[[Page 286]]

the Board is aware. The Board will consider the claimant's ability to 
meet certain demands of jobs, such as physical demands, mental demands, 
sensory requirements, and other functions, as described in paragraphs 
(b), (c), and (d) of this section. Residual functional capacity is an 
assessment based upon all of the relevant evidence. It may include 
descriptions (even the claimant's own) of limitations that go beyond the 
symptoms, such as pain, that are important in the diagnosis and 
treatment of the claimant's medical condition. Observations by the 
claimant's treating or examining physicians or psychologists, the 
claimant's family, neighbors, friends, or other persons, of the 
claimant's limitations, in addition to those observations usually made 
during formal medical examinations, may also be used. These descriptions 
and observations, when used, must be considered along with the 
claimant's medical records to enable us to decide to what extent the 
claimant's impairment(s) keeps the claimant from performing particular 
work activities. This assessment of the claimant's remaining capacity 
for work is not a decision on whether the claimant is disabled, but is 
used as the basis for determining the particular types of work the 
claimant may be able to do despite the claimant's impairment(s). Then, 
using the guidelines in Sec. Sec. 220.125 and 220.134 of this part the 
claimant's vocational background is considered along with the claimant's 
residual functional capacity in arriving at a disability determination 
or decision. In deciding whether the claimant's disability continues or 
ends, the residual functional capacity assessment may also be used to 
determine whether any medical improvement the claimant has experienced 
is related to the claimant's ability to work as discussed in Sec. 
220.178 of this part.
    (b) Physical abilities. When the Board assesses the claimant's 
physical abilities, the Board first assesses the nature and extent of 
the claimant's physical limitations and then determines the claimant's 
residual functional capacity for work activity on a regular and 
continuing basis. A limited ability to perform certain physical demands 
of work activity, such as sitting, standing, walking, lifting, carrying, 
pushing, pulling, or other physical functions (including manipulative or 
postural functions, such as reaching, handling, stooping or crouching), 
may reduce the claimant's ability to do past work and other work.
    (c) Mental abilities. When the Board assesses the claimant's mental 
abilities, the Board first assesses the nature and extent of the 
claimant's mental limitations and restrictions and then determines the 
claimant's residual functional capacity for work activity on a regular 
and continuing basis. A limited ability to carry out certain mental 
activities, such as limitations in understanding, remembering, and 
carrying out instructions, and in responding appropriately to 
supervision, co-workers, and work pressures in a work setting, may 
reduce the claimant's ability to do past work and other work.
    (d) Other abilities affected by impairment(s). Some medically 
determinable impairment(s), such as skin impairment(s), epilepsy, 
impairment(s) of vision, hearing or other senses, and impairment(s) 
which impose environmental restrictions, may cause limitations and 
restrictions which affect other work-related abilities. If the claimant 
has this type of impairment(s), the Board considers any resulting 
limitations and restrictions which may reduce the claimant's ability to 
do past work and other work in deciding the claimant's residual 
functional capacity.
    (e) Total limiting effects. When the claimant has a severe 
impairment(s), but the claimant's symptoms, signs, and laboratory 
findings do not meet or equal those of a listed impairment in Appendix 1 
of this part, the Board will consider the limiting effects of all of the 
claimant's impairment(s), even those that are not severe, in determining 
the claimant's residual functional capacity. Pain or other symptoms may 
cause a limitation of function beyond that which can be determined on 
the basis of the anatomical, physiological or psychological 
abnormalities considered alone; e.g., someone with a low back disorder 
may be fully capable of the physical demands

[[Page 287]]

consistent with those of sustained medium work activity, but another 
person with the same disorder, because of pain, may not be capable of 
more than the physical demands consistent with those of light work 
activity on a sustained basis. In assessing the total limiting effects 
of the claimant's impairment(s) and any related symptoms, the Board will 
consider all of the medical and nonmedical evidence, including the 
information described in Sec. 220.114 of this part.

[68 FR 60293, Oct. 22, 2003]



Sec. 220.121  Responsibility for assessing and determining residual 
functional capacity.

    (a) For cases at the initial or reconsideration level, the 
responsibility for determining residual functional capacity rests with 
the bureau of retirement claims. This assessment is based on all the 
evidence the Board has, including any statements regarding what the 
claimant can still do that have been provided by treating or examining 
physicians, consultative physicians, or any other physician designated 
by the Board. In any case where there is evidence which indicates the 
existence of a mental impairment, the bureau of retirement claims will 
not make a residual functional capacity determination without making 
every reasonable effort to ensure that a qualified psychiatrist or 
psychologist has provided a medical review of the case.
    (b) For cases at the hearing level or the three-member-Board review 
level, the responsibility for deciding residual functional capacity 
rests with the hearings officer or the three-member Board, respectively.



                   Subpart K_Vocational Considerations



Sec. 220.125  When vocational background is considered.

    (a) General. The Board will consider vocational factors when the 
claimant is applying for--
    (1) An employee annuity based on disability for any regular 
employment; (See Sec. 220.45(b))
    (2) Widow(er) disability annuity; or
    (3) Child's disability annuity based on disability before age 22.
    (b) Disability determinations in which vocational factors must be 
considered along with medical evidence. When the Board cannot decide 
whether the claimant is disabled on medical evidence alone, the Board 
must use other evidence.
    (1) The Board will use information from the claimant about his or 
her age, education, and work experience.
    (2) The Board will consider the doctors' reports, and hospital 
records, as well as the claimant's own statements and other evidence to 
determine a claimant's residual functional capacity and how it affects 
the work the claimant can do. Sometimes, to do this, the Board will need 
to ask the claimant to have special examinations or tests. (See Sec. 
220.50.)
    (3) If the Board finds that the claimant can no longer do the work 
he or she has done in the past, the Board will determine whether the 
claimant can do other work (jobs) which exist in significant numbers in 
the national economy.



Sec. 220.126  Relationship of ability to do work and residual 
functional capacity.

    (a) If the claimant can do his or her previous work (his or her 
usual work or other applicable past work), the Board will determine he 
or she is not disabled.
    (b) If the residual functional capacity is not enough for the 
claimant to do any of his or her previous work, the Board must still 
decide if the claimant can do any other work. To determine whether the 
claimant can do other work, the Board will consider the claimant's 
residual functional capacity, and his or her age, education, and work 
experience. Any work (jobs) that the claimant can do must exist in 
significant numbers in the national economy (either in the region where 
he or she lives or in several regions of the country).



Sec. 220.127  When the only work experience is arduous unskilled 
physical labor.

    (a) Arduous work. Arduous work is primarily physical work requiring 
a high level of strength or endurance. The Board will consider the 
claimant

[[Page 288]]

unable to do lighter work and therefore, disabled if he or she has--
    (1) A marginal education (see Sec. 220.129);
    (2) Work experience of 35 years or more during which he or she did 
arduous unskilled physical labor; and
    (3) A severe impairment which no longer allows him or her to do 
arduous unskilled physical labor.
    (b) Exceptions. The Board may consider the claimant not disabled 
if--
    (1) The claimant is working or has worked despite his or her 
impairment(s) (except where work is sporadic or not medically 
advisable); or
    (2) Evidence shows that the claimant has training or past work 
experience which enables him or her to do substantial gainful activity 
in another occupation with his or her impairment, either full-time or on 
reasonably regular part-time basis.

    Example: B is a 60-year-old miner with a 4th grade education who has 
a life-long history of arduous physical labor. B says that he is 
disabled because of arthritis of the spine, hips, and knees, and other 
impairments. Medical evidence shows a combination of impairments and 
establishes that these impairments prevent B from performing his usual 
work or any other type of arduous physical labor. His vocational 
background does not show that he has skills or capabilities needed to do 
lighter work which would be readily transferable to another work 
setting. Under these circumstances, the Board will find that B is 
disabled.



Sec. 220.128  Age as a vocational factor.

    (a) General. (1) Age refers to how old the claimaint is 
(chronological age) and the extent to which his or her age affects his 
or her ability to--
    (i) Adapt to a new work situation; and
    (ii) Do work in competition with others.
    (2) In determining disability, the Board does not consider age 
alone. The Board must also consider the claimant's residual functional 
capacity, education, and work experience. If the claimant is unemployed 
because of his or her age and can still do a significant number of jobs 
which exist in the national economy, the Board will find that he or she 
is not disabled. Appendix 2 of this part explains in detail how the 
Board considers age as a vocational factor. However, the Board does not 
apply these age categories mechanically in a borderline situation.
    (b) Younger person. If the claimant is under age 50, the Board 
generally does not consider that his or her age will seriously affect 
the ability to adapt to a new work situation. In some circumstances, the 
Board considers age 45 a handicap in adapting to a new work setting (see 
Rule 201.17 in appendix 2 of this part).
    (c) Person approaching advanced age. If the claimant is closely 
approaching advanced age (50-54), the Board considers that the 
claimant's age, along with a severe impairment and limited work 
experience, may seriously affect the claimant's ability to adjust to a 
significant number of jobs in the national economy.
    (d) Person of advanced age. The Board considers that advanced age 
(55 or over) is the point at which age significantly affects the 
claimant's ability to do substantial gainful activity.
    (1) If the claimant is severly impaired and of advanced age, and he 
or she cannot do medium work (see Sec. 220.132), the claimant may not 
be able to work unless he or she has skills that can be used in less 
demanding jobs which exist in significant numbers in the national 
economy.
    (2) If the claimant is close to retirement age (60-64) and has a 
severe impairment, the Board will not consider him or her able to adjust 
to sedentary or light work unless the claimant has skills which are 
highly marketable.



Sec. 220.129  Education as a vocational factor.

    (a) General. ``Education'' is primarily used to mean formal 
schooling or other training which contributes to the claimant's ability 
to meet vocational requirements, for example, reasoning ability, 
communication skills, and arithmetical ability. If the claimant does not 
have formal schooling, this does not necessarily mean that the claimant 
is uneducated or lacks these abilities. Past work experience and the 
kinds of responsibilities the claimant had when he or she was working 
may show that he or she has intellectual abilities, although the 
claimant may have little formal education. A claimant's daily

[[Page 289]]

activities, hobbies, or the results of testing may also show that the 
claimant has significant intellectual ability that can be used to work.
    (b) How the Board evaluates the claimant's education. The importance 
of the claimant's educational background may depend upon how much time 
has passed between the completion of the claimant's formal education and 
the beginning of the claimant's physical or mental impairment(s) and 
what the claimant has done with his or her education in a work or other 
setting. Formal education completed many years before the claimant's 
impairment(s) began, or unused skills and knowledge that were a part of 
the claimant's formal education, may no longer be useful or meaningful 
in terms of ability to work. Therefore, the numerical grade level that 
the claimant completed in school may not represent his or her actual 
educational abilities. These educational abilities may be higher or 
lower than the numerical grade level that the claimant completed. 
However, if there is no other evidence to contradict it, the Board uses 
the claimant's numerical grade level to determine the claimant's 
educational abilities. The term ``education'' also includes how well the 
claimant is able to communicate in English since this ability is often 
acquired or improved by education. In evaluating the claimant's 
educational level, the Board uses the following categories:
    (1) Illiteracy. Illiteracy means the inability to read or write. The 
Board will consider the claimant illiterate if he or she cannot read or 
write a simple message such as instructions or inventory lists even 
though the claimant can sign his or her name. Generally, the illiterate 
claimant has had little or no formal schooling.
    (2) Marginal education. Marginal education means ability in 
reasoning, arithmetic, and language skills which are needed to do 
simple, unskilled types of jobs. Generally, this means a 6th grade or 
less level of education.
    (3) Limited education. Limited education means ability in reasoning, 
arithmetic, and language skills, but not enough to allow a person with 
these educational qualifications to do most of the more complex duties 
needed in semi-skilled or skilled jobs. Generally, a limited education 
is a 7th grade through 11th grade level of education.
    (4) High school education and above. High school and above means 
abilities in reasoning, arithmetic, and language skills acquired through 
formal schooling at a 12th grade level or above. The claimant with this 
level of education is generally considered able to do semi-skilled 
through skilled work.
    (5) Inability to communicate in English. Since the ability to speak, 
read, and understand English is generally learned or increased at 
school, the Board may consider this an educational factor. Because 
English is the dominant language of the country, it may be difficult for 
the claimant who does not speak and understand English to do a job, 
regardless of the amount of education he or she may have in another 
language. The claimant's ability to speak, read and understand English 
will be considered when the Board evaluates what work, if any, he or she 
can do.
    (6) Information about the claimant's education. The Board will ask 
the claimant how long he or she attended school and whether he or she 
can speak, understand, read and write in English, and do at least simple 
calculations in arithmetic. The Board will also consider information 
about how much formal or informal education the claimant received from 
his or her previous work, community projects, hobbies and any other 
activities which might help him or her to work.



Sec. 220.130  Work experience as a vocational factor.

    (a) General--Work experience means skills and abilities the claimant 
has acquired through work he or she has done which show the type of work 
he or she may be expected to do. Work the claimant has already been able 
to do shows the kind of work that he or she may be expected to do. The 
Board considers that the claimant's work experience is relevant and 
applies when it was done within the last 15 years, lasted long enough 
for him or her to learn to do it, and was substantial gainful activity. 
This work experience is called ``past relevant work.'' The

[[Page 290]]

Board does not usually consider that work the claimant did 15 years or 
more before the time the Board is deciding whether he or she is disabled 
(or when the disability insured status requirement was last met, if 
earlier) applies. A gradual change occurs in most jobs so that after 15 
years, it is no longer realistic to expect that skills and abilities 
acquired in a job done then continue to apply. The 15-year guide is 
intended to insure that remote work experience is not currently applied. 
If the claimant has no work experience or worked only ``off-and-on'' or 
for brief periods of time during the 15-year period, the Board generally 
considers that these do not apply. If the claimant has acquired skills 
through his or her past work, the Board considers the claimant to have 
these work skills unless he or she cannot use them in other skilled or 
semi-skilled work that he or she can do. If the claimant cannot use his 
or her skills in other skilled or semi-skilled work, the Board will 
consider his or her work background the same as unskilled. However, even 
if the claimant has no work experience, the Board may consider that the 
claimant is able to do unskilled work because it requires little or no 
judgment and can be learned in a short period of time.
    (b) Information about the claimant's work. (1) Sometimes the Board 
will need information about the claimant's past work to make a 
disability determination. The Board may request work information from--
    (i) The claimant; and
    (ii) The claimant's employer or other person who knows about the 
claimant's work (member of family or co-worker) with the claimant's 
permission.
    (2) The Board will ask for the following information about all the 
jobs the claimant has had in the last 15 years:
    (i) The dates the claimant worked.
    (ii) All the duites the claimant did.
    (iii) Any tools, machinery, and equipment the claimant used.
    (iv) The amount of walking, standing, sitting, lifting and carrying 
the claimant did during the work day, as well as any other physical and 
mental duties of the job.
    (3) If all the claimant's work in the past 15 years has been arduous 
and unskilled, and the claimant has very little education, the Board 
will ask the claimant to tell about all of his or her work from the time 
he or she first began working. (See Sec. 220.45(b).)



Sec. 220.131  Work which exists in the national economy.

    (a) General. The Board considers that work exists in the national 
economy when it exists in significant numbers either in the region where 
the claimant lives or in several other regions of the country. It does 
not matter whether--
    (1) Work exits in the immediate area in which the claimant lives,
    (2) A specific job vacancy exists for the claimant; or
    (3) The claimant would be hired if the claimant applied for work.
    (b) How the Board determines the existence of work. Work exists in 
the national economy when there are a significant number of jobs (in one 
or more occupations) having requirements which the claimant is able to 
meet with his or her physical or mental ability and vocational 
qualifications. Isolated jobs that exist in very limited numbers in 
relatively few locations outside the region where the claimant lives are 
not considered ``work which exists in the national economy.'' The Board 
will not deny the claimant a disability annuity on the basis of the 
existence of these kinds of jobs. The Board will determine that the 
claimant is disabled if the work he or she can do does not exist in the 
national economy. If the work the claimant can do does exist in the 
national economy, the Board will determine that the claimant is not 
disabled.
    (c) Inability to obtain work. The Board will determine that the 
claimant is not disabled if he or she has the residual functional 
capacity and vocational abilities to do work which exists in the 
national economy but the claimant remains unemployed because of--
    (1) His or her inability to get work;
    (2) Lack of work in his or her local area;
    (3) The hiring practices of employers;
    (4) Technological changes in the industry in which the claimant has 
worked;
    (5) Cyclical economic conditions;
    (6) No job openings for the claimant;

[[Page 291]]

    (7) The claimant not actually being hired to do work he or she could 
otherwise do; or
    (8) The claimant not wishing to do a particular type of work.
    (d) Administrative notice of job data. The following sources are 
used when the Board determines that unskilled, sedentary, light and 
medium jobs exist in the national economy:
    (1) Dictionary of Occupational Titles, published by the Department 
of Labor.
    (2) County Business Patterns, published by the Bureau of the Census.
    (3) Census Reports, also published by the Bureau of the Census.
    (4) Occupational Analyses, prepared for the Social Security 
Administration by various State employment agencies.
    (5) Occupational Outlook Handbook, published by the Bureau of Labor 
Statistics.
    (e) Use of vocational experts and other specialists. If the issue in 
determining whether the claimant is disabled is whether his or her work 
skills can be used in other work and the specific occupations in which 
they can be used, or there is a similarly complex issue, the Board may 
use the services of a vocational expert or other specialist. The Board 
will decide whether to use a vocational expert or other specialist.



Sec. 220.132  Physical exertion requirements.

    To determine the physical exertion requirements of work in the 
national economy, jobs are classified as ``sedentary'', ``light'', 
``medium'', ``heavy'', and ``very heavy.'' These terms have the same 
meaning as they have in the Dictionary of Occupational Titles, published 
by the Department of Labor. In making disability determinations the 
Board uses the following definitions:
    (a) Sedentary work. Sedentary work involves lifting no more than 10 
pounds at a time and occasionally lifting or carrying articles like 
docket files, ledgers, and small tools. Although a sedentary job is 
defined as one which involves sitting, a certain amount of walking and 
standing is often necessary in carrying out job duties. Jobs are 
sedentary if walking and standing are required occasionally and the 
other sedentary criteria are met.
    (b) Light work. Light work involves lifting no more than 20 pounds 
at a time with frequent lifting or carrying of objects weighing up to 10 
pounds. Even though the weight lifted may be very little, a job is in 
this category when it requires a good deal of walking or standing, or 
when it involves sitting most of the time with some pushing and pulling 
of arm or leg controls. To be considered capable of performing a full or 
wide range of light work, the claimant must have the ability to do 
substantially all of these activities. If the claimant can do light 
work, the Board determines that he or she can also do sedentary work, 
unless there are additional limiting factors such as loss of fine 
dexerity or inability to sit for long periods of time.
    (c) Medium work. Medium work involves lifting no more than 50 pounds 
at a time with frequent lifting or carrying of objects weighing up to 25 
pounds. If the claimant can do medium work, the Board determines that he 
or she can also do sedentary and light work.
    (d) Heavy work. Heavy work involves lifting no more than 100 pounds 
at a time with frequent lifting or carrying of objects weighing up to 50 
pounds. If the claimant can do heavy work, the Board determines that he 
or she can also do medium, light, and sedentary work.
    (e) Very heavy work. Very heavy work involves lifting objects 
weighing more than 100 pounds at a time with frequent lifting or 
carrying of objects weighing 50 pounds or more. If the claimant can do 
very heavy work, the Board determines that he or she can also do heavy, 
medium, light and sedentary work.



Sec. 220.133  Skill requirements.

    (a) General. To evaluate skills and to help determine the existence 
in the national economy of work the claimant is able to do, occupations 
are classified as unskilled, semi-skilled, and skilled. In classifying 
these occupations, the Board uses materials published by the Department 
of Labor.
    (b) Unskilled work. Unskilled work is work which needs little or no 
judgment to do simple duties that can be learned on the job in a short 
period of time (30 days). The job may or may not require

[[Page 292]]

considerable strength. A job is considered unskilled if the claimant can 
usually learn to do the job in 30 days, and little job training and 
judgment are needed. The claimant does not gain work skills by doing 
unskilled jobs. For example, jobs are considered unskilled if primary 
work duties are--
    (1) Handling;
    (2) Feeding;
    (3) Offbearing (placing or removing materials from machines which 
are automatic or operated by others); or
    (4) Machine tending.
    (c) Semi-skilled work. Semi-skilled work is work which needs some 
skills but does not require doing the more complex work duties. A job 
may be classified as semi-skilled where coordination and dexterity are 
necessary, as when hand or feet must be moved quickly to do repetitive 
tasks. Semi-skilled jobs may require--
    (1) Alertness and close attention to watching machine processes;
    (2) Inspecting, testing, or otherwise looking for irregularities;
    (3) Tending or guarding equipment, property, materials, or persons 
against loss, damage, or injury; or
    (4) Other types of activities which are similarly less complex than 
skilled work but more complex than unskilled work.
    (d) Skilled work. Skilled work requires qualifications in which a 
person uses judgment to determine the machine and manual operations to 
be performed in order to obtain the proper form, quality, or quantity of 
material to be produced. Skilled jobs may require--
    (1) Laying out work;
    (2) Estimating quality;
    (3) Determining suitability and needed quantities of materials;
    (4) Making precise measurements;
    (5) Reading blueprints or other specifications;
    (6) Making necessary computations or mechanical adjustments to 
control or regulate work; or
    (7) Dealing with people, facts, figures or abstract ideas at a high 
level of complexity.
    (e) Skills that can be used in other work (transferability)--(1) 
What the Board means by transferable skills. The Board considers the 
claimant to have skills that can be used in other jobs, when the skilled 
or semi-skilled work activities the claimant did in past work can be 
used to meet the requirements of skilled or semi-skilled work activities 
of other jobs or kinds of work. This depends largely on the similarity 
of occupationally significant work activities among different jobs.
    (2) How the Board determines skills that can be transferred to other 
jobs. Transferability is most probable and meaningful among jobs in 
which--
    (i) The same or a lesser degree of skill is required;
    (ii) The same or similar tools and machines are used; and
    (iii) The same or similar raw materials, products, processes, or 
services are involved.
    (3) Degrees of transferability. There are degrees of transferability 
of skills ranging from very close similarities to remote and incidental 
similarities among jobs. A complete similarity of all three factors is 
not necessary for transferability. However, when skills are so 
specialized or have been acquired in such an isolated vocational setting 
(like many jobs in mining, agriculture, or fishing) that they are not 
readily usable in other industries, jobs, and work settings, they are 
considered not transferable.



Sec. 220.134  Medical-vocational guidelines in appendix 2 of this part.

    (a) The Dictionary of Occupational Titles includes information about 
jobs (classified by their exertional and skill requirements) that exist 
in the national economy. Appendix 2 of this part provides rules using 
this data reflecting major functional and vocational patterns.
    (b) The Board applies that rules in appendix 2 of this part in cases 
where a claimant is not doing substantial gainful activity and is 
prevented by a severe impairment(s) from doing vocationally relevant 
past work.
    (c) The rules in appendix 2 of this part do not cover all possible 
variations of factors. The Board does not apply these rules if one of 
the findings of fact about the claimant's vocational factors and 
residual functional capacity is not the same as the corresponding 
criterion of a rule. In these

[[Page 293]]

instances, the Board gives full consideration to all relevant facts in 
accordance with the definitions and discussions under vocational 
considerations. However, if the findings of fact made about all factors 
are the same as the rule, the Board uses that rule to decide whether 
that claimant is disabled.



Sec. 220.135  Exertional and nonexertional limitations.

    (a) General. The claimant's impairment(s) and related symptoms, such 
as pain, may cause limitations of function or restrictions which limit 
the claimant's ability to meet certain demands of jobs. These 
limitations may be exertional, nonexertional, or a combination of both. 
Limitations are classified as exertional if they affect the claimant's 
ability to meet the strength demands of jobs. The classification of a 
limitation as exertional is related to the United States Department of 
Labor's classification of jobs by various exertional levels (sedentary, 
light, medium, heavy, and very heavy) in terms of the strength demands 
for sitting, standing, walking, lifting, carrying, pushing, and pulling. 
Sections 220.132 and 220.134 of this part explain how the Board uses the 
classification of jobs by exertional levels (strength demands) which is 
contained in the Dictionary of Occupational Titles published by the 
Department of Labor, to determine the exertional requirements of work 
which exists in the national economy. Limitations or restrictions which 
affect the claimant's ability to meet the demands of jobs other than the 
strength demands, that is, demands other than sitting, standing, 
walking, lifting, carrying, pushing or pulling, are considered 
nonexertional. Sections 220.100(b)(5) and 220.180(h) of this part 
explain that if the claimant can no longer do the claimant's past 
relevant work because of a severe medically determinable impairment(s), 
the Board must determine whether the claimant's impairment(s), when 
considered along with the claimant's age, education, and work 
experience, prevents the claimant from doing any other work which exists 
in the national economy in order to decide whether the claimant is 
disabled or continues to be disabled. Paragraphs (b), (c), and (d) of 
this section explain how the Board applies the medical-vocational 
guidelines in Appendix 2 of this part in making this determination, 
depending on whether the limitations or restrictions imposed by the 
claimant's impairment(s) and related symptoms, such as pain, are 
exertional, nonexertional, or a combination of both.
    (b) Exertional limitations. When the limitations and restrictions 
imposed by the claimant's impairment(s) and related symptoms, such as 
pain, affect only the claimant's ability to meet the strength demands of 
jobs (sitting, standing, walking, lifting, carrying, pushing, and 
pulling), the Board considers that the claimant has only exertional 
limitations. When the claimant's impairment(s) and related symptoms only 
impose exertional limitations and the claimant's specific vocational 
profile is listed in a rule contained in Appendix 2 of this part, the 
Board will directly apply that rule to decide whether the claimant is 
disabled.
    (c) Nonexertional limitations. (1) When the limitations and 
restrictions imposed by the claimant's impairment(s) and related 
symptoms, such as pain, affect only the claimant's ability to meet the 
demands of jobs other than the strength demands, the Board considers 
that the claimant has only nonexertional limitations or restrictions. 
Some examples of nonexertional limitations or restrictions include the 
following:
    (i) Difficulty functioning because the claimant is nervous, anxious, 
or depressed;
    (ii) Difficulty maintaining attention or concentration;
    (iii) Difficulty understanding or remembering detailed instructions;
    (iv) Difficulty in seeing or hearing;
    (v) Difficulty tolerating some physical feature(s) of certain work 
settings, e.g., the claimant cannot tolerate dust or fumes; or
    (vi) Difficulty performing the manipulative or postural functions of 
some work such as reaching, handling, stooping, climbing, crawling, or 
crouching.
    (2) If the claimant's impairment(s) and related symptoms, such as 
pain, only affect the claimant's ability to

[[Page 294]]

perform the nonexertional aspects of work-related activities, the rules 
in Appendix 2 do not direct factual conclusions of disabled or not 
disabled. The determination as to whether disability exists will be 
based on the principles in the appropriate sections of the regulations, 
giving consideration to the rules for specific case situations in 
Appendix 2 of this part.
    (d) Combined exertional and nonexertional limitations. When the 
limitations and restrictions imposed by the claimant's impairment(s) and 
related symptoms, such as pain, affect the claimant's ability to meet 
both the strength and demands of jobs other than the strength demands, 
the Board considers that the claimant has a combination of exertional 
and nonexertional limitations or restrictions. If the claimant's 
impairment(s) and related symptoms, such as pain, affect the claimant's 
ability to meet both the strength and demands of jobs other than the 
strength demands, the Board will not directly apply the rules in 
Appendix 2 unless there is a rule that directs a conclusion that the 
claimant is disabled based upon the claimant's strength limitations; 
otherwise the rules provide a framework to guide the Board's decision.

[68 FR 60294, Oct. 22, 2003]



                 Subpart L_Substantial Gainful Activity



Sec. 220.140  General.

    The work that a claimant has done during any period in which the 
claimant believes he or she is disabled may show that the claimant is 
able to do work at the substantial gainful activity level. If the 
claimant is able to engage in substantial gainful activity, the Board 
will find that the claimant is not disabled for any regular employment 
under the Railroad Retirement Act. Even if the work the claimant has 
done was not substantial gainful activity, it may show that the claimant 
is able to do more work than he or she actually did. The Board will 
consider all of the medical and vocational evidence in the claimant's 
file to decide whether or not the claimant has the ability to engage in 
substantial gainful activity.



Sec. 220.141  Substantial gainful activity, defined.

    Substantial gainful activity is work activity that is both 
substantial and gainful.
    (a) Substantial work activity. Substantial work activity is work 
activity that involves doing significant physical or mental activities. 
The claimant's work may be substantial even if it is done on a part-time 
basis or if the claimant does less, gets paid less, or has less 
responsibility than when the claimant worked before.
    (b) Gainful work activity. Gainful work activity is work activity 
that the claimant does for pay or profit. Work activity is gainful if it 
is the kind of work usually done for pay or profit, whether or not a 
profit is realized.
    (c) Some other activities. Generally, the Board does not consider 
activities like taking care of one's self, household tasks, hobbies, 
therapy, school attendance, club activities, or social programs to be 
substantial gainful activity.



Sec. 220.142  General information about work activity.

    (a) The nature of the claimant's work. If the claimant's duties 
require use of the claimant's experience, skills, supervision and 
responsibilities, or contribute substantially to the operation of a 
business, this tends to show that the claimant has the ability to work 
at the substantial gainful activity level.
    (b) How well the claimant performs. The Board considers how well the 
claimant does his or her work when the Board determines whether or not 
the claimant is doing substantial gainful activity. If the claimant does 
his or her work satisfactorily, this may show that the claimant is 
working at the substantial gainful activity level. If the claimant is 
unable, because of his or her impairments, to do ordinary or simple 
tasks satisfactorily without more supervision or assistance than is 
usually given other people doing similar work, this may show that the 
claimant is not working at the substantial gainful activity level. If 
the claimant is doing work that involves minimal duties that make little 
or no demands on the claimant and that are of little or no use to the 
claimant's

[[Page 295]]

railroad or non-railroad employer, or to the operation of a business if 
the claimant is self-employed, this does not show that the claimant is 
working at the substantial gainful activity level.
    (c) If the claimant's work is done under special conditions. Even 
though the work the claimant is doing takes into account his or her 
impairment, such as work done in a sheltered workshop or as a patient in 
a hospital, it may still show that the claimant has the necessary skills 
and ability to work at the substantial gainful activity level.
    (d) If the claimant is self-employed. Supervisory, managerial, 
advisory or other significant personal services that the claimant 
performs as a self-employed person may show that the claimant is able to 
do substantial gainful activity.
    (e) Time spent in work. While the time the claimant spends in work 
is important, the Board will not decide whether or not the claimant is 
doing substantial gainful activity only on that basis. The Board will 
still evaluate the work to decide whether it is substantial and gainful 
regardless of whether the claimant spends more time or less time at the 
job than workers who are not impaired and who are doing similar work as 
a regular means of their livelihood.



Sec. 220.143  Evaluation guides for an employed claimant.

    (a) General. The Board uses several guides to decide whether the 
work the claimant has done shows that he or she is able to do 
substantial gainful activity.
    (1) The claimant's earnings may show the claimant has done 
substantial gainful activity. The amount of the claimant's earnings from 
work the claimant has done may show that he or she has engaged in 
substantial gainful activity. Generally, if the claimant worked for 
substantial earnings, this will show that he or she is able to do 
substantial gainful activity. On the other hand, the fact that the 
claimant's earnings are not substantial will not necessarily show that 
the claimant is not able to do substantial gainful activity. The Board 
will generally consider work that the claimant is forced to stop after a 
short time because of his or her impairment(s) as an unsuccessful work 
attempt and the claimant's earnings from that work will not show that 
the claimant is able to do substantial gainful activity.
    (2) The Board considers only the amount the claimant earns. The 
Board does not consider any income not directly related to the 
claimant's productivity when the Board decides whether the claimant has 
done substantial gainful activity. If the claimant's earnings are 
subsidized, the amount of the subsidy is not counted when the Board 
determines whether or not the claimant's work is substantial gainful 
activity. Thus, where work is done under special conditions, the Board 
only considers the part of the claimant's pay which the claimant 
actually ``earns.'' For example, where a handicapped person does simple 
tasks under close and continuous supervision, the Board would not 
determine that the person worked at the substantial gainful activity 
level only on the basis of the amount of pay. A railroad or non-railroad 
employer may set a specific amount as a subsidy after figuring the 
reasonable value of the employee's services. If the claimant's work is 
subsidized and the claimant's railroad and non-railroad employer does 
not set the amount of the subsidy or does not adequately explain how the 
subsidy was figured, the Board will investigate to see how much the 
claimant's work is worth.
    (3) If the claimant is working in a sheltered or special 
environment. If the claimant is working in a sheltered workshop, the 
claimant may or may not be earning the amounts he or she is 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 the claimant is not earning all he or she is 
being paid. Since persons in military service being treated for a severe 
impairment usually continue to receive full pay, the Board evaluates 
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

[[Page 296]]

the work, rather than on the actual amount of the earnings.
    (b) Earnings guidelines--(1) General. If the claimant is employed, 
the Board first considers the criteria in paragraph (a) of this section 
and Sec. 220.145, and then the guides in paragraphs (b)(2), (3), (4), 
(5), and (6) of this section.
    (2) Earnings that will ordinarily show that the claimant has engaged 
in substantial gainful activity. The Board will consider that the 
earnings from the employed claimant's work activities show that the 
claimant has engaged in substantial gainful activity if--

------------------------------------------------------------------------
                                                                Monthly
                                                               earnings
                         For months                            averaged
                                                               more than
------------------------------------------------------------------------
In calendar years before 1976...............................        $200
In calendar year 1976.......................................         230
In calendar year 1977.......................................         240
In calendar year 1978.......................................         260
In calendar year 1979.......................................         280
In calendar years 1980-1989.................................         300
In January 1990-June 1999...................................         500
After June 1999.............................................         700
------------------------------------------------------------------------

    (3) Earnings that will ordinarily show that the claimant has not 
engaged in substantial gainful activity. The Board will generally 
consider that the earnings from the employed claimant's work will show 
that the claimant has not engaged in substantial gainful activity if--

------------------------------------------------------------------------
                                                                Monthly
                                                               earnings
                         For months                            averaged
                                                               less than
------------------------------------------------------------------------
In calendar years before 1976...............................        $130
In calendar year 1976.......................................         150
In calendar year 1977.......................................         160
In calendar year 1978.......................................         170
In calendar year 1979.......................................         180
In calendar years 1980-1989.................................         190
After December 1989.........................................         300
------------------------------------------------------------------------

    (4) If the claimant works in a sheltered workshop. If the claimant 
is working in a sheltered workshop or a comparable facility especially 
set up for severely impaired persons, the claimant's earnings and 
activities will ordinarily establish that the claimant has not done 
substantial gainful activity if--

------------------------------------------------------------------------
                                                                Average
                                                                monthly
                                                               earnings
                         For months                             are not
                                                                greater
                                                                 than
------------------------------------------------------------------------
In calendar years before 1976...............................        $200
In calendar year 1976.......................................         230
In calendar year 1977.......................................         240
In calendar 1978............................................         260
In calendar year 1979.......................................         280
In calendar years 1980-1989.................................         300
In January 1990-June 1999...................................         500
After June 1999.............................................         700
------------------------------------------------------------------------

    (5) If there is evidence showing that the claimant may have done 
substantial gainful activity. If there is evidence showing that the 
claimant may have done substantial gainful activity, the Board will 
apply the criteria in paragraph (b)(6) of this section regarding 
comparability and value of services.
    (6) Earnings that are not high or low enough to show whether the 
claimant engaged in substantial gainful activity. If the claimant's 
earnings, on the average, are between the amounts shown in paragraph 
(b)(2) and (3) of this section, the Board will generally consider other 
information in addition to the claimant's earnings, such as whether--
    (i) The claimant's work is comparable to that of unimpaired persons 
in the claimant's community who are doing the same or similar 
occupations as their means of livelihood, taking into account the time, 
energy, skill, and responsibility involved in the work; or
    (ii) The claimant's work, although significantly less than that done 
by unimpaired persons, is clearly worth the amounts shown in paragraph 
(b)(2) of this section, according to pay scales in the claimant's 
community.

[56 FR 12980, Mar 28, 1991, as amended at 64 FR 62976, Nov. 18, 1999]



Sec. 220.144  Evaluation guides for a self-employed claimant.

    (a) If the claimant is a self-employed claimant. The Board will 
consider the claimant's activities and their value to the claimant's 
business to decide whether the claimant has engaged in substantial 
gainful activity if the claimant is self-employed. The Board will not 
consider the claimant's income alone since the amount of income the 
claimant actually receives may depend upon a number of different factors

[[Page 297]]

like capital investment, profit sharing agreements, etc. The Board will 
generally consider work that the claimant is forced to stop after a 
short time because of his or her impairment(s) as an unsuccessful work 
attempt and the claimant's income from that work will not show that the 
claimant is able to do substantial gainful activity. The Board will 
evaluate the claimant's work activity on the value to the business of 
the claimant's services regardless of whether the claimant receives an 
immediate income for his or her services. The Board considers that the 
claimant has engaged in substantial gainful activity if--
    (1) The claimant's work activity, in terms of factors such as hours, 
skills, energy output, efficency, duties, and responsibilities, is 
comparable to that of unimpaired persons in the claimant's community who 
are in the same or similar businesses as their means of livelihood;
    (2) The claimant's work activity, although not comparable to that of 
unimpaired persons, is clearly worth the amount shown in Sec. 
220.143(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 employed 
person to do the work the claimant is doing; or
    (3) The claimant renders services that are significant to the 
operation of the business and receives a substantial income from the 
business.
    (b) What the Board means by significant services--(1) Claimants who 
are not farm landlords. If the claimant is not a farm landlord and the 
claimant operates a business entirely by himself or herself, any 
services that the claimant renders are significant to the business. If 
the claimant's business involves the services of more than one person, 
the Board will consider the claimant to be rendering significant 
services if he or she contributes more than half the total time required 
for the management of the business or he or she renders management 
services for more than 45 hours a month regardless of the total 
management time required by the business.
    (2) Claimants who are farm landlords--(i) General. If the claimant 
is a farm landlord, that is, the claimant rents farm land to another, 
the Board will consider the claimant to be rendering significant 
services if the claimant materially participates in the production or 
the management of the production of the things raised on the rented 
farm. If the claimant was given social security earnings credits because 
he or she materially participated in the activities of the farm and he 
or she continues these same activities, the Board will consider the 
claimant to be rendering significant services.
    (ii) Material participation. (A) The claimant will have established 
that he or she is materially participating if he or she--
    (1) Furnishes a large portion of the machinery, tools, and livestock 
used in the production of the things raised on the rented farm; or
    (2) Furnishes or advances monies or assumes financial responsibility 
for a substantial part of the expense involved in the production of the 
things raised on the rented farm.
    (B) The claimant will have presented strong evidence that he or she 
is materially participating if he or she periodically--
    (1) Advise or consults with the other person who under the rental 
agreement produces the things raised on the rented farm; and
    (2) Inspects the production activities on the land.
    (iii) Production. The term ``production'' refers to the physical 
work performed and the expenses incurred in producing the things raised 
on the farm. It includes activities like the actual work of planting, 
cultivating, and harvesting of crops, and the furnishing of machinery, 
implements, seed, and livestock.
    (iv) Management of the production. The term ``management of the 
production'' refers to services performed in making managerial decisions 
about the production of the crop, such as when to plant, cultivate, 
dust, spray or harvest. It includes advising and consulting, making 
inspections, and making decisions on matters, such as rotation of crops, 
the type of crops to be grown, the type of livestock to be raised, and 
the type of machinery and implements to be furnished.

[[Page 298]]

    (c) What the Board means by substantial income. After the claimant's 
normal business expenses are deducted from the claimant's gross income 
to determine net income, the Board will deduct the reasonable value of 
any unpaid help, any soil bank payments that were included as farm 
income, and impairment-related work expenses described in Sec. 220.145 
that have not been deducted in determining the claimant's net earnings 
from self-employment. The Board will consider the resulting amount of 
income from the business to be substantial if--
    (1) It averages more than the amounts described in Sec. 
220.143(b)(2); or
    (2) It averages less than the amounts described in 
Sec. 220.143(b)(2) but the livelihood which the claimant gets from the 
business is either comparable to what it was before the claimant became 
severely impaired or is comparable to that of unimpaired self-employed 
persons in the claimant's community who are in the same or similar 
businesses as their means of livelihood.



Sec. 220.145  Impairment-related work expenses.

    (a) General. When the Board figures the claimant's earnings in 
deciding if the claimant has done substantial gainful activity, the 
Board will subtract the reasonable costs to the claimant of certain 
items and services which, because of his or her impairment(s), the 
claimant needs and uses to enable him or her to work. The costs are 
deductible even though the claimant also needs or uses the items and 
services to carry out daily living functions unrelated to his or her 
work. Paragraph (b) of this section explains the conditions for 
deducting work expenses. Paragraph (c) of this section describes the 
expenses the Board will deduct. Paragraph (d) of this section explains 
when expenses may be deducted. Paragraph (e) of this section describes 
how expenses may be allocated. Paragraph (f) of this section explains 
the limitations on deducting expenses. Paragraph (g) of this section 
explains the Board's verification procedures.
    (b) Conditions for deducting impairment-related work expenses. The 
Board will deduct impairment-related work expenses if--
    (1) The claimant is otherwise disabled as defined in Sec. 220.26;
    (2) The severity of the claimant's impairment(s) requires the 
claimant to purchase (or rent) certain items and services in order to 
work;
    (3) The claimant pays the cost of the item or service. No deduction 
will be allowed to the extent that payment has been or will be made by 
another source. No deduction will be allowed to the extent that the 
claimant has been, could be, or will be reimbursed for such cost by any 
other source (such as through a private insurance plan, Medicare or 
Medicaid, or other plan or agency). For example, if the claimant 
purchases crutches for $80 but the claimant was, could be, or will be 
reimbursed $64 by some agency, plan, or program, the Board will deduct 
only $16;
    (4) The claimant pays for the item or service in a month he or she 
is working (in accordance with paragraph (d) of this section); and
    (5) The claimant's payment is in cash (including checks or other 
forms of money). Payment in kind is not deductible.
    (c) What expenses may be deducted--(1) Payments for attendant care 
services. (i) If because of the claimant's impairment(s) the claimant 
needs assistance in traveling to and from work, or while at work the 
claimant needs assistance with personal functions (e.g., eating, 
toileting) or with work-related functions (e.g., reading, 
communicating), the payments the claimant makes for those services may 
be deducted.
    (ii) If because of the claimant's impairment(s) the claimant needs 
assistance with personal functions (e.g., dressing, administering 
medications) at home in preparation for going to and assistance in 
returning from work, the payments the claimant makes for those services 
may be deducted.
    (iii)(A) The Board will deduct payments the claimant makes to a 
family member for attendant care services only if such person, in order 
to perform the services, suffers an economic loss by terminating his or 
her employment or by reducing the number of hours he or she worked.

[[Page 299]]

    (B) The Board considers a family member to be anyone who is related 
to the claimant by blood, marriage or adoption, whether or not that 
person lives with the claimant.
    (iv) If only part of the claimant's payment to a person is for 
services that come under the provisions of paragraph (c)(1) of this 
section, the Board will only deduct that part of the payment which is 
attributable to those services. For example, an attendant gets the 
claimant ready for work and helps the claimant in returning from work, 
which takes about 2 hours a day. The rest of the attendant's 8-hour day 
is spent cleaning the claimant's house and doing the claimant's laundry, 
etc. The Board would only deduct one-fourth of the attendant's daily 
wages as an impairment-related work expense.
    (2) Payment for medical devices. If the claimant's impairment(s) 
requires that the claimant utilize medical devices in order to work, the 
payments the claimant makes for those devices may be deducted. As used 
in this subparagraph, medical devices include durable medical equipment 
which can withstand repeated use, is customarily used for medical 
purposes, and is generally not useful to a person in the absence of an 
illness or injury. Examples of durable medical equipment are 
wheelchairs, hemodialysis equipment, canes, crutches, inhalators and 
pacemakers.
    (3) Payments for prosthetic devices. If the claimant's impairment(s) 
requires that the claimant utilize a prosthetic device in order to work, 
the payments the claimant makes for that device can be deducted. A 
prosthetic device is that which replaces an internal body organ or 
external body part. Examples of prosthetic devices are artificial 
replacements of arms, legs and other parts of the body.
    (4) Payments for equipment--(i) Work-related equipment. If the 
claimant's impairment(s) requires that the claimant utilize special 
equipment in order to do his or her job, the payments the claimant makes 
for that equipment may be deducted. Examples of work-related equipment 
are one-hand typewriters, vision aids, sensory aids for the blind, 
telecommunication devices for the deaf and tools specifically designed 
to accommodate a person's impairment(s).
    (ii) Residential modifications. If the claimant's impairment(s) 
requires that the claimant make modifications to his or her residence, 
the location of the claimant's place of work will determine if the cost 
of these modifications will be deducted. If the claimant is employed 
away from home, only the cost of changes made outside of the claimant's 
home to permit the claimant to get to his or her means of transportation 
(e.g., the installation of an exterior ramp for a wheelchair confined 
person or special exterior railings or pathways for someone who requires 
crutches) will be deducted. Costs relating to modifications of the 
inside of the claimant's home will not be deducted. If the claimant 
works at home, the costs of modifying the inside of the claimant's home 
in order to create a working space to accommodate the claimant's 
impairment(s) will be deducted to the extent that the changes pertain 
specifically to the space in which the claimant works. Examples of such 
changes are the enlargement of a doorway leading into the workspace or 
modification of the workspace to accommodate problems in dexterity. 
However, if the claimant is self-employed at home, any cost deducted as 
a business expense cannot be deducted as an impairment-related work 
expense.
    (iii) Non-medical applicances and equipment. Expenses for appliances 
and equipment which the claimant does not ordinarily use for medical 
purposes are generally not deductible. Examples of these items are 
portable room heaters, air conditioners, humidifiers, dehumidifiers, and 
electric air cleaners. However, expenses for such items may be 
deductible when unusual circumstances clearly establish an impairment-
related and medically verified need for such an item because it is for 
the control of the claimant's disabling impairment(s), thus enabling the 
claimant to work. To be considered essential, the item must be of such a 
nature that if it were not available to the claimant there would be an 
immediate adverse impact on the claimant's ability to function in his or 
her work activity. In this situation, the expense is deductible whether 
the item is used

[[Page 300]]

at home or in the working place. An example would be the need for an 
electric air cleaner by a person with severe respiratory disease who 
cannot function in a non-purified air environment. An item such as an 
exercycle is not deductible if used for general physical fitness. If an 
exercycle is prescribed and used as necessary treatment to enable the 
claimant to work, the Board will deduct payments the claimant makes 
toward its cost.
    (5) Payments for drugs and medical services. (i) If the claimant 
must use drugs or medical services (including diagnostic procedures) to 
control his or her impairment(s), the payments the claimant makes for 
them may be deducted. The drugs or services must be prescribed (or 
utilized) to reduce or eliminate symptoms of the claimant's 
impairment(s) or to slow down its progression. The diagnostic procedures 
must be performed to ascertain how the impairment(s) is progressing or 
to determine what type of treatment should be provided for the 
impairment(s).
    (ii) Examples of deductible drugs and medical services are anti-
convulsant drugs to control epilepsy or anticonvulsant blood level 
monitoring; antidepressant medication for mental impairments; medication 
used to allay the side effects of certain treatments; radiation 
treatment or chemotherapy for cancer patients; corrective surgery for 
spinal impairments; electroencephalograms and brain scans related to a 
disabling epileptic impairment; tests to determine the efficacy of 
medication on a diabetic condition; and immunosuppressive medications 
that kidney transplant patients regularly take to protect against graft 
rejection.
    (iii) The Board will only deduct the costs of drugs or services that 
are directly related to the claimant's impairment(s). Examples of non-
deductible items are routine annual physical examinations, optician 
services (unrelated to a disabling visual impairment) and dental 
examinations.
    (6) Payments for similar items and services--(i) General. If the 
claimant is required to utilize items and services not specified in 
paragraphs (c)(1) through (5) of this section, but which are directly 
related to his or her impairment(s) and which the claimant needs to 
work, their costs are deductible. Examples of such items and services 
are medical supplies and services not discussed above, the purchase and 
maintenance of a dog guide which the claimant needs to work, and 
transportation.
    (ii) Medical supplies and services not described above. The Board 
will deduct payments the claimant makes for expendable medical supplies, 
such as incontinence pads, catheters, bandages, elastic stockings, face 
masks, irrigating kits, and disposable sheets and bags. The Board will 
also deduct payments the claimant makes for physical therapy which the 
claimant requires because of his or her impairment(s) and which the 
claimant needs in order to work.
    (iii) Payments for transportation costs. The Board will deduct 
transportation costs in these situations:
    (A) The claimant's impairment(s) requires that in order to get to 
work the claimant needs a vehicle that has structural or operational 
modifications. The modifications must be critical to the claimant's 
operation or use of the vehicle and directly related to the claimant's 
impairment(s). The Board will deduct the cost of the modifications, but 
not the cost of the vehicle. The Board will also deduct a mileage 
allowance for the trip to and from work. The allowance will be based on 
data compiled by the Federal Highway Administration relating to vehicle 
operating costs.
    (B) The claimant's impairment(s) requires the claimant to use driver 
assistance, taxicabs or other hired vehicles in order to work. The Board 
will deduct amounts paid to the driver and, if the claimant's own 
vehicle is used, the Board will also deduct a mileage allowance, as 
provided in paragraph (c)(6)(iii)(A) of this section, for the trip to 
and from work.
    (C) The claimant's impairment(s) prevents the claimant from taking 
available public transportation to and from work and the claimant must 
drive his or her (unmodified) vehicle to work. If the Board can verify 
through the claimant's physician or other sources that the need to drive 
is caused by the claimant's impairment(s) (and

[[Page 301]]

not due to the unavailability of public transportation), the Board will 
deduct a mileage allowance, as provided in paragraph (c)(6)(iii)(A) of 
this section, for the trip to and from work.
    (7) Payments for installing, maintaining, and repairing deductible 
items. If the device, equipment, appliance, etc., that the claimant 
utilizes qualifies as a deductible item as described in paragraphs 
(c)(2), (3), (4) and (6) of this section, the costs directly related to 
installing, maintaining and repairing these items are also deductible. 
(The costs which are associated with modifications to a vehicle are 
deductible. Except for a mileage allowance, as provided for in paragraph 
(c)(6)(iii)(A) of this section, the costs which are associated with the 
vehicle itself are not deductible.)
    (d) When expenses may be deducted--(1) Effective date. To be 
deductible, an expense must be incurred after November 30, 1980. An 
expense may be considered incurred after that date if it is paid 
thereafter even though pursuant to a contract or other arrangement 
entered into before December 1, 1980.
    (2) Payments for services. A payment the claimant makes for services 
may be deducted if the services are received while the claimant is 
working and the payment is made in a month the claimant is working. The 
Board considers the claimant to be working even though he or she must 
leave work temporarily to receive the services.
    (3) Payments for items. A payment the claimant makes toward the cost 
of a deductible item (regardless of when it is acquired) may be deducted 
if payment is made in a month claimant is working. See paragraph (e)(4) 
of this section when purchases are made in anticipation of work.
    (e) How expenses are allocated--(1) Recurring expenses. The claimant 
may pay for services on a regular periodic basis, or the claimant may 
purchase an item on credit and pay for it in regular periodic 
installments or the claimant may rent an item. If so, each payment the 
claimant makes for the services and each payment the claimant makes 
toward the purchase or rental (including interest) is deductible in the 
month it is made.

    Example: B starts work in October 1981 at which time she purchases a 
medical device at a cost of $4,800 plus interest charges of $720. Her 
monthly payments begin in October. She earns and receives $400 a month. 
The term of the installment contract is 48 months. No downpayment is 
made. The monthly allowable deduction for the item would be $115 ($5,520 
divided by 48) for each month of work during the 48 months.

    (2) Non-recurring expenses. Part or all of the claimant's expenses 
may not be recurring. For example, the claimant may make a one-time 
payment in full for an item or service or make a downpayment. If the 
claimant is working when he or she makes the payment, the Board will 
either deduct the entire amount in the month the claimant pays it or 
allocate the amount over a 12-consecutive-month period beginning with 
the month of payment, whichever the claimant selects.

    Example: A begins working in October 1981 and earns $525 a month. In 
the same month, he purchases and pays for a deductible item at a cost of 
$250. In this situation the Board could allow a $250 deduction for 
October 1981, reducing A's earnings below the substantial gainful 
activity level for that month.
    If A's earnings had been $15 above the substantial gainful activity 
earnings amount, A probably would select the option of projecting the 
$250 payment over the 12-month period, October 1981-September 1982, 
giving A an allowable deduction of $20.83 a month for each month of work 
during that period. This deduction would reduce A's earnings below the 
substantial gainful activity level for 12 months.

    (3) Allocating downpayments. If the claimant makes a downpayment, 
the Board will, if the claimant chooses, make a separate calculation for 
the downpayment in order to provide for uniform monthly deductions. In 
these situations the Board will determine the total payment that the 
claimant will make over a 12-consecutive-month period beginning with the 
month of the downpayment and allocate that amount over the 12 months. 
Beginning with the 13th month, the regular monthly payment will be 
deductible. This allocation process will be for a shorter period if the 
claimant's regular monthly payments will extend over a period of less 
than 12 months.

    Example 1. C starts working in October 1981, at which time he 
purchases special equipment at a cost of $4,800, paying $1,200

[[Page 302]]

down. The balance of $3,600, plus interest of $540, is to be repaid in 
36 installments of $115 a month beginning November 1981. C earns $500 a 
month. He chooses to have the downpayment allocated. In this situation 
the Board would allow a deduction of $205.42 a month for each month of 
work during the period October 1981 through September 1982. After 
September 1982, the deduction amount would be the regular monthly 
payment of $115 for each month of work during the remaining installment 
period.

Explanation:
Downpayment in October 1981.........................              $1,200
  Monthly payments:
    November 1981 through September 1982............               1,265
                                                     -------------------
                                                       12/ $2,465=205.42
 

    Example 2. D, while working, buys a deductible item in July 1981, 
paying $1,450 down. However, his first monthly payment of $125 is not 
due until September 1981. D chooses to have the downpayment allocated. 
In this situation, the Board would allow a deduction of $225 a month for 
each month of work during the period July 1981 through June 1982. After 
June 1982, the deduction amount would be the regular monthly payment of 
$125 for each month of work.

Explanation:
Downpayment in July 1981............................              $1,450
  Monthly payments:
    September 1981 through June 1982................               1,250
                                                     -------------------
                                                         12/ $2,700=$225
 

    (4) Payments made in anticipation of work. A payment made toward the 
cost of a deductible item that the claimant made in any of the 11 months 
preceding the month he or she started working will be taken into account 
in determining the claimant's impairment-related work expenses. When an 
item is paid for in full during the 11 months preceding the month the 
claiment started working, the payment will be allocated over the 12-
consecutive-month period beginning with the month of the payment. 
However, the only portion of the payment which may be deductible is the 
portion allocated to the month work begins and the following months. For 
example, if an item is purchased 3 months before the month work began 
and is paid for with a one-time payment of $600, the deductible amount 
would be $450 ($600 divided by 12, multiplied by 9). Installment 
payments (including a downpayment) that the claimant made for a 
particular item during the 11 months preceding the month he or she 
started working will be totalled and considered to have been made in the 
month of the claimant's first payment for that item within this 11-month 
period. The sum of these payments will be allocated over the 12-
consecutive-month period beginning with the month of the claimant's 
first payment (but never earlier than 11 months before the month work 
began). However, the only portion of the total which may be deductible 
is the portion allocated to the month work begins and the following 
months. For example, if an item is purchased 3 months before the month 
work began and is paid for in 3 monthly installments of $200 each, the 
total payment of $600 will be considered to have been made in the month 
of the first payment, that is, 3 months before the month work began. The 
deductible amount would be $450 ($600 divided by 12, multiplied by 9). 
The amount, as determined by these formulas, will then be considered to 
have been paid in the first month of work. The Board will deduct either 
this entire amount in the first month of work or allocate it over a 12-
consecutive-month period, beginning with the first month of work, 
whichever the claimant selects. In the above examples, the claimant 
would have the choice of having the entire $450 deducted in the first 
month of work or having $37.50 a month ($450 divided by 12) deducted for 
each month that he or she works over a 12-consecutive-month period, 
beginning with the first month of work. To be deductible, the payments 
must be for durable items such as medical devices, prostheses, work-
related equipment, residential modifications, non-medical appliances and 
vehicle modifications. Payments for services and expendable items such 
as drugs, oxygen, diagnostic procedures, medical supplies and vehicle 
operating costs are not deductible for the purpose of this paragraph.
    (f) Limits on deductions. (1) The Board will deduct the actual 
amounts the claimant pays towards his or her impairment-related work 
expenses unless the amounts are unreasonable. With respect to durable 
medical equipment,

[[Page 303]]

prosthetic devices, medical services, and similar medically-related 
items and services, the Board will apply the prevailing charges under 
Medicare (Part B of the title XVIII, Health Insurance for the Aged and 
Disabled) to the extent that this information is readily available. 
Where the Medicare guides are used, the Board will consider the amount 
that the claimant pays to be reasonable if it is no more than the 
prevailing charge for the same item or service under the Medicare 
guidelines. If the amount the claimant actually pays is more than the 
prevailing charge for the same item under the Medicare guidelines, the 
Board will deduct from the claimant's earnings the amount the claimant 
paid to the extent he or she establishes that the amount is consistent 
with the standard or normal charge for the same or similar item or 
service in his or her community. For items and services that are not 
listed in the Medicare guidelines, and for items and services that are 
listed in the Medicare guidelines but for which such guides cannot be 
used because the information is not readily available, the Board will 
consider the amount the claimant pays to be reasonable if it does not 
exceed the standard or normal charge for the same or similar item or 
service in the claimant's community.
    (2) Impairment-related work expenses are not deducted in computing 
the claimant's earnings for purposes of determining whether the 
claimant's work was ``services'' as described in Sec. 220.170.
    (3) The decision as to whether the claimant performed substantial 
gainful activity in a case involving impairment-related work expenses 
for items or services necessary for the claimant to work generally will 
be based upon the claimant's ``earnings'' and not on the value of 
``services'' the claimant rendered. (See Sec. Sec. 220.143 (b)(6)(i) 
and (ii), and 220.144(a)). This is not necessarily so, however, if the 
claimant is in a position to control or manipulate his or her earnings.
    (4) No deduction will be allowed to the extent that any other source 
has paid or will pay for an item or service. No deduction will be 
allowed to the extent that the claimant has been, could be, or will be 
reimbursed for payments he or she made. (See paragraph (b)(3) of this 
section.)
    (5) The provisions described in the foregoing paragraphs in this 
section are effective with respect to expenses incurred on or after 
December 1, 1980, although expenses incurred after November 1980, as a 
result of contractual or other arrangements entered into before December 
1980, are deductible. For months before December 1980, the Board will 
deduct impairment-related work expenses from the claimant's earnings 
only to the extent they exceeded the normal work-related expenses the 
claimant would have had if the claimant did not have his or her 
impairment(s). The Board will not deduct expenses, however, for those 
things with the claimant needed even when he or she was not working.
    (g) Verification. The Board will verify the claimant's need for 
items or services for which deductions are claimed, and the amount of 
the charges for those items or services. The claimant will also be asked 
to provide proof that he or she paid for the items or services.



           Subpart M_Disability Annuity Earnings Restrictions



Sec. 220.160  How work for a railroad employer affects a disability 
annuity.

    A disability annuity is not payable and the annuity must be returned 
for any month in which the disabled annuitant works for an employer as 
defined in part 202 of this chapter.



Sec. 220.161  How work affects an employee disability annuity.

    In addition to the condition in Sec. 220.160, the employee's 
disability annuity is not payable and the employee must return the 
annuity payment for any month in which the employee earns more than $400 
(after deduction of impairment-related work expenses) in employment or 
self-employment of any kind. Any annuity amounts withheld because the 
annuitant earned over $400 in a month may be paid after the end of the 
year, as shown in Sec. 220.164. The $400 monthly limit no longer 
applies when the employee attains retirement age and the disability 
annuity is converted to a full age annuity. See

[[Page 304]]

Sec. 220.145 for the definition of impairment-related work expenses.

[56 FR 12980, Mar. 28, 1991, as amended at 68 FR 39010, July 1, 2003]



Sec. 220.162  Earnings report.

    (a) General. Any annuitant receiving an annuity based on disability 
must report to the Board any work and earnings as described in Sec. 
220.160 and Sec. 220.161. The report may be a written or oral statement 
by the annuitant, or a person acting for the annuitant, made or sent to 
a representative of the Board. The report should include the name and 
address of the railroad or non-railroad employer, a description of the 
work and the amount of gross wages (before deductions) or the net income 
from self-employment (earnings after deducting business expenses).
    (b) Employee reports. In addition to the requirement described in 
(a), a report of earnings over $400 a month must be made before the 
employee accepts a disability annuity (the annuity payment is issued and 
not returned) for the second month after the first month in which 
earnings are over $400. Along with the report, the employee must return 
the annuity payment for any month in which he or she earns over $400.



Sec. 220.163  Employee penalty deductions.

    If the employee earns over $400 in a month and does not report it 
within the time limit shown in Sec. 220.162(b), a penalty is imposed. 
The penalty deduction for the first failure to report equals the annuity 
amount for the first month in which the employee earned over $400. The 
deduction for a second or later failure to report equals the annuity 
amount for each month in which the employee earned over $400 and failed 
to report it on time.



Sec. 220.164  Employee end-of-year adjustment.

    (a) General. After the end of a year, the employee whose annuity was 
withheld for earnings over $400 in a month receives a form on which to 
report his or her earnings for the year.
    (b) Earnings are less than $5000. If the employee's yearly earnings 
are less than $5000, all annuity payments and penalties withheld during 
the year because of earnings over $4800 are paid.
    (c) Earnings are $5000 or more. (1) If the employee's yearly 
earnings are $5000 or more, the annuity payments are adjusted so that 
the employee does not have more than one regular deduction for every 
$400 of earnings over $4800. The last $200 or more of earnings over 
$4800 is treated as if it were $400. If the annuity rate changes during 
the year, any annuities due at the end of the year are paid first for 
months in which the annuity rate is higher. Penalty deductions may also 
apply as described in paragraph (c)(2) of this section.
    (2) If the employee's yearly earnings are $5000 or more and the 
employee failed to report monthly earnings over $400 within the time 
limit described in Sec. 220.162(b), penalty deductions will also apply. 
If it is the employee's first failure to report, the penalty deduction 
is equal to one month's annuity. If it is the employee's second or later 
failure to report, the penalty deduction equals the annuity amount for 
each month in which the employee earned over $400 and failed to report 
it on time.
    (d) This section is illustrated by the following examples:

    Example 1: Employee is awarded a disability annuity based upon his 
inability to engage in his regular railroad occupation effective January 
1, 1989. During that year, he works April through October, for which he 
receives $785 per month. He does not report these earnings to the Board 
until January of the following year. The employee is considered to have 
earned $5600 (7x$785=$5495, which is rounded up to the nearest $400). He 
forfeits three months of annuities:
[GRAPHIC] [TIFF OMITTED] TC14NO91.107

    Example 2: The same employee in the following year also works April 
through October, for which he receives $785 per month. This time he 
reports the earnings on October 31. This year he forfeits 6 months of 
annuity payments, 2 due to earnings, computed as above, and 4 more due 
to penalty deductions for failure to report earnings over $400 for the 
months April through July. There are no penalty deductions with respect 
to the months August, September, and October, since the employee 
reported these earnings prior to accepting an annuity for the second

[[Page 305]]

month after the month of earnings in excess of $400.



  Subpart N_Trial Work Period and Reentitlement Period for Annuitants 
                   Disabled for Any Regular Employment



Sec. 220.170  The trial work period.

    (a) Definition of the trial work period. The trial work period is a 
period during which the annuitant may test his or her ability to work 
and still be considered disabled. The trial work period begins and ends 
as described in paragraph (e) of this section. During this period, the 
annuitant may perform ``services'' (see paragraph (b) of this section) 
in as many as 9 months, but these months do not have to be consecutive. 
The Board will not consider those services as showing that the 
annuitant's disability has ended until the annuitant has performed 
services in at least 9 months. However, after the trial work period has 
ended, the Board will consider the work the annuitant did during the 
trial work period in determining whether the annuitant's disability has 
ended at any time after the trial work period.
    (b) What the Board means by services. When used in this section, 
``services'' means any activity, even though it is not substantial 
gainful activity, which is done by the annuitant in employment or self-
employment for pay or profit, or is the kind normally done for pay or 
profit. If the annuitant is employed, the Board will consider his or her 
work to be ``services'' if in any calendar year after 1989 the annuitant 
earns more than $200 a month ($75 a month is the figure for earnings in 
any calendar year before 1989). If the annuitant is self-employed, the 
Board will consider his or her activities ``services'' if in any 
calendar year after 1989 the annuitant's net earnings are more than $200 
a month, ($75 a month is the figure for earnings in any calendar year 
before 1989), or the annuitant works more than 40 hours a month in the 
business in any calendar year after 1989 (15 hours a month is the figure 
for calendar years before 1990). The Board generally does not consider 
work to be ``services'' when it is done without remuneration or merely 
as therapy or training, or when it is work usually done in a daily 
routine around the house, or in self-care.
    (c) Limitations on the number of trial work periods. The annuitant 
may have only one trial work period during each period in which he or 
she is disabled for any regular employment as defined in Sec. 220.26.
    (d) Who is and is not entitled to a trial work period. (1) 
Generally, the annuitant is entitled to a trial work period if he or she 
is entitled to an annuity based on disability.
    (2) An annuitant is not entitled to a trial work period if he or she 
is in a second period of disability for which he or she did not have to 
complete a waiting period before qualifying for a disability annuity.
    (e) Payment of the disability annuity during the trial work period. 
(1) The disability annuity of an employee, child, or widow(er) who is 
disabled for any regular employment will not be paid for any month in 
the trial work period in which the annuitant works for an employer 
covered by the Railroad Retirement Act (see Sec. 220.160).
    (2) The disability annuity of an employee who is disabled for any 
regular employment will not be paid for any month in this period in 
which the employee annuitant earns more than $400 in employment or self-
employment (see Sec. 220.161 and Sec. 220.164).
    (3) If the disability annuity for an employee, child, or widow(er) 
who is disabled for any regular employment is stopped because of work 
during the trial work period, and the disability annuitant discontinues 
that work before the end of the trial work period, the disability 
annuity may be started again without a new application and a new 
determination of disability.
    (f) When the trial work period begins and ends. (1) The trial work 
period begins with whichever of the following calendar months is the 
later--
    (i) The annuity beginning date;
    (ii) The month after the end of the appropriate waiting period; or
    (iii) The month the application for disability is filed.
    (2) The trial work period ends with the close of whichever of the 
following calendar months is the earlier--
    (i) The 9th month (whether or not the months have been consecutive) 
in

[[Page 306]]

which the annuitant performed services; or
    (ii) The month in which new evidence, other than evidence relating 
to any work the annuitant did during the trial work period, shows that 
the annuitant is not disabled, even though he or she has not worked a 
full 9 months. The Board may find that the annuitant's disability has 
ended at any time during the trial work period if the medical or other 
evidence shows that the annuitant is no longer disabled.



Sec. 220.171  The reentitlement period.

    (a) General. (1) The reentitlement period is an additional period 
after the 9 months of trial work during which the annuitant may continue 
to test his or her ability to work if he or she has a disabling 
impairment(s).
    (2) The disability annuity of an employee, child, or widow(er) who 
is disabled for any regular employment will not be paid for--
    (i) Any month, after the 3rd month, in this period in which the 
annuitant does substantial gainful activity; or
    (ii) Any month in this period in which the annuitant works for an 
employer covered by the Railroad Retirement Act ( see Sec. 220.160).
    (3) The disability annuity of an employee who is disabled for any 
regular employment will not be paid for any month in this period in 
which the employee annuitant earns more than $400 in employment or self-
employment (see Sec. 220.161 and Sec. 220.164).
    (4) If the disability annuity of an employee, child or widow(er) who 
is disabled for any regular employment is stopped because of work during 
the trial work period or reentitlement period, and the disability 
annuitant discontinues that work before the end of either period, the 
disability annuity may be started again without a new application or a 
new determination of disability.
    (b) When the reentitlement period begins and ends. The reentitlement 
period begins with the first month following completion of nine months 
of trial work but cannot begin earlier than December 1, 1980. It ends 
with whichever is earlier--
    (1) The month before the first month in which the annuitant's 
impairment(s) no longer exists or is not medically disabling; or
    (2) The last day of the 36th month following the end of the 
annuitant's trial work period.
    (c) When the annuitant is not entitled to a reentitlement period. 
The annuitant is not entitled to a reentitlement period if--
    (1) He or she is not entitled to a trial work period; or
    (2) His or her disability ended before the annuitant completed nine 
months of trial work in that period in which he or she was disabled.



 Subpart O_Continuing or Stopping Disability Due to Substantial Gainful 
                     Activity or Medical Improvement



Sec. 220.175  Responsibility to notify the Board of events which affect 
disability.

    If the annuitant is entitled to a disability annuity because he or 
she is disabled for any regular employment, the annuitant should 
promptly tell the Board if--
    (a) His or her impairment(s) improves;
    (b) He or she returns to work;
    (c) He or she increases the amount of work; or
    (d) His or her earnings increase.



Sec. 220.176  When disability continues or ends.

    There is a statutory requirement that, if an annuitant is entitled 
to a disability annuity, the annuitant's continued entitlement to such 
an annuity must be reviewed periodically until the employee or child 
annuitant reaches full retirement age and the widow(er) annuitant 
reaches age 60. When the annuitant is entitled to a disability annuity 
as a disabled employee, disabled widow(er) or as a person disabled since 
childhood, there are a number of factors to be considered in deciding 
whether his or her disability continues. The Board must first consider 
whether the annuitant has worked and, by doing so, demonstrated the 
ability to engage in substantial gainful activity. If so, the disability 
will end. If the annuitant has not demonstrated the ability to engage in 
substantial gainful

[[Page 307]]

activity, then the Board must determine if there has been any medical 
improvement in the annuitant's impairment(s) and, if so, whether this 
medical improvement is related to the annuitant's ability to work. If an 
impairment(s) has not medically improved, the Board must consider 
whether one or more of the exceptions to medical improvement applies. If 
medical improvement related to ability to work has not occurred and no 
exception applies, the disability will continue. Even the medical 
improvement related to ability to work has occurred or an exception 
applies (see Sec. 220.179 for exceptions), in most cases the Board must 
also show that the annuitant is currently able to engage in substantial 
gainful activity before it can find that the annuitant is no longer 
disabled.

[56 FR 12980, Mar. 28, 1991, as amended at 68 FR 39010, July 1, 2003]



Sec. 220.177  Terms and definitions.

    There are several terms and definitions which are important to know 
in order to understand how the Board reviews whether a disability for 
any regular employment continues:
    (a) Medical improvement. Medical improvement is any decrease in the 
medical severity of an impairment(s) which was present at the time of 
the most recent favorable medical decision that the annuitant was 
disabled or continued to be disabled. A determination that there has 
been a decrease in medical severity must be based on a comparison of 
prior and current medical evidence showing changes (improvement) in the 
symptoms, signs or laboratory findings associated with the 
impairment(s).

    Example 1: The claimant was awarded a disability annuity due to a 
herniated disc. At the time of the Board's prior decision granting the 
claimant an annuity he had had a laminectomy.
    Postoperatively, a myelogram still shows evidence of a persistant 
deficit in his lumbar spine. He had pain in his back, and pain and a 
burning sensation in his right foot and leg. There were no muscle 
weakness or neurological changes and a modest decrease in motion in his 
back and leg. When the Board reviewed the annuitant's claim to determine 
whether his disability should be continued, his treating physician 
reported that he had seen the annuitant regularly every 2 to 3 months 
for the past 2 years. No further myelograms had been done, complaints of 
pain in the back and right leg continued especially on sitting or 
standing for more than a short period of time. The annuitant's doctor 
further reported a moderately decreased range of motion in the 
annuitant's back and right leg, but again no muscle atrophy or 
neurological changes were reported. Medical improvement has not occurred 
because there has been no decrease in the severity of the annuitant's 
back impairment as shown by changes in symptoms, signs or laboratory 
findings.
    Example 2: The claimant was awarded a disability annuity due to 
rheumatoid arthritis. At the time, laboratory findings were positive for 
this impairment. The claimant's doctor reported persistent swelling and 
tenderness of the claimant's fingers and wrists and that he complained 
of joint pain. Current medical evidence shows that while laboratory 
tests are still positive for rheumatoid arthritis, the annuitant's 
impairment has responded favorably to therapy so that for the last year 
his fingers and wrists have not been significantly swollen or painful. 
Medical improvement has occurred because there has been a decrease in 
the severity of the annuitant's impairment as documented by the current 
symptoms and signs reported by his physician. Although the annuitant's 
impairment is subject to temporary remission and exacerbations, the 
improvement that has occurred has been sustained long enough to permit a 
finding of medical improvement. The Board would then determine if this 
medical improvement is related to the annuitant's ability to work.

    (b) Medical improvement not related to ability to do work. Medical 
improvement is not related to the annuitant's ability to work if there 
has been a decrease in the severity of the impairment(s) (as defined in 
paragraph (a) of this section) present at the time of the most recent 
favorable medical decision, but no increase in that annuitant's 
functional capacity to do basic work activities as defined in paragraph 
(d) of this section. If there has been any medical improvement in an 
annuitant's impairment(s), but it is not related to the annuitant's 
ability to do work and none of the exceptions applies, the annuity will 
be continued.

    Example: An annuitant was 65 inches tall and weighed 246 pounds at 
the time his disability was established. He had venous insufficiency and 
persistent edema in his legs. At the time, the annuitant's ability to do 
basic work activities was affected because he was able to sit for 6 
hours, but was able to stand

[[Page 308]]

or walk only occasionally. At the time of the Board's continuing 
disability review, the annuitant had undergone a vein stripping 
operation. He now weighed 220 pounds and had intermittent edema. He is 
still able to sit for 6 hours at a time and to stand or walk only 
occasionally although he reports less discomfort on walking. Medical 
improvement has occurred because there has been a decrease in the 
severity of the existing impairment as shown by his weight loss and the 
improvement in his edema. This medical improvement is not related to his 
ability to work, however, because his functional capacity to do basic 
work activities (i.e., the ability to sit, stand and walk) has not 
increased.

    (c) Medical improvement that is related to ability to do work. 
Medical improvement is related to an annuitant's ability to work if 
there has been a decrease in the severity (as defined in paragraph (a) 
of this section) of the impairment(s) present at the time of the most 
recent favorable medical decision and an increase in the annuitant's 
functional capacity to do basic work activities as discussed in 
paragraph (d) of this section. A determination that medical improvement 
related to an annuitant's ability to do work has occurred does not, 
necessarily, mean that such annuitant's disability will be found to have 
ended unless it is also shown that the annuitant is currently able to 
engage in substantial gainful activity as discussed in paragraph (e) of 
this section.

    Example 1: The annuitant has a back impairment and has had a 
laminectomy to relieve the nerve root impingement and weakness in his 
left leg. At the time of the Board's prior decision, basic work 
activities were affected because he was able to stand less than 6 hours, 
and sit no more than \1/2\ hour at a time. The annuitant had a 
successful fusion operation on his back about 1 year before the Board's 
review of his entitlement. At the time of the Board's review, the 
weakness in his leg has decreased. The annuitant's functional capacity 
to perform basic work activities now is unimpaired because he now has no 
limitation on his ability to sit, walk, or stand. Medical improvement 
has occurred because there has been a decrease in the severity of his 
impairment as demonstrated by the decreased weakness in his leg. This 
medical improvement is related to his ability to work because there has 
also been an increase in his functional capacity to perform basic work 
activities (or residual functional capacity) as shown by the absence of 
limitation on his ability to sit, walk, or stand. Whether or not his 
disability is found to have ended, however, will depend on the Board's 
determination as to whether he can currently engage in substantial 
gainful activity.
    Example 2: The annuitant was injured in an automobile accident 
receiving a compound fracture to his right femur and a fractured pelvis. 
When he applied for disability annuity 10 months after the accident his 
doctor reported that neither fracture had yet achieved solid union based 
on his clinical examination. X-rays supported this finding. The 
annuitant's doctor estimated that solid union and a subsequent return to 
full weight bearing would not occur for at least 3 more months. At the 
time of the Board's review 6 months later, solid union had occurred and 
the annuitant had been returned to full weight-bearing for over a month. 
His doctor reported this and the fact that his prior fractures no longer 
placed any limitation on his ability to walk, stand, and lift, and, that 
in fact, he could return to full-time work if he so desired.
    Medical improvement has occurred because there has been a decrease 
in the severity of the annuitant's impairments as shown by x-ray and 
clinical evidence of solid union and his return to full weight-bearing. 
This medical improvement is related to his ability to work because he no 
longer meets the same listed impairment in appendix 1 of this part (see 
Sec. 220.178(c)(1)). Whether or not the annuitant's disability is found 
to have ended will depend on the Board's determination as to whether he 
can currently engage in substantial gainful activity.

    (d) Functional capacity to do basic work activities. (1) Under the 
law, disability is defined, in part, as the inability to do any regular 
employment by reason of a physical or mental impairment(s). ``Regular 
employment'' is defined in this part as ``substantial gainful 
activity.'' In determining whether the annuitant is disabled under the 
law, the Board will measure, therefore, how and to what extent the 
annuitant's impairment(s) has affected his or her ability to do work. 
The Board does this by looking at how the annuitant's functional 
capacity for doing basic work activities has been affected. Basic work 
activities means the abilities and aptitudes necessary to do most jobs. 
Included are exertional abilities such as walking, standing, pushing, 
pulling, reaching and carrying, and nonexertional abilities and 
aptitudes such as seeing, hearing, speaking, remembering, using 
judgment, dealing with changes in a work setting and dealing

[[Page 309]]

with both supervisors and fellow workers. The annuitant who has no 
impairment(s) would be able to do all basic work activities at normal 
levels; he or she would have an unlimited functional capacity to do 
basic work activities. Depending on its nature and severity, an 
impairment(s) will result in some limitation to the functional capacity 
to do one or more of these basic work activities. Diabetes, for example, 
can result in circulatory problems which could limit the length of time 
the annuitant could stand or walk and can result in damage to his or her 
eyes as well, so that the annuitant also had limited vision. What the 
annuitant can still do, despite his or her impairment(s), is called his 
or her residual functional capacity. How the residual functional 
capacity is assessed is discussed in more detail in Sec. 220.120. 
Unless an impairment is so severe that it is deemed to prevent the 
annuitant from doing substantial gainful activity (i.e., the 
impairment(s) meets or equals the severity of a listed impairment in 
appendix 1 of this part), it is this residual functional capacity that 
is used to determine whether the annuitant can still do his or her past 
work or, in conjunction with his or her age, education and work 
experience, do any other work.
    (2) A decrease in the severity of an impairment as measured by 
changes (improvement) in symptoms, signs or laboratory findings can, if 
great enough, result in an increase in the functional capacity to do 
work activities. Vascular surgery (e.g., femoropopliteal bypass) may 
sometimes reduce the severity of the circulatory complications of 
diabetes so that better circulation results and the annuitant can stand 
or walk for longer periods. When new evidence showing a change in 
medical findings establishes that both medical improvement has occurred 
and the annuitant's functional capacity to perform basic work 
activities, or residual functional capacity, has increased, the Board 
will find that medical improvement which is related to the annuitant's 
ability to do work has occurred. A residual functional capacity 
assessment is also used to determine whether an annuitant can engage in 
substantial gainful activity and, thus, whether he or she continues to 
be disabled (see paragraph (e) of this section).
    (3) Many impairment-related factors must be considered in assessing 
an annuitant's functional capacity for basic work activities. Age is one 
key factor. Medical literature shows that there is a gradual decrease in 
organ function with age; that major losses and deficits become 
irreversible over time and that maximum exercise performance diminishes 
with age. Other changes related to sustained periods of inactivity and 
the aging process include muscle atrophy, degenerative joint changes, 
decrease in range of motion, and changes in the cardiac and respiratory 
systems which limit the exertional range.
    (4) Studies have also shown that the longer the annuitant is away 
from the workplace and is inactive, the more difficult it becomes to 
return to ongoing gainful employment. In addition, a gradual change 
occurs in most jobs so that after about 15 years, it is no longer 
realistic to expect that skills and abilities acquired in these jobs 
will continue to apply to the current workplace. Thus, if the annuitant 
is age 50 or over and had been receiving a disability annuity for a 
considerable period of time, the Board will consider this factor along 
with his or her age in assessing the residual functional capacity. This 
will ensure that the disadvantages resulting from inactivity and the 
aging process during a longer period of disability will be considered. 
In some instances where available evidence does not resolve what the 
annuitant can or cannot do on a sustained basis, the Board may provide 
special work evaluations or other appropriate testing.
    (e) Ability to engage in substantial gainful activity. In most 
instances, the Board must show that the annuitant is able to engage in 
substantial gainful activity before stopping his or her annuity. When 
doing this, the Board will consider all of the annuitant's current 
impairments not just that impairment(s) present at the time of the most 
recent favorable determination. If the Board cannot determine that the 
annuitant is still disabled based on medical considerations alone (as 
discussed in Sec. Sec. 220.110 through 220.115), it will use

[[Page 310]]

the new symptoms, signs and laboratory findings to make an objective 
assessment of functional capacity to do basic work activities (or 
residual functional capacity) and will consider vocational factors. See 
Sec. Sec. 220.120 through 220.134.
    (f) Evidence and basis for the Board's decision. The Board's 
decisions under this section will be made on a neutral basis without any 
initial inference as to the presence or absence of disability being 
drawn from the fact that the annuitant had previously been determined to 
be disabled. The Board will consider all of the evidence the annuitant 
submits. An annuitant must give the Board reports from his or her 
physician, psychologist, or others who have treated or evaluated him or 
her, as well as any other evidence that will help the board determine if 
he or she is still disabled (see Sec. 220.45). The annuitant must have 
a good reason for not giving the Board this information or the Board may 
find that his or her disability has ended (see Sec. 220.178(b)(2)). If 
the Board asks the annuitant, he or she must contact his or her medical 
sources to help the Board get the medical reports. The Board will make 
every reasonable effort to help the annuitant in getting medical reports 
when he or she gives the Board permission to request them from his or 
her physician, psychologist, or other medical sources, Every reasonable 
effort means that the Board will make an initial request and, after 20 
days, one follow-up request to the annuitant's medical source to obtain 
the medical evidence necessary to make a determination before the Board 
evaluates medical evidence obtained from another source on a 
consultative basis. The medical source will have 10 days from the 
follow-up to reply (unless experience indicates that a longer period is 
advisable in a particular case). In some instances the Board may order a 
consultative examination while awaiting receipt of medical source 
evidence. Before deciding that an annuitant's disability has ended, the 
Board will develop a complete medical history covering at least the 
preceding 12 months (See Sec. 220.45(b)). A consultative examination 
may be purchased when the Board needs additional evidence to determine 
whether or not an annuitant's disability continues. As a result, the 
Board may ask the annuitant, upon the Board request and reasonable 
notice, to undergo consultative examinations and tests to help the Board 
determine whether the annuitant is still disabled (see Sec. 220.50). 
The Board will decide whether or not to purchase a consultative 
examination in accordance with the standards in Sec. Sec. 220.53 
through 220.54.
    (g) Point of comparison. For purposes of determining whether medical 
improvement has occurred, the Board will compare the current medical 
severity of that impairment(s), which was present at the time of the 
most recent favorable medical decision that the annuitant was disabled 
or continued to be disabled, to the medical severity of that 
impairment(s) at that time. If medical improvement has occurred, the 
Board will compare the annuitant's current functional capacity to do 
basic work activities (i.e., his or her residual functional capacity) 
based on this previously existing impairment(s) with the annuitant's 
prior residual functional capacity in order to determine whether the 
medical improvement is related to his or her ability to do work. The 
most recent favorable medical decision is the latest decision involving 
a consideration of the medical evidence and the issue of whether the 
annuitant was disabled or continued to be disabled which became final.



Sec. 220.178  Determining medical improvement and its relationship 
to the annuitant's ability to do work.

    (a) General. Paragraphs (a), (b), and (c) of Sec. 220.177 discuss 
what is meant by medical improvement, medical improvement not related to 
the ability to work and medical improvement that is related to the 
ability to work. How the Board will arrive at the decision that medical 
improvement has occurred and its relationship to the ability to do work, 
is discussed in paragraphs (b) and (c) of this section.
    (b) Determining if medical improvement is related to ability to 
work. If there is a decrease in medical severity as shown by the 
symptoms, signs and laboratory findings, the Board then must determine 
if it is related to the annuitant's

[[Page 311]]

ability to do work. In Sec. 220.177(d) the relationship between medical 
severity and limitation on functional capacity to do basic work 
activities (or residual functional capacity) and how changes in medical 
severity can affect the annuitant's residual functional capacity is 
explained. In determining whether medical improvement that has occurred 
is related to the annuitant's ability to do work, the Board will assess 
the annuitant's residual functional capacity (in accordance with Sec. 
220.177(d)) based on the current severity of the impairment(s) which was 
present at that annuitant's last favorable medical decision. The 
annuitant's new residual functional capacity will then be compared to 
the annuitant's residual functional capcity at the time of the Board's 
most recent favorable medical decision. Unless an increase in the 
current residual functional capacity is based on changes in the signs, 
symptoms, or laboratory findings, any medical improvement that has 
occurred will not be considered to be related to the annuitant's ability 
to do work.
    (c) Additional factors and considerations. The Board will also apply 
the following in its determinations of medical improvement and its 
relationship to the annuitant's ability to do work:
    (1) Previous impairment met or equaled listings. If the Board's most 
recent favorable decision was based on the fact that the annuitant's 
impairment(s) at the time met or equaled the severity contemplated by 
the Listing of Impairments in appendix 1 of this part, an assessment of 
his or her residual functional capacity would not have been made. If 
medical improvement has occurred and the severity of the prior 
impairment(s) no longer meets or equals the same listing, the Board will 
find that the medical improvement was related to the annuitant's ability 
to work. Appendix 1 of this part describes impairments which, if severe 
enough, affect the annuitant's ability to work. If the Listing level of 
severity is met or equaled, the annuitant is deemed, in the absence of 
evidence to the contrary, to be unable to engage in substantial gainful 
activity. If there has been medical improvement to the degree that the 
requirement of the listing is no longer met or equaled, then the medical 
improvement is related to the annuitant's ability to work. The Board 
must, of course, also establish that the annuitant can currenlty engage 
in gainful activity before finding that his or her disability has ended.
    (2) Prior residual functional capacity assessment made. The residual 
functional capacity assessment used in making the most recent favorable 
medical decision will be compared to the residual functional capacity 
assessment based on current evidence in order to determine if an 
annuitant's functional capacity for basic work activities has increased. 
There will be no attempt made to reassess the prior residual functional 
capacity.
    (3) Prior residual functional capacity assessment should have been 
made, but was not. If the most recent favorable medical decision should 
have contained an assessment of the annuitant's residual functional 
capacity (i.e., his or her impairment(s) did not meet or equal the level 
of severity contemplated by the Listing of Impairments in appendix 1 of 
this part) but does not, either because this assessment is missing from 
the annuitant's file or because it was not done, the Board will 
reconstruct the residual functional capacity. This reconstructed 
residual functional capacity will accurately and objectively assess the 
annuitant's functional capacity to do basic work activities. The Board 
will assign the maximum functional capacity consistent with an 
allowance.

    Example: The annuitant was previously found to be disabled on the 
basis that while his impairment did not meet or equal a listing, it did 
prevent him from doing his past or any other work. The prior adjudicator 
did not, however, include a residual functional capacity assessment in 
the rationale of that decision and a review of the prior evidence does 
not show that such an assessment was ever made. If a decrease in medical 
severity, i.e., medical improvement, has occurred, the residual 
functional capacity based on the current level of severity of the 
annuitant's impairment will have to be compared with his residual 
functional capacity based on its prior severity in order to determine if 
the medical improvement is related to his ability to do work. In order 
to make this comparison, the Board will review the prior evidence and 
make an objective assessment of the annuitant's residual functional 
capacity

[[Page 312]]

at the time of its most recent favorable medical determination, based on 
the symptoms, signs and laboratory findings as they then existed.

    (4) Impairment subject to temporary remission. In some cases the 
evidence shows that the annuitant's impairment(s) are subject to 
temporary remission. In assessing whether medical improvement has 
occurred in annuitants with this type of impairment(s), the Board will 
be careful to consider the longitudinal history of the impairment(s), 
including the occurrence of prior remission, and prospects for future 
worsenings. Improvement in such impairment(s) that is only temporary, 
i.e., less than 1 year, will not warrant a finding of medical 
improvement.
    (5) Prior file cannot be located. If the prior file cannot be 
located, the Board will first determine whether the annuitant is able to 
now engage in substantial gainful activity based on all of his or her 
current impairments. (In this way, the Board will be able to determine 
that his or her disability continues at the earliest point without 
addressing the often lengthy process of reconstructing prior evidence.) 
If the annuitant cannot engage in substantial gainful activity 
currently, his or her disability will continue unless one of the second 
group of exceptions applies (see Sec. 220.179(b)).



Sec. 220.179  Exceptions to medical improvement.

    (a) First group of exceptions to medical improvement. The law 
provides for certain limited situations when the annuitant's disability 
can be found to have ended even though medical improvement has not 
occurred, if he or she can engage in substantial gainful activity. These 
exceptions to medical improvement are intended to provide a way of 
finding that the annuitant is no longer disabled in those limited 
situations where, even though there has been no decrease in severity of 
the impairment(s), evidence shows that the annuitant should no longer be 
considered disabled or never should have been considered disabled. If 
one of these exceptions applies, the Board must also show that, taking 
all of the annuitant's current impairment(s) into account, not just 
those that existed at the time of the Board's most recent favorable 
medical decision, the annuitant is now able to engage in substantial 
gainful activity before his or her disability can be found to have 
ended. As part of the review process, the annuitant will be asked about 
any medical or vocational therapy that he or she has received or is 
receiving. Those answers and the evidence gathered as a result as well 
as all other evidence, will serve as the basis for the finding that an 
exception applies.
    (1) Substantial evidence shows that the annuitant is the beneficiary 
of advances in medical or vocational therapy or technology (related to 
his or her ability to work). Advances in medical or vocational therapy 
or technology are improvements in treatment or rehabilitative methods 
which have increased the annuitant's ability to do basic work 
activities. The Board will apply this exception when substantial 
evidence shows that the annuitant has been the beneficiary of services 
which reflect these advances and they have favorably affected the 
severity of his or her impairment(s) or ability to do basic work 
activities. This decision will be based on new medical evidence and a 
new residual functional capacity assessment. In many instances, an 
advanced medical therapy or technology will result in a decrease in 
severity as shown by symptoms, signs and laboratory findings which will 
meet the definition of medical improvement. This exception will, 
therefore, see very limited application.
    (2) Substantial evidence shows that the annuitant has undergone 
vocational therapy (related to his or her ability to work). Vocational 
therapy (related to the annuitant's ability to work) may include, but is 
not limited to, additional education, training, or work experience that 
improves his or her ability to meet the vocational requirements of more 
jobs. This decision will be based on substantial evidence which includes 
new medical evidence and a new residual functional capacity assessment. 
If, at the time of the Board's review the annuitant has not completed 
vocational therapy which could affect the continuance of his or her 
disability, the Board will review such annuitant's claim upon completion 
of the therapy.


[[Page 313]]


    Example 1: The annuitant was found to be disabled because the 
limitations imposed on him by his impairment(s) allowed him to only do 
work that was at a sedentary level of exertion. The annuitant's prior 
work experience was work that required a medium level of exertion with 
no acquired skills that could be transferred to sedentary work. His age, 
education, and past work experience at the time did not qualify him for 
work that was below this medium level of exertion. The annuitant 
enrolled in and completed a specialized training course which qualifies 
him for a job in data processing as a computer programmer in the period 
since he was awarded a disability annuity. On review of his claim, 
current evidence shows that there is no medical improvement and that he 
can still do only sedentary work. As the work of a computer programmer 
is sedentary in nature, he is now able to engage in substantial gainful 
activity when his new skills are considered.
    Example 2: The annuitant was previously entitled to a disability 
annuity because the medical evidence and assessment of his residual 
functional capacity showed he could only do light work. His prior work 
was considered to be of a heavy exertional level with no acquired skills 
that could be transferred to light work. His age, education, and past 
work experience did not qualify him for work that was below the heavy 
level of exertion. The current evidence and residual functional capacity 
show there has been no medical improvement and that he can still do only 
light work. Since he was originally entitled to a disability annuity, 
his vocational rehabilitation agency enrolled him in and he successfully 
completed a trade school course so that he is now qualified to do small 
appliance repair. This work is light in nature, so when his new skills 
are considered, he is now able to engage in substantial gainful activity 
even though there has been no change in his residual functional 
capacity.

    (3) Substantial evidence shows that based on new or improved 
diagnostic or evaluative techniques the annuitant's impairment(s) is not 
as disabling as it was considered to be at the time of the most recent 
favorable decision. Changing methodologies and advances in medical and 
other diagnostic or evaluative techniques have given, and will continue 
to give, rise to improved methods for measuring and documenting the 
effect of various impairments on the ability to do work. Where, by such 
new or improved methods, substantial evidence shows that the annuitant's 
impairment(s) is not as severe as was determined at the time of the 
Board's most recent favorable medical decision, such evidence may serve 
as a basis for finding that the annuitant can engage in substantial 
gainful activity and is no longer disabled. In order to be used under 
this exception, however, the new or improved techniques must have become 
generally available after the date of the Board's most recent favorable 
medical decision.
    (i) How the Board will determine which methods are new or improved 
techniques and when they become generally available. New or improved 
diagnostic techniques or evalutions will come to the Board's attention 
by several methods. In reviewing cases, the Board often becomes aware of 
new techniques when their results are presented as evidence. Such 
techniques and evalutions are also discussed and acknowledged in medical 
literature by medical professional groups and other governmental 
entities. Through these sources, the Board develops listings of new 
techniques and when they become generally available.
    (ii) How the annuitant will know which methods are new or improved 
techniques and when they become generally available. The Board will let 
annuitants know which methods it considers to be new or improved 
techniques and when they become available. Some of the future changes in 
the Listing of Impairments in appendix 1 of this part will be based on 
new or improved diagnostic or evaluative techniques. Such listings 
changes will clearly state this fact as they are published as Notices of 
Proposed Rulemaking and the new or improved techniques will be 
considered generally available as of the date of the final publication 
of that particular listing in the Federal Register.

    Example: The electrocardiographic exercise test has replaced the 
Master's 2-step test as a measurement of heart function since the time 
of the annuitant's last favorable medical decision. Current evidence 
shows that the annuitant's impairment, which was previously evaluated 
based on the Master's 2-step test, is not now as disabling as was 
previously thought. If, taking all his current impairments into account, 
the annuitant is now able to engage in substantial gainful activity, 
this exception would be used to find that he is no longer disabled even 
if medical improvement has not occurred.

    (4) Substantial evidence demonstrates that any prior disability 
decision was in

[[Page 314]]

error. The Board will apply the exception to medical improvement based 
on error if substantial evidence (which may be evidence on the record at 
the time any prior determination of the entitlement to an annuity based 
on disability was made, or newly obtained evidence which relates to that 
determination) demonstrates that a prior determination was in error. A 
prior determination will be found in error only if:
    (i) Substantial evidence shows on its face that the decision in 
question should not have been made (e.g., the evidence in file such as 
pulmonary function study values was misread or an adjudicative standard 
such as a listing in appendix 1 of this part or a medical/vocational 
rule in appendix 2 of this part was misapplied).

    Example 1: The annuitant was granted a disability annuity when it 
was determined that his epilepsy met Listing 11.02. This listing calls 
for a finding of major motor seizures more frequently than once a month 
as documented by EEG evidence and by a detailed description of a typical 
seizure pattern. As history of either diurnal episodes or nocturnal 
episodes with residuals interfering with daily activities is also 
required. On review, it is found that a history of the frequency of his 
seizures showed that they occurred only once or twice a year. The prior 
decision would be found to be in error, and whether the annuitant was 
still considered to be disabled would be based on whether he could 
currently engage in substantial gainful activity.
    Example 2: The annuitant's prior award of a disability annuity was 
based on vocational rule 201.14 in appendix 2 of this part. This rule 
applies to a person age 50-54 who has at least a high school education, 
whose previous work was entirely at semiskilled level, and who can do 
only sedentary work. On review it is found that at the time of the prior 
determination the annuitant was actually only age 46 and vocational rule 
201.21 should have been used. This rule would have called for a denial 
of his claim and the prior decision is found to have been in error. 
Continuation of his disability would depend on a finding of his current 
inability to engage in substantial gainful activity.

    (ii) At the time of the prior evaluation, required and material 
evidence of the severity of the annuitant's impairment(s) was missing. 
That evidence becomes available upon review, and substantial evidence 
demonstrates that had such evidence been present at the time of the 
prior determination, disability would not have been found.

    Example: The annuitant was found disabled on the basis of chronic 
obstructive pulmonary disease. The severity of his impairment was 
documented primarily by pulmonary function testing results. The evidence 
showed that he could do only light work. Spirometric tracings of this 
testing, although required, were not obtained, however. On review, the 
original report is resubmitted by the consultative examining physician 
along with the corresponding spirometric tracings. A review of the 
tracings shows that the test was invalid. Current pulmonary function 
testing supported by spirometric tracings reveals that the annuitant's 
impairment does not limit his ability to perform basic work activities 
in any way. Error is found based on the fact that required material 
evidence, which was originally missing, now becomes available and shows 
that if it had been available at the time of the prior determination, 
disability would not have been found.

    (iii) Substantial evidence which is new evidence relating to the 
prior determination (of allowance or continuance) refutes the 
conclusions that were based upon the prior evidence (e.g., a tumor 
thought to be malignant was later shown to have actually been benign). 
Substantial evidence must show that had the new evidence (which relates 
to the prior determination) been considered at the time of the prior 
decision, the disability would not have been allowed or continued. A 
substitution of current judgment for that used in the prior favorable 
decision will not be the basis for applying this exception.

    Example: The annuitant was previously found entitled to a disability 
annuity on the basis of diabetes mellitus which the prior adjudicator 
believed was equivalent to the level of severity contemplated in the 
Listing of Impairments. The prior record shows that the annuitant has 
``brittle'' diabetes for which he was taking insulin. The annuitant's 
urine was 3+ for sugar, and he alleged occasional hypoglycemic attacks 
caused by exertion. His doctor felt the diabetes was never really 
controlled because he was not following his diet or taking his 
medication regularly. On review, symptoms, signs and laboratory findings 
are unchanged. The current adjudicator feels, however, that the 
annuitant's impairment clearly does not equal the severity contemplated 
by the listings. Error cannot be found because it would represent a 
substitution of current judgement

[[Page 315]]

for that of the prior adjudicator that the annuitant's impairment 
equaled a listing. The exception for error will not be applied 
retroactively under the conditions set out above unless the conditions 
for reopening the prior decision are met.

    (5) The annuitant is currently engaging in substantial gainful 
activity. If the annuitant is currently engaging in substantial gainful 
activity, before the Board determines whether he or she is no longer 
disabled because of his or her work activity, the Board will consider 
whether he or she is entitled to a trial work period as set out in Sec. 
220.170. The Board will find that the annuitant's disability has ended 
in the month in which he or she demonstrated the ability to engage in 
substantial gainful activity (following completion of a trial work 
period, where it applies). This exception does not apply in determining 
whether the annuitant continues to have a disabling impairment(s) for 
purposes of deciding his or her eligibility for a reentitlement period.
    (b) Second group of exceptions to medical improvement. In addition 
to the first group of exceptions to medical improvement, the following 
exceptions may result in a determination that the annuitant is no longer 
disabled. In these situations the decision will be made without a 
determination that the annuitant has medically improved or can engage in 
substantial gainful activity.
    (1) A prior determination was fraudulently obtained. If the Board 
finds that any prior favorable determination was obtained by fraud, it 
may find that the annuitant is not disabled. In addition, the Board may 
reopen the claim.
    (2) Failure to cooperate with the Board. If there is a question 
about whether the annuitant continues to be disabled and the Board 
requests that he or she submit medical or other evidence or go for a 
physical or mental examination by a certain date, the Board will find 
that the annuitant's disability has ended if he or she fails (without 
good cause) to do what is requested. The month in which the annuitant's 
disability ends will be the first month in which he or she failed to do 
what was requested.
    (3) Inability of the Board to locate the annuitant. If there is 
question about whether the annuitant continues to be disabled and the 
Board is unable to find him or her to resolve the question, the Board 
will suspend annuity payments. If, after a suitable investigation, the 
Board is still unable to locate the annuitant, the Board will determine 
that the annuitant's disability has ended. The month such annuitant's 
disability ends will be the first month in which the question arose and 
the annuitant could not be found.
    (4) Failure of the annuitant to follow prescribed treatment which 
would be expected to restore the ability to engage in substantial 
gainful activity. If treatment has been prescribed for the annuitant 
which would be expected to restore his or her ability to work, he or she 
must follow that treatment in order to be paid a disability annuity. If 
the annuitant is not following that treatment and he or she does not 
have good cause for failing to follow the treatment, the Board will find 
that his or her disability has ended. The month such annuitant's 
disability ends will be the first month in which he or she failed to 
follow the prescribed treatment.



Sec. 220.180  Determining continuation or cessation of disability.

    Evaluation steps. To assure that disability reviews are carried out 
in a uniform manner, that decisions of continuing disability can be made 
in the most expeditious and administratively efficient way, and that any 
decisions to stop a disability annuity are made objectively, neutrally 
and are fully documented, the Board will follow specific steps in 
reviewing the question of whether an annuitant's disability continues. 
The Board's review may cease and the disability may be continued at any 
point if the Board determines that there is sufficient evidence to find 
that the annuitant is still unable to engage in substantial gainful 
activity. The steps are--
    (a) Is the annuitant engaging in substantial gainful activity? If he 
or she is (and any applicable trial work period has been completed), the 
Board will find disability to have ended (see Sec. 220.179(a)(5));
    (b) If the annuitant is not engaging in substantial gainful 
activity, does he

[[Page 316]]

or she have an impairment or combination of impairments which meets or 
equals the severity of an impairment listed in appendix 1 of this part? 
If the annuitant's impairment(s) does meet or equal the level of 
severity of an impairment listed in appendix 1 of this part, his or her 
disability will be found to continue;
    (c) If the annuitant's impairment(s) does not meet or equal the 
level of severity of an impairment listed in appendix 1 of this part, 
has there been medical improvement as defined in Sec. 220.177(a)? If 
there has been medical improvement as shown by a decrease in medical 
severity, see step (d). If there has been no decrease in medical 
severity, then there has been no medical improvement; (See step (e));
    (d) If there has been medical improvement, the Board must determine 
whether it is related to the annuitant's ability to do work in 
accordance with paragraphs (a) through (d) of Sec. 220.177, (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 the annuitant's ability to do work, see step (e). If 
medical improvement is related to the annuitant's ability to do work, 
see step (f);
    (e) If the Board found at step (c) that there has been no medical 
improvement or if it found at step (d) that the medical improvement is 
not related to the annuitant's ability to work, the Board considers 
whether any of the exceptions in Sec. 220.178 apply. If none of them 
apply, disability will be found to continue. If one of the first group 
of exceptions to medical improvement applies, see step (f). If an 
exception from the second group of exceptions to medical improvement 
applies, disability will be found to have ended. The second group of 
exceptions to medical improvement may be considered at any point in this 
process;
    (f) If medical improvement is shown to be related to the annuitant's 
ability to do work or if one of the first group of exceptions to medical 
improvement applies, the Board will determine whether all of the 
annuitant's current impairments in combination are severe. This 
determination will consider all current impairments and the impact of 
the combination of those impairments on the ability to function. If the 
residual functional capacity assessment in step (d) above shows 
significant limitation of ability to do basic work activities, see step 
(g). When the evidence shows that all current impairments in combination 
do not significantly limit physical or mental abilities to do basic work 
activities, these impairments will not be considered severe in nature, 
and the annuitant will no longer be consider to be disabled;
    (g) If the annuitant's impairment(s) is severe, the Board will 
assess his or her current ability to engage in substantial gainful 
activity. That is, the Board will assess the annuitant's residual 
functional capacity based on all of his or her current impairments and 
consider whether he or she can still do work that was done in the past. 
If he or she can do such work, disability will be found to have ended; 
and
    (h) If the annuitant is not able to do work he or she has done in 
the past, the Board will consider one final step. Given the residual 
functional capacity assessment and considering the annuitant's age, 
education and past work experience, can he or she do other work? If the 
annuitant can do other work, disability will be found to have ended. If 
he or she cannot do other work, disability will be found to continue.



Sec. 220.181  The month in which the Board will find that the annuitant 
is no longer disabled.

    If the evidence shows that the annuitant is no longer disabled, the 
Board will find that his or her disability ended in the earliest of the 
following months--
    (a) The month the Board mails the annuitant a notice saying that the 
Board finds that he or she is no longer disabled based on evidence 
showing:
    (1) There has been medical improvement in the annuitant's 
impairments related to the ability to work and the annuitant has the 
capacity to engage in substantial gainful work under the rules set out 
in Sec. Sec. 220.177 and 220.178; or

[[Page 317]]

    (2) There has been no medical improvement in the annuitant's 
impairments related to the ability to work but the annuitant has the 
capacity to engage in substantial gainful work and one of the exceptions 
to medical improvement set out in Sec. 220.179(a)(1), (2), (3) or (4) 
applies.
    (b) The month in which the annuitant demonstrated his or her ability 
to engage in substantial gainful activity (following completion of a 
trial work period);
    (c) The month in which the annuitant actually does substantical 
gainful activity where such annuitant is not entitled to a trial work 
period;
    (d) The month in which the annuitant returns to full-time work, with 
no significant medical restrictions and acknowledges that medical 
improvement has occurred, and the Board expected the annuitant's 
impairment(s) to improve;
    (e) The first month in which the annuitant failed without good cause 
to do what the Board asked, when the rule set out in paragraph (b)(2) of 
Sec. 220.179 applies;
    (f) The first month in which the question of continuing disability 
arose and the Board could not locate the annuitant after a suitable 
investigation (see Sec. 220.179(b)(3));
    (g) The first month in which the annuitant failed without good cause 
to follow prescribed treatment, when the rule set out in paragraph 
(b)(4) of Sec. 220.179 applies; or
    (h) The first month the annuitant was told by his or her physician 
that he or she could return to work provided there is no substantial 
conflict between the physician's and the annuitant's statements 
regarding that annuitant's awareness of his or her capacity for work and 
the earlier date is supported by the medical evidence.
    (i) The month the evidence shows that the annuitant is not longer 
disabled under the rules set out in Sec. Sec. 220.177 through 220.180, 
and he or she was disabled only for a specified period of time in the 
past as discussed in Sec. 220.21 or Sec. 220.105;



Sec. 220.182  Before a disability annuity is stopped.

    Before the Board stops a disability annuity, it will give the 
annuitant a chance to explain why it should not do so.



Sec. 220.183  Notice that the annuitant is not disabled.

    (a) General. If the Board determines that the annuitant does not 
meet the disability requirements of the law, the disability annuity will 
generally stop. Except in the circumstance described in paragraph (d) of 
this section, the Board will give the annuitant advance written notice 
when the Board has determined that he or she is not now disabled.
    (b) What the advance written notice will tell the annuitant. The 
advance written notice will provide--
    (1) A summary of the information the Board has and an explanation of 
why the Board believes the annuitant is no longer disabled. If it is 
because of medical reasons, the notice will tell the annuitant what the 
medical information in his or her file shows. If it is because of the 
annuitant's work activity, the notice will tell the annuitant what 
information the Board has about the work he or she is doing or has done, 
and why this work shows that he or she is not disabled. If it is because 
of the annuitant's failure to give the Board information the Board needs 
or failure to do what the Board asks, the notice will tell the annuitant 
what information the Board needs and why, or what the annuitant has to 
do and why;
    (2) The date the disability annuity will stop;
    (3) An opportunity for the annuitant to submit evidence within a 
specified period to support continuance of disability before the 
decision becomes final; and
    (4) An explanation of the annuitant's rights to reconsideration and 
appeal after the decision becomes final.
    (c) What the annuitant should do if he or she receives an advance 
written notice. If the annuitant agrees with the advance written notice, 
he or she does not need to take any action. If the annuitant desires 
further information or disagrees with what the Board has told

[[Page 318]]

him or her, the annuitant should immediately write or visit a Board 
office. If the annuitant believes he or she is now disabled, the 
annuitant should tell the Board why. The annuitant may give the Board 
any additional or new information, including reports from doctors, 
hospitals, railroad or non-railroad employers, or others that he or she 
believes the Board should have. The annuitant should send these as soon 
as possible to a Board office.
    (d) When the Board will not give the annuitant advance written 
notice. The Board will not give the annuitant advance written notice 
when the Board determines that he or she is not now disabled if the 
Board recently told the annuitant that--
    (1) The information the Board has shows that he or she is not 
disabled;
    (2) The Board was gathering more information; and
    (3) The disability annuity would stop.



Sec. 220.184  If the annuitant becomes disabled by another impairment(s).

    If a new severe impairment(s) begins in or before the month in which 
the last impairment(s) ends, the Board will find that disability is 
continuing. The impairment(s) need not be expected to last 12 months or 
to result in death, but it must be severe enough to keep the annuitant 
from doing substantial gainful activity, or severe enough so that he or 
she is still disabled.



Sec. 220.185  The Board may conduct a review to find out whether the 
annuitant continues to be disabled.

    After the Board finds that the annuitant is disabled, the Board must 
evaluate the annuitant's impairment(s) from time to time to determine if 
the annuitant is still eligible for disability cash benefits. The Board 
calls this evaluation a continuing disability review. The Board may 
begin a continuing disability review for any number of reasons including 
the annuitant's failure to follow the provisions of the Railroad 
Retirement Act or these regulations. When the Board begins such a 
review, the Board will notify the annuitant that the Board is reviewing 
the annuitant's eligibility for disability benefits, why the Board is 
reviewing the annuitant's eligibility, that in medical reviews the 
medical improvement review standard will apply, that the Board's review 
could result in the termination of the annuitant's benefits, and that 
the annuitant has the right to submit medical and other evidence for the 
Board's consideration during the continuing disability review. In doing 
a medical review the Board will develop a complete medical history of at 
least the preceding 12 months in any case in which a determination is 
made that the annuitant is no longer under a disability. If this review 
shows that the Board should stop payment of cash benefits, the Board 
will notify the annuitant in writing and give the annuitant an 
opportunity to appeal. In Sec. 220.186 the Board describes those events 
that may prompt it to review whether the annuitant continues to be 
disabled.



Sec. 220.186  When and how often the Board will conduct a continuing 
disability review.

    (a) General. The Board conducts continuing disability reviews to 
determine whether or not the annuitant continues to meet the disability 
requirements of the law. Payment of cash benefits or a period of 
disability ends if the medical or other evidence shows that the 
annuitant is not disabled under the standards set out in section 2 of 
the Railroad Retirement Act or section 223(f) of the Social Security 
Act.
    (b) When the Board will conduct a continuing disability review. A 
continuing disability review will be started if--
    (1) The annuitant has been scheduled for a medical improvement 
expected diary review;
    (2) The annuitant has been scheduled for a periodic review in 
accordance with the provisions of paragraph (d) of this section;
    (3) The Board needs a current medical or other report to see if the 
annuitant's disability continues. (This could happen when, for example, 
an advance in medical technology, such as improved treatment for 
Alzheimer's disease or a change in vocational therapy or technology 
raises a disability issue.);
    (4) The annuitant returns to work and successfully completes a 
period of trial work;

[[Page 319]]

    (5) Substantial earnings are reported to the annuitant's wage 
record;
    (6) The annuitant tells the Board that he or she has recovered from 
his or her disability or that he or she has returned to work;
    (7) A State Vocational Rehabilitation Agency tells the Board that--
    (i) The services have been completed; or
    (ii) The annuitant is now working; or
    (iii) The annuitant is able to work;
    (8) Someone in a position to know of the annuitant's physical or 
mental condition tells the Board that the annuitant is not disabled, 
that the annuitant in not following prescribed treatment, that the 
annuitant has returned to work, or that the annuitant is failing to 
follow the provisions of the Social Security Act, the Railroad 
Retirement Act, or these regulations, and it appears that the report 
could be substantially correct; or
    (9) Evidence the Board receives raises a question as to whether the 
annuitant's disability continues.
    (c) Definitions. As used in this section--
    Medical improvement expected diary-- refers to a case which is 
scheduled for review at a later date because the individual's 
impairment(s) is expected to improve. Generally, the diary period is set 
for not less than 6 months or for not more than 18 months. Examples of 
cases likely to be scheduled for a medical improvement excepted diary 
are fractures and cases in which corrective surgery is planned and 
recovery can be anticipated. The term ``medical improvement expected 
diary'' also includes a case which is scheduled for a review at a later 
date because the individual is undergoing vocational therapy, training 
or an educational program which may improve his or her ability to work 
so that the disability requirement of the law is no longer met. 
Generally, the diary period will be the length of the training, therapy, 
or program of education.
    Permanent impairment medical improvement not expected--refers to a 
case in which any medical improvement in the person's impairment(s) is 
not expected. This means an extremely severe condition determined on the 
basis of our experience in administering the disability program to be at 
least static, but more likely to be progressively disabling either by 
itself or by reason of impairment complications, and unlikely to improve 
so as to permit the individual to engage in substantial gainful 
activity. The interaction of the individual's age, impairment 
consequences and lack of recent attachment to the labor market may also 
be considered in determining whether an impairment is permanent. 
Improvement which is considered temporary under Sec. 220.178(c)(4), 
will not be considered in deciding if an impairment is permanent. 
Examples of permanent impairments are as follows and are not intended to 
be all inclusive:
    (1) Parkinsonian Syndrome which has reached the level of severity 
necessary to meet the Listing in appendix 1.
    (2) Amyotrophic Lateral Sclerosis which has reached the level of 
severity necessary to meet the Listing in appendix 1.
    (3) Diffuse pulmonary fibrosis in an individual age 55 or over which 
has reached the level of severity necessary to meet the Listing in 
appendix 1.
    (4) Amputation of leg at hip.
    Nonpermanent impairment refers to a case in which any medical 
improvement in the person's impairment(s) is possible. This means an 
impairment for which improvement cannot be predicted based on current 
experience and the facts of the particular case but which is not at the 
level of severity of an impairment that is considered permanent. 
Examples of nonpermanent impairments are: regional enteritis, 
hyperthyroidism, and chronic ulcerative colitis.
    (d) Frequency of review. If an annuitant's impairment is expected to 
improve, generally the Board will review the annuitant's continuing 
eligibility for disability benefits at intervals from 6 months to 18 
months following the Board's most recent decision. The Board's notice to 
the annuitant about the review of the annuitant's case will tell the 
annuitant more precisely when the review will be conducted. If the 
annuitant's disability is not considered permanent but is such that any 
medical improvement in the annuitant's impairment(s) cannot be 
accurately

[[Page 320]]

predicted, the Board will review the annuitant's continuing eligibility 
for disability benefits at least once every 3 years. If no medical 
improvement is expected in the annuitant's impairment(s), the Board will 
not routinely review the annuitant's continuing eligibility. Regardless 
of the annuitant's classification, the Board will conduct an immediate 
continuing disability review if a question of continuing disability is 
raised pursuant to paragraph (b) of this section.
    (e) Change in classification of impairment. If the evidence 
developed during a continuing disability review demonstrates that the 
annuitant's impairment has improved, is expected to improve, or has 
worsened since the last review, the Board may reclassify the annuitant's 
impairment to reflect this change in severity. A change in the 
classification of the annuitant's impairment will change the frequency 
with which the Board will review the case. The Board may also reclassify 
certain impairments because of improved tests, treatment, and other 
technical advances concerning those impairments.
    (f) Review after administrative appeal. If the annuitant was found 
eligible to receive or to continue to receive disability benefits on the 
basis of a decision by a hearings officer, the three-member Board or a 
Federal court, the agency will not conduct a continuing disability 
review earlier than 3 years after that decision unless the annuitant's 
case should be scheduled for a medical improvement expected or 
vocational reexamination diary review or a question of continuing 
disability is raised pursuant to paragraph (b) of this section.
    (g) Waiver of timeframes. All cases involving a nonpermanent 
impairment will be reviewed by the Board at least once every 3 years 
unless the Board determines that the requirements should be waived to 
ensure that only the appropriate number of cases are reviewed. The 
appropriate number of cases to be reviewed is to be based on such 
considerations as the backlog of pending reviews, the projected number 
of new applications, and projected staffing levels. Therefore, an 
annuitant's continuing disability review may be delayed longer than 3 
years following the Board's original decision or other review under 
certain circumstances. Such a delay would be based on the Board's need 
to ensure that backlogs, and new disability claims workloads are 
accomplished within available medical and other resources and that such 
reviews are done carefully and accurately.

[56 FR 12980, Mar. 28, 1991, as amended at 65 FR 20372, Apr. 17, 2000]



Sec. 220.187  If the annuitant's medical recovery was expected and the 
annuitant returned to work.

    If the annuitant's impairment was expected to improve and the 
annuitant returned to full-time work with no significant medical 
limitations and acknowledges that medical improvement has occurred, the 
Board may find that the annuitant's disability ended in the month he or 
she returned to work. Unless there is evidence showing that the 
annuitant's disability has not ended, the Board will use the medical and 
other evidence already in the annuitant's file and the fact that he or 
she has returned to full-time work without significant limitations to 
determine that the annuitant is no longer disabled. (If the annuitant's 
impairment is not expected to improve, the Board will not ordinarily 
review his or her claim until the end of the trial work period, as 
described in Sec. 220.170.)

    Example: Evidence obtained during the processing of the annuitant's 
claim showed that the annuitant had an impairment that was expected to 
improve about 18 months after the annuitant's disability began. The 
Board, therefore, told the annuitant that his or her claim would be 
reviewed again at that time. However, before the time arrived for the 
annuitant's scheduled medical reexamination, the annuitant told the 
Board that he or she had returned to work and the annuitant's impairment 
had improved. The Board investigated immediately and found that, in the 
16th month after the annuitant's began, the annuitant returned to full-
time work without any significant medical restrictions. Therefore, the 
Board would find that the annuitant's disability ended in the first 
month the annuitant returned to full-time work.

[[Page 321]]

             Appendix 1 to Part 220--Listing of Impairments

    In the Listing of Impairments, the listings under each separate body 
system in both Part A and Part B will be effective for periods ranging 
from 4 to 8 years unless extended or revised and promulgated again. 
Specifically, the body system listings in the Listing of Impairments 
will be subject to the following termination dates:
    Musculoskeletal system (1.00) within 5 years. Consequently, the 
listings in this body system will no longer be effective on June 6, 
1992.
    Respiratory system (3.00) within 6 years. Consequently, the listings 
in this body system will no longer be effective on December 6, 1991.
    The cardiovascular system (4.00) will no longer be effective on June 
6, 1991.
    The listings under the other body systems in Part A and Part B will 
expire in 8 years. Consequently, the listing in these body systems will 
no longer be effective on December 6, 1993. The mental disorders 
listings in Part A will no longer be effective on August 28, 1991, 
unless extended by the Board or revised and promulgated again.

                                 Part A

    Criteria applicable to individuals age 18 and over and to children 
under age 18 where criteria are appropriate.
Sec.
1.00 Musculoskeletal System.
2.00 Special Senses and Speech.
3.00 Respiratory System.
4.00 Cardiovascular System.
5.00 Digestive System.
6.00 Genito-Urinary System.
7.00 Hemic and Lymphatic System.
8.00 Skin.
9.00 Endocrine System.
10.00 Multiple Body Systems.
11.00 Neurological.
12.00 Mental Disorders.
13.00 Neoplastic Diseases, Malignant.

                       1.00 Musculoskeletal System

    A. Loss of function may be due to amputation or deformity. Pain may 
be an important factor in causing functional loss, but it must be 
associated with relevant abnormal signs or laboratory findings. 
Evaluations of musculoskeletal impairments should be supported where 
applicable by detailed descriptions of the joints, including ranges of 
motion, condition of the musculature, sensory or reflex changes, 
circulatory deficits, and X-ray abnormalities.
    B. Disorders of the spine, associated with vertebrogenic disorders 
as in 1.05C, result in impairment because of distortion of the bony and 
ligamentous architecture of the spine or impingement of a herniated 
nucleus pulposus or bulging annulus on a nerve root. Impairment caused 
by such abnormalities usually improves with time or responds to 
treatment. Appropriate abnormal physical findings must be shown to 
persist on repeated examinations despite therapy for a reasonable 
presumption to be made that severe impairment will last for a continuous 
period of 12 months. This may occur in cases with unsuccessful prior 
surgical treatment.
    Evaluation of the impairment caused by disorders of the spine 
requires that a clinical diagnosis of the entity to be evaluated first 
must be established on the basis of adequate history, physical 
examination, and roentgenograms. The specific findings stated in 1.05C 
represent the level required for that impairment; these findings, by 
themselves, are not intended to represent the basis for establishing the 
clinical diagnosis. Furthermore, while neurological examination findings 
are required, they are not to be interpreted as a basis for evaluating 
the magnitude of any neurological impairment. Neurological impairments 
are to be evaluated under 11.00-11.19.
    The history must include a detailed description of the character, 
location, and radiation of pain; mechanical factors which incite and 
relieve pain; prescribed treatment, including type, dose, and frequency 
of analgesic; and typical daily activities. Care must be taken to 
ascertain that the reported examination findings are consistent with the 
individual's daily activities.
    There must be a detailed description of the orthopedic and 
neurologic examination findings. The findings should include a 
description of gait, limitation of movement of the spine given 
quantitatively in degrees from the vertical position, motor and sensory 
abnormalities, muscle spasm, and deep tendon reflexes. Observations of 
the individual during the examination should be reported; e.g., how he 
or she gets on and off the examining table. Inability to walk on heels 
or toes, to squat, or to arise from a squatting position, where 
appropriate, may be considered evidence of significant motor loss. 
However, a report of atrophy is not acceptable as evidence of 
significant motor loss without circumferential measurements of both 
thighs and lower legs (or upper or lower arms) at a stated point above 
and below the knee or elbow given in inches or centimeters. A specific 
description of atrophy of hand muscles is acceptable without 
measurements of atrophy but should include measurements of grip 
strength.
    These physical examination findings must be determined on the basis 
of objective observations during the examination and not simply a report 
of the individual's allegation, e.g., he says his leg is week, numb, 
etc. Alternative testing methods should be used to verify the 
objectivity of the abnormal findings, e.g., a seated straight-leg 
raising

[[Page 322]]

test in addition to a supine straight-leg raising test. Since abnormal 
findings may be intermittent, their continuous presence over a period of 
time must be established by a record of ongoing treatment. Neurological 
abnormalities may not completely subside after surgical or nonsurgical 
treatment, or with the passage of time. Residual neurological 
abnormalities, which persist after it has been determined clinically or 
by direct surgical or other observation that the ongoing or progressive 
condition is no longer present, cannot be considered to satisfy the 
required findings in 1.05C.
    Where surgical procedures have been performed, documentation should 
include a copy of the operative note and available pathology reports.
    Electrodiagnostic procedures and myelography may be useful in 
establishing the clinical diagnosis, but do not constitute alternative 
criteria to the requirements in 1.05C.
    C. After maximum benefit from surgical therapy has been achieved in 
situations involving fractures of an upper extremity (see 1.12) or soft 
tissue injuries of a lower or upper extremity (see 1.13), i.e., there 
have been no significant changes in physical findings or X-ray findings 
for any 6-month period after the last definitive surgical procedure, 
evaluation should be made on the basis of demonstrable residuals.
    D. Major joints as used herein refer to hip, knee, ankle, shoulder, 
elbow, or wrist and hand. (Wrist and hand are considered together as one 
major joint.)
    E. The measurements of joint motion are based on the techniques 
described in the ``Joint Motion Method of Measuring and Recording,'' 
published by the American Academy of Orthopedic Surgeons in 1965, or the 
``Guides to the Evaluation of Permanent Impairment--The Extremities and 
Back'' (Chapter I); American Medical Association, 1971.
    1.01 Category of Impairments, Musculoskeletal
    1.02 Active rheumatoid arthritis and other inflammatory arthritis.
    With both A and B.
    A. History of persistent joint pain, swelling, and tenderness 
involving multiple major joints (see 1.00D) and with signs of joint 
inflammation (swelling and tenderness) on current physical examination 
despite prescribed therapy for at least 3 months, resulting in 
significant restriction of function of the affected joints, and clinical 
activity expected to last at least 12 months; and
    B. Corroboration of diagnosis at some point in time by either.
    1. Positive serologic test for rheumatoid factor; or
    2. Antinuclear antibodies; or
    3. Elevated sedimentation rate; or
    4. Characteristic histologic changes in biopsy of synovial membrane 
or subcutaneous nodule (obtained independent of Social Security 
disability evaluation).
    1.03 Arthritis of a major weight-bearing joint (due to any cause):
    With history of persistent joint pain and stiffness with signs of 
marked limitation of motion or abnormal motion of the affected joint on 
current physical examination. With:
    A. Gross anatomical deformity of hip or knee (e.g., subluxation, 
contracture, bony or fibrous ankylosis, instability) supported by X-ray 
evidence of either significant joint space narrowing or significant bony 
destruction and markedly limiting ability to walk and stand; or
    B. Reconstructive surgery or surgical arthrodesis of a major weight-
bearing joint and return to full weight-bearing status did not occur, or 
is not expected to occur, within 12 months of onset.
    1.04 Arthritis of one major joint in each of the upper extremities 
(due to any cause):
    With history of persistent joint pain and stiffness, signs of marked 
limitation of motion of the affected joints on current physical 
examination, and X-ray evidence of either significant joint space 
narrowing or significant bony destruction. With:
    A. Abduction and forward flexion (elevation) of both arms at the 
shoulders, including scapular motion, restricted to less than 90 
degrees; or
    B. Gross anatomical deformity (e.g., subluxation, contracture, bony 
or fibrous ankylosis, instability, ulnar deviation) and enlargement or 
effusion of the affected joints.
    1.05 Disorders of the spine:
    A. Arthritis manifested by ankylosis or fixation of the cervical or 
dorsolumbar spine at 30\1/2\ or more of flexion measured from the 
neutral position, with X-ray evidence of:
    1. Calcification of the anterior and lateral ligaments; or
    2. Bilateral ankylosis of the sacroiliac joints with abnormal 
apophyseal articulations; or
    B. Osteoporosis, generalized (established by X-ray) manifested by 
pain and limitation of back motion and paravertebral muscle spasm with 
X-ray evidence of either:
    1. Compression fracture of a vertebral body with loss of at least 50 
percent of the estimated height of the vertebral body prior to the 
compression fracture, with no intervening direct traumatic episode; or
    2. Multiple fractures of vertebrae with no intervening direct 
traumatic episode; or
    C. Other vertebrogenic disorders (e.g., herniated nucleus puplosus, 
spinal stenosis) with the following persisting for at least 3 months 
despite prescribed therapy and expected to last 12 months. With both 1 
and 2:
    1. Pain, muscle spasm, and significant limitation of motion in the 
spine; and

[[Page 323]]

    2. Appropriate radicular distribution of significant motor loss with 
muscle weakness and sensory and reflex loss.
    1.08 Osteomyelitis or septic arthritis (established by X-ray):
    A. Located in the pelvis, vertebra, femur, tibia, or a major joint 
of an upper or lower extremity, with persistent activity or occurrence 
of at least two episodes of acute activity within a 5-month period prior 
to adjudication, manifested by local inflammatory, and systemic signs 
and laboratory findings (e.g., heat, redness, swelling, leucocytosis, or 
increased sedimentation rate) and expected to last at least 12 months 
despite prescribed therapy; or
    B. Multiple localizations and systemic manifestations as in A above.
    1.09 Amputation or anatomical deformity of (i.e., loss of major 
function due to degenerative changes associated with vascular or 
neurological deficits, traumatic loss of muscle mass or tendons and X-
ray evidence of bony ankylosis at an unfavorable angle, joint 
subluxation or instability):
    A. Both hands; or
    B. Both feet; or
    C. One hand and one foot.
    1.10 Amputation of one lower extremity (at or above the tarsal 
region):
    A. Hemipelvectomy or hip disarticulation; or
    B. Amputation at or above the tarsal region due to peripheral 
vascular disease or diabetes mellitus; or
    C. Inability to use a prosthesis effectively, without obligatory 
assistive devices, due to one of the following:
    1. Vascular disease; or
    2. Neurological complications (e.g., loss of position sense); or
    3. Stump too short or stump complications persistent, or are 
expected to persist, for at least 12 months from onset; or
    4. Disorder of contralateral lower extremity which markedly limits 
ability to walk and stand.
    1.11 Fracture of the femur, tibia, tarsal bone of pelvis with solid 
union not evident on X-ray and not clinically solid, when such 
determination is feasible, and return to full weight-bearing status did 
not occur or is not expected to occur within 12 months of onset.
    1.12 Fractures of an upper extremity with non-union of a fracture of 
the shaft of the humerus, radius, or ulna under continuing surgical 
management directed toward restoration of functional use of the 
extremity and such function was not restored or expected to be restored 
within 12 months after onset.
    1.13 Soft tissue injuries of an upper or lower extremity requiring a 
series of staged surgical procedures within 12 months after onset for 
salvage and/or restoration of major function of the extremity, and such 
major function was not restored or expected to be restored within 12 
months after onset.

                     2.00 Special Senses and Speech

    A. Ophthalmology
    1. Causes of impairment. Diseases or injury of the eyes may produce 
loss of central or peripheral vision. Loss of central vision results in 
inability to distinguish detail and prevents reading and fine work. Loss 
of peripheral vision restricts the ability of an individual to move 
about freely. The extent of impairment of sight should be determined by 
visual testing.
    2. Central visual acuity. A loss of central visual acuity may be 
caused by impaired distant and/or near vision. However, for an 
individual to meet the level of severity described in 2.02 and 2.04, 
only the remaining central visual acuity for distance of the better eye 
with best correction based on the Snellen test chart measurement may be 
used. Correction obtained by special visual aids (e.g., contact lenses) 
will be considered if the individual has the ability to wear such aids.
    3. Field of vision. Impairment of peripheral vision may result if 
there is contraction of the visual fields. The contraction may be either 
symmetrical or irregular. The extent of the remaining peripheral visual 
field will be determined by usual perimetric methods at a distance of 
330 mm. under illumination of not less than 7-foot candles. For the 
phakic eye (the eye with a lens), a 3 mm. white disc target will be 
used, and for the aphakic eye (the eye without the lens), a 6 mm. white 
disc target will be used. In neither instance should corrective 
spectacle lenses be worn during the examination but if they have been 
used, this fact must be stated.
    Measurements obtained on comparable perimetric devices may be used; 
this does not include the use of tangent screen measurements. For 
measurements obtained using the Goldmann perimeter, the object size 
designation III and the illumination designation 4 should be used for 
the phakic eye, and the object size designation IV and illumination 
designation 4 for the aphakic eye.
    Field measurements must be accompanied by notated field charts, a 
description of the type and size of the target and the test distance. 
Tangent screen visual fields are not acceptable as a measurement of 
peripheral field loss.
    Where the loss is predominantly in the lower visual fields, a system 
such as the weighted grid scale for perimetric fields described by B. 
Esterman (see Grid for Scoring Visual Fields, II. Perimeter, Archives of 
Ophthalmology, 79:400, 1968) may be used for determining whether the 
visual field loss is comparable to that described in Table 2.
    4. Muscle function. Paralysis of the third cranial nerve producing 
ptosis, paralysis of

[[Page 324]]

accommodation, and dilation and immobility of the pupil may cause 
significant visual impairment. When all the muscle of the eye are 
paralyzed including the iris and ciliary body (total ophthalmoplegia), 
the condition is considered a severe impairment provided it is 
bilateral. A finding of severe impairment based primarily on impaired 
muscle function must be supported by a report of an actual measurement 
of ocular motility.
    5. Visual efficiency. Loss of visual efficiency may be caused by 
disease or injury resulting in a reduction of central visual acuity or 
visual field. The visual efficiency of one eye is the product of the 
percentage of central visual efficiency and the percentage of visual 
field efficiency. (See Tables No. 1 and 2, following 2.09.)
    6. Special situations. Aphakia represents a visual handicap in 
addition to the loss of central visual acuity. The term monocular 
aphakia would apply to an individual who has had the lens removed from 
one eye, and who still retains the lens in his other eye, or to an 
individual who has only one eye which is aphakic. The term binocular 
aphakia would apply to an individual who has had both lenses removed. In 
cases of binocular aphakia, the central efficiency of the better eye 
will be accepted as 75 percent of its value. In cases of monocular 
aphakia, where the better eye is aphakic, the central visual efficiency 
will be accepted as 50 percent of the value. (If an individual has 
binocular aphakia, and the central visual acuity in the poorer eye can 
be corrected only to 20/200, or less, the central visual efficiency of 
the better eye will be accepted as 50 percent of its value.)
    Ocular symptoms of systemic disease may or may not produce a 
disabling visual impairement. These manifestations should be evaluated 
as part of the underlying disease entity by reference to the particular 
body system involved.
    7. Statutory blindness. The term ``statutory blindness'' refers to 
the degree of visual impairment which defines the term ``blindness'' in 
the Social Security Act. Both 2.02 and 2.03 A and B denote statutory 
blindness.
    B. Otolaryngology
    1. Hearing impairment. Hearing ability should be evaluated in terms 
of the person's ability to hear and distinguish speech.
    Loss of hearing can be quantitatively determined by an audiometer 
which meets the standards of the American National Standards Institute 
(ANSI) for air and bone conducted stimuli (i.e., ANSI S 3.6-1969 and 
ANSI S 3.13-1972, or subsequent comparable revisions) and performing all 
hearing measurements in an environment which meets the ANSI standard for 
maximal permissible background sound (ANSI S 3.1-1977).
    Speech discrimination should be determined using a standardized 
measure of speech discrimination ability in quiet at a test presentation 
level sufficient to ascertain maximum discrimination ability. The speech 
discrimination measure (test) used, and the level at which testing was 
done, must be reported.
    Hearing tests should be preceded by an otolaryngologic examination 
and should be performed by or under the supervision of an 
otolaryngologist or audiologist qualified to perform such tests.
    In order to establish an independent medical judgment as to the 
level of impairment in a claimant alleging deafness, the following 
examinations should be reported: Otolaryngologic examination, pure tone 
air and bone audiometry, speech reception threshold (SRT), and speech 
discrimination testing. A copy of reports of medical examination and 
audiologic evaluations must be submitted.
    Cases of alleged ``deaf mutism'' should be documented by a hearing 
evaluation. Records obtained from a speech and hearing rehabilitation 
center or a special school for the deaf may be acceptable, but if these 
reports are not available, or are found to be inadequate, a current 
hearing evaluation should be submitted as outlined in the preceding 
paragraph.
    2. Vertigo associated with disturbances of labyrinthine-vestibular 
function, including Meniere's disease. These disturbances of balance are 
characterized by an hallucination of motion or loss of position sense 
and a sensation of dizziness which may be constant or may occur in 
paroxysmal attacks. Nausea, vomiting, ataxia, and incapacitation are 
frequently observed, particularly during the acute attack. It is 
important to differentiate the report of rotary vertigo from that of 
``dizziness'' which is described as lightheadedness, unsteadiness, 
confusion, or syncope.
    Meniere's disease is characterized by paroxysmal attacks of vertigo, 
tinnitus, and fluctuating hearing loss. Remissions are unpredictable and 
irregular, but may be longlasting; hence, the severity of impairment is 
best determined after prolonged observation and serial reexaminations.
    The diagnosis of a vestibular disorder requires a comprehensive 
neuro-otolaryngologic examination with a detailed description of the 
vertiginous episodes, including notation of frequency, severity, and 
duration of the attacks. Pure tone and speech audiometry with the 
appropriate special examinations, such as Bekesy audiometry, are 
necessary. Vestibular functions is assessed by positional and caloric 
testing, preferably by electronystagmography. When polytograms, contrast 
radiography, or other special tests have been performed, copies of the 
reports of these tests should be obtained in addition to reports of 
skull and temporal bone X-rays.

[[Page 325]]

    3. Organic loss of speech. Glossectomy or larynegectomy or 
cicatricial laryngeal stenosis due to injury or infection results in 
loss of voice production by normal means. In evaluating organic loss of 
speech (see 2.09), ability to produce speech by any means includes the 
use of mechanical or electronic devices. Impairment of speech due to 
neurologic disorders should be evaluated under 11.00-11.19.
    2.01 Category of Impairments, Special Senses and Speech
    2.02 Impairment of central visual acuity. Remaining vision in the 
better eye after best correction is 20/200 or less.
    2.03 Contraction of peripheral visual fields in the better eye.
    A. To 10\1/2\ or less from the point of fixation; or
    B. So the widest diameter subtends an angle no greater than 20\1/2\; 
or
    C. To 20 percent or less visual field efficiency.
    2.04 Loss of visual efficiency. Visual efficiency of better eye 
after best correction 20 percent or less. (The percent of remaining 
visual efficiency=the product of the percent of remaining central visual 
efficiency and the percent of remaining visual field efficiency.)
    2.05 Complete homonymous hemianopsia (with or without macular 
sparing). Evaluate under 2.04.
    2.06 Total bilateral ophthalmoplegia.
    2.07 Disturbance of labyrinthine-vestibular function (including 
Meniere's disease), characterized by a history of frequent attacks of 
balance disturbance, tinnitus, and progressive loss of hearing. With 
both A and B:
    A. Disturbed function of vestibular labyrinth demonstrated by 
caloric or other vestibular tests; and
    B. Hearing loss established by audiometry.
    2.08 Hearing impairments (hearing not restorable by a hearing aid) 
manifested by:
    A. Average hearing threshold sensitivity for air conduction of 90 
decibels or greater and for bone conduction to corresponding maximal 
levels, in the better ear, determined by the simple average of hearing 
threshold levels at 500, 1000 and 2000 hz. (see 2.00B1); or
    B. Speech discrimination scores of 40 percent or less in the better 
ear;
    2.09 Organic loss of speech due to any cause with inability to 
produce by any means speech which can be heard understood and sustained.
    1. Diagram of right eye illustrates extent of normal visual field as 
tested on standard perimeter at 3/330 (3 mm. white disc at a distance of 
330 mm.) under 7 foot-candles illumination. The sum of the eight 
principal meridians of this field total 500\1/2\.
    2. The percent of visual field efficiency is obtained by adding the 
number of degrees of the eight principal meridians of the contracted 
field and dividing by 500. Diagram of left eye illustrates visual field 
contracted to 30\1/2\ in the temporal and down and out meridians and to 
20\1/2\ in the remaining six meridians. The percent of visual field 
efficiency of this field is: 6 x 20 + 2 x 30 = 180 / 500 = 0.36 or 36 
percent remaining visual field efficiency, or 64 percent loss.

  Table No. 1--Percentage of Central Visual Efficiency Corresponding to
 Central Visual Acuity Notations for Distance in the Phakic and Aphakic
                            Eye (Better Eye)
------------------------------------------------------------------------
           Snellen                 Percent central visual efficiency
------------------------------------------------------------------------
                                               Aphakic        Aphakic
   English         Metric      Phakic \1\   monocular \2\  binocular \3\
------------------------------------------------------------------------
      20/16            6/5           100             50             75
      20/20            6/6           100             50             75
      20/25          6/7.5            95             47             71
      20/32           6/10            90             45             67
      20/40           6/12            85             42             64
      20/50           6/15            75             37             56
      20/64           6/20            65             32             49
      20/80           6/24            60             30             45
     20/100           6/30            50             25             37
     20/125           6/38            40             20             30
     20/160           6/48            30    .............           22
     20/200           6/60            20    .............  .............
------------------------------------------------------------------------
Column and Use.
\1\ Phakic.--1. A lens is present in both eyes. 2. A lens is present in
  the better eye and absent in the poorer eye. 3. A lens is present in
  one eye and the other eye is enucleated.
\2\ Monocular.--1. A lens in absent in the better eye and present in the
  poorer eye. 2. The lenses are absent in both eyes; however, the
  central visual acuity in the poorer eye after best correction in 20/
  200 or less. 3. A lens is absent from one eye and the other eye is
  enucleated.
\3\ Binocular.--1. The lenses are absent from both eyes and the central
  visual acuity in the poorer eye after best correction is greater than
  20/200.


[[Page 326]]

[GRAPHIC] [TIFF OMITTED] TC05OC91.027

 Table No. 2--Chart of Visual Field Showing Extent of Normal Field and 
         Method of Computing Percent of Visual Field Efficiency

                         3.00 Respiratory System

    A. Introduction: Impairments caused by the chronic disorder of the 
respiratory system generally result from irreversible loss of pulmonary 
functional capacity (ventilatory impairment, gas exchange impairment, or 
a combination of both). The most common symptom attributable to these 
disorders is dyspnea on exertion. Cough, wheezing, sputum production, 
hemoptysis, and chest pain may also occur, but need not be present. 
However, since these symptoms are common to many other diseases, 
evaluation of impairments of the respiratory system requires a history, 
physical examination, and chest roentgenogram to establish the diagnosis 
of a chronic respiratory disorder. Pulmonary function testing is 
required to provide a basis for assessing the impairment, once the 
diagnosis is established by appropriate clinical findings.
    Alteration of ventilatory function may be due primarily to chronic 
obstructive pulmonary disease (emphysema, chronic bronchitis, chronic 
asthmatic bronchitis) or restrictive disorders with primary loss of lung 
volume (pulmonary resection, thoracoplasty, chest cage deformity as seen 
in kyphoscoliosis), or infiltrative interstitial disorders (diffuse 
fibrosis). Impairment of gas exchange without significant airway 
obstruction may be produced by interstitial disorders (diffuse 
fibrosis). Primary disease of pulmonary circulation may produce 
pulmonary vascular hypertension and, eventually, heart failure. Whatever 
the mechanism, any chronic progressive pulmonary disorder may result in 
cor pulmonale or heart failure. Chronic infection caused, most 
frequently by mycobacterial or mycotic organisms, may produce extensive 
lung destruction resulting in marked loss of pulmonary functional 
capacity. Some disorders such as bronchiectasis and asthma may be 
characterized by acute, intermittent illnesses of such frequency and 
intensity that they produce a marked impairment apart from intercurrent 
functional loss, which may be mild.
    Most chronic pulmonary disorders may be adequately evaluated on the 
basis of history, physical examination, chest roentgenogram, and 
ventilatory function tests. Direct assessment of gas exchange by 
exercise arterial blood gas determination or diffusing capacity is 
required only in specific relatively rare circumstances, depending on 
the clinical features and specific diagnosis.
    B. Mycobacterial and mycotic infections of the lung will be 
evaluated on the basis of the resulting impairment to pulmonary 
function. Evidence of infectious or active mycobacterial or mycotic 
infection, such as positive cultures, increasing lesions, or cavitation, 
is not, by itself, a basis for determining that the individual has a 
severe impairment which is expected to last 12

[[Page 327]]

months. However, if these factors are abnormally persistent, they should 
not be ignored. For example, in those unusual cases where there is 
evidence of persistent pulmonary infection caused by mycobacterial or 
mycotic organisms for a period closely approaching 12 consecutive 
months, the clinical findings, complications, treatment considerations, 
and prognosis must be carefully assessed to determine whether, despite 
the absence of impairment of pulmonary function, the individual has a 
severe impairment that can be expected to last for 12 consecutive 
months.
    C. When a respiratory impairment is episodic in nature, as may occur 
in complications of bronchiectasis and asthmatic bronchitis, the 
frequency of severe episodes despite prescribed treatment is the 
criterion for determining the level of impairment. Documentation for 
episodic asthma should include the hospital or emergency room records 
indicating the dates of treatment, clinical findings on presentation, 
what treatment was given and for what period of time, and the clinical 
response. Severe attacks of episodic asthma, as listed in section 3.03B, 
are defined as prolonged episodes lasting at least several hours, 
requiring intensive treatment such as intravenous drug administration or 
inhalation therapy in a hospital or emergency room.
    D. Documentation of ventilatory function tests. The results of 
ventilatory function studies for evaluation under tables I and II should 
be expressed in liters or liters per minute (BTPS). The reported one 
second forced expiratory volume (FEV1) should represent the 
largest of at least three attempts. One satisfactory maximum voluntary 
ventilation (MVV) is sufficient. The MVV should represent the observed 
value and should not be calculated from FEV1. These studies 
should be repeated after administration of a nebulized bronchodilator 
unless the prebronchodilator values are 80 percent or more of predicted 
normal values or the use of bronchodilators is contraindicated. The 
values in tables I and II assume that the ventilatory function studies 
were not performed in the presence of wheezing or other evidence of 
bronchospasm or, if these were present at the time of the examination, 
that the studies were repeated after administration of a bronchodilator. 
Ventilatory function studies performed in the presence of bronchospasm, 
without use of bronchodilators, cannot be found to meet the requisite 
level of severity in tables I and II.
    The appropriately labeled spirometric tracing, showing distance per 
second on the abscissa and the distance per liter on the ordinate, must 
be incorporated in the file. The manufacturer and model number of the 
device used to measure and record the ventilatory function should be 
stated. If the spirogram was generated other than by direct pen linkage 
to a mechanical displacement-type spirometer, the spirometric tracing 
must show the calibration of volume units through mechanical means such 
as would be obtained using a giant syringe. The FEV1 must be 
recorded at a speed of at least 20 mm. per second. Calculation of the 
FEV1 from a flow volume loop is not acceptable. The recording 
device must provide a volume excursions of at least 10 mm. per liter. 
The MVV should be represented by the tidal excursions measured over a 
10- to 15-second interval. Tracings showing only cumulative volume for 
the MVV are not acceptable. The ventilatory function tables are based on 
measurement of the height of the individual without shoes. Studies 
should not be performed during or soon after an acute respiratory 
illness. A statement should be made as to the individual's ability to 
understand the directions and cooperate in performing the test.
    E. Documentation of chronic impairment of gas exchange--Arterial 
blood gases and exercise tests.
    1. Introduction: Exercise tests with measurement of arterial blood 
gases at rest and during exercise should be purchased when not available 
as evidence of record in cases in which there is documentation of 
chronic pulmonary disease, but the existing evidence, including properly 
performed ventilatory function tests, is not adequate to evaluate the 
level of the impairment. Before purchasing arterial blood gas tests, 
medical history, physical examination, report of chest roentgenogram, 
ventilatory function tests, electrocardiographic tracing, and hematocrit 
must be obtained and should be evaluated by a physician competent in 
pulmonary medicine. Arterial blood gas tests should not be purchased 
where full development short of such purchase reveals that the 
impairment meets or equals any other listing or when the claim can be 
adjudicated on some other basis. Capillary blood analysis for 
PO2 or PCO2 is not acceptable. Analysis of 
arterial blood gases obtained after exercise is stopped is not 
acceptable.
    Generally individuals with an FEV1 greater than 2.5 
liters or an MVV greater than 100 liters per minute would not be 
considered for blood gas studies unless diffuse interstitial pulmonary 
fibrosis was noted on chest X-ray or documented by tissue diagnosis. The 
exercise test facility should be provided with the clinical reports, 
report of chest roentgenogram, and spirometry results obtained by the 
DDS. The testing facility should determine whether exercise testing is 
clinically contraindicated. If an exercise test is clinically 
contraindicated, the reason for exclusion from the test should be stated 
in the report of the exercise test facility.
    2. Methodology. Individuals considered for exercise testing first 
should have resting PaO2, PaCO2, and pH 
determinations by the

[[Page 328]]

testing facility. The samples should be obtained in the sitting or 
standing position. The individual should be exercised under steady state 
conditions, preferably on a treadmill for a period of 6 minutes at a 
speed and grade providing a workload of approximately 17 ml. 
O2/kg./min. If a bicycle ergometer is used, an exercise 
equivalent of 450 kgm./min., or 75 watts, should be used. At the option 
of the facility, a warm-up period of treadmill walking may be performed 
to acquaint the applicant with the procedure. If, during the warm-up 
period, the individual cannot exercise at the designated level, a lower 
speed and/or grade may be selected in keeping with the exercise capacity 
estimate. The individual should be monitored by electrocardiogram 
throughout the exercise and representative strips taken to provide heart 
rate in each minute of exercise. During the 5th or 6th minute of 
exercise, an arterial blood gas sample should be drawn and analyzed for 
PO2, PCO2, and pH. If the facility has the 
capability, and at the option of the DDS and the facility, minute 
ventilation (BTPS) and oxygen consumption per minute (STPD) and 
CO2 production (STPD) should be measured during the 5th or 
6th minute of exercise. If the individual fails to complete 6 minutes of 
exercise, the facility should comment on the reason.
    The report should contain representative strips of 
electrocardiograms taken during the exercise, hematocrit, resting and 
exercise arterial blood gas value, speed and grade of the treadmill or 
bicycle ergometer exercise level in watts or kgm./min., and duration of 
exercise. The altitude of the test site, barometric pressure, and normal 
range of blood gas values for that facility should also be reported.
    3. Evaluation. Three tables are provided in Listing 3.02C1 for 
evaluation of arterial blood gas determinations at rest and during 
exercise. The blood gas levels in Listing 3.02C1, Table III-A, are 
applicable at test sites situated at less than 3,000 feet above sea 
level. The blood gas levels in Listing 3.02C1, Table III-B, are 
applicable at test sites situated at 3,000 through 6,000 feet above sea 
level. The blood gas levels in Listing 3.02C1, Table III-C, are 
applicable for test sites over 6,000 feet above sea level. Tables III-B 
and C, take into account the lower blood PaO2 normally found 
in individuals tested at the higher altitude. When the barometric 
pressure is unusually high for the altitude at the time of testing, 
consideration should be given to those cases in which the 
PaO2 falls slightly above the requirements of Table III-A, 
III-B, or III-C, whichever is appropriate for the altitude at which 
testing was performed.
    3.01 Category of Impairments, Respiratory
    3.02 Chronic Pulmonary Insufficiency.
With:
    A. Chronic obstructive pulmonary disease (due to any cause). With: 
Both FEV1 and MVV equal to or less than values specified in 
Table I corresponding to the person's height without shoes.

                                 Table I
------------------------------------------------------------------------
                                                      FEV1 and MVV
                                               -------------------------
                                                             (MBC) equal
         Height without shoes (inches)          Equal to or   to or less
                                                 less than     than (L/
                                                 (L, BTPS)   min., BTPS)
------------------------------------------------------------------------
60 or less....................................          1.0           40
61-63.........................................          1.1           44
64-65.........................................          1.2           48
66-67.........................................          1.3           52
68-69.........................................          1.4           56
70-71.........................................          1.5           60
72 or more....................................          1.6           64
------------------------------------------------------------------------

or
    B. Chronic restrictive ventilatory disorders. With: Total vital 
capacity equal to or less than values specified in Table II 
corresponding to the person's height without shoes. In severe 
kyphoscoliosis, the measured span between the fingertips when the upper 
extremities are abducted 90 degrees should be substituted for height.

                                Table II
------------------------------------------------------------------------
                                                                VC equal
                                                                 to or
                Height without shoes (inches)                  less than
                                                               (L, BTPS)
------------------------------------------------------------------------
60 or less...................................................        1.2
61-63........................................................        1.3
64-65........................................................        1.4
66-67........................................................        1.5
68-69........................................................        1.6
70-71........................................................        1.7
72-or more...................................................        1.8
------------------------------------------------------------------------

    or
    C. Chronic impairment of gas exchange (due to any cause). With:
    1. Steady-state exercise blood gases demonstrating values of 
PaO2 and simultaneously determined PaCO2, measured 
at a workload of approximately 17 ml. O2/kg./min. or less of 
exercise, equal to or less than the values specified in Table III-A or 
III-B or III-C.

                              Table III--A
    [Applicable at test sites less than, 3,000 feet above sea level]
------------------------------------------------------------------------
                                                                Arterial
                                                                PO2 and
                                                                equal to
                    Arterial PCO2 (mm. Hg)                      or less
                                                               than (mm.
                                                                  Hg)
------------------------------------------------------------------------
30 or below..................................................         65
31...........................................................         64
32...........................................................         63
33...........................................................         62
34...........................................................         61
35...........................................................         60
36...........................................................         59

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37...........................................................         58
38...........................................................         57
39...........................................................         56
40 or above..................................................         55
------------------------------------------------------------------------


                              Table III--B
   [Applicable at test sites 3,000 through 6,000 feet above sea level]
------------------------------------------------------------------------
                                                                Arterial
                                                                PCO2 and
                                                                equal to
                    Arterial PCO2 (mm. Hg)                      or less
                                                               than (mm.
                                                                  Hg)
------------------------------------------------------------------------
30 or below..................................................         60
31...........................................................         59
32...........................................................         58
33...........................................................         57
34...........................................................         56
35...........................................................         55
36...........................................................         54
37...........................................................         53
38...........................................................         52
39...........................................................         51
40 or above..................................................         50
------------------------------------------------------------------------


                              Table III--C
       [Applicable at test sites over 6,000 feet above sea level]
------------------------------------------------------------------------
                                                                Arterial
                                                               PO2 equal
                  Arterial PCO2 (mm. Hg) and                     to or
                                                               less than
                                                                (mm. Hg)
------------------------------------------------------------------------
30 or below..................................................         56
31...........................................................         54
32...........................................................         53
33...........................................................         52
34...........................................................         51
35...........................................................         50
36...........................................................         49
37...........................................................         48
38...........................................................         47
39...........................................................         46
40 or above..................................................         45
------------------------------------------------------------------------

    or
    2. Diffusing capacity for the lungs for carbon monoxide less than 6 
ml./mm. Hg/min. (steady-state methods) or less than 9 ml./mm. Hg/min. 
(single breath method) or less than 30 percent of predicted normal. (All 
method, actual values, and predicted normal values for the methods used 
should be reported.): or
    D. Mixed obstructive ventilatory and gas exchange impairment. 
Evaluate under the criteria in 3.02A, B, and C.
    3.03 Asthma. With:
    A Chronic asthmatic bronchitis. Evaluate under the criteria for 
chronic obstructive ventilatory impairment in 3.02A, or
    B. Episodes of severe attacks (See 3.00C), in spite of prescribed 
treatment, occurring at least once every 2 months or on an average of at 
lest 6 times a year, and prolonged expiration with wheezing or rhonchi 
on physical examination between attacks.
    3.06 Pneumoconiosis (demonstrated by roentgenographic evidence). 
Evaluate under criteria in 3.02.
    3.07 Bronchiectasis (demonstrated by radio-opaque material). With:
    A. Episodes of acute bronchitis or pneumonia or hemoptysis (more 
than blood-streaked sputum) occurring at least every 2 months; or
    B. Impairment of pulmonary function due to extensive disease should 
be evaluated under the applicable criteria in 3.02.
    3.08 Mycobacterial infection of the lung, Impairment of pulmonary 
function due to extensive disease should be evaluated under appropriate 
criteria in 3.02.
    3.09 Mycotic infection of the lung, Impairment of pulmonary function 
due to extensive disease should be evaluated under the appropriate 
criteria in 3.02.
    3.11 Cor pulmonale, or pulomonary vascular hypertension. Evaluate 
under the criteria in 4.02D.

                       4.00 Cardiovascular System

    A. Severe cardiac impairment results from one or more of three 
consequences of heart disease; (1) congestive heart failure; (2) 
ischemia (with or without necrosis) of heart muscle; (3) conduction 
disturbances and/or arrhythmias resulting in cardiac syncope.
    With diseases of arteries and veins, severe impairment may result 
from disorders of the vasculature in the central nervous system, eyes, 
kidneys, extremities, and other organs.
    The criteria for evaluating impairment resulting from heart diseases 
or diseases of the blood vessels are based on symptoms, physical signs 
and pertinent laboratory findings.
    B. Congestive heart failure is considered in the Listing under one 
category whatever the etiology (i.e., arteriosclerotic, hypertenaive, 
rheumatic, pulmonary, congenital, or other organic heart diseases). 
Congestive heart failure is not considered to have been established for 
the purpose of 4.02 unless there is evidence of vascular congestion such 
as hepatomegaly or peripheral or pulmonary edema which is consistent 
with clinical diagnosis. (Radiological description of vascular 
congestion, unless supported by appropriate clinical evidence, should 
not be construed as pulmonary edema.) The findings of vascular 
congestion need not be present at the time of adjudication (except for 
4.02A), but must be casually related to the current episode of marked 
impairment. The findings other than vascular congestion must be 
persistent.

[[Page 330]]

    Other congestive, ischemic, or restrictive (obstructive) heart 
diseases such as caused by cardiomyopathy or aortic stenosis may result 
in signficant impairment dues to congestive heart failure, rhythm 
disturbances, or ventricular outflow obstruction in the absence of left 
ventricular enlargement as described in 4.02B1. However, the ECG 
criteria as defined in 4.02B2 should be fulfilled. Clinical findings 
such as symptions of dyspnea, fatigue, rhythm disturbances, etc., should 
be documented and the diagnosis confirmed by echocardiography or at 
cardiac catheterization.
    C. Hypertensive vascular diseases does not result in severe 
impairment unless it causes severe damage to one or more of four end 
organs; heart, brain, kidneys, or eyes. (retinae). The presence of such 
damage must be established by appropriate abnormal physical signs and 
laboratory findings as specified in 4.02 or 4.04, or for the body system 
involved.
    D. Ischemic heart diseases may result in a marked impairment due to 
chest pain. Description of the pain must contain the clinical 
characteristics as discussed under 4.00E. In addition, the clinical 
impression of chest pain of cardiac origin must be supported by 
objective evidence as described under 4.00 F.G. or H.
    E. Chest pain of cardic origin is considered to be pain which is 
precipitated by effort and promptly relieved by sublingual nitroglycerin 
or rapid-acting nitrates or rest. The character of the pain is 
classically described as crushing squeezing, burning, or oppressive pain 
located in the chest. Excluded is sharp, sticking or rhythmic pain. Pain 
occurring on exercise should be described specifically as to usual 
inciting factors (kind and degree), character, location, radiation, 
duration, and responses to nitroglycerin or rest.
    So-called ``anginal equivalent'' locations manifested by pain in the 
throat, arms, or hands have the same validity as the chest pain 
described above. Status anginosus and variant angina of the Prinzmetal 
type (e.g., rest angina with transitory ST elevation on 
electrocardiogram) will be considered to have the same validity as 
classical angina pectoris as described above. Shortness of breath as an 
isolated finding should not be considered as an anginal equivalent.
    Chest pain that appears to be of cardiac origin may be caused by 
noncoronary conditions. Evidence for the latter should be actively 
considered in determining whether the chest pain is of cardiac origin. 
Among the more common conditions which may masquerade as angina are 
gastrointestinal tract lesions such as biliary tract disease, 
esophagitis, hiatal hernia, peptic ulcer, and pancreatitis; and 
musculoskeletal lesions such as costochondritis and cervical arthritis.
    F. Documentation of electrocardiography.
    1. Electrocardiograms obtained at rest must be submitted in the 
original or a legible copy of a 12-lead tracing appropriately labeled, 
with the standardization inscribed on the tracing. Alteration in 
standardization of specific leads (such as to accommodate large ORS 
amplitudes) must be shown on those leads.
    The effect of drugs, electrolyte imbalance, etc., should be 
considered as possible noncoronary causes of ECG abnormalities, 
especially those involving the ST segment. If needed and available, pre-
drug (especially predigitalis) tracing should be obtained.
    The term ``ischemic'' is used in 4.04 to describe a pathologic ST 
deviation. Nonspecific repolarization changes should not be confused 
with ischemic configurations or a current of injury.
    Detailed descriptions or computer interpretations without the 
original or legible copies of the ECG are not acceptable.
    2. Electrocardiograms obtained in conjunction with exercise tests 
must include the original tracings or a legible copy of appropriate 
leads obtained before, during, and after exercise. Test control 
tracings, taken before exercise in the upright position, must be 
obtained. An ECG after 20 seconds of vigorous hyperventilation should be 
obtained. A posthyperventilation tracing may be essential for the proper 
evaluation of an ``abnormal'' test in certain circumstances, such as in 
women with evidence of mitral valve prolapse. A tracing should be taken 
at approximately 5 METs of exercise and at the time the ECG becomes 
abnormal according to the criteria in 4.04A. The time of onset of these 
abnormal changes must be noted, and the ECG tracing taken at the time 
should be obtained. Exercise histograms without the original tracings or 
legible copies are not acceptable.
    Whenever electrocardiographically documented stress test data are 
submitted, irrespective of the type, the standardization must be 
inscribed on the tracings and the strips must be labeled appropriately, 
indicating the times recorded. The degree of exercise achieved, the 
blood pressure levels during the test, and any reason for terminating 
the test must be included in the report.
    G. Exercise testing.
    1. When to purchase. Since the results of a treadmill exercise test 
are the primary basis for adjudicating claims under 4.04, they should be 
included in the file whenever they have been performed. There are also 
circumstances under which it will be appropriate to purchase exercise 
tests. Generally, these are limited to claims involving chest pain which 
is considered to be of cardiac origin but without corroborating ECG or 
other evidence of ischemic heart disease.
    Exercise test should not be purchased in the absence of alleged 
chest pain of cardiac

[[Page 331]]

origin. Even in the presence of an allegation of chest pain of cardiac 
origin, an exercise test should not be purchased where full development 
short of such a purchase reveals that the impairment meets or equals any 
Listing or the claim can be adjudicated on some other basis.
    2. Methodology. When an exercise test is purchased, it should be a 
treadmill type using a continuous progressive multistage regimen. The 
targeted heart rate should be not less than 85 percent of the maximum 
predicted heart rate unless it becomes hazardous to exercise to the 
heart rate or becomes unnecessary because the ECG meets the criteria in 
4.04A at a lower heart rate (see also 4.00F.2). Beyond these 
requirements, it is prudent to accept the methodology of a qualified, 
competent test facility. In any case, a precise description of the 
protocol that was followed must be provided.
    3. Limitations of exercise testing. Exercise testing should not be 
purchased for individuals who have the following: unstable progressive 
angina pectoris; recent onset (approximately 2 months) of angina; 
congestive heart failure; uncontrolled serious arrhythmias (including 
uncontrolled auricular fibrillation); second or third-degree heart 
block; Wolff-Parkinson-White syndrome; uncontrolled marked hypertension; 
marked aortic stenosis; marked pulmonary hypertension; dissecting or 
ventricular aneurysms; acute illness; limiting neurological or 
musculoskeletal impairments; or for individuals on medication where 
performance of stress testing may constitute a significant risk.
    The presence of noncoronary or nonischemic factors which may 
influence the ECG response to exercise include hypokalemia, 
hyperventilation, vasoregulatory asthenia, significant anemia, left 
bundle branch block, and other heart disease, particularly valvular.
    Digitalis may cause ST segment abnormalities at rest, during, and 
after exercise. Digitalis-related ST depression, present at rest, may 
become accentuated and result in false interpretations of the ECG taken 
during or after exercise test.
    4. Evaluation. Where the evidence includes the results of a 
treadmill exercise test, this evidence is the primary basis for 
adjudicating claims under 4.04. For purposes of this Social Security 
disability program, treadmill exercise testing will be evaluated on the 
basis of the level at which the test becomes positive in accordance with 
the ECG criteria in Sec. 404A. However, the significance of findings of 
a treadmill exercise test must be considered in light of the clinical 
course of the disease which may have occurred subsequent to performance 
of the exercise test. The criteria in 4.04B are not applicable if there 
is documentation of an acceptable treadmill exercise test, it there is 
no evidence of a treadmill exercise test or if the test is not 
acceptable, the criteria in 4.04B should be used. The level of exercise 
is considered in terms of multiples of MET's (metabolic equivalent 
units). One MET is the basal O2 requirement of the body in an 
inactive state, sitting quietly. It is considered by most authorities to 
be approximately 3.5 ml. O2/kg./min.
    H. Angiographic evidence.
    1. Coronary arteriography. This procedure is not to be purchased by 
the Social Security Administration. Should the results of such testing 
be available, the report should be considered as to the quality and kind 
of data provided and its applicability to the requirements of the 
Listing of Impairments. A copy of the report of the catheterization and 
ancillary studies should be obtained. The report should provide 
information as to the technique used, the method of assessing coronary 
lumen diameter, and the nature and location of any obstructive lesions.
    It is helpful to know the method used, the number of projections, 
and whether selective engagement of each coronary vessel was 
satisfactorily accomplished. It is also important to know whether the 
injected vessel was entirely and uniformly opacified, thus avoiding the 
artifactual appearance of narrowing or an obstruction.
    Coronary artery spasm induced by intracoronary catheterization is 
not to be considered as evidence of ischemic heart disease.
    Estimation of the functional significance of an obstructive lesion 
may also be aided by description of how well the distal part of the 
vessel is visualized. Some patients with significant proximal coronary 
atherosclerosis have well-developed large collateral blood supply to the 
distal vessels without evidence of myocardial damage or ischemia, even 
under conditions of severe stress.
    2. Left ventriculography. The report should describe the local 
contractility of the myocardium as may be evident from areas of 
hypokinesia, dyskinesia, or akinesia; and the overall contractility of 
the myocardium as measured by the ejection fraction.
    3. Proximal coronary arteries (see 4.04B7) will be considered as 
the:
    a. Right coronary artery proximal to the acute marginal branch; or
    b. Left anterior descending coronary artery proximal to the first 
septal perforator; or
    c. Left circumflex coronary artery proximal to the first obtuse 
marginal branch.
    I. Results of other tests. Information from adequate reports of 
other tests such as radionuclide studies or echocardiography should be 
considered where that information is comparable to the requirements in 
the listing. An ejection fraction measured by echocardiography is not 
determinative, but may be given consideration in the context of 
associated findings.

[[Page 332]]

    J. Major surgical procedures. The amount of function restored and 
the time required to effect improvement after heart or vascular surgery 
vary with the nature and extent of the disorder, the type of surgery, 
and other individual factors. If the criteria described for heart or 
vascular disease are met, proposed heart or vascular surgery (coronary 
artery bypass procedure, valve replacement, major arterial grafts, etc.) 
does not militate against a finding of disability with subsequent 
assessment postoperatively.
    The usual time after surgery for adequate assessment of the results 
of surgery is considered to be approximately 3 months. Assessment of the 
magnitude of the impairment following surgery requires adequate 
documentation of the pertinent evaluations and tests performed following 
surgery, such as an interval history and physical examination, with 
emphasis on those signs and symptoms which might have changed 
postoperatively, as well as X-rays and electrocardiograms. Where 
treadmill exercise tests or angiography have been performed following 
the surgical procedure, the results of these tests should be obtained.
    Documentation of the preoperative evaluation and a description of 
the surgical procedure are also required. The evidence should be 
documented from hospital records (catheterization reports, coronary 
arteriographic reports, etc.) and the operative note.
    Implantation of a cardiac pacemaker is not considered a major 
surgical procedure for purposes of this section.
    K. Evaluation of peripheral arterial disease. The evaluation of 
peripheral arterial disease is based on medically acceptable clinical 
findings providing adequate history and physical examination findings 
describing the impairment, and on documentation of the appropriate 
laboratory techniques. The specific findings stated in Listing 4.13 
represent the level of severity of that impairment; these findings, by 
themselves, are not intended to represent the basis for establishing the 
clinical diagnosis. The level of the impairment is based on the 
symptomatology, physical findings, Doppler studies before and after a 
standard exercise test, and/or angiographic findings.
    The requirements for evaluation of peripheral arterial disease in 
Listing 4.13B are based on the ratio of systolic blood pressure at the 
ankle, determined by Doppler study, to the systolic blood pressure at 
the brachial artery determined at the same time. Results of 
plethysmographic studies, or other techniques providing systolic blood 
pressure determinations at the ankle, should be considered where the 
information is comparable to the requirements in the listing.
    Listing 4.13B.1 provides for determining that the listing is met 
when the resting ankle/brachial systolic blood pressure ratio is less 
than 0.50. Listing 4.13B.2 provides additional criteria for evaluating 
peripheral arterial impairment on the basis of exercise studies when the 
resting ankle/brachial systolic blood pressure ratio is 0.50 or above. 
The results of exercise studies should describe the level of exercise 
(e.g., speed and grade of the treadmill settings), the duration of 
exercise, symptoms during exercise, the reasons for stopping exercise if 
the expected level of exercise was not attained, blood pressures at the 
ankle and other pertinent levels measured after exercise, and the time 
required to return the systolic blood pressure toward or to, the 
preexercise level. When exercise Doppler studies are purchased by the 
Social Security Administration, it is suggested that the requested 
exercise be on a treadmill at 2 mph. on a 12 percent grade for 5 
minutes. Exercise studies should not be performed on individuals for 
whom exercise is contraindicated. The methodology of a qualified, 
competent facility should be accepted. In any case, a precise 
description of the protocol that was followed must be provided.
    It must be recognized that application of the criteria in Listing 
4.13B may be limited in individuals who have severe calcific 
(Monckeberg's) sclerosis of the peripheral arteries or severe small 
vessel disease in individuals with diabetes mellitus.
    4.01 Category of Impairments, Cardiovascular System
    4.02 Congestive heart failure (manifested by evidence of vascular 
congestion such as hepatomegaly, peripheral or pulmonary edema). With:
    A. Persistent congestive heart failure on clinical examination 
despite prescribed therapy; or
    B. Persistent left ventricular enlargement and hypertrophy 
documented by both:
    1. Extension of the cardiac shadow (left ventricle) to the vertebral 
column on a left lateral chest roentgenogram; and
    2. ECG showing QRS duration less than 0.12 second with 
Sv1 plus Rv5 (or Rv6) of 35 mm. or 
greater and ST segment depressed more than 0.5 mm. and low, diphasic or 
inverted T waves in leads with tall R waves: or
    C. Persistent ``mitral'' type heart involvement documented by left 
atrial enlargement shown by double shadow on PA chest roentgenogram (or 
characteristic distortion of barium-filled esophagus) and either;
    1. ECG showing QRS duration less than 0.12 second with 
Sv1 plus Rv5 (or Rv6) of 35 mm. or 
greater and ST segment depressed more than 0.5 mm. and low, diphasic or 
inverted T wavers in leads with tall R waves, or
    2. ECG evidence of right ventricular hypertrophy with R wave of 5.0 
mm. or greater in lead V1 and progressive decrease in R/S 
amplitude from lead V1 to V5 or V6; or
    D. Cor pulmonale (non-acute) documented by both:

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    1. Right ventricular enlargement (or prominence of the right out-
flow tract) on chest roentgenogram or fluoroscopy; and
    2. ECG evidence of right ventricular hypertrophy with R wave of 5.0 
mm. or greater in lead V1 and progressive decrease in R/S 
amplitude from lead V1 to V5 or V6
    4.03 Hypertensive vascular disease. Evaluate under 4.02 04 4.04 or 
under the criteria for the affected body system.
    4.04 Ischemic heart disease with chest pain or cardiac origin as 
described in 4.00E With:
    A. Treadmill exercise test (see 4.00 F and (G) demonstrating one of 
the following at an exercise level of 5 METs or less:
    1. Horizontal or downsloping depression (from the standing control) 
of the ST segment to 1.0 mm. or greater, lasting for at least 0.08 
second after the J junction, and clearly discernible in at least two 
consecutive complexes which are on a level baseline in any lead; or
    2. Junctional depression occurring during exercise, remaining 
depressed (from the standing control) to 2.0 mm. or greater for at least 
0.08 second after the J junction (the so-called slow upsloping ST 
segment), and clearly discernible in at least two consecutive complexes 
which are on a level baseline in any lead; or
    3. Premature ventricular systoles which are multiform or 
bidirectional or are sequentially inscribed (3 or more); or
    4. ST segment elevation (from the standing control) to 1 mm. or 
greater; or
    5. Development of second or third degree heart block; or
    B. In the absence of a report of an acceptable treadmill exercise 
test (see 4.00G), one of the following:
    1. Transmural myocardial infarction exhibiting a QS pattern or a Q 
wave with amplitude at least \1/3\rd of R wave and with a duration of 
0.04 second or more. (If these are present in leads III and a VF only, 
the requisite Q wave findings must be shown, by labelled tracing, to 
persist on deep inspiration); or
    2. Resting ECG findings showing ischemic-type (see Sec. 4.00F1) 
depression of ST segment to more than 0.5 mm. in either (a) leads I and 
a VL and V6 or (b) leads II and III and a VF or (c) leads 
V3 through V6; or
    3. Resting ECG findings showing an ischemic configuration or current 
of injury (see 4.00F1) with ST segment elevation to 2 mm. or more in 
either (a) leads I and a VL and V6 or (b) leads II and III 
and a VF or (c) leads V3 through V6; or
    4. Resting ECG findings showing symmetrical inversion of T waves to 
5.0 mm. or more in any two leads except leads III or aVR or 
V1 or V2; or
    5. Inversion of T wave to 1.0 mm. or more in any of leads I, II, 
aVL, V2 to V6 and R wave of 5.0 mm. or more in 
lead aVL and R wave greater than S wave in lead aVF; or
    6. ``Double'' Master Two-Step test demonstrating one of the 
following:
    a. Ischemic depression of ST segment to more than 0.5 mm. lasting 
for at least 0.08 second beyond the J junction and clearly discernible 
in at least two consecutive complexes which are on a level baseline in 
any lead; or
    b. Development of a second or third degree heart block; or
    7. Angiographic evidence (see 4.00H) (obtained independent of Social 
Security disability evaluation) showing one of the following:
    a. 50 percent or more narrowing of the left main coronary artery; or
    b. 70 percent or more narrowing of a proximal coronary artery (see 
4.00H3) (excluding the left main coronary artery); or
    c. 50 percent or more narrowing involving a long (greater than 1 
cm.) segment of a proximal coronary artery or multiple proximal coronary 
arteries; or
    8. Akinetic or hypokinetic myocardial wall or septal motion with 
left ventricular ejection fraction of 30 percent of less measured by 
contrast or radio-isotopic ventriculographic methods; or
    C. Resting ECG findings showing left bundle branch block as 
evidenced by QRS duration of 0.12 second or more in leads I, II, or III 
and R peak duration of 0.06 second or more in leads I, aVL, 
V5, or V6, unless there is a coronary angiogram of 
record which is negative (see criteria in 4.04B7).
    4.05 Recurrent arrhythmias (not due to digitalis toxicity) resulting 
in uncontrolled repeated episodes of cardiac syncope and documented by 
resting or ambulatory (Holter) electrocardiography.
    4.09 Myocardiopathies, rheumatic or syphilitic heart disease. 
Evaluate under the criteria in 4.02, 4.04, 4.05, or 11.04.
    4.11 Aneurysm of aorta or major branches (demonstrated by 
roentgenographic evidence). With:
    A. Acute or chronic dissection not controlled by prescribed medical 
or surgical treatment; or
    B. Congestive heart failure as described under the criteria in 4.02; 
or
    C. Renal failure as described under the criteria in 6.02; or
    D. Repeated snycopal episodes.
    4.12 Chronic venous insufficiency of the lower extremity with 
incompetency or obstruction of the deep venous return, associated with 
superficial varicosities, extensive brawny edema, stasis dermatitis, and 
recurrent or persistent ulceration which has not healed following at 
least 3 months of prescribed medical or surgical therapy.
    4.13 Peripheral arterial disease. With:

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    A. Intermittent claudication with failure to visualize (on 
arteriogram obtained independent of Social Security disability 
evaluation) the common femoral or deep femoral artery in one extremity; 
or
    B. Intermittent claudication with marked impairment of peripheral 
arterial circulation as determined by Doppler studies showing:
    1. Resting ankle/brachial systolic blood pressure ratio of less than 
0.50; or
    2. Decrease in systolic blood pressure at ankle or exercise (see 
4.00K) to 50 percent or more of preexercise level and requiring 10 
minutes or more to return to prexercise level; or
    C. Amputation at or above the tarsal region due to peripheral 
arterial disease.

                          5.00 Digestive System

    A. Disorders of the digestive system which result in a marked 
impairment usually do so because of interference with nutrition, 
multiple recurrent inflammatory lesions, or complications of disease, 
such as fistulae, abscesses, or recurrent obstruction. Such 
complications usually respond to treatment. These complications must be 
shown to persist on repeated examinations despite therapy for a 
reasonable presumption to be made that a marked impairment will last for 
a continuous period of at least 12 months.
    B. Malnutrition or weight loss from gastrointestinal disorders. When 
the primary disorder of the digestive tract has been established (e.g. 
enterocolitis, chronic pancreatitis, postgastrointestinal resection, or 
esophageal stricture, stenosis, or obstruction), the resultant 
interference with nutrition will be considered under the criteria in 
5.08. This will apply whether the weight loss is due to primary or 
secondary disorders of malabsorption, malassimilation or obstruction. 
However, weight loss not due to diseases of the digestive tract, but 
associated with psychiatric or primary endocrine or other disorders, 
should be evaluated under the appropriate criteria for the underlying 
disorder.
    C. Surgical diversion of the intestinal tract, including colostomy 
or ileostomy, are not listed since they do not represent impairments 
which preclude all work activity if the individual is able to maintain 
adequate nutrition and function of the stoma. Dumping syndrome which may 
follow gastric resection rarely represents a marked impairment which 
would continue for 12 months. Peptic ulcer disease with recurrent 
ulceration after definitive surgery ordinarily responds to treatment. A 
recurrent ulcer after definitive surgery must be demonstrated on 
repeated upper gastrointestinal roentgenograms or gastroscopic 
examinations despite therapy to be considered a severe impairment which 
will last for at least 12 months. Definitive surgical procedures are 
those designed to control the ulcer disease process (i.e., vagotomy and 
pyloroplasty, subtotal gastrectomy, etc.). Simple closure of a 
perforated ulcer does not constitute definitive surgical therapy for 
peptic ulcer disease.
    5.01 Category of Impairments, Digestive System
    5.02 Recurrent upper gastrointestinal hemorrhage from undetermined 
cause with anemia manifested by hematocrit of 30 percent or less on 
repeated examinations.
    5.03 Stricture, stenosis, or obstruction of the esophagus 
(demonstrated by X-ray or endoscopy) with weight loss as described under 
Sec. 5.08.
    5.04 Peptic ulcer disease (demonstrated by X-ray or endoscopy). 
With:
    A. Recurrent ulceration after definitive surgery persistent despite 
therapy; or
    B. Inoperable fistula formation; or
    C. Recurrent obstruction demonstrated by X-ray or endoscopy. or
    D. Weight loss as described under Sec. 5.08.
    5.05 Chronic liver disease (e.g., portal, postnecrotic, or biliary 
cirrhosis; chronic active hepatitis; Wilson's disease). With:
    A. Esophageal varices (demonstrated by X-ray or endoscopy) with a 
documented history of massive hemorrhage attributable to these varices. 
Consider under a disability for 3 years following the last massive 
hemorrhage; thereafter, evaluate the residual impairment; or
    B. Performance of a shunt operation for esophageal varices. Consider 
under a disability for 3 years following surgery; thereafter, evaluate 
the residual impairment; or
    C. Serum bilirubin of 2.5 mg. per deciliter (100 ml.) or greater 
persisting on repeated examinations for at least 5 months; or
    D. Ascites, not attributable to other causes, recurrent or 
persisting for at least 5 months, demonstrated by abdominal paracentesis 
or associated with persistent hypoalbuminemia of 3.0 gm. per deciliter 
(100 ml.) or less; or
    E. Hepatic encephalopathy. Evaluate under the criteria in listing 
12.02; or
    F. Confirmation of chronic liver disease by liver biopsy (obtained 
independent of Social Security disability evaluation) and one of the 
following:
    1. Ascites not attributable to other causes, recurrent or persisting 
for at least 3 months, demonstrated by abdominal paracentesis or 
associated with persistent hypoalbuminemia of 3.0 gm. per deciliter (100 
ml.) or less; or
    2. Serum bilirubin of 2.5 mg. per deciliter (100 ml) or greater on 
repeated examinations for at least 3 months; or
    3. Hepatic cell necrosis or inflammation, persisting for at least 3 
months, documented by repeated abnormalities of prothrombin time and 
enzymes indicative of hepatic dysfunction.
    5.06 Chronic ulcerative or granulomatous colitis (demonstrated by 
endoscopy, barium enema, biopsy, or operative findings). With:

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    A. Recurrent bloody stools documented on repeated examinations and 
anemia manifested by hematocrit of 30 percent or less on repeated 
examinations; or
    B. Persistent or recurrent systemic manifestations, such as 
arthritis, iritis, fever, or liver dysfunction, not attributable to 
other causes; or
    C. Intermittent obstruction due to intractable abscess, fistula 
formation, or stenosis; or
    D. Recurrence of findings of A, B, or C above after total colectomy; 
or
    E. Weight loss as described under Sec. 5.08.
    5.07 Regional enteritis (demonstrated by operative findings, barium 
studies, biopsy, or endoscopy). With:
    A. Persistent or recurrent intestinal obstruction evidenced by 
abdominal pain, distention, nausea, and vomiting and accompanied by 
stenotic areas of small bowel with proximal intestinal dilation; or
    B. Persistent or recurrent systemic manifestations such as 
arthritis, iritis, fever, or liver dysfunction, not attributable to 
other causes; or
    C. Intermittent obstruction due to intractable abscess or fistula 
formation; or
    D. Weight loss as described under Sec. 5.08.
    5.08 Weight loss due to any persisting gastrointestinal disorder: 
(The following weights are to be demonstrated to have persisted for at 
least 3 months despite prescribed therapy and expected to persist at 
this level for at least 12 months.) With:
    A. Weight equal to or less than the values specified in Table I or 
II; or
    B. Weight equal to or less than the values specified in Table III or 
IV and one of the following abnormal findings on repeated examinations:
    1. Serum albumin of 3.0 gm. per deciliter (100 ml.) or less; or
    2. Hematocrit of 30 percent or less; or
    3. Serum calcium of 8.0 mg. per deciliter (100 ml.) (4.0 mEq./L) or 
less; or
    4. Uncontrolled diabetes mellitus due to pancreatic dysfunction with 
repeated hyperglycemia, hypoglycemia, or ketosis; or
    5. Fat in stool of 7 gm. or greater per 24-hour stool specimen; or
    6. Nitrogen in stool of 3 gm, or greater per 24-hour specimen; or
    7. Persistent or recurrent ascites or edema not attributable to 
other causes.
    Tables of weight reflecting malnutrition scaled according to height 
and sex--To be used only in connection with 5.08.

                              Table I--Men
------------------------------------------------------------------------
                                                                 Weight
                      Height (inches) \1\                       (pounds)
------------------------------------------------------------------------
61............................................................        90
62............................................................        92
63............................................................        94
64............................................................        97
65............................................................        99
66............................................................       102
67............................................................       106
68............................................................       109
69............................................................       112
70............................................................       115
71............................................................       118
72............................................................       122
73............................................................       125
74............................................................       128
75............................................................       131
76............................................................       134
------------------------------------------------------------------------
\1\ Height measured without shoes.


                             Table II--Women
------------------------------------------------------------------------
                                                                 Weight
                      Height (inches) \1\                       (pounds)
------------------------------------------------------------------------
58............................................................        77
59............................................................        79
60............................................................        82
61............................................................        84
62............................................................        86
63............................................................        89
64............................................................        91
65............................................................        94
66............................................................        98
67............................................................       101
68............................................................       104
69............................................................       107
70............................................................       110
71............................................................       114
72............................................................       117
73............................................................       120
------------------------------------------------------------------------
\1\ Height measured without shoes.


                             Table III--Men
------------------------------------------------------------------------
                                                                 Weight
                      Height (inches) \1\                       (pounds)
------------------------------------------------------------------------
61............................................................        95
62............................................................        98
63............................................................       100
64............................................................       103
65............................................................       106
66............................................................       109
67............................................................       112
68............................................................       116
69............................................................       119
70............................................................       122
71............................................................       126
72............................................................       129
73............................................................       133
74............................................................       136
75............................................................       139
76............................................................       143
------------------------------------------------------------------------
\1\ Height measured without shoes.


                             Table IV--Women
------------------------------------------------------------------------
                                                                 Weight
                      Height (inches) \1\                       (pounds)
------------------------------------------------------------------------
58............................................................        82
59............................................................        84
60............................................................        87
61............................................................        89

[[Page 336]]

 
62............................................................        92
63............................................................        94
64............................................................        97
65............................................................       100
66............................................................       104
67............................................................       107
68............................................................       111
69............................................................       114
70............................................................       117
71............................................................       121
72............................................................       124
73............................................................       128
------------------------------------------------------------------------
\1\ Height measured without shoes.

                       6.00 Genito-Urinary System

    A. Determination of the presence of chronic renal disease will be 
based upon (1) a history, physical examination, and laboratory evidence 
of renal disease, and (2) indications of its progressive nature or 
laboratory evidence of deterioration of renal function.
    B. Nephrotic Syndrome. The medical evidence establishing the 
clinical diagnosis must include the description of extent of tissue 
edema, including pretibial, periorbital, or presacral edema. The 
presence of ascites, pleural effusion, pericardial effusion, and 
hydroarthrosis should be described if present. Results of pertinent 
laboratory tests must be provided. If a renal biopsy has been performed, 
the evidence should include a copy of the report of microscopic 
examination of the specimen. Complications such as severe orthostatic 
hypotension, recurrent infections or venous thromboses should be 
evaluated on the basis of resultant impairment.
    C. Hemodialysis, peritioneal dialysis, and kidney transplantation. 
When an individual is undergoing periodic dialysis because of chronic 
renal disease, severity of impairment is reflected by the renal function 
prior to the institution of dialysis.
    The amount of function restored and the time required to effect 
improvement in an individual treated by renal transplant depend upon 
various factors, including adequacy of post transplant renal function, 
incidence and severity of renal infection, occurrence of rejection 
crisis, the presence of systemic complications (anemia, neunropathy, 
etc.) and side effects of corticosteroids or immuno-suppressive agents. 
A convalesent period of at least 12 months is required before it can be 
reasonably determined whether the individual has reached a point of 
stable medical improvement.
    D. Evaluate associated disorders and complications according to the 
appropriate body system Listing.
    6.01 Category of Impairments, Genito-Urinary System
    6.02 Impairment of renal function, due to any chronic renal disease 
expected to last 12 months (e.g., hypertensive vascular disease, chronic 
nephritis, nephrolithiasis, polycystic disease, bilateral 
hydronephrosis, etc.) With:
    A. Chronic hemodialysis or peritoneal dialysis necessitated by 
irreversible renal failure; or
    B. Kidney transplant. Consider under a disability for 12 months 
following surgery; thereafter, evaluate the residual impairment (see 
6.00C); or
    C. Persistent elevation of serum creatine in to 4 mg. per deciliter 
(100 ml.) or greater or reduction of creatinine clearance to 20 ml. per 
minute (29 liters/24 hours) or less, over at least 3 months, with one of 
the following:
    1. Renal osteodystrophy manifested by severe bone pain and 
appropriate radiographic abnormalities (e.g., osteitis fibrosa, marked 
osteoporosis, pathologic fractures); or
    2. A clinical episode of pericarditis; or
    3. Persistent motor or sensory neuropathy; or
    4. Intractable pruritus; or
    5. Persistent fluid overload syndrome resulting in diastolic 
hypertension (110 mm. or above) or signs of vascular congestion; or
    6. Persistent anorexia with recent weight loss and current weight 
meeting the values in 5.08, Table III or IV; or
    7. Persistent hematocrits of 30 percent or less.
    6.06 Nephrotic syndrome, with significant anasarca, persistent for 
at least 3 months despite prescribed therapy. With:
    A. Serum albumin of 3.0 gm. per deciler (100 ml.) or less and 
protenuria of 3.5 gm. per 24 hours or greater; or
    B. Proteinuria of 10.0 gm. per 24 hours or greater.

                     7.00 Hemic and Lymphatic System

    A. Impairment caused by anemia should be evaluated according to the 
ability of the individual to adjust to the reduced oxygen carrying 
capacity of the blood. A gradual reduction in red cell mass, even to 
very low values, is often well tolerated in individuals with a healthy 
cardiovascular system.
    B. Chronicity is indicated by persistence of the condition for at 
least 3 months. The laboratory findings cited must reflect the values 
reported on more than one examination over that 3-month period.
    C. Sickle cell disease refers to a chronic hemolytic anemia 
associated with sickle cell hemoglobin, either homozygous or in 
combination with thalassemia or with another abnormal hemoglobin (such 
as C or F).
    Appropriate hematologic evidence for sickle cell disease, such as 
hemoglobin electrophoresis, must be included. Vasoocclusive or aplastic 
episodes should be documented by description of severity, frequency, and 
duration.

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    Major visceral episodes include meningitis, osteomyelitis, pulmonary 
infections or infarctions, cerebrovascular accidents, congestive heart 
failure, genito-urinary involvement, etc.
    D. Coagulation defects. Chronic inherited coagulation disorders must 
be documented by appropriate laboratory evidence. Prophylactic therapy 
such as with antihemophilic globulin (AHG) concentrate does not in 
itself imply severity.
    E. Acute leukemia. Initial diagnosis of acute leukemia must be based 
upon definitive bone marrow pathologic evidence. Recurrent disease may 
be documented by peripheral blood, bone marrow, or cerebrospinal fluid 
examination. The pathology report must be included.
    The acute phase of chronic myelocytic (granulocytic) leukemia should 
be considered under the requirements for acute leukemia.
    The criteria in 7.11 contain the designated duration of disability 
implicit in the finding of a listed impairment. Following the designated 
time period, a documented diagnosis itself is no longer sufficient to 
establish a marked impairment. The level of any remaining impairment 
must be evaluated on the basis of the medical evidence.
    7.01 Category of Impairments, Hemic and Lymphatic System
    7.02 Chronic anemia (hematocrit persisting at 30 percent or less due 
to any cause). With:
    A. Requirement of one or more blood transfusions on an average of at 
least once every 2 months; or
    B. Evaluation of the resulting impairment under criteria for the 
affected body system.
    7.05 Sickle cell disease, or one of its variants. With:
    A. Documented painful (thrombotic) crises occurring at least three 
times during the 5 months prior to adjudication; or
    B. Requiring extended hospitalization (beyond emergency care) at 
least three times during the 12 months prior to adjudication; or
    C. Chronic, severe anemia with persistence of hematocrit of 26 
percent or less; or
    D. Evaluate the resulting impairment under the criteria for the 
affected body system.
    7.06 Chronic thrombocytopenia (due to any cause) with platelet 
counts repeatedly below 40,000/cubic millimeter. With:
    A. At least one spontaneous hemorrhage, requiring transfusion, 
within 5 months prior to adjudication; or
    B. Intracranial bleeding within 12 months prior to adjudication.
    7.07 Hereditary telangiectasia with hemorrhage requiring transfusion 
at least three times during the 5 months prior to adjudication.
    7.08 Coagulation defects (hemophilia or a similar disorder) with 
spontaneous hemorrhage requiring transfusion at least three times during 
the 5 months prior to adjudication.
    7.09 Polycythemia vera (with erythrocytosis, splenomegaly, and 
leukocytosis or thrombocytosis). Evaluate the resulting impairment under 
the criteria for the affected body system.
    7.10 Myelofibrosis (myeloproliferative syndrome). With:
    A. Chronic anemia. Evaluate according to the criteria of Sec. 7.02; 
or
    B. Documented recurrent systemic bacterial infections occurring at 
least 3 times during the 5 months prior to adjudication; or
    C. Intractable bone pain with radiologic evidence of osteosclerosis.
    7.11 Acute leukemia. Consider under a disability for 2\1/2\ years 
from the time of initial diagnosis.
    7.12 Chronic leukemia. Evaluate according to the criteria of 7.02, 
7.06, 7.10B, 7.11, 7.17, or 13.06A.
    7.13 Lymphomas. Evaluate under the criteria in 13.06A.
    7.14 Macroglobulinemia or heavy chain disease, confirmed by serum or 
urine protein electrophoresis or immunoelectrophoresias. Evaluate 
impairment under criteria for affected body system or under 7.02, 7.06, 
or 7.08.
    7.15 Chronic granulocytopenia (due to any cause). With both A and B:
    A. Absolute neutrophil counts repeatedly below 1,000 cells/cubic 
millimeter; and
    B. Documented recurrent systemic bacterial infections occurring at 
least 3 times during the 5 months prior to adjudication.
    7.16 Myeloma (confirmed by appropriate serum or urine protein 
electrophoresis and bone marrow findings). With:
    A. Radiologic evidence of bony involvement with intractable bone 
pain; or
    B. Evidence of renal impairment as described in 6.02; or
    C. Hypercalcemia with serum calcium levels persistently greater than 
11 mg. per deciliter (100 ml.) for at least 1 month despite prescribed 
therapy; or
    D. Plasma cells (100 or more cells/cubic millimeter) in the 
peripheral blood.
    7.17 Aplastic anemias or hematologic malignancies (excluding acute 
leukemia): With bone marrow transplantation. Consider under a disability 
for 12 months following transplantation; thereafter, evaluate according 
to the primary characteristics of the residual impairment.

                                8.00 Skin

    A. Skin lesions may result in a marked, long-lasting impairment if 
they involve extensive body areas or critical areas such as the hands or 
feet and become resistant to treatment. These lesions must be shown to 
have persisted for a sufficient period of time despite therapy for a 
reasonable presumption to be made that a marked impairment will

[[Page 338]]

last for a continuous period of at least 12 months. The treatment for 
some of the skin diseases listed in this section may require the use of 
high dosage of drugs with possible serious side effects; these side 
effects should be considered in the overall evaluation of impairment.
    B. When skin lesions are associated with systemic disease and where 
that is the predominant problems, evaluation should occur according to 
the criteria in the appropriate section. Disseminated (systemic) lupus 
erythematosus and scleroderma usually involve more than one body system 
and should be evaluated under 10.04 and 10.05. Neoplastic skin lesions 
should be evaluated under 13.00ff. When skin lesions (including burns) 
are associated with contractures or limitation of joint motion, that 
impairment should be evaluated under 1.00ff.
    8.01 Category of Impairments, Skin
    8.02 Exfoliative dermatitis, ichthyosis, ichthyosiform erythroderma. 
With extensive lesions not responding to prescribed treatment.
    8.03 Pemphigus, erythema multiforme bullosum, bullous pemphigoid, 
dermatitis herpetiformis. With extensive lesions not responding to 
prescribed treatment.
    8.04 Deep mycotic infections. With extensive fungating, ulcerating 
lesions not responding to prescribed treatment.
    8.05 Psoriasis, atopic dermatitis, dyshidrosis. With extensive 
lesions, including involvement of the hands or feet which impose a 
marked limitation of function and which are not responding to prescribed 
treatment.
    8.06 Hydradenitis suppurative, acne conglobata. With extensive 
lesions involving the axillae or perineum not responding to prescribed 
medical treatment and not amendable to surgical treatment.

                          9.00 Endocrine System

    Cause of impairment. Impairment is caused by overproduction or 
underproduction of hormones, resulting in structural or functional 
changes in the body. Where involvement of other organ systems has 
occurred as a result of a primary endocrine disorder, these impairments 
should be evaluated according to the criteria under the appropriate 
sections.
    9.01 Category of Impairments, Endocrine
    9.02 Thyroid Disorders. With:
    A. Progressive exophthalmos as measured by exophthalmometry; or
    B. Evaluate the resulting impairment under the criteria for the 
affected body system.
    9.03 Hyperparathyroidism. With:
    A. Generalized decalcification of bone on X-ray study and elevation 
of plasma calcium to 11 mg. per deciliter (100 ml.) or greater; or
    B. A resulting impairment. Evaluate according to the criteria in the 
affected body system.
    9.04 Hypoparathyroidism. With:
    A. Severe recurrent tetany; or
    B. Recurrent generalized convulsions; or
    C. Lenticular cataracts. Evaluate under the criteria in 2.00ff.
    9.05 Neurohypophyseal insufficiency (diabetes insipidus). With urine 
specific gravity of 1.005 or below, persistent for at least 3 months and 
recurrent dehydration.
    9.06 Hyperfunction of the adrenal cortex. Evaluate the resulting 
impairment under the criteria for the affected body system.
    9.08 Diabetes mellitus. With:
    A. Neuropathy demonstrated by significant and persistent 
disorganization of motor function in two extremities resulting in 
sustained disturbance of gross and dexterous movements, or gait and 
station (see 11.00C); or
    B. Acidosis occurring at least on the average of once every 2 months 
documented by appropriate blood chemical tests (pH or pCO2 or 
bicarbonate levels); or
    C. Amputation at, or above, the tarsal region due to diabetic 
necrosis or peripheral arterial disease; or
    D. Retinitis proliferans; evaluate the visual impairment under the 
criteria in 2.02, 2.03, or 2.04.

                       10.00 Multiple Body Systems

    A. The impairments included in this section usually involve more 
than a single body system.
    B. Long-term obesity will usually be associated with disorders in 
the musculoskeletal, cardiovascular, peripheral vascular, and pulmonary 
systems, and the advent of such disorders is the major cause of 
impairment. Extreme obesity results in restrictions imposed by body 
weight and the additional restrictions imposed by disturbances in other 
body systems.
    10.01 Category of Impairments, Multiple Body Systems
    10.02 Hansen's disease (leprosy). As active disease or consider as 
``under a disability'' while hospitalized.
    10.03 Polyarteritis or periarteritis nodosa (established by biopsy). 
With signs of generalized arterial involvement.
    10.04 Disseminated lupus erythematosus (established by a positive LE 
preparation or biopsy or positive ANA test). With frequent exacerbations 
demonstrating involvement of renal or cardiac or pulmonary or 
gastrointestinal or central nervous systems.
    10.05 Scleroderma or progressive systemic sclerosis (the diffuse or 
generalized form). With:
    A. Advanced limitation of use of hands due to sclerodactylia or 
limitation in other joints; or
    B. Significant visceral manifestations of digestive, cardiac, or 
pulmonary impairment.
    10.10 Obesity. Weight equal to or greater than the values specified 
in Table I for

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males, Table II for females (100 percent above desired level) and one of 
the following:
    A. History of pain and limitation of motion in any weight bearing 
joint or spine (on physical examination) associated with X-ray evidence 
of arthritis in a weight bearing joint or spine; or
    B. Hypertension with diastolic blood pressure persistently in excess 
of 100 mm. Hg measured with appropriate size cuff; or
    C. History of congestive heart failure manifested by past evidence 
of vascular congestion such as hepatomegaly, peripheral or pulmonary 
edema; or
    D. Chronic venous insufficiency with superficial varicosities in a 
lower extremity with pain on weight bearing and persistent edema; or
    E. Respiratory disease with total forced vital capacity equal to or 
less than 2.0 L. or a level of hypoxemia at rest equal to or less than 
the values specified in Table III-A or III-B or III-C.

                              Table I--Men
------------------------------------------------------------------------
                                                                Weight
               Height without shoes (inches)                   (pounds)
------------------------------------------------------------------------
60.........................................................          246
61.........................................................          252
62.........................................................          258
63.........................................................          264
64.........................................................          270
65.........................................................          276
66.........................................................          284
67.........................................................          294
68.........................................................          302
69.........................................................          310
70.........................................................          318
71.........................................................          328
72.........................................................          336
73.........................................................          346
74.........................................................          356
75.........................................................          364
76.........................................................          374
------------------------------------------------------------------------


                             Table II--Women
------------------------------------------------------------------------
                                                                Weight
               Height without shoes (inches)                   (pounds)
------------------------------------------------------------------------
56.........................................................          208
57.........................................................          212
58.........................................................          218
59.........................................................          224
60.........................................................          230
61.........................................................          236
62.........................................................          242
63.........................................................          250
64.........................................................          258
65.........................................................          266
66.........................................................          274
67.........................................................          282
68.........................................................          290
69.........................................................          298
70.........................................................          306
71.........................................................          314
72.........................................................          322
------------------------------------------------------------------------


                              Table III--A
     [Applicable at test sites less than 3,000 feet above sea level]
------------------------------------------------------------------------
                                                                Arterial
                                                               PO2 equal
                  Arterial PCO2 (mm. Hg) and                     to or
                                                               less than
                                                                (mm. Hg)
------------------------------------------------------------------------
30 or below..................................................         65
31...........................................................         64
32...........................................................         63
33...........................................................         62
34...........................................................         61
35...........................................................         60
36...........................................................         59
37...........................................................         58
38...........................................................         57
39...........................................................         56
40 or above..................................................         55
------------------------------------------------------------------------


                              Table III--B
   [Applicable at test sites 3,000 through 6,000 feet above sea level]
------------------------------------------------------------------------
                                                                Arterial
                                                                 PO\2\
                                                                equal to
                 Arterial PCO\2\ (mm. Hg) and                   or less
                                                               than (mm.
                                                                  Hg)
------------------------------------------------------------------------
30 or below..................................................         60
31...........................................................         59
32...........................................................         58
33...........................................................         57
34...........................................................         56
35...........................................................         55
36...........................................................         54
37...........................................................         53
38...........................................................         52
39...........................................................         51
40 or above..................................................         50
------------------------------------------------------------------------


                              Table III--C
       [Applicable at test sites over 6,000 feet above sea level]
------------------------------------------------------------------------
                                                                Arterial
                                                                 PO\2\
                                                                equal to
                 Arterial PCO\2\ (mm. Hg) and                   or less
                                                               than (mm.
                                                                  Hg)
------------------------------------------------------------------------
30 or below..................................................         55
31...........................................................         54
32...........................................................         53
33...........................................................         52
34...........................................................         51
35...........................................................         50
36...........................................................         49
37...........................................................         48
38...........................................................         47
39...........................................................         46
40 or above..................................................         45
------------------------------------------------------------------------

                           11.00 Neurological

    A. Convulsive disorders. In convulsive disorders, regardless of 
etiology degree of impairment will be determined according to type, 
frequency, duration, and sequelae of seizures. At least one detailed 
description of a typical seizure is required. Such

[[Page 340]]

descripiton includes the presence or absence of aura, tongue bites, 
sphincter control, injuries associated with the attack, and postictal 
phenomena. The reporting physician should indicate the extent to which 
description of seizures reflects his own observations and the source of 
ancillary information. Testimony of persons other than the claimant is 
essential for description of type and frequency of seizures if 
professional observation is not available.
    Documentation of epilepsy should include at least one 
electronencephalogram (EEG).
    Under 11.02 and 11.03, the criteria can be applied only if the 
impairment persists despite the fact that the individual is following 
prescribed anticonvulsive treatment. Adherence to prescribed 
anticonvulsive therapy can ordinarily be determined from objective 
clinical findings in the report of the physician currently providing 
treatment for epilepsy. Determination of blood levels of phenytoin 
sodium or other anticonvulsive drugs may serve to indicate whether the 
prescribed medication is being taken. When seizures are occurrring at 
the frequency stated in 11.02 or 11.03, evalution of the severity of the 
impairment must include consideration of the serum drug levels. Should 
serum drug levels appear therapeutically inadequate, consideration 
should be given as to whether this is caused by individual idiosyncrasy 
in absorption of metabolism of the drug. Blood drug levels should be 
evaluated in conjunction with all the other evidence to determine the 
extent of compliance. When the reported blood drug levels are low, 
therefore, the information obtained from the treating source should 
include the physician's statement as to why the levels are low and the 
results of any relevant diagnostic studies concerning the blood levels. 
Where adequate seizure control is obtained only with unusually large 
doses, the possibility of impairment resulting from the side effects of 
this medication must be also assessed. Where documentation shows that 
use of alcohol or drugs affects adherence to prescribed therapy or may 
play a part in the precipitation of seizures, this must also be 
considered in the overall assessment of impairment level.
    B. Brain tumors. The diagnosis of malignant brain tumors must be 
established, and the persistence of the tumor should be evaluated, under 
the criteria described in 13.00B and C for neoplastic disease.
    In histologically malignant tumors, the pathological diagnosis alone 
will be the decisive criterion for severity and expected duration (see 
11.05A). For other tumors of the brain, the severity and duration of the 
impairment will be determined on the basis of symptoms, signs, and 
pertinent laboratory findings (11.05B).
    C. Persistent disorganization of motor function in the form of 
paresis or paralysis, tremor or other involuntary movements, ataxia and 
sensory distrubances (any or all of which may be due to cerebral 
cerbellar, brain stem, spinal cord, or peripheral nerve dysfunction) 
which occur singly or in various combination, frequently provides the 
sole or partial basis for decision in cases of neurological impairment. 
The assessment of impairment depends on the degree of interference with 
locomotion and/or interference with the use of fingers, hands, and arms.
    D. In conditions which are episodic in character, such as multiple 
sclerosis or myasthenia gravis, consideration should be given to 
frequency and duration of exacerbations, length of remissions, and 
permanent residuals.
    E. Multiple sclerosis. The major criteria for evaluating impairment 
caused by multiple sclerosis are discussed in listing 11.09. Paragraph A 
provides criteria for evaluating disorganization of motor function and 
gives reference to 11.04B (11.04B then refers to 11.00C). Paragraph B 
provides references to other listings for evaluating visual or mental 
impairments caused by multiple sclerosis. Paragraph C provides criteria 
for evaluating the impairment of individuals who do not have muscle 
weakness or other significant disorganization of motor function at rest, 
but who do develop muscle weakness on activity as a result of fatigue.
    Use of the criteria in 11.09C is dependent upon (1) documenting a 
diagnosis of multiple sclerosis, (2) obtaining a description of fatigue 
considered to be characteristic of multiple sclerosis, and (3) obtaining 
evidence that the system has actually become fatigued. The evaluation of 
the magnitude of the impairment must consider the degree of exercise and 
the severity of the resulting muscle weakness.
    The criteria in 11.09C deals with motor abnormalities which occur on 
activity. If the disorganization of motor function is present at rest, 
paragraph A must be used, taking into account any further increase in 
muscle weakness resulting from activity.
    Sensory abnormalities may occur, particularly involving central 
visual acuity. The decrease in visual acuity may occur after brief 
attempts at activity involving near vision, such as reading. This 
decrease in visual acuity may not persist when the specific activity is 
terminated, as with rest, but is predictably reproduced with resumption 
of the activity. The impairment of central visual acuity in these cases 
should be evaluated under the criteria in listing 2.02, taking into 
account the fact that the decrease in visual acuity will wax and wane.
    Clarification of the evidence regarding central nervous system 
dysfunction responsible for the symptoms may require supporting 
technical evidence of functional impairment such as evoked response 
tests during exercise.

[[Page 341]]

    11.01 Category of Impairments, Neurological
    11.02 Epilepsy--major motor seizures, (grand mal or psychomotor), 
documented by EEG and by detailed description of a typical seizure 
pattern, including all associated phenomena; occurring more frequently 
than once a month, in spite of at least 3 months of prescribed 
treatment. With:
    A. Daytime episodes (loss of consciousness and convulsive seizures) 
or
    B. Nocturnal episodes manifesting residuals which interfere 
significantly with activity during the day.
    11.03 Epilepsy--Minor motor seizures (petit mal, psychomotor, or 
focal), documented by EEG and by detailed description of a typical 
seizure pattern, including all associated phenomena; occurring more 
frequently than once weekly in spite of at least 3 months of prescribed 
treatment. With alteration of awareness or loss of consciousness and 
transient postictal manifestations of unconventional behavior or 
significant interference with activity during the day.
    11.04 Central nervous system vascular accident. With one of the 
following more than 3 months post-vascular accident:
    A. Sensory or motor aphasia resulting in ineffective speech or 
communication; or
    B. Significant and persistent disorganization of motor function in 
two extremities, resulting in sustained disturbance of gross and 
dexterous movements, or gait and station (see 11.00C).
    11.05 Brain tumors.
    A. Malignant gliomas (astrocytoma--grades III and IV, glioblastoma 
multiforme), medulloblastoma, ependymoblastoma, or primary sarcoma; or
    B. Astrocytoma (grades I and II), meningioma, pituitary tumors, 
oligodendroglioma, ependymoma, clivus chordoma, and benign tumors. 
Evaluate under 11.02, 11.03, 11.04 A, or B, or 12.02.
    11.06 Parkinsonian syndrome with the following signs: Significant 
rigidity, brady kinesia, or tremor in two extremities, which, singly or 
in combination, result in sustained disturbance of gross and dexterous 
movements, or gait and station.
    11.07 Cerebral palsy. With:
    A. IQ of 69 or less; or
    B. Abnormal behavior patterns, such as destructiveness or emotional 
instability: or
    C. Significant interference in communication due to speech, hearing, 
or visual defect; or
    D. Disorganization of motor function as described in 11.04B.
    11.08 Spinal cord or nerve root lesions, due to any cause with 
disorganization of motor function as described in 11.04B.
    11.09 Multiple sclerosis. With:
    A. Disorganization of motor function as described in 11.04B; or
    B. Visual or mental impairment as described under the criteria in 
2.02, 2.03, 2.04, or 12.02; or
    C. Significant, reproducible fatigue of motor function with 
substantial muscle weakness on repetitive activity, demonstrated on 
physical examination, resulting from neurological dysfunction in areas 
of the central nervous system known to be pathologically involved by the 
multiple sclerosis process.
    11.10 Amyotrophic lateral sclerosis. With:
    A. Significant bulbar signs; or
    B. Disorganization of motor function as described in 11.04B.
    11.11 Anterior poliomyelitis. With:
    A. Persistent difficulty with swallowing or breathing; or
    B. Unintelligible speech; or
    C. Disorganization of motor function as described in 11.04B.
    11.12 Myasthenia gravis. With:
    A. Significant difficulty with speaking, swallowing, or breathing 
while on prescribed therapy; or
    B. Significant motor weakness of muscles of extremities on 
repetitive activity against resistance while on prescribed therapy.
    11.13 Muscular dystrophy with disorganization of motor function as 
described in 11.04B.
    11.14 Peripheral neuropathies.
    With disorganization of motor function as described in 11.04B, in 
spite of prescribed treatment.
    11.15 Tabes dorsalis.
    With:
    A. Tabetic crises occurring more frequently than once monthly; or
    B. Unsteady, broad-based or ataxic gait causing significant 
restriction of mobility substantiated by appropriate posterior column 
signs.
    11.16 Subacute combined cord degeneration (pernicious anemia) with 
disorganization of motor function as decribed in 11.04B or 11.15B, not 
significantly improved by prescribed treatment.
    11.17 Degenerative disease not elsewhere such as Huntington's 
chorea, Friedreich's ataxia, and spino-cerebellar degeneration. With:
    A. Disorganization of motor function as described in 11.04B or 
11.15B; or
    B. Chronic brain syndrome. Evaluate under 12.02.
    11.18 Cerebral trauma:
    Evaluate under the provisions of 11.02, 11.03, 11.04 and 12.02, as 
applicable.
    11.19 Syringomyelia.
    With:
    A. Significant bulbar signs; or
    B. Disorganization of motor function as described in 11.04B.

[[Page 342]]

                         12.00 Mental Disorders

    The mental disorders listings in 12.00 of the Listing of Impairments 
will no longer be effective on August 28, 1991, unless extended by the 
Board or revised and promulgated again.
    A. Introduction: The evaluation of disability on the basis of mental 
disorders requires the documentation of a medically determinable 
impairment(s) as well as consideration of the degree of limitation such 
impairment(s) may impose on the individual's ability to work and whether 
these limitations have lasted or are expected to last for a continuous 
period of at least 12 months. The listings for mental disorders are 
arranged in eight diagnostic categories: organic mental disorders 
(12.02); schizophrenic, paranoid and other psychotic disorders (12.03); 
affective disorders (12.04); mental retardation and autism (12.05); 
anxiety related disorders (12.06); somatoform disorders (12.07); 
personality disorders (12.08); and substance addiction disorders 
(12.09). Each diagnostic group, except listings 12.05 and 12.09, 
consists of a set of clinical findings (paragraph A criteria), one or 
more of which must be met, and which, if met, lead to a test of 
functional restrictions (paragraph B criteria), two or three of which 
must also be met. There are additional considerations (paragraph C 
criteria) in listings 12.03 and 12.06, discussed therein.
    The purpose of including the criteria in paragraph A of the listings 
for mental disorders is to medically substantiate the presence of a 
mental disorder. Specific signs and symptoms under any of the listings 
12.02 through 12.09 cannot be considered in isolation from the 
description of the mental disorder contained at the beginning of each 
listing category. Impairments should be analyzed or reviewed under the 
mental category(ies) which is supported by the individual's clinical 
findings.
    The purpose of including the criteria in paragraphs B and C of the 
listings for mental disorders is to describe those functional 
limitations associated with mental disorders which are incompatible with 
the ability to work. The restrictions listed in paragraphs B and C must 
be the result of the mental disorder which is manifested by the clinical 
findings outlined in paragraph A. The criteria included in paragraphs B 
and C of the listings for mental disorders have been chosen because they 
represent functional areas deemed essential to work. An individual who 
is severely limited in these areas as the result of an impairment 
identified in paragraph A is presumed to be unable to work.
    The structure of the listing for substance addiction disorders, 
listing 12.09, is different from that for the other mental disorder 
listings. Listing 12.09 is structured as a reference listing; that is, 
it will only serve to indicate which of the other listed mental or 
physical impairments must be used to evaluate the behavioral or physical 
changes resulting from regular use of addictive substances.
    The listings for mental disorders are so constructed that an 
individual meeting or equaling the criteria could not reasonably be 
expected to engage in gainful work activity.
    Individuals who have an impairment with a level of severity which 
does not meet the criteria of the listings for mental disorders may or 
may not have the residual functional capacity (RFC) which would enable 
them to engage in substantial gainful work activity. The determination 
of mental RFC is crucial to the evaluation of an individual's capacity 
to engage in substantial gainful work activity when the criteria of the 
listings for mental disorders are not met or equaled but the impairment 
is nevertheless severe.
    RFC may be defined as a multidimensional description of the work-
related abilities which an individual retains in spite of medical 
impairments. RFC complements the criteria in paragraphs B and C of the 
listings for mental disorders by requiring consideration of an expanded 
list of work-related capacities which may be impaired by mental disorder 
when the impairment is severe but does not meet or equal a listed mental 
disorder. (While RFC may be applicable in most claims, the law specifies 
that it does not apply to the following special claims categories: 
disabled title XVI children below age 18, widows, widowers and surviving 
divorced wives. The impairment(s) of these categories must meet or equal 
a listed impairment for the individual to be eligible for benefits based 
on disability.)
    B. Need for Medical Evidence: The existence of a medically 
determinable impairment of the required duration must be established by 
medical evidence consisting of clinical signs, symptoms and/or 
laboratory or psychological test findings. These findings may be 
intermittent or persistent depending on the nature of the disorder. 
Clinical signs are medically demonstrable phenomena which reflect 
specific abnormalities of behavior, affect, thought, memory, 
orientation, or contact with reality. These signs are typically assessed 
by a psychiatrist or psychologist and/or documented by psychological 
tests. Symptoms are complaints presented by the individual. Signs and 
symptoms generally cluster together to constitute recognizable clinical 
syndromes (mental disorders). Both symptoms and signs which are part of 
any diagnosed mental disorder must be considered in evaluating severity.
    C. Assessment of Severity: For mental disorders, severity is 
assessed in terms of the functional limitations imposed by the 
impairment. Functional limitations are assessed using the criteria in 
paragraph B of

[[Page 343]]

the listings for mental disorders (descriptions of restrictions of 
activities of daily living; social functioning; concentration, 
persistence, or pace; and ability to tolerate increased mental demands 
associated with competitive work). Where ``marked'' is used as a 
standard for measuring the degree of limitation, it means more than 
moderate, but less than extreme. A marked limitation may arise when 
several activities or functions are impaired or even when only one is 
impaired, so long as the degree of limitation is such as to seriously 
interfere with the ability to function independently, appropriately and 
effectively. Four areas are considered.
    1. Activities of daily living include adaptive activities such as 
cleaning, shopping, cooking, taking public transportation, paying bills, 
maintaining a residence, caring appropriately for one's grooming and 
hygiene, using telephones and directories, using a post office, etc. In 
the context of the individual's overall situation, the quality of these 
activities is judged by their independence, appropriateness and 
effectiveness. It is necessary to define the extent to which the 
individual is capable of initiating and participating in activities 
independent of supervision or direction.
    ``Marked'' is not the number of activities which are restricted but 
the overall degree of restriction or combination of restrictions which 
must be judged. For example, a person who is able to cook and clean 
might still have marked restrictions of daily activities if the person 
were too fearful to leave the immediate environment of home and 
neighborhood, hampering the person's ability to obtain treatment or to 
travel away from the immediate living environment.
    2. Social functioning refers to an individual's capacity to interact 
appropriately and communicate effectively with other individuals. Social 
functioning includes the ability to get along with others, e.g., family 
members, friends, neighbors, grocery clerks, landlords, bus drivers, 
etc. Impaired social functioning may be demonstrated by a history of 
altercations, evictions, firings, fear of strangers, avoidance of 
interpersonal relationships, social isolation, etc. Strength in social 
functioning may be documented by an individual's ability to initiate 
social contacts with others, communicate clearly with others, interact 
and actively participate in group activities, etc. Cooperative 
behaviors, consideration for others, awareness of others' feelings, and 
social maturity also need to be considered. Social functioning in work 
situations may involve interactions with the public, responding 
appropriately to persons in authority, e.g., supervisors, or cooperative 
behaviors involving coworkers.
    ``Marked'' is not the number of areas in which social functioning is 
impaired, but the overall degree of interference in a particular area or 
combination of areas of functioning. For example, a person who is highly 
antagonistic, uncooperative or hostile but is tolerated by local 
storekeepers may nevertheless have marked restrictions in social 
functioning because that behavior is not acceptable in other social 
contexts.
    3. Concentration, persistence and pace refer to the ability to 
sustain focused attention sufficiently long to permit the timely 
completion of tasks commonly found in work settings. In activities of 
daily living, concentration may be reflected in terms of ability to 
complete tasks in everyday household routines. Deficiencies in 
concentration, persistence and pace are best observed in work and work-
like settings. Major impairment in this area can often be assessed 
through direct psychiatric examination and/or psychological testing, 
although mental status examination or psychological test data alone 
should not be used to accurately describe concentration and sustained 
ability to adequately perform work-like tasks. On mental status 
examinations, concentration is assessed by tasks such as having the 
individual subtract serial sevens from 100. In psychological tests of 
intelligence or memory, concentration is assessed through tasks 
requiring short-term memory or through tasks that must be completed 
within established time limits. In work evaluations, concentration, 
persistence, and pace are assessed through such tasks as filing index 
cards, locating telephone numbers, or disassembling and reassembling 
objects. Strengths and weaknesses in areas of concentration can be 
discussed in terms of frequency of errors, time it takes to complete the 
task, and extent to which assistance is required to complete the task.
    4. Deterioration or decompensation in work or work-like settings 
refers to repeated failure to adapt to stressful circumstances which 
cause the individual either to withdraw from that situation or to 
experience exacerbation of signs and symptoms (i.e., decompensation) 
with an accompanying difficulty in maintaining activities of daily 
living, social relationships, and/or maintaining concentration, 
persistence, or pace (i.e., deterioration which may include 
deterioration of adaptive behaviors). Stresses common to the work 
environment include decisions, attendance, schedules, completing tasks, 
interactions with supervisors, interactions with peers, etc.
    D. Documentation: The presence of a mental disorder should be 
documented primarily on the basis of reports from individual providers, 
such as psychiatrists and psychologists, and facilities such as 
hospitals and clinics. Adequate descriptions of functional limitations 
must be obtained from these or other sources which may include programs 
and facilities where the individual has been observed over a 
considerable period of time.

[[Page 344]]

    Information from both medical and nonmedical sources may be used to 
obtain detailed descriptions of the individual's activities of daily 
living; social functioning; concentration, persistance and pace; or 
ability to tolerate increased mental demands (stress). This information 
can be provided by programs such as community mental health centers, day 
care centers, sheltered workshops, etc. It can also be provided by 
others, including family members, who have knowledge of the individual's 
functioning. In some cases descriptions of activities of daily living or 
social functioning given by individuals or treating sources may be 
insufficiently detailed and/or may be in conflict with the clinical 
picture otherwise observed or described in the examinations or reports. 
It is necessary to resolve any inconsistencies or gaps that may exist in 
order to obtain a proper understanding of the individual's functional 
restrictions.
    An individual's level of functioning may vary considerably over 
time. The level of functioning at a specific time may seem relatively 
adequate or, conversely, rather poor. Proper evaluation of the 
impairment must take any variations in level of functioning into account 
in arriving at a determination of impairment severity over time. Thus, 
it is vital to obtain evidence from relevant sources over a sufficiently 
long period prior to the date of adjudication in order to establish the 
individual's impairment severity. This evidence should include treatment 
notes, hospital discharge summaries, and work evaluation or 
rehabilitation progress notes if these are available.
    Some individuals may have attempted to work or may actually have 
worked during the period of time pertinent to the determination of 
disability. This may have been an independent attempt at work, or it may 
have been in conjunction with a community mental health or other 
sheltered program which may have been of either short or long duration. 
Information concerning the individual's behavior during any attempt to 
work and the circumstances surrounding termination of the work effort 
are particularly useful in determining the individual's ability or 
inability to function in a work setting.
    The results of well-standardized psychological tests such as the 
Wechsler Adult Intelligence Scale (WAIS), the Minnesota Multiphasic 
Personality Inventory (MMPI), the Rorschach, and the Thematic 
Apperception Test (TAT), may be useful in establishing the existence of 
a mental disorder. For example, the WAIS is useful in establishing 
mental retardation, and the MMPI, Rorschach, and TAT may provide data 
supporting several other diagnoses. Broad-based neuropsychological 
assessments using, for example, the Halstead-Reitan or the Luria-
Nebraska batteries may be useful in determining brain function 
deficiencies, particularly in cases involving subtle findings such as 
may be seen in traumatic brain injury. In addition, the process of 
taking a standardized test requires concentration, persistence and pace; 
performance on such tests may provide useful data. Test results should, 
therefore, include both the objective data and a narrative description 
of clinical findings. Narrative reports of intellectual assessment 
should include a discussion of whether or not obtained IQ scores are 
considered valid and consistent with the individual's developmental 
history and degree of functional restriction.
    In cases involving impaired intellectual functioning, a standardized 
intelligence test, e.g., the WAIS, should be administered and 
interpreted by a psychologist or psychiatrist qualified by training and 
experience to perform such an evaluation. In special circumstances, 
nonverbal measures, such as the Raven Progressive Matrices, the Leiter 
international scale, or the Arthur adaptation of the Leiter may be 
substituted.
    Identical IQ scores obtained from different tests do not always 
reflect a similar degree of intellectual functioning. In this 
connection, it must be noted that on the WAIS, for example, IQs of 69 
and below are characteristic of approximately the lowest 2 percent of 
the general population. In instances where other tests are administered, 
it would be necessary to convert the IQ to the corresponding percentile 
rank in the general population in order to determine the actual degree 
of impairment reflected by those IQ scores.
    In cases where more than one IQ is customarily derived from the test 
administered, i.e., where verbal, performance, and full-scale IQs are 
provided as on the WAIS, the lowest of these is used in conjunction with 
listing 12.05.
    In cases where the nature of the individual's intellectual 
impairment is such that standard intelligence tests, as described above, 
are precluded, medical reports specifically describing the level of 
intellectual, social, and physical function should be obtained. Actual 
observations by Social Security Administration or State agency 
personnel, reports from educational institutions and information 
furnished by public welfare agencies or other reliable objective sources 
should be considered as additional evidence.
    E. Chronic Mental Impairments: Particular problems are often 
involved in evaluating mental impairments in individuals who have long 
histories of repeated hospitalizations or prolonged outpatient care with 
supportive therapy and medication. Individuals with chronic psychotic 
disorders commonly have their lives structured in such a way as to 
minimize stress and reduce their signs and symptoms. Such individuals 
may be much more impaired for work than their signs and symptoms would 
indicate. The results of a

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single examination may not adequately describe these individuals' 
sustained ability to function. It is, therefore, vital to review all 
pertinent information relative to the individual's condition, especially 
at times of increased stress. It is mandatory to attempt to obtain 
adequate descriptive information from all sources which have treated the 
individual either currently or in the time period relevant to the 
decision.
    F. Effects of Structured Settings: Particularly in cases involving 
chronic mental disorders, overt symptomatology may be controlled or 
attenuated by psychosocial factors such as placement in a hospital, 
board and care facility, or other environment that provides similar 
structure. Highly structured and supportive settings may greatly reduce 
the mental demands placed on an individual. With lowered mental demands, 
overt signs and symptoms of the underlying mental disorder may be 
minimized. At the same time, however, the individual's ability to 
function outside of such a structured and/or supportive setting may not 
have changed. An evaluation of individuals whose symptomatology is 
controlled or attenuated by psychosocial factors must consider the 
ability of the individual to function outside of such highly structured 
settings. (For these reasons the paragraph C criteria were added to 
Listings 12.03 and 12.06.)
    G. Effects of Medication: Attention must be given to the effect of 
medication on the individual's signs, symptoms and ability to function. 
While psychotropic medications may control certain primary 
manifestations of a mental disorder, e.g., hallucinations, such 
treatment may or may not affect the functional limitations imposed by 
the mental disorder. In cases where overt symptomatology is attenuated 
by the psychotropic medications, particular attention must be focused on 
the functional restrictions which may persist. These functional 
restrictions are also to be used as the measure of impairment severity. 
(See the paragraph C criteria in Listings 12.03 and 12.06.)
    Neuroleptics, the medicines used in the treatment of some mental 
illnesses, may cause drowsiness, blunted affect, or other side effects 
involving other body systems. Such side effects must be considered in 
evaluating overall impairment severity. Where adverse effects of 
medications contribute to the impairment severity and the impairment 
does not meet or equal the listings but is nonetheless severe, such 
adverse effects must be considered in the assessment of the mental 
residual functional capacity.
    H. Effect of Treatment: It must be remembered that with adequate 
treatment some individuals suffering with chronic mental disorders not 
only have their symptoms and signs ameliorated but also return to a 
level of function close to that of their premorbid status. Our 
discussion here in 12.00H has been designed to reflect the fact that 
present day treatment of a mentally impaired individual may or may not 
assist in the achievement of an adequate level of adaptation required in 
the work place. (See the paragraph C criteria in Listings 12.03 and 
12.06.)
    I. Technique for Reviewing the Evidence in Mental Disorders Claims 
to Determine Level of Impairment Severity: A special technique has been 
developed to ensure that all evidence needed for the evaluation of 
impairment severity in claims involving mental impairment is obtained, 
considered and properly evaluated. This technique, which is used in 
connection with the sequential evaluation process, is explained in Sec. 
404.1520a and Sec. 416.920a.
    12.01 Category of Impairments-Mental
    12.02 Organic Mental Disorders: Psychological or behaviorial 
abnormalities associated with a dysfunction of the brain. History and 
physical examination or laboratory tests demonstrate the presence of a 
specific organic factor judged to be etiologically related to the 
abnormal mental state and loss of previously acquired functional 
abilities.
    The required level of severity for these disorders is met when the 
requirements in both A and B are satisfied.
    A. Demonstration of a loss of specific cognitive abilities or 
affective changes and the medically documented persistence of at least 
one of the following:
    1. Disorientation to time and place; or
    2. Memory impairment, either short-term (inability to learn new 
information), intermediate, or long-term (inability to remember 
information that was known sometime in the past); or
    3. Perceptual or thinking disturbances (e.g., hallucinations, 
delusions); or
    4. Change in personality; or
    5. Disturbance in mood; or
    6. Emotional lability (e.g., explosive temper outbursts, sudden 
crying, etc.) and impairment in impulse control; or
    7. Loss of measured intellectual ability of at least 15 I.Q. points 
from premorbid levels or overall impairment index clearly within the 
severely impaired range on neuropsychological testing, e.g., the Luria-
Nebraska, Halstead-Reitan, etc.;
AND
    B. Resulting in at least two of the following:
    1. Marked restriction of activities of daily living; or
    2. Marked difficulties in maintaining social functioning; or
    3. Deficiencies of concentration, persistence or pace resulting in 
frequent failure to complete tasks in a timely manner (in work settings 
or elsewhere); or
    4. Repeated episodes of deterioration or decompensation in work or 
work-like settings which cause the individual to withdraw from that 
situation or to experience exacerbation

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of signs and symptoms (which may include deterioration of adaptive 
behaviors).
    12.03 Schizophrenic, Paranoid and Other Psychotic Disorders: 
Characterized by the onset of psychotic features with deterioration from 
a previous level of functioning.
    The required level of severity for these disorders is met when the 
requirements in both A and B are satisfied, or when the requirements in 
C are satisfied.
    A. Medically documented persistence, either continuous or 
intermittent, of one or more of the following:
    1. Delusions or hallucinations; or
    2. Catatonic or other grossly disorganized behavior; or
    3. Incoherence, loosening of associations, illogical thinking, or 
poverty of content of speech if associated with one of the following:
    a. Blunt affect; or
    b. Flat affect; or
    c. Inappropriate affect;

or

    4. Emotional withdrawal and/or isolation;

AND

    B. Resulting in at least two of the following:
    1. Marked restriction of activities of daily living; or
    2. Marked difficulties in maintaining social functioning; or
    3. Deficiencies of concentration, persistence or pace resulting in 
frequent failure to complete tasks in a timely manner (in work settings 
or elsewhere); or
    4. Repeated episodes of deterioration or decompensation in work or 
work-like settings which cause the individual to withdraw from that 
situation or to experience exacerbation of signs and symptoms (which may 
include deterioration of adaptive behaviors);

OR

    C. Medically documented history of one or more episodes of acute 
symptoms, signs and functional limitations which at the time met the 
requirements in A and B of this listing, although these symptoms or 
signs are currently attenuated by medication or psychosocial support, 
and one of the following:
    1. Repeated episodes of deterioration or decompensation in 
situations which cause the individual to withdraw from that situation or 
to experience exacerbation of signs or symptoms (which may include 
deterioration of adaptive behaviors); or
    2. Documented current history of two or more years of inability to 
function outside of a highly supportive living situation.
    12.04 Affective Disorders: Characterized by a disturbance of mood, 
accompanied by a full or partial manic or depressive syndrome. Mood 
refers to a prolonged emotion that colors the whole psychic life; it 
generally involves either depression or elation.
    The required level of severity for these disorders is met when the 
requirements in both A and B are satisfied.
    A. Medically documented persistence, either continuous or 
intermittent, of one of the following:
    1. Depressive syndrome characterized by at least four of the 
following:
    a. Anhedonia or pervasive loss of interest in almost all activites; 
or
    b. Appetite disturbance with change in weight; or
    c. Sleep disturbance; or
    d. Psychomotor agitation or retardation; or
    e. Decreased energy; or
    f. Feelings of guilt or worthlessness; or
    g. Difficulty concentrating or thinking; or
    h. Thoughts of suicide; or
    i. Hallucinations, delusions or paranoid thinking; or
    2. Manic syndrome characterized by at least three of the following:
    a. Hyperactivity; or
    b. Pressure of speech; or
    c. Flight of ideas; or
    d. Inflated self-esteem; or
    e. Decreased need for sleep; or
    f. Easy distractability; or
    g. Involvement in activities that have a high probability of painful 
consequences which are not recognized; or
    h. Hallucinations, delusions or paranoid thinking;

or

    3. Bipolar syndrome with a history of episodic periods manifested by 
the full symptomatic picture of both manic and depressive syndromes (and 
currently characterized by either or both syndromes);

AND

    B. Resulting in at least two of the following:
    1. Marked restriction of activities of daily living; or
    2. Marked difficulties in maintaining social functioning; or
    3. Deficiencies of concentration, persistence or pace resulting in 
frequent failure to complete tasks in a timely manner (in work settings 
or elsewhere); or
    4. Repeated episodes of deterioration or decompensation in work or 
work-like settings which cause the individual to withdraw from that 
situation or to experience exacerbation of signs and symptoms (which may 
include deterioration of adaptive behaviors).
    12.05 Mental Retardation and Autism: Mental retardation refers to a 
significantly subaverage general intellectual functioning with deficits 
in adaptive behavior initially manifested during the developmental 
period (before age 22). (Note: The scores specified below refer to those 
obtained on the WAIS, and are used only for reference purposes. Scores 
obtained on other standardized and

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individually administered tests are acceptable, but the numerical values 
obtained must indicate a similar level of intellectual functioning.) 
Autism is a pervasive developmental disorder characterized by social and 
significant communication deficits originating in the developmental 
period.
    The required level of severity for this disorder is met when the 
requirements in A, B, C, or D are satisfied.
    A. Mental incapacity evidenced by dependence upon others for 
personal needs (e.g., toileting, eating, dressing, or bathing) and 
inability to follow directions, such that the use of standardized 
measures of intellectual functioning is precluded;

OR

    B. A valid verbal, performance, or full scale IQ of 59 or less;

OR

    C. A valid verbal, performance, or full scale IQ of 60 to 69 
inclusive and a physical or other mental impairment imposing additional 
and significant work-related limitation of function;

OR

    D. A valid verbal, performance, or full scale IQ of 60 to 69 
inclusive or in the case of autism gross deficits of social and 
communicative skills with two of the following;
    1. Marked restriction of activities of daily living; or
    2. Marked difficulties in maintaining social functioning; or
    3. Deficiencies of concentration, persistence or pace resulting in 
frequent failure to complete tasks in a timely manner (in work settings 
or eleswhere); or
    4. Repeated episodes of deterioration or decompensation in work or 
work-like settings which cause the individual to withdraw from that 
situation or to experience exacerbation of signs and symptoms (which may 
include deterioration of adaptive behaviors).
    12.06 Anxiety Related Disorders: In these disorders anxiety is 
either the predominant disturbance or it is experienced if the 
individual attempts to master symptoms; for example, confronting the 
dreaded object or situation in a phobic disorder or resisting the 
obsessions or compulsions in obsessive compulsive disorders.
    The required level of severity for these disorders is met when the 
requirements in both A and B are satisfied, or when the requirements in 
both A and C are satisfied.
    A. Medically documented findings of at least one of the following:
    1. Generalized persistent anxiety accompanied by three out of four 
of the following signs or symptoms:
    a. Motor tension; or
    b. Autonomic hyperactivity; or
    c. Apprehensive expectation; or
    d. Vigilance and scanning;

or

    2. A persistent irrational fear of a specific object, activity, or 
situation which results in a compelling desire to avoid the dreaded 
object, activity, or situation; or
    3. Recurrent severe panic attacks manifested by a sudden 
unpredictable onset of intense apprehension, fear, terror and sense of 
impending doom occurring on the average of at least once a week; or
    4. Recurrent obsessions or compulsions which are a source of marked 
distress; or
    5. Recurrent and intrusive recollections of a traumatic experience, 
which are a source of marked distress;

AND

    B. Resulting in at least two of the following:
    1. Marked restriction of activities of daily living; or
    2. Marked difficulties in maintaining social functioning; or
    3. Deficiencies of concentration, persistence or pace resulting in 
frequent failure to complete tasks in a timely manner (in work settings 
or eleswhere); or
    4. Repeated episodes of deterioration or decompensation in work or 
work-like settings which cause the individual to withdraw from that 
situation or to experience exacerbation of signs and symptoms (which may 
include deterioration of adaptive behaviors);

OR

    C. Resulting in complete inability to function independently outside 
the area of one's home.
    12.07 Somatoform Disorders: Physical symptoms for which there are no 
demonstrable organic findings or known physiological mechanisms.
    The required level of severity for these disorders is met when the 
requirements in both A and B are satisfied.
    A. Medically documented by evidence of one of the following:
    1. A history of multiple physical symptoms of several years 
duration, beginning before age 30, that have caused the individual to 
take medicine frequently, see a physician often and alter life patterns 
significantly; or
    2. Persistent nonorganic disturbance of one of the following:
    a. Vision; or
    b. Speech; or
    c. Hearing; or
    d. Use of a limb; or
    e. Movement and its control (e.g., coordination disturbance, 
psychogenic seizures, akinesia, dyskinesia; or
    f. Sensation (e.g., diminished or heightened).
    3. Unrealistic interpretation of physical signs or sensations 
associated with the preoccupation or belief that one has a serious 
disease or injury;

AND


[[Page 348]]


    B. Resulting in three of the following:
    1. Marked restriction of activities of daily living; or
    2. Marked difficulties in maintaining social functioning; or
    3. Deficiencies of concentration, persistence or pace resulting in 
frequent failure to complete tasks in a timely manner (in work settings 
or elsewhere); or
    4. Repeated episodes of deterioration or decompensation in work or 
work-like settings which cause the individual to withdraw from that 
situation or to experience exacerbation of signs and symptoms (which may 
include deterioration of adaptive behavior).
    12.08 Personality Disorders: A personality disorder exists when 
personality traits are inflexible and maladaptive and cause either 
significant impairment in social or occupational functioning or 
subjective distress. Characteristic features are typical of the 
individual's long-term functioning and are not limited to discrete 
episodes of illness.
    The required level of severity for these disorders is met when the 
requirements in both A and B are satisfied.
    A. Deeply ingrained, maladaptive patterns of behavior associated 
with one of the following:
    1. Seclusiveness or autistic thinking; or
    2. Pathologically inappropriate suspiciousness or hostility; or
    3. Oddities of thought, perception, speech and behavior; or
    4. Persistent disturbances of mood or affect; or
    5. Pathological dependence, passivity, or aggressivity; or
    6. Intense and unstable interpersonal relationships and impulsive 
and damaging behavior;

AND

    B. Resulting in three of the following:
    1. Marked restriction of activities of daily living; or
    2. Marked difficulties in maintaining social functioning; or
    3. Deficiencies of concentration, persistence or pace resulting in 
frequent failure to complete tasks in a timely manner (in work settings 
or elsewhere); or
    4. Repeated episodes of deterioration or decompensation in work or 
work-like settings which cause the individual to withdraw from that 
situation or to experience exacerbation of signs and symptoms (which may 
include deterioration of adaptive behaviors).
    12.09 Substance Addiction Disorders: Behavioral changes or physical 
changes associated with the regular use of substances that affect the 
central nervous system.
    The required level of severity for these disorders is met when the 
requirements in any of the following (A through I) are satisfied.
    A. Organic mental disorders. Evaluate under 12.02.
    B. Depressive syndrome. Evaluate under 12.04.
    C. Anxiety disorders. Evaluate under 12.06.
    D. Personality disorders. Evaluate under 12.08.
    E. Peripheral neuropathies. Evaluate under 11.14.
    F. Liver damage. Evaluate under 5.05.
    G. Gastritis. Evaluate under 5.04.
    H. Pancreatitis. Evaluate under 5.08.
    I. Seizures. Evaluate under 11.02 or 11.03.

                  13.00 Neoplastic Diseases, Malignant

    A. Introduction: The determination of the level of impairment 
resulting from malignant tumors is made from a consideration of the site 
of the lesion, the histogenesis of the tumor, the extent of involvement, 
the apparent adequacy and response to therapy (surgery, irradiation, 
hormones, chemotherapy, etc.), and the magnitude of the post therapeutic 
residuals.
    B. Documentation: The diagnosis of malignant tumors should be 
established on the basis of symptoms, signs, and laboratory findings. 
The site of the primary, recurrent, and metastatic lesion must be 
specified in all cases of malignant neoplastic diseases. If an operative 
procedure has been performed, the evidence should include a copy of the 
operative note and the report of the gross and microscopic examination 
of the surgical specimen. If these documents are not obtainable, then 
the summary of hospitalization or a report from the treating physician 
must include details of the findings at surgery and the results of the 
pathologist's gross and microscopic examination of the tissues.
    For those cases in which a disabling impairment was not established 
when therapy was begun but progression of the disease is likely, current 
medical evidence should include a report of a recent examination 
directed especially at local or regional recurrence, soft part or 
skeletal metastases, and significant posttherapeutic residuals.
    C. Evaluation. Usually, when the malignant tumor consists of a local 
lesion with metastases to the regional lymph nodes which apparently has 
been completely excised, imminent recurrence or metastases is not 
anticipated. A number of exceptions are noted in the specific Listings. 
For adjudicative purposes, ``distant metastases'' or ``metastases beyond 
the regional lymph nodes'' refers to metastasis beyond the lines of the 
usual radical en bloc resection.
    Local or regional recurrence after radical surgery or pathological 
evidence of incomplete excision by radical surgery is to be equated with 
unresectable lesions (except for carcinoma of the breast, 13.09C) and, 
for the purposes of our program, may be evaluated as ``inoperable.''
    Local or regional recurrence after incomplete excision of a 
localized and still completely resectable tumor is not to be equated

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with recurrence after radical surgery. In the evaluation of lymphomas, 
the tissue type and site of involvement are not necessarily indicators 
of the degree of impairment.
    When a malignant tumor has metastasized beyond the regional lymph 
nodes, the impairment will usually be found to meet the requirements of 
a specific listing. Exceptions are hormone-dependent tumors, isotope-
sensitive metastases, and metastases from seminoma of the testicles 
which are controlled by definitive therapy.
    When the original tumor and any metastases have apparently 
disappeared and have not been evident for 3 or more years, the 
impairment does not meet the criteria under this body system.
    D. Effects of therapy. Significant posttherapeutic residuals, not 
specifically included in the category of impairments for malignant 
neoplasms, should be evaluated according to the affected body system.
    Where the impairment is not listed in the Listing of Impairments and 
is not medically equivalent to a listed impairment, the impact of any 
residual impairment including that caused by therapy must be considered. 
The therapeutic regimen and consequent adverse response to therapy may 
vary widely; therefore, each case must be considered on an individual 
basis. It is essential to obtain a specific description of the 
therapeutic regimen, including the drugs given, dosage, frequency of 
drug administration, and plans for continued drug administration. It is 
necessary to obtain a description of the complications or any other 
adverse response to therapy such as nausea, vomiting, diarrhea, 
weakness, dermatologic disorders, or reactive mental disorders. Since 
the severity of the adverse effects of anticancer chemotherapy may 
change during the period of drug administration, the decision regarding 
the impact of drug therapy should be based on a sufficient period of 
therapy to permit proper consideration.
    E. Onset. To establish onset of disability prior to the time a 
malignancy is first demonstrated to be inoperable or beyond control by 
other modes of therapy (and prior evidence is nonexistent) requires 
medical judgment based on medically reported symptoms, the type of the 
specific malignancy, its location, and extent of involvement when first 
demonstrated.
    13.01 Category of Impairments, Neoplastic Diseases--Malignant
    13.02 Head and neck (except salivary glands--13.07, thyroid gland--
13.08, and mandible, maxilla, orbit, or temporal fossa--13.11):
    A. Inoperable; or
    B. Not controlled by prescribed therapy; or
    C. Recurrent after radical surgery or irradiation; or
    D. With distant metastases; or
    E. Epidermoid carcinoma occurring in the pyriform sinus or posterior 
third of the tongue.
    13.03 Sarcoma of skin:
    A. Angiosarcoma with metastases to regional lymph nodes or beyond; 
or
    B. Mycosis fungoides with metastases to regional lymph nodes, or 
with visceral involvement.
    13.04 Sarcoma of soft parts: Not controlled by prescribed therapy.
    13.05 Malignant melanoma:
    A. Recurrent after wide excision; or
    B. With metastases to adjacent skin (satellite lesions) or 
elsewhere.
    13.06 Lymph nodes:
    A. Hodgkin's disease or non-Hodgkin's lymphoma with progressive 
disease not controlled by prescribed therapy; or
    B. Metastatic carcinoma in a lymph node (except for epidermoid 
carcinoma in a lymph node in the neck) where the primary site is not 
determined after adequate search; or
    C. Epidermoid carcinoma in a lymph node in the neck not responding 
to prescribed therapy.
    13.07 Salivary glands-- carcinoma or sarcoma with metastases beyond 
the regional lymph nodes.
    13.08 Thyroid gland--carcinoma with metastases beyond the regional 
lymph nodes, not controlled by prescribed therapy.
    13.09 Breast:
    A. Inoperable carcinoma; or
    B. Inflammatory carcinoma; or
    C. Recurrent carcinoma, except local recurrence controlled by 
prescribed therapy; or
    D. Distant metastases from breast carcinoma (bilateral breast 
carcinoma, synchronous or metachronous is usually primary in each 
breast); or
    E. Sarcoma with metastases anywhere.
    13.10 Skeletal system (exclusive of the jaw):
    A. Malignant primary tumors with evidence of metastases and not 
controlled by prescribed therapy; or
    B. Metastatic carcinoma to bone where the primary site is not 
determined after adequate search.
    13.11 Mandible, maxilla, orbit, or temporal fossa:
    A. Sarcoma of any type with metastases; or
    B. Carcinoma of the antrum with extension into the orbit or ethmoid 
or sphenoid sinus, or with regional or distant metastases; or
    C. Orbital tumors with intracranial extension; or
    D. Tumors of the temporal fossa with perforation of skull and 
meningeal involvement; or
    E. Adamantinoma with orbital or intracranial infiltration; or
    F. Tumors of Rathke's pouch with infiltration of the base of the 
skull or metastases.
    13.12 Brain or spinal cord:

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    A. Metastatic carcinoma to brain or spinal cord.
    B. Evaluate other tumors under the criteria described in 11.05 and 
11.08.
    13.13 Lungs.
    A. Unresectable or with incomplete excision; or
    B. Recurrence or metastases after resection; or
    C. Oat cell (small cell) carcinoma; or
    D. Squamous cell carcinoma, with metastases beyond the hilar lymph 
nodes; or
    E. Other histologic types of carcinoma, including undifferentiated 
and mixed-cell types (but excluding oat cell carcinoma, 13.13C, and 
squamous cell carcinoma, 13.13D), with metastases to the hilar lymph 
nodes.
    13.14 Pleura or mediastinum:
    A. Malignant mesothelioma of pleura; or
    B. Malignant tumors, metastatic to pleura; or
    C. Malignant primary tumor of the mediastinum not controlled by 
prescribed therapy.
    13.15 Abdomen:
    A. Generalized carcinomatosis; or
    B. Retroperitoneal cellular sarcoma not controlled by prescribed 
therapy; or
    C. Ascites with demonstrated malignant cells.
    13.16 Esophagus or stomach:
    A. Carcinoma or sarcoma of the esophagus; or
    B. Carcinoma of the stomach with metastases to the regional lymph 
nodes or extension to surrounding structure; or
    C. Sarcoma of stomach not controlled by prescribed therapy; or
    D. Inoperable carcinoma; or
    E. Recurrence or metastases after resection.
    13.17 Small intestine:
    A. Carcinoma, sarcoma, or carcinoid tumor with metastases beyond the 
regional lymph nodes; or
    B. Recurrence of carcinoma, sarcoma, or carcinoid tumor after 
resection; or
    C. Sarcoma, not controlled by prescribed therapy.
    13.18 Large intestine (from ileocecal valve to and including anal 
canal)--carcinoma or sarcoma.
    A. Unresectable; or
    B. Metastases beyond the regional lymph nodes; or
    C. Recurrence or metastases after resection.
    13.19 Liver or gallbladder:
    A. Primary or metastatic malignant tumors of the liver; or
    B. Carcinoma of the gallbladder; or
    C. Carcinoma of the bile ducts.
    13.20 Pancreas:
    A. Carcinoma except islet cell carcinoma; or
    B. Islet cell carcinoma which is unresectable and physiologically 
active.
    13.21 Kidneys, adrenal glands, or ureters--carcinoma:
    A. Unresectable; or
    B. With hematogenous spread to distant sites; or
    C. With metastases to regional lymph nodes.
    13.22 Urinary bladder--carcinoma. With:
    A. Infiltration beyond the bladder wall; or
    B. Metastases to regional lymph nodes; or
    C. Unresectable; or
    D. Recurrence after total cystectomy; or
    E. Evaluate renal impairment after total cystectomy under the 
criteria in 6.02.
    13.23 Prostate gland--carcinoma not controlled by prescribed 
therapy.
    13.24 Testicles:
    A. Choriocarcinoma; or
    B. Other malignant primary tumors with progressive disease not 
controlled by prescribed therapy.
    13.25 Uterus--carcinoma or sarcoma (corpus or cervix).
    A. Inoperable and not controlled by prescribed therapy; or
    B. Recurrent after total hysterectomy; or
    C. Total pelvic exenteration
    13.26 Ovaries--all malignant, primary or recurrent tumors. With:
    A. Ascites with demonstrated malignant cells; or
    B. Unresectable infiltration; or
    C. Unresectable metastases to omentum or elsewhere in the peritoneal 
cavity; or
    D. Distant metastases.
    13.27 Leukemia: Evaluate under the criteria of 7.00ff, Hemic and 
Lymphatic Sytem.
    13.28 Uterine (Fallopian) tubes--carcinoma or sarcoma:
    A. Unresectable, or
    B. Metastases to regional lymph nodes.
    13.29 Penis--carcinoma with metastases to regional lymph nodes.
    13.30 Vulva--carcinoma, with distant metastases.

                                 Part B

    Medical criteria for the evaluation of impairments of children under 
age 18 (where criteria in Part A do not give appropriate consideration 
to the particular disease process in childhood).
Sec.
100.00 Growth Impairment.
101.00 Musculoskeletal System.
102.00 Special Senses and Speech.
103.00 Respiratory System.
104.00 Cardiovascular System.
105.00 Digestive System.
106.00 Genito-Urinary System.
107.00 Hemic and Lymphatic System.
108.00 [Reserved]
109.00 Endocrine System.
110.00 Multiple Body Systems.
111.00 Neurological.
112.00 Mental and Emotional Disorders.
113.00 Neoplastic Diseases, Malignant.

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                        100.00 Growth Impairment

    A. Impairment of growth may be disabling in itself or it may be an 
indicator of the severity of the impairment due to a specific disease 
process.
    Determinations of growth impairment should be based upon the 
comparison of current height with at least three previous 
determinations, including length at birth, if available. Heights (or 
lengths) should be plotted on a standard growth chart, such as derived 
from the National Center for Health Statistics: NCHS Growth Charts. 
Height should be measured without shoes. Body weight corresponding to 
the ages represented by the heights should be furnished. The adult 
heights of the child's natural parents and the heights and ages of 
siblings should also be furnished. This will provide a basis upon which 
to identify those children whose short stature represents a familial 
characteristic rather than a result of disease. This is particularly 
true for adjudication under 100.02B.
    B. Bone age determinations should include a full descriptive report 
of roentgenograms specifically obtained to determine bone age and must 
cite the standardization method used. Where roentgenograms must be 
obtained currently as a basis for adjudication under 100.03, views of 
the left hand and wrist should be ordered. In addition, roentgenograms 
of the knee and ankle should be obtained when cessation of growth is 
being evaluated in an older child at, or past, puberty.
    C. The criteria in this section are applicable until closure of the 
major epiphyses. The cessation of significant increase in height at that 
point would prevent the application of these criteria.
    100.01 Category of Impairments, Growth
    100.02 Growth impairment, considered to be related to an additional 
specific medically determinable impairment, and one of the following:
    A. Fall of greater than 15 percentiles in height which is sustained; 
or
    B. Fall to, or persistence of, height below the third percentile.
    100.03 Growth impairment, not identified as being related to an 
additional, specific medically determinable impairment. With:
    A. Fall of greater than 25 percentiles in height which is sustained; 
and
    B. Bone age greater than two standard deviations (2 SD) below the 
mean for chronological age (see 100.00B).

                      101.00 Musculoskeletal System

    A. Rheumatoid arthritis. Documentation of the diagnosis of juvenile 
rheumatoid arthritis should be made according to an established 
protocol, such as that published by the Arthritis Foundation, Bulletin 
on the Rheumatic Diseases. Vol. 23, 1972-1973 Series, p 712. 
Inflammatory signs include persistent pain, tenderness, erythema, 
swelling, and increased local temperature of a joint.
    B. The measurements of joint motion are based on the technique for 
measurements described in the ``Joint Method of Measuring and 
Recording.'' published by the American Academy of Orthopedic Surgeons in 
1965, or ``The Extremities and Back'' in Guides to the Evaluation of 
Permanent Impairment, Chicago, American Medical Association, 1971, 
Chapter 1, pp. 1-48.
    C. Degenerative arthritis may be the end stage of many skeletal 
diseases and conditions, such as traumatic arthritis, collagen disorders 
septic arthritis, congenital dislocation of the hip, aseptic necrosis of 
the hip, slipped capital femoral epiphyses, skeletal dysplasias, etc.
    101.01 Category of Impairments, Musculoskeletal
    101.02 Juvenile rheumatoid arthritis. With:
    A. Persistence or recurrence of joint inflammation despite three 
months of medical treatment and one of the following:
    1. Limitation of motion of two major joints of 50 percent or 
greater; or
    2. Fixed deformity of two major weight-bearing joints of 30 degrees 
or more; or
    3. Radiographic changes of joint narrowing, erosion, or subluxation; 
or
    4. Persistent or recurrent systemic involvement such as 
iridocyclitis or pericarditis; or
    B. Steroid dependence.
    101.03 Deficit of musculoskeletal function due to deformity or 
musculoskeletal disease and one of the following:
    A. Walking is markedly reduced in speed or distance despite orthotic 
or prosthetic devices; or
    B. Ambulation is possible only with obligatory bilateral upper limb 
assistance (e.g., with walker, crutches); or
    C. Inability to perform age-related personal self-care activities 
involving feeding, dressing, and personal hygiene.
    101.05 Disorders of the spine.
    A. Fracture of vertebra with cord involvement (substantiated by 
appropriate sensory and motor loss); or
    B. Scoliosis (congenital idiopathic or neuromyopathic). With:
    1. Major spinal curve measuring 60 degrees or greater; or
    2. Spinal fusion of six or more levels. Consider under a disability 
for one year from the time of surgery; thereafter evaluate the residual 
impairment; or
    3. FEV (vital capacity) of 50 percent or less of predicted normal 
values for the individual's measured (actual) height; or
    C. Kyphosis or lordosis measuring 90 degrees or greater.
    101.08 Chronic osteomyelitis with persistence or recurrence of 
inflammatory signs or

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drainage for at least 6 months despite prescribed therapy and consistent 
radiographic findings.

                    102.00 Special Senses and Speech

    A. Visual impairments in children. Impairment of central visual 
acuity should be determined with use of the standard Snellen test chart. 
Where this cannot be used, as in very young children, a complete 
description should be provided of the findings using other appropriate 
methods of examination, including a description of the techniques used 
for determining the central visual acuity for distance.
    The accommodative reflex is generally not present in children under 
6 months of age. In premature infants, it may not be present until 6 
months plus the number of months the child is premature. Therefore 
absence of accommodative reflex will be considered as indicating a 
visual impairment only in children above this age (6 months).
    Documentation of a visual disorder must include description of the 
ocular pathology.
    B. Hearing impairments in children. The criteria for hearing 
impairments in children take into account that a lesser impairment in 
hearing which occurs at an early age may result in a severe speech and 
language disorder.
    Improvement by a hearing aid, as predicted by the testing procedure, 
must be demonstrated to be feasible in that child, since younger 
children may be unable to use a hearing aid effectively.
    The type of audiometric testing performed must be described and a 
copy of the results must be included. The pure tone air conduction 
hearing levels in 102.08 are based on American National Standard 
Institute Specifications for Audiometers, S3.6-1969 (ANSI-1969). The 
report should indicate the specifications used to calibrate the 
audiometer.
    The finding of a severe impairment will be based on the average 
hearing levels at 500, 1000, 2000, and 3000 Hertz (Hz) in the better 
ear, and on speech discrimination, as specified in Sec. 102.08.
    102.01 Category of Impairments, Special Sense Organs
    102.02 Impairments of central visual acuity.
    A. Remaining vision in the better eye after best correction is 20/
200 or less; or
    B. For children below 3 years of age at time of adjudication:
    1. Absence of accommodative reflex (see 102.00A for exclusion of 
children under 6 months of age); or
    2. Retrolental fibroplasia with macular scarring or 
neovascularization; or
    3. Bilateral congenital cataracts with visualization of retinal red 
reflex only or when associated with other ocular pathology.
    102.08 Hearing impairments.
    A. For children below 5 years of age at time of adjudication, 
inability to hear air conduction thresholds at an average of 40 decibels 
(db) hearing level or greater in the better ear; or
    B. For children 5 years of age and above at time of adjudication:
    1. Inability to hear air conduction thresholds at an average of 70 
decibels (db) or greater in the better ear; or
    2. Speech discrimination scores at 40 percent or less in the better 
ear; or
    3. Inability to hear air conduction thresholds at an average of 40 
decibels (db) or greater in the better ear, and a speech and language 
disorder which significantly affects the clarity and content of the 
speech and is attributable to the hearing impairment.

                        103.00 Respiratory System

    A. Documentation of pulmonary insufficiency. The reports of 
spirometric studies for evaluation under Table I must be expressed in 
liters (BTPS). The reported FEV1 should represent the largest 
of at least three satisfactory attempts. The appropriately labeled 
spirometric tracing of three FEV maneuvers must be submitted with the 
report, showing distance per second on the abscissa and distance per 
liter on the ordinate. The unit distance for volume on the tracing 
should be at least 15 mm. per liter and the paper speed at least 20 mm. 
per second. The height of the individual without shoes must be recorded.
    The ventilatory function studies should not be performed during or 
soon after an acute episode or exacerbation of a respiratory illness. In 
the presence of acute bronchospasm, or where the FEV1 is less 
than that stated in Table I, the studies should be repeated after the 
administration of a nebulized bronchodilator. If a bronchodilator was 
not used in such instances, the reason should be stated in the report.
    A statement should be made as to the child's ability to understand 
directions and to cooperate in performance of the test, and should 
include an evaluation of the child's effort. When tests cannot be 
performed or completed, the reason (such as a child's young age) should 
be stated in the report.
    B. Cystic fibrosis. This section discusses only the pulmonary 
manifestations of cystic fibrosis. Other manifestations, complications, 
or associated disease must be evaluated under the appropriate section.
    The diagnosis of cystic fibrosis will be based upon appropriate 
history, physical examination, and pertinent laboratory findings. 
Confirmation based upon elevated concentration of sodium or chloride in 
the sweat should be included, with indication of the technique used for 
collection and analysis.
    103.01 Category of Impairments, Respiratory
    103.03 Bronchial asthma. With evidence of progression of the disease 
despite therapy and documented by one of the following:

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    A. Recent, recurrent intense asthmatic attacks requiring parenteral 
medication; or
    B. Persistent prolonged expiration with wheezing between acute 
attacks and radiographic findings of peribronchial disease.
    103.13 Pulmonary manifestations of cystic fibrosis. With:
    A. FEV1 equal to or less than the values specified in 
Table I (see Sec. 103.00A for requirements of ventilatory function 
testing); or
    B. For children where ventilatory function testing cannot be 
performed:
    1. History of dyspnea on mild exertion or chronic frequent 
productive cough; and
    2. Persistent or recurrent abnormal breath sounds, bilateral rales 
or rhonchi; and
    3. Radiographic findings of extensive disease with hyperaeration and 
bilateral peribronchial infiltration.

                                 Table I
------------------------------------------------------------------------
                                                                  FEV1
                                                                equal to
                   Height (in centimeters)                      or less
                                                                than (L,
                                                                 BTPS)
------------------------------------------------------------------------
110 or less..................................................        0.6
120..........................................................        0.7
130..........................................................        0.9
140..........................................................        1.1
150..........................................................        1.3
160..........................................................        1.5
170 or more..................................................        1.6
------------------------------------------------------------------------

                      104.00 Cardiovascular System

    A. General. Evaluation should be based upon history, physical 
findings, and appropriate laboratory data. Reported abnormalities should 
be consistent with the pathologic diagnosis. The actual 
electrocardiographic tracing, or an adequate marked photocopy, must be 
included. Reports of other pertinent studies necessary to substantiate 
the diagnosis or describe the severity of the impairment must also be 
included:
    B. Evaluation of cardiovascular impairment in children requires two 
steps:
    1. The delineation of a specific cardiovascular disturbance, either 
congenital or acquired. This may include arterial or venous disease, 
rhythm disturbance, or disease involving the valves, septa, myocardium 
or pericardium; and
    2. Documentation of the severity of the impairment, with medically 
determinable and consistent cardiovascular signs, symptoms, and 
laboratory data. In cases where impairment characteristics are 
questionably secondary to the cardiovascular disturbance, additional 
documentation of the severity of the impairment (e.g., catheterization 
data, if performed) will be necessary.
    C. Chest roentgenogram (6 ft. PA film) will be considered indicative 
of cardiomegaly if:
    1. The cardiothoracic ratio is over 60 percent at age one year or 
less, or 55 percent at more than one year of age; or
    2. The cardiac size is increased over 15 percent from any prior 
chest oentgenograms; or
    3. Specific chamber or vessel enlargement is documented in 
accordance with established criteria.
    D. Tables I, II, and III below are designed for case adjudication 
and not for diagnostic purposes. The adult criteria may be useful for 
older children and should be used when applicable.
    E. Rheumatic fever, as used in this section assumes diagnosis made 
according to the revised Jones Criteria.
    104.01 Category of Impairments, Cardiovascular
    104.02 Chronic congestive failure. With two or more of the following 
signs:
    A. Tachycardia (see Table I).
    B. Tachypnea (see Table II).
    C. Cardiomegaly on chest roentgenogram (see 104.00C).
    D. Hepatomegaly (more than 2 cm. below the right costal margin in 
the right midclavicular line).
    E. Evidence of pulmonary edema, such as rales or orthopnea.
    F. Dependent edema.
    G. Exercise intolerance manifested as labored respiration on mild 
exertion (e.g., in an infant, feeding).

                      Table I--Tachycardia at Rest
------------------------------------------------------------------------
                                                                Apical
                                                                Heart
                            Age                               (beats per
                                                               minute)
------------------------------------------------------------------------
Under 1 yr.................................................          150
1 through 3 yrs............................................          130
4 through 9 yrs............................................          120
10 through 15 yrs..........................................          110
Over 15 yr.................................................          100
------------------------------------------------------------------------


                       Table II--Tachypnea at Rest
------------------------------------------------------------------------
                                                             Respiratory
                                                              rate over
                            Age                                  (per
                                                               minute)
------------------------------------------------------------------------
Under 1 yr.................................................           40
1 through 5 yrs............................................           35
6 through 9 yrs............................................           30
Over 9 yrs.................................................           25
------------------------------------------------------------------------

    104.03 Hypertensive cardiovascular disease. With persistently 
elevated blood pressure for age (see Table III) and one of the 
following:
    A. Impaired renal function as described under the criteria in 
106.02; or
    B. Cerebrovascular damage as described under the criteria in 111.06; 
or
    C. Congestive heart failure as described under the criteria in 
104.02.

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                   Table III--Elevated Blood Pressure
------------------------------------------------------------------------
                                                              Diastolic
                      Age                         S (over)    (over) in
                                                    mm.          mm.
------------------------------------------------------------------------
Under 6 mo....................................           95           60
6 mo. to 1 yr.................................          110           70
1 through 8 yrs...............................          115           80
9 through 11 yrs..............................          120           80
12 through 15 yrs.............................          130           80
Over 15 yrs...................................          140           80
------------------------------------------------------------------------

    104.04 Cyanotic congenital heart disease.
    With one of the following:
    A. Surgery is limited to palliative measures; or
    B. Characteristic squatting, hemoptysis, syncope, or hypercyanotic 
spells; or
    C. Chronic hematocrit of 55 percent or greater or arterial O\2\ 
saturation of less than 90 percent at rest, or arterial oxygen tension 
of less than 60 Torr at rest.
    104.05 Cardiac arrhythmia, such as persistent or recurrent heart 
block or A-V dissociation (with or without therapy). And one of the 
following:
    A. Cardiac syncope; or
    B. Congestive heart failure as described under the criteria in 
104.02; or
    C. Exercise intolerance with labored respirations on mild exertion 
(e.g., in infants, feeding).
    104.07 Cardiac syncope with at least one documented syncopal episode 
characteristic of specific cardiac disease (e.g., aortic stenosis).
    104.08 Recurrent hemoptysis. Associated with either pulmonary 
hypertension or extensive bronchial collaterals due to documented 
chronic cardiovascular disease.
    104.09 Chronic rheumatic fever or rheumatic heart disease. With:
    A. Persistence of rheumatic fever activity for 6 months or more, 
with significant murmur(s), cardiomegaly (see 104.00C), and other 
abnormal laboratory findings (such as elevated sedimentation rate or 
electrocardiographic findings); or
    B. Congestive heart failure as described under the criteria in 
104.02.

                         105.00 Digestive System

    A. Disorders of the digestive system which result in disability 
usually do so because of interference with nutrition and growth, 
multiple recurrent inflammatory lesions, or other complications of the 
disease. Such lesions or complications usually respond to treatment. To 
constitute a listed impairment, these must be shown to have persisted or 
be expected to persist despite prescribed therapy for a continuous 
period of at least 12 months.
    B. Documentation of gastrointestinal impairments should include 
pertinent operative findings, radiographic studies, endoscopy, and 
biopsy reports. Where a liver biopsy has been performed in chronic liver 
disease, documentation should include the report of the biopsy.
    C. Growth retardation and malnutrition. When the primary disorder of 
the digestive tract has been documented, evaluate resultant malnutrition 
under the criteria described in 105.08. Evaluate resultant growth 
impairment under the criteria described in 100.03. Intestinal disorders, 
including surgical diversions and potentially correctable congenital 
lesions, do not represent a severe impairment if the individual is able 
to maintain adequate nutrition growth and development.
    D. Multiple congenital anomalies. See related criteria, and consider 
as a combination of impairments.
    105.01 Category of Impairments, Digestive
    105.03 Esophageal obstruction, caused by atresia, stricture, or 
stenosis with malnutrition as described under the criteria in 105.08.
    105.05 Chronic liver disease. With one of the following:
    A. Inoperable billiary atresia demonstrated by X-ray or surgery; or
    B. Intractable ascites not attributable to other causes, with serum 
albumin of 3.0 gm./100 ml. or less; or
    C. Esophageal varices (demonstrated by angiography, barium swallow, 
or endoscopy or by prior performance of a specific shunt or plication 
procedure); or
    D. Hepatic coma, documentated by findings from hospital records; or
    E. Hepatic encephalopathy. Evaluate under the criteria in 112.02; or
    F. Chronic active inflammation or necrosis documented by SGOT 
persistently more than 100 units or serum bilirubin of 2.5 mg. percent 
or greater.
    105.07 Chronic inflammatory bowel disease (such as ulcerative 
colitis, regional enteritis), as documented in 105.00. With one of the 
following:
    A. Intestinal manifestations or complications, such as obstruction, 
abscess, or fistula formation which has lasted or is expected to last 12 
months; or
    B. Malnutrition as described under the criteria in 105.08; or
    C. Growth impairment as described under the criteria in 100.03.
    105.08 Malnutrition, due to demonstrable gastrointestinal disease 
causing either a fall of 15 percentiles of weight which persists or the 
persistence of weight which is less than the third percentile (on 
standard growth charts). And one of the following:
    A. Stool fat excretion per 24 hours:
    1. More than 15 percent in infants less than 6 months.
    2. More than 10 percent in infants 6-18 months.
    3. More than 6 percent in children more than 18 months; or

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    B. Persistent hematocrit of 30 percent or less despite prescribed 
therapy; or
    C. Serum carotene of 40 mcg./100 ml. or less; or
    D. Serum albumin of 3.0 gm./100 ml. or less.

                      106.00 Genito-Urinary System

    A. Determination of the presence of chronic renal disease will be 
based upon the following factors:
    1. History, physical examination, and laboratory evidence of renal 
disease.
    2. Indications of its progressive nature or laboratory evidence of 
deterioration of renal function.
    B. Renal transplant. The amount of function restored and the time 
required to effect improvement depend upon various factors including 
adequacy of post transplant renal function, incidence of renal 
infection, occurrence of rejection crisis, presence of systemic 
complications (anemia, neuropathy, etc.) and side effects of 
corticosteroid or immuno-suppressive agents. A period of at least 12 
months is required for the individual to reach a point of stable medical 
improvement.
    C. Evaluate associated disorders and complications according to the 
appropriate body system listing.
    106.01 Category of Impairments, Genito-Urinary
    106.02 Chronic renal disease. With:
    A. Persistent elevation of serum creatinine to 3 mg. per deciliter 
(100 ml.) or greater over at least 3 months; or
    B. Reduction of creatinine clearance to 30 ml. per minute (43 
liters/24 hours) per 1.73 m\2\ of body surface area over at least 3 
months; or
    C. Chronic renal dialysis program for irreversible renal failure; or
    D. Renal transplant. Consider under a disability for 12 months 
following surgery; thereafter, evaluate the residual impairment (see 
106.00B).
    106.06 Nephrotic syndrome, with edema not controlled by prescribed 
therapy. And:
    A. Serum albumin less than 2 gm./100 ml.; or
    B. Proteinuria more than 2.5 gm./1.73m\2\/day.

                    107.00 Hemic and Lymphatic System

    A. Sickle cell disease refers to a chronic hemolytic anemia 
associated with sickle cell hemoglobin, either homozygous or in 
combination with thalassemia or with another abnormal hemoglobin (such 
as C or F).
    Appropriate hematologic evidence for sickle cell disease, such as 
hemoglobin electrophoresis must be included. Vaso-occlusive, hemolytic, 
or aplastic episodes should be documented by description of severity, 
frequency, and duration.
    Disability due to sickle cell disease may be solely the result of a 
severe, persistent anemia or may be due to the combination of chronic 
progressive or episodic manifestations in the presence of a less severe 
anemia.
    Major visceral episodes causing disability include meningitis, 
osteomyelitis, pulmonary infections or infarctions, cerebrovascular 
accidents, congestive heart failure, genitourinary involvement, etc.
    B. Coagulation defects. Chronic inherited coagulation disorders must 
be documented by appropriate laboratory evidence such as abnormal 
thromboplastin generation, coagulation time, or factor assay.
    C. Acute leukemia. Initial diagnosis of acute leukemia must be based 
upon definitive bone marrow pathologic evidence. Recurrent disease may 
be documented by peripheral blood, bone marrow, or cerebrospinal fluid 
examination. The pathology report must be included.
    The designated duration of disability implicit in the finding of a 
listed impairment is contained in 107.11. Following the designated time 
period, a documented diagnosis itself is no longer sufficient to 
establish a severe impairment. The severity of any remaining impairment 
must be evaluated on the basis of the medical evidence.
    107.01 Category of Impairments, Hemic and Lymphatic
    107.03 Hemolytic anemia (due to any cause). Manifested by 
persistence of hematocrit of 26 percent or less despite prescribed 
therapy, and reticulocyte count of 4 percent or greater.
    107.05 Sickle cell disease. With:
    A. Recent, recurrent, severe vaso-occlusive crises (musculoskeletal, 
vertebral, abdominal); or
    B. A major visceral complication in the 12 months prior to 
application; or
    C. A hyperhemolytic or aplastic crisis within 12 months prior to 
application; or
    D. Chronic, severe anemia with persistence of hematocrit of 26 
percent or less; or
    E. Congestive heart failure, cerebrovascular damage, or emotional 
disorder as described under the criteria in 104.02, 111.00ff, or 
112.00ff.
    107.06 Chronic idiopathic thrombocytopenic purpura of childhood with 
purpura and thrombocytopenia of 40,000 platelets/cu. mm. or less despite 
prescribed therapy or recurrent upon withdrawal of treatment.
    107.08 Inherited coagulation disorder. With:
    A. Repeated spontaneous or inappropriate bleeding; or
    B. Hemarthrosis with joint deformity.
    107.11 Acute leukemia. Consider under a disability:
    A. For 2\1/2\ years from the time of initial diagnosis; or
    B. For 2\1/2\ years from the time of recurrence of active disease.

[[Page 356]]

                            108.00 [Reserved]

                         109.00 Endocrine System

    A. Cause of disability. Disability is caused by a disturbance in the 
regulation of the secretion or metabolism of one or more hormones which 
are not adequately controlled by therapy. Such disturbances or 
abnormalities usually respond to treatment. To constitute a listed 
impairment these must be shown to have persisted or be expected to 
persist despite prescribed therapy for a continuous period of at least 
12 months.
    B. Growth. Normal growth is usually a sensitive indicator of health 
as well as of adequate therapy in children. Impairment of growth may be 
disabling in itself or may be an indicator of a severe disorder 
involving the endocrine system or other body systems. Where involvement 
of other organ systems has occurred as a result of a primary endocrine 
disorder, these impairments should be evaluated according to the 
criteria under the appropriate sections.
    C. Documentation. Description of characteristic history, physical 
findings, and diagnostic laboratory data must be included. Results of 
laboratory tests will be considered abnormal if outside the normal range 
or greater than two standard deviations from the mean of the testing 
laboratory. Reports in the file should contain the information provided 
by the testing laboratory as to their normal values for that test.
    D. Hyperfunction of the adrenal cortex. Evidence of growth 
retardation must be documented as described in 100.00. Elevated blood or 
urinary free cortisol levels are not acceptable in lieu of urinary 17-
hydroxycorticosteroid excretion for the diagnosis of adrenal cortical 
hyperfunction.
    E. Adrenal cortical insufficiency. Documentation must include 
persistent low plasma cortisol or low urinary 17-hydroxycorticosteroids 
or 17-ketogenic steroids and evidence of unresponsiveness to ACTH 
stimulation.
    109.01 Category of Impairments, Endrocrine
    109.02 Thyroid Disorders.
    A. Hyperthyroidism (as documented in 109.00C). With clinical 
manifestations despite prescribed therapy, and one of the following:
    1. Elevated serum thyroxine (T4) and either elevated free 
T4 or resin T3 uptake; or
    2. Elevated thyroid uptake of radioiodine; or
    3. Elevated serum triiodothyronine (T3).
    B. Hypothyroidism. With one of the following, despite prescribed 
therapy:
    1. IQ of 69 or less; or
    2. Growth impairment as described under the criteria in 100.02 A and 
B; or
    3. Precocious puberty.
    109.03 Hyperparathyroidism (as documented in 109.00C). With:
    A. Repeated elevated total or ionized serum calcium; or
    B. Elevated serum parathyroid hormone.
    109.04 Hypoparathyroidism or Pseudohypoparathyroidism. With:
    A. Severe recurrent tetany or convulsions which are unresponsive to 
prescribed therapy; or
    B. Growth retardation as described under criteria in 100.02 A and B.
    109.05 Diabetes insipidus, documented by pathologic hypertonic 
saline or water deprivation test. And one of the following:
    A. Intracranial space-occupying lesion, before or after surgery; or
    B. Unresponsiveness to Pitressin; or
    C. Growth retardation as described under the criteria in 100.02 A 
and B; or
    D. Unresponsive hypothalmic thirst center, with chronic or recurrent 
hypernatremia; or
    E. Decreased visual fields attributable to a pituitary lesion.
    109.06 Hyperfunction of the adrenal cortex (Primary or secondary). 
With:
    A. Elevated urinary 17-hyroxycortico-steroids (or 17-ketogenic 
steroids) as documented in 109.00 C and D; and
    B. Unresponsiveness to low-dose dexamethasone suppression.
    109.07 Adrenal cortical insufficiency (as documented in 109.00 C and 
E) with recent, recurrent episodes of circulatory collapse.
    109.08 Juvenile diabetes mellitus (as documented in 109.00C) 
requiring parenteral insulin. And one of the following, despite 
prescribed therapy:
    A. Recent, recurrent hospitalizations with acidosis; or
    B. Recent, recurrent episodes of hypoglycemia; or
    C. Growth retardation as described under the criteria in 100.02 A or 
B; or
    D. Impaired renal function as described under the criteria in 
106.00ff.
    109.09 Iatrogenic hypercorticoid state.
    With chronic glucocorticoid therapy resulting in one of the 
following:
    A. Osteoporosis; or
    B. Growth retardation as described under the criteria in 100.02 A or 
B; or
    C. Diabetes mellitus as described under the criteria in 109.08; or
    D. Myopathy as described under the criteria in 111.06; or
    E. Emotional disorder as described under the criteria in 112.00ff.
    109.10 Pituitary dwarfism (with documented growth hormone 
deficiency). And growth impairment as described under the criteria in 
100.02B.
    109.11 Adrenogenital syndrome. With:
    A. Recent, recurrent self-losing episodes despite prescribed 
therapy; or
    B. Inadequate replacement therapy manifested by accelerated bone age 
and virilization, or
    C. Growth impairment as described under the criteria in 100.02 A or 
B.

[[Page 357]]

    109.12 Hypoglycemia (as documented in 109.00C). With recent, 
recurrent hypoglycemic episodes producing convulsion or coma.
    109.13 Gonadal Dysgenesis (Turner's Syndrome), chromosomally proven. 
Evaluate the resulting impairment under the criteria for the appropriate 
body system.

                      110.00 Multiple Body Systems

    A. Catastrophic congenital abnormalities or disease. This section 
refers only to very serious congenital disorders, diagnosed in the 
newborn or infant child.
    B. Immune deficiency diseases. Documentation of immune deficiency 
disease must be submitted, and may include quantitative immunoglobulins, 
skin tests for delayed hypersensitivity, lymphocyte stimulative tests, 
and measurements of cellular immunity mediators.
    110.01 Category of Impairments, Multiple Body Systems
    110.08 Catastrophic congenital abnormalities or disease. With:
    A. A positive diagnosis (such as anencephaly, trisomy D or E, 
cyclopia, etc.), generally regarded as being incompatible with 
extrauterine life; or
    B. A positive diagnosis (such as cri du chat, Tay-Sachs Disease) 
wherein attainment of the growth and development level of 2 years is not 
expected to occur.
    110.09 Immune deficiency disease.
    A. Hypogammaglobulinemia or dysgammaglobulinemia. With:
    1. Recent, recurrent severe infections; or
    2. A complication such as growth retardation, chronic lung disease, 
collagen disorder, or tumors.
    E. Thymic dysplastic syndromes (such as Swiss, diGeorge).

                           111.00 Neurological

    A. Seizure disorder must be substantiated by at least one detailed 
description of a typical seizure. Report of recent documentation should 
include an electroencephalogram and neurological examination. Sleep EEG 
is preferable, especially with temporal lobe seizures. Frequency of 
attacks and any associated phenomena should also be substantiated.
    Young children may have convulsions in association with febrile 
illnesses. Proper use of 111.02 and 111.03 requires that a seizure 
disorder be established. Although this does not exclude consideration of 
seizures occurring during febrile illnesses, it does require 
documentation of seizures during nonfebrile periods.
    There is an expected delay in control of seizures when treatment is 
started, particularly when changes in the treatment regimen are 
necessary. Therefore, a seizure disorder should not be considered to 
meet the requirements of 111.02 or 111.03 unless it is shown that 
seizures have persisted more than three months after prescribed therapy 
began.
    B. Minor motor seizures. Classical petit mal seizures must be 
documented by characteristic EEG pattern, plus information as to age at 
onset and frequency of clinical seizures. Myoclonic seizures, whether of 
the typical infantile or Lennox-gastaut variety after infancy, must also 
be documented by the characteristic EEG pattern plus information as to 
age at onset and frequency of seizures.
    C. Motor dysfunction. As described in 111.06, motor dysfunction may 
be due to any neurological disorder. It may be due to static or 
progressive conditions involving any area of the nervous system and 
producing any type of neurological impairment. This may include 
weakness, spasticity, lack of coordination, ataxia, tremor, athetosis, 
or sensory loss. Documentation of motor dysfunction must include 
neurologic findings and description of type of neurologic abnormality 
(e.g., spasticity, weakness), as well as a description of the child's 
functional impairment (i.e., what the child is unable to do because of 
the abnormality). Where a diagnosis has been made, evidence should be 
included for substantiation of the diagnosis (e.g., blood chemistries 
and muscle biopsy reports), wherever applicable.
    D. Impairment of communication. The documentation should include a 
description of a recent comprehensive evaluation, including all areas of 
affective and effective communication, performed by a qualified 
professional.
    111.01 Category of Impairment, Neurological
    111.02 Major motor seizure disorder.
    A. Major motor seizures. In a child with an established seizure 
disorder, the occurrence of more than one major motor seizure per month 
despite at least three months of prescribed treatment. With:
    1. Daytime episodes (loss of consciousness and convulsive seizures); 
or
    2. Nocturnal episodes manifesting residuals which interfere with 
activity during the day.
    B. Major motor seizures. In a child with an established seizure 
disorder, the occurrence of a least one major motor seizure in the year 
prior to application despite at least three months of prescribed 
treatment. And one of the following:
    1. IQ of 69 or less; or
    2. Significant interference with communication due to speech, 
hearing, or visual defect; or
    3. Significant emotional disorder; or
    4. Where significant adverse effects of medication interfere with 
major daily activities.
    111.03 Minor motor seizure disorder. In a child with an established 
seizure disorder, the occurrence of more than one minor

[[Page 358]]

motor seizure per week, with alteration of awareness or loss of 
consciousness, despite at least three months of prescribed treatment.
    111.05 Brain tumors. A. Malignant gliomas (astrocytoma--Grades III 
and IV, glioblastoma multiforme), medulloblastoma, ependymoblastoma, 
primary sarcoma or brain stem gliomas; or
    B. Evaluate other brain tumors under the criteria for the resulting 
neurological impairment.
    111.06 Motor dysfunction (due to any neurological disorder). 
Persistent disorganization or deficit of motor function for age 
involving two extremities, which (despite prescribed therapy) interferes 
with age-appropriate major daily activities and results in disruption 
of:
    A. Fine and gross movements; or
    B. Gait and station.
    111.07 Cerebral palsy. With:
    A. Motor dysfunction meeting the requirements of 111.06 or 101.03; 
or
    B. Less severe motor dysfunction (but more than slight) and one of 
the following:
    1. IQ of 69 or less; or
    2. Seizure disorder, with at least one major motor seizure in the 
year prior to application; or
    3. Significant interference with communication due to speech, 
hearing or visual defect; or
    4. Significant emotional disorder.
    111.08 Meningomyelocele (and related disorders). With one of the 
following despite prescribed treatment:
    A. Motor dysfunction meeting the requirements of Sec. 101.03 or 
Sec. 111.06; or
    B. Less severe motor dysfunction (but more than slight), and:
    1. Urinary or fecal incontinence when inappropriate for age; or
    2. IQ of 69 or less; or
    C. Four extremity involvement; or
    D. Noncompensated hydrocephalus producing interference with mental 
or motor developmental progression.
    111.09 Communication impairment, associated with documented 
neurological disorder. And one of the following:
    A. Documented speech deficit which significantly affects the clarity 
and content of the speech; or
    B. Documented comprehension deficit resulting in ineffective verbal 
communication for age; or
    C. Impairment of hearing as described under the criteria in 102.08.

                  112.00 Mental and Emotional Disorders

    A. Introduction. This section is intended primarily to describe 
mental and emotional disorders of young children. The criteria 
describing medically determinable impairments in adults should be used 
where they clearly appear to be more appropriate.
    B. Mental retardation. General. As with any other impairment, the 
necessary evidence consists of symptoms, signs, and laboratory findings 
which provide medically demonstrable evidence of impairment severity. 
Standardized intelligence test results are essential to the adjudication 
of all cases of mental retardation that are not clearly covered under 
the provisions of 112.05A. Developmental milestone criteria may be the 
sole basis for adjudication only in cases where the child's young age 
and/or condition preclude formal standardized testing by a psychologist 
or psychiatrist experienced in testing children.
    Measures of intellectual functioning. Standardized intelligence 
tests, such as the Wechsler Preschool and Primary Scale of Intelligence 
(WPPSI), the Wechsler Intelligence Scale for Children--Revised (WISC-R), 
the Revised Stanford-Binet Scale, and the McCarthey Scales of Children's 
Abilities, should be used wherever possible. Key data such as subtest 
scores should also be included in the report. Tests should be 
administered by a qualified and experienced psychologist or 
psychiatrist, and any discrepancies between formal tests results and the 
child's customary behavior and daily activities should be duly noted and 
resolved.
    Developmental milestone criteria. In the event that a child's young 
age and/or condition preclude formal testing by a psychologist or 
psychiatrist experienced in testing children, a comprehensive evaluation 
covering the full range of developmental activities should be performed. 
This should consist of a detailed account of the child's daily 
activities together with direct observations by a professional person; 
the latter should include indices or manifestations of social, 
intellectual, adaptive, verbal, motor (posture, locomotion, 
manipulation), language, emotional, and self-care development for age. 
The above should then be related by the evaluating or treating physician 
to established developmental norms of the kind found in any widely used 
standard pediatrics text.
    c. Profound combined mental-neurological-musculoskeletal 
impairments. There are children with profound and irreversible brain 
damage resulting in total incapacitation. Such children may meet 
criteria in either neurological, musculoskeletal, and/or mental 
sections; they should be adjudicated under the criteria most completey 
substantiated by the medical evidence submitted. Frequently, the most 
appropriate criteria will be found under the mental impairment section.
    112.01 Category of Impairments, Mental and Emotional
    112.02 Chronic brain syndrome. With arrest of developmental 
progression for at least six months or loss of previously acquired 
abilities.

[[Page 359]]

    112.03 Psychosis of infancy and childhood. Documented by psychiatric 
evaluation and supported, if necessary, by the results of appropriate 
standardized psychological tests and manifested by marked restriction in 
the performance of daily age-appropriate activities; constriction of 
age-appropriate interests; deficiency of age-approrpiate self-care 
skills; and impaired ability to relate to others; together with 
persistence of one (or more) of the following:
    A. Significant withdrawal or detachment; or
    B. Impaired sense of reality; or
    C. Bizarre behavior patterns; or
    D. Strong need for maintenance of sameness, with intense anxiety, 
fear, or anger when change is introduced; or
    E. Panic at threat of separation from parent.
    112.04 Functional nonpsychotic disorders. Documented by psychiatric 
evaluation and supported, if necessary, by the results of appropriate 
standardized psychological tests and manifested by marked restriction in 
the performance of daily age-appropriate activities; constriction of 
age-appropriate interests; deficiency of age-appropriate self-care 
skills; and impaired ability to relate to others; together with 
persistence of one (or more) of the following:
    A. Psychophysiological disorder (e.g., diarrhea, asthma); or
    B. Anxiety; or
    C. Depression; or
    D. Phobic, obsessive, or compulsive behavior; or
    E. Hypochondriasis; or
    F. Hysteria; or
    G. Asocial or antisocial behavior.
    112.05 Mental retardation.
    A. Achievement of only those developmental milestones generally 
acquired by children no more than one-half the child's chronological 
age; or
    B. IQ of 59 or less; or
    C. IQ of 60-69, inclusive, and a physical or other mental impairment 
imposing additional and significant restriction of function or 
developmental progression.

                  113.00 Neoplastic Diseases, Malignant

    A. Introduction. Determination of disability in the growing and 
developing child with a malignant neoplastic disease is based upon the 
combined effects of:
    1. The pathophysiology, histology, and natural history of the tumor; 
and
    2. The effects of the currently employed aggressive multimodal 
therapeutic regimens.
    Combinations of surgery, radiation, and chemotherapy or prolonged 
therapeutic schedules impart significant additional morbidity to the 
child during the period of greatest risk from the tumor itself. This 
period of highest risk and greatest therapeutically-induced morbidity 
defines the limits of disability for most of childhood neoplastic 
disease.
    B. Documentation. The diagnosis of neoplasm should be established on 
the basis of symptoms, signs, and laboratory findings. The site of the 
primary, recurrent, and metastatic lesion must be specified in all cases 
of malignant neoplastic diseases. If an operative procedure has been 
performed, the evidence should include a copy of the operative note and 
the report of the gross and microscopic examination of the surgical 
specimen, along with all pertinent laboratory and X-ray reports. The 
evidence should also include a recent report directed especially at 
describing whether there is evidence of local or regional recurrence, 
soft part or skeletal metastases, and significant post therapeutic 
residuals.
    C. Malignant solid tumors, as listed under 113.03, include the 
histiocytosis syndromes except for solitary eosinophilic granuloma. 
Thus, 113.03 should not be used for evaluating brain tumors (see 111.05) 
or thyroid tumors, which must be evaluated on the basis of whether they 
are controlled by prescribed therapy.
    D. Duration of disability from malignant neoplastic tumors is 
included in 113.02 and 113.03. Following the time periods designated in 
these sections, a documented diagnosis itself is no longer sufficient to 
establish a severe impairment. The severity of a remaining impairment 
must be evaluated on the basis of the medical evidence.
    113.01 Category of Impairments, Neoplastic Diseases--Malignant
    113.02 Lymphoreticular malignant neoplasms.
    A. Hodgkin's disease with progressive disease not controlled by 
prescribed therapy; or
    B. Non-Hodgkin's lymphoma. Consider under a disability:
    1. For 2\1/2\ years from time of initial diagnosis; or
    2. For 2\1/2\ years from time of recurrence of active disease.
    113.03 Malignant solid tumors. Consider under a diability:
    A. For 2 years from the time of initial diagnosis; or
    B. For 2 years from the time of recurrence of active disease.
    113.04 Neuroblastoma. With one of the following:
    A. Extension across the midline; or
    B. Distant metastases; or
    C. Recurrence; or
    D. Onset at age 1 year or older.
    113.05 Retinoblastoma. With one of the following:
    A. Bilateral involvement; or
    B. Metastases; or
    C. Extension beyond the orbit; or
    D. Recurrence.

[[Page 360]]

          Appendix 2 to Part 220--Medical-Vocational Guidelines

Sec.

200.00 Introduction.
201.00 Maximum sustained work capability limited to sedentary work as a 
          result of severe medically determinable impairment(s).
202.00 Maximum sustained work capability limited to light work as a 
          result of severe medically determinable impairment(s).
203.00 Maximum sustained work capability limited to medium work as a 
          result of severe medically determinable impair- ment(s).
204.00 Maximum sustained work capability limited to heavy work (or very 
          heavy work) as a result of severe medically determinable 
          impairment(s).

    200.00 Introduction. (a) The following rules reflect the major 
functional and vocational patterns which are encountered in cases which 
cannot be evaluated on medical considerations alone, where an individual 
with a severe medically determinable physical or mental impairment(s) is 
not engaging in substantial gainful activity and the individual's 
impairment(s) prevents the performance of his or her vocationally 
relevant past work. They also reflect the analysis of the various 
vocational factors (i.e., age, education, and work experience) in 
combination with the individual's residual functional capacity (used to 
determine his or her maximum sustained work capability for sedentary, 
light, medium, heavy, or very heavy work) in evaluating the individual's 
ability to engage in substantial gainful activity in other than his or 
her vocationally relevant past work. Where the findings of fact made 
with respect to a particular individual's vocational factors and 
residual functional capacity coincide with all of the criteria of a 
particular rule, the rule directs a conclusion as to whether the 
individual is or is not disabled. However, each of these findings of 
fact is subject to rebuttal and the individual may present evidence to 
refute such findings. Where any one of the findings of fact does not 
coincide with the corresponding criterion of a rule, the rule does not 
apply in that particular case and, accordingly, does not direct a 
conclusion of disabled or not disabled. In any instance where a rule 
does not apply, full consideration must be given to all of the relevant 
facts of the case in accordance with the definitions and discussions of 
each factor in the appropriate sections of the regulations.
    (b) The existence of jobs in the national economy is reflected in 
the ``Decisions'' shown in the rules; i.e., in promulgating the rules, 
administrative notice has been taken of the numbers of unskilled jobs 
that exist throughout the national economy at the various functional 
levels (sedentary, light, medium, heavy, and very heavy) as supported by 
the ``Dictionary of Occupational Titles'' and the ``Occupational Outlook 
Handbook,'' published by the Department of Labor; the ``County Business 
Patterns'' and ``Census Surveys'' published by the Bureau of the Census; 
and occupational surveys of light and sedentary jobs prepared for the 
Social Security Administration by various State employment agencies. 
Thus, when all factors coincide with the criteria of a rule, the 
existence of such jobs is established. However, the existence of such 
jobs for individuals whose remaining functional capacity or other 
factors do not coincide with the criteria of a rule must be further 
considered in terms of what kinds of jobs or types of work may be either 
additionally indicated or precluded.
    (c) In the application of the rules, the individual's residual 
functional capacity (i.e., the maximum degree to which the individual 
retains the capacity for sustained performance of the physical-mental 
requirements of jobs), age, education, and work experience must first be 
determined. When assessing the person's residual functional capacity, 
the Board considers his or her symptoms (such as pain), signs, and 
laboratory findings together with other evidence the Board obtains.
    (d) The correct disability decision (i.e., on the issue of ability 
to engage in substantial gainful activity) is found by then locating the 
individual's specific vocational profile. If an individual's specific 
profile is not listed within this appendix 2, a conclusion of disabled 
or not disabled is not directed. Thus, for example, an individual's 
ability to engage in substantial gainful work where his or her residual 
functional capacity falls between the ranges of work indicated in the 
rules (e.g., the individual who can perform more than light but less 
than medium work), is decided on the basis of the principles and 
definitions in the regulations, giving consideration to the rules for 
specific case situations in this appendix 2. These rules represent 
various combinations of exertional capabilities, age, education and work 
experience and also provide an overall structure for evaluation of those 
cases in which the judgments as to each factor do not coincide with 
those of any specific rule. Thus, when the necessary judgments have been 
made as to each factor and it is found that no specific rule applies, 
the rules still provide guidance for decisionmaking, such as in cases 
involving combinations of impairments. For example, if strength 
limitations resulting from an individual's impairment(s) considered with 
the judgments made as to the individual's age, education and work 
experience correspond to (or closely approximate) the factors of a 
particular rule, the adjudicator then has a frame of reference for 
considering the jobs or types of work precluded by other,

[[Page 361]]

nonexertional impairments in terms of numbers of jobs remaining for a 
particular individual.
    (e) Since the rules are predicated on an individual's having an 
impairment which manifests itself by limitations in meeting the strength 
requirements of jobs, they may not be fully applicable where the nature 
of an individual's impairment does not result in such limitations, e.g., 
certain mental, sensory, or skin impairments. In addition, some 
impairments may result solely in postural and manipulative limitations 
or environmental restrictions. Environmental restrictions are those 
restrictions which result in inability to tolerate some physical 
feature(s) of work settings that occur in certain industries or types of 
work, e.g., an inability to tolerate dust or fumes.
    (1) In the evaluation of disability where the individual has solely 
a nonexertional type of impairment, determination as to whether 
disability exists shall be based on the principles in the appropriate 
sections of the regulations, giving consideration to the rules for 
specific case situations in this appendix 2. The rules do not direct 
factual conclusions of disabled or not disabled for individuals with 
solely nonexertional types of impairments.
    (2) However, where an individual has an impairment or combination of 
impairments resulting in both strength limitations and nonexertional 
limitations, the rules in this subpart are considered in determining 
first whether a finding of disabled may be possible based on the 
strength limitations alone and, if not, the rule(s) reflecting the 
individual's maximum residual strength capabilities, age, education, and 
work experience provide a framework for consideration of how much the 
individual's work capability is further diminished in terms of any types 
of jobs that would be contraindicated by the nonexertional limitations. 
Also, in these combinations of nonexertional and exertional limitations 
which cannot be wholly determined under the rules in this appendix 2, 
full consideration must be given to all of the relevant facts in the 
case in accordance with the definitions and discussions of each factor 
in the appropriate sections of the regulations, which will provide 
insight into the adjudicative weight to be accorded each factor.
    201.00 Maximum sustained work capability limited to sedentary work 
as a result of severe medically determinable impairment(s). (a) Most 
sedentary occupations fall within the skilled, semi-skilled, 
professional, administrative, technical, clerical, and benchwork 
classifications. Approximately 200 separate unskilled sedentary 
occupations can be identified, each representing numerous jobs in the 
national economy. Approximately 85 percent of these jobs are in the 
machine trades and benchwork occupational categories. These jobs 
(unskilled sedentary occupations) may be performed after a short 
demonstration or within 30 days.
    (b) These unskilled sedentary occupations are standard within the 
industries in which they exist. While sedentary work represents a 
significantly restricted range of work, this range in itself is not so 
prohibitively restricted as to negate work capability for substantial 
gainful activity.
    (c) Vocational adjustment to sedentary work may be expected where 
the individual has special skills or experience relevant to sedentary 
work or where age and basic educational competences provide sufficient 
occupational mobility to adapt to the major segment of unskilled 
sedentary work. Inability to engage in substantial gainful activity 
would be indicated where an individual who is restricted to sedentary 
work because of a severe medically determinable impairment lacks special 
skills or experience relevant to sedentary work, lacks educational 
qualifications relevant to most sedentary work (e.g., has a limited 
education or less) and the individual's age, though not necessarily 
advanced, is a factor which significantly limits vocational 
adaptability.
    (d) The adversity of functional restrictions to sedentary work at 
advanced age (55 and over) for individuals with no relevant past work or 
who can no longer perform vocationally relevant past work and have no 
transferable skills, warrants a finding of disabled in the absence of 
the rare situation where the individual has recently completed education 
which provides a basis for direct entry into skilled sedentary work. 
Advanced age and a history of unskilled work or no work experience would 
ordinarily offset any vocational advantages that might accrue by reason 
of any remote past education, whether it is more or less than limited 
education.
    (e) The presence of acquired skills that are readily transferable to 
a significant range of skilled work within an individual's residual 
functional capacity would ordinarily warrant a finding of ability to 
engage in substantial gainful activity regardless of the adversity of 
age, or whether the individual's formal education is commensurate with 
his or her demonstrated skill level. The acquisition of work skills 
demonstrates the ability to perform work at the level of complexity 
demonstrated by the skill level attained regardless of the individual's 
formal educational attainments.
    (f) In order to find transferability of skills to skilled sedentary 
work for individuals who are of advanced age (55 and over), there must 
be very little, if any, vocational adjustment required in terms of 
tools, work processes, work settings, or the industry.
    (g) Individuals approaching advanced age (age 50-54) may be 
significantly limited in vocational adaptability if they are restricted 
to sedentary work. When such individuals have no past work experience or 
can no

[[Page 362]]

longer perform vocationally relevant past work and have no transferable 
skills, a finding of disabled ordinarily obtains. However, recently 
completed education which provides for direct entry into sedentary work 
will preclude such a finding. For this age group, even a high school 
education or more (ordinarily completed in the remote past) would have 
little impact for effecting a vocational adjustment unless relevant work 
experience reflects use of such education.
    (h) The term ``younger individual'' is used to denote an individual 
age 18 through 49. For those within this group who are age 45-49, age is 
a less positive factor than for those who are age 18-44. Accordingly, 
for such individuals; (1) who are restricted to sedentary work, (2) who 
are unskilled or have no transferable skills, (3) who have no relevant 
past work or who can no longer perform vocationally relevant past work, 
and (4) who are either illiterate or unable to communicate in the 
English language, a finding of disabled is warranted. On the other hand, 
age is a more positive factor for those who are under age 45 and is 
usually not a significant factor in limiting such an individual's 
ability to make a vocational adjustment, even an adjustment to unskilled 
sedentary work, and even where the individual is illiterate or unable to 
communicate in English. However, a finding of disabled is not precluded 
for those individuals under age 45 who do not meet all of the criteria 
of a specific rule and who do not have the ability to perform a full 
range of sedentary work. The following examples are illustrative: 
Example 1: An individual under age 45 with a high school education can 
no longer do past work and is restricted to unskilled sedentary jobs 
because of a severe medically determinable cardiovascular impairment 
(which does not meet or equal the listings in appendix 1). A permanent 
injury of the right hand limits the individual to sedentary jobs which 
do not require bilateral manual dexterity. None of the rules in appendix 
2 are applicable to this particular set of facts, because this 
individual cannot perform the full range of work defined as sedentary. 
Since the inability to perform jobs requiring bilateral manual dexterity 
significantly compromises the only range of work for which the 
individual is otherwise qualified (i.e., sedentary), a finding of 
disabled would be appropriate. Example 2: An illiterate 41 year old 
individual with mild mental retardation (IQ of 78) is restricted to 
unskilled sedentary work and cannot perform vocationally relevant past 
work, which had consisted of unskilled agricultural field work; his or 
her particular characteristics do not specifically meet any of the rules 
in appendix 2, because this individual cannot perform the full range of 
work defined as sedentary. In light of the adverse factors which further 
narrow the range of sedentary work for which this individual is 
qualified, a finding of disabled is appropriate.
    (i) While illiteracy or the inability to communicate in English may 
significantly limit an individual's vocational scope, the primary work 
functions in the bulk of unskilled work relate to working with things 
(rather than with data or people) and in these work functions at the 
unskilled level, literacy or ability to communicate in English has the 
least significance. Similarly the lack of relevant work experience would 
have little significance since the bulk of unskilled jobs require no 
qualifying work experience. Thus, the functional capability for a full 
range of sedentary work represents sufficient numbers of jobs to 
indicate substantial vocational scope for those individuals age 18-44 
even if they are illiterate or unable to communicate in English.

   Table No. 1--Residual Functional Capacity: Maximum Sustained Work Capability Limited to Sedentary Work as a
                              Result of Severe Medically Determinable Impairment(s)
----------------------------------------------------------------------------------------------------------------
                                                                         Previous work
         Rule                    Age                 Education            experience              Decision
----------------------------------------------------------------------------------------------------------------
201.01................  Advanced age.........  Limited or less.....  Unskilled or none...  Disabled.
201.02................  ......do.............  ......do............  Skilled or             Do.
                                                                      semiskilled--skills
                                                                      not transferable
                                                                      \1\.
201.03................  ......do.............  ......do............  Skilled or            Not disabled.
                                                                      semiskilled--skills
                                                                      transferable \1\.
201.04................  ......do.............  High school graduate  Unskilled or none...  Disabled.
                                                or more--does not
                                                provide for direct
                                                entry into skilled
                                                work \2\.
201.05................  ......do.............  High school graduate  ......do............  Not disabled.
                                                or more--provides
                                                for direct entry
                                                into skilled work
                                                \2\.
201.06................  ......do.............  High school graduate  Skilled or            Disabled.
                                                or more--does not     semiskilled--skills
                                                provide for direct    not transferable
                                                entry into skilled    \1\.
                                                work \2\.
201.07................  ......do.............  ......do............  Skilled or            Not disabled.
                                                                      semiskilled--skills
                                                                      transferable \1\.

[[Page 363]]

 
201.08................  ......do.............  High school graduate  Skilled or             Do.
                                                or more--provides     semiskilled--skills
                                                for direct entry      not transferable
                                                into skilled work     \1\.
                                                \2\.
201.09................  Closely approaching    Limited or less.....  Unskilled or none...  Disabled.
                         advanced age.
201.10................  ......do.............  ......do............  Skilled or             Do.
                                                                      semiskilled--skills
                                                                      not transferable.
201.11................  ......do.............  ......do............  Skilled or            Not disabled.
                                                                      semiskilled--skills
                                                                      transferable.
201.12................  ......do.............  High school graduate  Unskilled or none...  Disabled.
                                                or more--does not
                                                provide for direct
                                                entry into skilled
                                                work \3\.
201.13................  ......do.............  High school graduate  ......do............  Not disabled.
                                                or more--provides
                                                for direct entry
                                                into skilled work
                                                \3\.
201.14................  ......do.............  High school graduate  Skilled or            Disabled.
                                                or more--does not     semiskilled--skills
                                                provide for direct    not transferable.
                                                entry into skilled
                                                work \3\.
201.15................  ......do.............  ......do............  Skilled or            Not disabled.
                                                                      semiskilled--skills
                                                                      transferable.
201.16................  ......do.............  High school graduate  Skilled or             Do.
                                                or more--provides     semiskilled--skills
                                                for direct entry      not transferable.
                                                into skilled work
                                                \3\.
201.17................  Younger individual     Illiterate or unable  Unskilled or none...  Disabled.
                         age 45-49.             to communicate in
                                                English.
201.18................  ......do.............  Limited or less--at   ......do............  Not disabled.
                                                least literate and
                                                able to communicate
                                                in English.
201.19................  ......do.............  Limited or less.....  Skilled or             Do.
                                                                      semiskilled--skills
                                                                      not transferable.
201.20................  ......do.............  ......do............  Skilled or             Do.
                                                                      semiskilled--skills
                                                                      transferable.
201.21................  ......do.............  High school graduate  Skilled or             Do.
                                                or more.              semiskilled--skills
                                                                      not transferable.
201.22................  ......do.............  ......do............  Skilled or             Do.
                                                                      semiskilled--skills
                                                                      transferable.
201.23................  Younger individual     Illiterate or unable  Unskilled or none...   Do.\4\
                         age 18-44.             to communicate in
                                                English.
201.24................  ......do.............  Limited or less--at   ......do............   Do.\4\
                                                least literate and
                                                able to communicate
                                                in English.
201.25................  ......do.............  Limited or less.....  Skilled or             Do.\4\
                                                                      semiskilled--skills
                                                                      not transferable.
201.26................  ......do.............  ......do............  Skilled or             Do.\4\
                                                                      semiskilled--skills
                                                                      transferable.
201.27................  ......do.............  High school graduate  Unskilled or none...   Do.\4\
                                                or more.
201.28................  ......do.............  ......do............  Skilled or             Do.\4\
                                                                      semiskilled--skills
                                                                      not transferable.
201.29................  ......do.............  ......do............  Skilled or             Do.\4\
                                                                      semiskilled--skills
                                                                      transferable.
----------------------------------------------------------------------------------------------------------------
\1\ See 201.00(f).
\2\ See 201.00(d).
\3\ See 201.00(g).
\4\ See 201.00(h).

    202.00 Maximum sustained work capability limited to light work as a 
result of severe medically determinable impairment(s). (a) The 
functional capacity to perform a full range of light work includes the 
functional capacity to perform sedentary as well as light work. 
Approximately 1,600 separate sedentary and light unskilled occupations 
can be identified in eight broad occupational categories, each 
occupation representing numerous jobs in the national economy. These 
jobs can be performed after a short demonstration or within 30 days, and 
do not require special skills or experience.
    (b) The functional capacity to perform a wide or full range of light 
work represents substantial work capability compatible with making a 
work adjustment to substantial

[[Page 364]]

numbers of unskilled jobs and, thus, generally provides sufficient 
occupational mobility even for severely impaired individuals who are not 
of advanced age and have sufficient educational competences for 
unskilled work.
    (c) However, for individuals of advanced age who can no longer 
perform vocationally relevant past work and who have a history of 
unskilled work experience, or who have only skills that are not readily 
transferable to a significant range of semi-skilled or skilled work that 
is within the individual's functional capacity, or who have no work 
experience, the limitations in vocational adaptability represented by 
functional restriction to light work warrant a finding of disabled. 
Ordinarily, even a high school education or more which was completed in 
the remote past will have little positive impact on effecting a 
vocational adjustment unless relevant work experience reflects use of 
such education.
    (d) Where the same factors in paragraph (c) of this section 
regarding education and work experience are present, but where age, 
though not advanced, is a factor which significantly limits vocational 
adaptability (i.e., closely approaching advanced age, 50-54) and an 
individual's vocational scope is further significantly limited by 
illiteracy or inability to communicate in English, a finding of disabled 
is warranted.
    (e) The presence of acquired skills that are readily transferable to 
a significant range of semi-skilled or skilled work within an 
individual's residual functional capacity would ordinarily warrant a 
finding of not disabled regardless of the adversity of age, or whether 
the individual's formal education is commensurate with his or her 
demonstrated skill level. The acquisition of work skills demonstrates 
the ability to perform work at the level of complexity demonstrated by 
the skill level attained regardless of the individual's formal 
educational attainments.
    (f) For a finding of transferability of skills to light work for 
individuals of advanced age who are closely approaching retirement age 
(age 60-64), there must be very little, if any, vocational adjustment 
required in terms of tools, work processes, work settings, or the 
industry.
    (g) While illiteracy or the inability to communicate in English may 
significantly limit an individual's vocational scope, the primary work 
functions in the bulk of unskilled work relate to working with things 
(rather than with data or people) and in these work functions at the 
unskilled level, literacy or ability to communicate in English has the 
least significance. Similarly, the lack of relevant work experience 
would have little significance since the bulk of unskilled jobs require 
no qualifying work experience. The capability for light work, which 
includes the ability to do sedentary work, represents the capability for 
substantial numbers of such jobs. This, in turn, represents substantial 
vocational scope for younger individuals (age 18-49) even if illiterate 
or unable to communicate in English.

 Table No. 2--Residual Functional Capacity: Maximum Sustained Work Capability Limited to Light Work as a Result
                                 of Severe Medically Determinable Impairment(s)
----------------------------------------------------------------------------------------------------------------
                                                                         Previous work
         Rule                    Age                 Education            experience              Decision
----------------------------------------------------------------------------------------------------------------
202.01................  Advanced age.........  Limited or less.....  Unskilled or none...  Disabled.
202.02................  ......do.............  ......do............  Skilled or             Do.
                                                                      semiskilled--skills
                                                                      not transferable.
202.03................  ......do.............  ......do............  Skilled or            Not disabled.
                                                                      semiskilled--skills
                                                                      transferable \1\.
202.04................  ......do.............  High school graduate  Unskilled or none...  Disabled.
                                                or more--does not
                                                provide for direct
                                                entry into skilled
                                                work \2\.
202.05................  ......do.............  High school graduate  ......do............  Not disabled.
                                                or more--provides
                                                for direct entry
                                                into skilled work
                                                \2\.
202.06................  ......do.............  High school graduate  Skilled or            Disabled.
                                                or more--does not     semiskilled--skills
                                                provide for direct    not transferable.
                                                entry into skilled
                                                work \2\.
202.07................  ......do.............  ......do............  Skilled or            Not disabled.
                                                                      semiskilled--skills
                                                                      transferable \2\.
202.08................  ......do.............  High school graduate  Skilled or             Do.
                                                or more--provides     semiskilled--skills
                                                for direct entry      not transferable.
                                                into skilled work
                                                \2\.
202.09................  Closely approaching    Illiterate or unable  Unskilled or none...  Disabled.
                         advanced age.          to communicate in
                                                English.
202.10................  ......do.............  Limited or less--At   ......do............  Not disabled.
                                                least literate and
                                                able to communicate
                                                in English.
202.11................  ......do.............  Limited or less.....  Skilled or             Do.
                                                                      semiskilled--skills
                                                                      not transferable.

[[Page 365]]

 
202.12................  ......do.............  ......do............  Skilled or             Do.
                                                                      semiskilled--skills
                                                                      transferable.
202.13................  ......do.............  High school graduate  Unskilled or none...   Do.
                                                or more.
202.14................  ......do.............  ......do............  Skilled or             Do.
                                                                      semiskilled--skills
                                                                      not transferable.
202.15................  ......do.............  ......do............  Skilled or             Do.
                                                                      semiskilled--skills
                                                                      transferable.
202.16................  Younger individual...  Illiterate or unable  Unskilled or none...   Do.
                                                to communicate in
                                                English.
202.17................  ......do.............  Limited or less--At   ......do............   Do.
                                                least literate and
                                                able to communicate
                                                in English.
202.18................  ......do.............  Limited or less.....  Skilled or             Do.
                                                                      semiskilled--skills
                                                                      not transferable.
202.19................  ......do.............  ......do............  Skilled or             Do.
                                                                      semiskilled--skills
                                                                      transferable.
202.20................  ......do.............  High school graduate  Unskilled or none...   Do.
                                                or more.
202.21................  ......do.............  ......do............  Skilled or             Do.
                                                                      semiskilled--skills
                                                                      not transferable.
202.22................  ......do.............  ......do............  Skilled or             Do.
                                                                      semiskilled--skills
                                                                      transferable.
----------------------------------------------------------------------------------------------------------------
\1\ See 202.00(f).
\2\ See 202.00(c).

    203.00 Maximum sustained work capability limited to medium work as a 
result of severe medically determinable impair- ment(s). (a) The 
functional capacity to perform medium work includes the functional 
capacity to perform sedentary, light, and medium work. Approximately 
2,500 separate sedentary, light, and medium occupations can be 
identified, each occupation representing numerous jobs in the national 
economy which do not require skills or previous experience and which can 
be performed after a short demonstration or within 30 days.
    (b) The functional capacity to perform medium work represents such 
substantial work capability at even the unskilled level that a finding 
of disabled is ordinarily not warranted in cases where a severely 
impaired individual retains the functional capacity to perform medium 
work. Even the adversity of advanced age (55 or over) and a work history 
of unskilled work may be offset by the substantial work capability 
represented by the functional capacity to perform medium work. However, 
an individual with a marginal education and long work experience (i.e., 
35 years or more) limited to the performance of arduous unskilled labor, 
who is not working and is no longer able to perform this labor because 
of a severe impairment(s), may still be found disabled even though the 
individual is able to do medium work.
    (c) However, the absence of any relevant work experience becomes a 
more significant adversity for individuals of advanced age (55 and 
over). Accordingly, this factor, in combination with a limited education 
or less, militates against making a vocational adjustment to even this 
substantial range of work and a finding of disabled is appropriate. 
Further, for individuals closely approaching retirement age (60-64) with 
a work history of unskilled work and with marginal education or less, a 
finding of disabled is appropriate.

 Table No. 3--Residual Functional Capacity: Maximum Sustained Work Capability Limited to Medium Work as a Result
                                 of Severe Medically Determinable Impairment(s)
----------------------------------------------------------------------------------------------------------------
                                                                         Previous work
         Rule                    Age                 Education            experience              Decision
----------------------------------------------------------------------------------------------------------------
203.01................  Closely approaching    Marginal or none....  Unskilled or none...  Disabled.
                         retirement age.
203.02................  ......do.............  Limited or less.....  None................   Do.
203.03................  ......do.............  Limited.............  Unskilled...........  Not disabled.
203.04................  ......do.............  Limited or less.....  Skilled or             Do.
                                                                      semiskilled--skills
                                                                      not transferable.
203.05................  ......do.............  ......do............  Skilled or             Do.
                                                                      semiskilled--skills
                                                                      transferable.
203.06................  ......do.............  High school graduate  Unskilled or none...   Do.
                                                or more.
203.07................  ......do.............  High school graduate  Skilled or             Do.
                                                or more--does not     semiskilled--skills
                                                provide for direct    not transferable.
                                                entry into skilled
                                                work.

[[Page 366]]

 
203.08................  ......do.............  ......do............  Skilled or             Do.
                                                                      semiskilled--skills
                                                                      transferable.
203.09................  ......do.............  High school graduate  Skilled or             Do.
                                                or more--provides     semiskilled--skills
                                                for direct entry      not transferable.
                                                into skilled work.
203.10................  Advanced age.........  Limited or less.....  None................  Disabled.
203.11................  ......do.............  ......do............  Unskilled...........  Not disabled.
203.12................  ......do.............  ......do............  Skilled or             Do.
                                                                      semiskilled--skills
                                                                      not transferable.
203.13................  ......do.............  ......do............  Skilled or             Do.
                                                                      semiskilled--skills
                                                                      transferable.
203.14................  ......do.............  High school graduate  Unskilled or none...   Do.
                                                or more.
203.15................  ......do.............  High school graduate  Skilled or             Do.
                                                or more--does not     semiskilled--skills
                                                provide for direct    not transferable.
                                                entry into skilled
                                                work.
203.16................  ......do.............  ......do............  Skilled or             Do.
                                                                      semiskilled--skills
                                                                      transferable.
203.17................  ......do.............  High school graduate  Skilled or             Do.
                                                or more--provides     semiskilled--skills
                                                for direct entry      not transferable.
                                                into skilled work.
203.18................  Closely approaching    Limited or less.....  Unskilled or none...   Do.
                         advanced age.
203.19................  ......do.............  ......do............  Skilled or             Do.
                                                                      semiskilled--skills
                                                                      not transferable.
203.20................  ......do.............  ......do............  Skilled or             Do.
                                                                      semiskilled--skills
                                                                      transferable.
203.21................  ......do.............  High school graduate  Unskilled or none...   Do.
                                                or more.
203.22................  ......do.............  High school graduate  Skilled or             Do.
                                                or more--does not     semiskilled--skills
                                                provide for direct    not transferable.
                                                entry into skilled
                                                work.
203.23................  ......do.............  ......do............  Skilled or             Do.
                                                                      semiskilled--skills
                                                                      transferable.
203.24................  ......do.............  High school graduate  Skilled or             Do.
                                                or more--provides     semiskilled--skills
                                                for direct entry      not transferable.
                                                into skilled work.
203.25................  Younger individual...  Limited or less.....  Unskilled or none...   Do.
203.26................  ......do.............  ......do............  Skilled or             Do.
                                                                      semiskilled--skills
                                                                      not transferable.
203.27................  ......do.............  ......do............  Skilled or             Do.
                                                                      semiskilled--skills
                                                                      transferable.
203.28................  ......do.............  High school graduate  Unskilled or none...   Do.
                                                or more.
203.29................  ......do.............  High school graduate  Skilled or             Do.
                                                or more--does not     semiskilled--skills
                                                provide for direct    not transferable.
                                                entry into skilled
                                                work.
203.30................  ......do.............  ......do............  Skilled or             Do.
                                                                      semiskilled--skills
                                                                      transferable.
203.31................  ......do.............  High school graduate  Skilled or             Do.
                                                or more--provides     semiskilled--skills
                                                for direct entry      not transferable.
                                                into skilled work.
----------------------------------------------------------------------------------------------------------------

    204.00 Maximum sustained work capability limited to heavy work (or 
very heavy work) as a result of severe medically determinable 
impairment(s). The residual functional capacity to perform heavy work or 
very heavy work includes the functional capability for work at the 
lesser functional levels as well, and represents substantial work 
capability for jobs in the national economy at all skill and physical 
demand levels. Individuals who retain the functional capacity to perform 
heavy work (or very heavy work) ordinarily will not have a severe 
impairment or will be able to do their past work--either of which would 
have already provided a basis for a decision of ``not disabled''. 
Environmental restrictions ordinarily would not significantly affect the 
range of work existing in the national economy for individuals with the 
physical capability for heavy work (or very heavy work). Thus an 
impairment which does not preclude heavy work (or very heavy work) would 
not ordinarily be the primary reason for unemployment, and generally is 
sufficient for a finding of not disabled, even though age, education, 
and skill level of prior work experience may be considered adverse.

[56 FR 12980, Mar. 28, 1991, as amended at 68 FR 60294, Oct. 22, 2003]

[[Page 367]]

     Appendix 3 to Part 220--Railroad Retirement Board Occupational 
                          Disability Standards

                             1. Introduction

    1.01 The Board uses this appendix to adjudicate the occupational 
disability claims of employees with medical conditions and job titles 
covered by the Tables in this appendix. The Tables are divided into 
``Body Parts'', with each Body Part further divided by job title. Under 
each job title there is a list of impairments and tests with 
accompanying test results which establish a finding of ``D'' (disabled). 
The use of these Tables is a three-step process. In the first step we 
determine whether the employee's regular railroad occupation is covered 
by the Tables; next we establish the existence of an impairment covered 
by the Tables; finally, we reach a disability determination. If we do 
not find an employee disabled under these Tables, the employee may still 
be found disabled using Independent Case Evaluation (ICE), as explained 
in subpart C of this part.
    1.02 The Cancer Tables are treated in a different way than other 
body systems. Different types of cancer and their treatments have 
different functional impacts. In the Cancer Tables the impact of the 
impairment is seen as being significant or not significant. Therefore, 
these tables contain an ``S'' (significant) which is equivalent to a 
``D'' rating. A detailed explanation of how to use those tables is in 
that section. The steps to use the remaining Tables are explained below:

                      2. Confirming the Impairment

    2.01 Once we determine that the employee's regular railroad 
occupation is covered by the Job Titles in the Tables, we must determine 
the existence of an impairment covered by the Tables. This is done 
through the use of Confirmatory Tests. These tests can include 
information from medical records, surgical or operative reports, or 
specific diagnostic test results. Confirmatory Tests are listed in the 
initial section regarding each Body Part covered in the Tables. If an 
impairment cannot be confirmed because of inconsistent medical 
information, ICE may be required.
    2.02 There are two types of Confirmatory Tests as follows.
    2.03 ``Highly Recommended'' Tests--The designation of a confirmatory 
test as being ``highly recommended'' means that the test is almost 
always performed to confirm the existence of the impairment. For many 
conditions, only one ``highly recommended'' test finding is suggested to 
confirm the impairment. However, there may be times when that test is 
not available or is negative, but other more detailed testing confirms 
the impairment.
    2.04 Example A: To confirm the condition of pulmonary hypertension, 
the Tables under Body Part C., Cardiac, designate as ``highly 
recommended'': an electrocardiogram which indicates definite right 
ventricular hypertrophy. However, the impairment may also be confirmed 
by insertion of a Swan-Ganz catheter into the pulmonary artery and the 
pulmonary artery pressure measured directly.
    2.05 There may be some conditions for which several ``highly 
recommended'' tests are suggested to confirm an impairment. In these 
circumstances, we will use all ``highly recommended'' tests to establish 
the existence of the impairment.
    2.06 Example B: Under Body Part E., Lumbar Sacral Spine, three 
highly recommended medical findings are identified for the diagnosis of 
chronic back pain, not otherwise specified. These findings include:
    A. A history of back pain under medical treatment for at least one 
year, and
    B. A history of back pain unresponsive to therapy for at least one 
year, and
    C. A history of back pain with functional limitations for at least 
one year.
    2.07 All three of these criteria must be satisfied to confirm the 
existence of chronic back pain.
    2.08 Sometimes the employee may have undergone detailed testing 
which is as reliable as one of the ``highly recommended'' tests listed 
in the Tables. In cases where an impairment has not been confirmed by 
one of the designated ``highly recommended'' tests, the impairment may 
still be confirmed by ``recommended'' tests (see below) or by evidence 
acceptable under section 220.27 of this part.
    2.09 Recommended Tests--The designation of a confirmatory test as 
``recommended'' means that the test need not be performed, or be 
positive, to confirm the impairment. However, a positive test provides 
significant support for confirming the impairment. If there are no 
``highly recommended'' tests for confirming the impairment, at least one 
of the ``recommended'' tests should be positive.
    2.10 There are two categories of recommended tests which are 
described below.
    A. Imaging studies--These studies can include MRI, CAT scan, 
myelogram, or plain film x-rays. For conditions where several of these 
imaging studies are identified as ``recommended'' tests, at least one of 
the test results should be positive and meet the confirmatory test 
criteria. For some conditions, such as degenerative disc condition, 
there are several equivalent imaging methods to confirm a diagnosis.
    B. Other tests--This category of tests refers to non-imaging 
studies.
    2.11 If there are no ``highly recommended'' confirmatory tests 
designated to confirm an impairment and the ``recommended'' confirmatory 
tests only include non-imaging

[[Page 368]]

procedures, at least one of these tests should be positive to confirm 
the impairment. The greater the number of tests that are positive, the 
greater the confidence that the correct diagnosis has been established.
    2.12 Example: Under Body Part C., Cardiac, the diagnostic 
confirmatory tests for ventricular ectopy, a cardiac arrhythmia, include 
the following ``recommended'' tests:
    A. Medical record review, i.e., a review of the claimant's medical 
records, or
    B. Holter monitoring, or
    C. Provocative testing producing a definite arrhythmia.
    2.13 In this situation, only one of the ``recommended'' confirmatory 
tests need be positive to confirm the impairment. However, the more 
tests that are positive, the stronger the support for the diagnosis.
    2.14 In no circumstance will the Board require that an invasive test 
be performed to confirm an impairment. Several of the Confirmatory Tests 
which are described in the Tables are invasive and it is not the 
intention of the Board to suggest that these be performed. The inclusion 
of invasive tests in the Tables Confirmatory Tests section is intended 
to help the Board evaluate the significance of findings from such tests 
that may have already been performed and which are part of the submitted 
medical record.
    2.15 If an employee's impairment(s) cannot be confirmed by use of 
the confirmatory tests listed in the Tables, it still may be confirmed 
by medical evidence described in section 220.27 of this part. However, 
if a claimant's impairment(s) cannot be confirmed through use of the 
Tables or under section 220.27, and the medical evidence is complete and 
in concordance, the claimant will be found not disabled.

                       3. Disability Determination

    3.01 Once the Board determines that the employee's regular railroad 
occupation is covered by one of the Job Titles in the Tables and that 
his or her alleged impairment fits into a Body Part covered by the 
Tables and can be confirmed, we examine the results of any of the 
disability tests listed under the impairment. If the results from any of 
these tests indicate a ``D'' finding, the employee is found disabled. If 
none of the test results indicate a ``D'' finding, then the employee's 
claim is evaluated using ICE.
    3.02 Example: A trainman has angina as confirmed by the recommended 
tests under Body Part A: Cardiac--Angina. An echocardiogram shows that 
he has poor ejection fraction <=35%. The employee is rated disabled. If 
none of the results of the listed disability tests match the results 
required for a ``D'' finding, then the employee's claim is evaluated 
under ICE.

                                 Tables

    A. Cancer
    B. Endocrine
    C. Cardiac
    D. Respiratory
    E. Lumbar Sacral Spine
    F. Cervical Spine
    G. Shoulder and Elbow
    H. Hand and Arm
    I. Hip
    J. Knee
    K. Ankle and Foot

                                A. Cancer

                                 Cancer

    Cancer conditions can be viewed as belonging to one of three 
categories.
    Category 1: Significant impact on functional capacity or anticipated 
life span.
    Category 2: Intermediate impact on functional capacity; large 
individual variability.
    Category 3: No significant impact on functional capacity or expected 
life span.
    The factors that are considered in developing these categories 
include the following:

                             Type of Cancer

    The functional impact of different malignancies varies tremendously 
and each malignancy has to be considered on an individual basis.

                          Magnitude of Disease

    The disability standards are based upon the magnitude or extent of 
disease. The extent of disease affects both anticipated life span and 
the functional capacity or work ability of the individual. Localized 
cancer including cancer ``in situ'' can frequently be completely cured 
and not have an impact on functional capacity or life span. In contrast, 
many cancers that have distant or significant regional spread generally 
have a poor prognosis. The magnitude or extent of disease is classified 
into three categories: local, regional and distant.
    The criteria which are used to classify a cancer into one of the 
three categories are based upon the distillation of several staging 
methods into a single system [Miller, et al. (1992). Cancer Statistics 
Review, 1973-1989; NIH Publication No. 92-2789].

                          Effects of Treatment

    Although some types of cancer may be potentially curable with 
radical surgery and/or radiation therapy, the treatment regimen may 
result in a significant impairment that could affect functional capacity 
and ability to work. For example, a person with a laryngeal tumor which 
had spread regionally could be cured by a complete laryngectomy and 
radiotherapy. However, this treatment

[[Page 369]]

could result in a loss of speech and significantly impair the 
individual's communicative skills or ability to use certain types of 
respiratory protective equipment.

                                Prognosis

    Some cancers may have minimal impact on a person's functional 
capacity, but have a very poor prognosis with respect to life 
expectancy. For example, an individual with early stage brain cancer may 
be minimally impaired, but have a poor prognosis and minimal potential 
for surviving longer than two years. Five and two year survival data are 
presented in the Cancer Disability Guideline Table which follows.
    The Cancer Disability Guideline Table provides information 
concerning the probability of survival for five years for local, 
regional, and distant disease for each type of malignancy. In addition, 
two-year survival data are also presented for all disease stages. The 
five-year survival data are based upon data collected from population-
based registries in Connecticut, New Mexico, Utah, Hawaii, Atlanta, 
Detroit, Seattle and the San Francisco and East Bay area between 1983 
and 1987 (Miller, 1992). The two-year data are from a cohort study 
initially diagnosed in 1988.

                               Assessment

    The malignancies are classified as disabling (Category 1), 
potentially disabling (Category 2) and non-disabling (Category 3). 
Category 2 conditions must be evaluated with respect to how the worker's 
tumor affects the worker's ability to perform the job and an assessment 
of his life span.
    Information concerning the potential impact of the malignancy on a 
worker's ability to perform a job is identified in the Functional Impact 
column in the table. All railroad occupations in the Tables are 
considered together. Functional impacts are classified as significant if 
the treatment or sequelae from treatment including radiotherapy, 
chemotherapy and/or surgery is likely to impair the worker from 
performing the job. If the treatment results in a significant impairment 
of another organ system, the individual should be evaluated for 
disability associated with impairment of that body part. For example, a 
person undergoing an amputation for a bone malignancy would have to be 
evaluated for an amputation of that body part. For many cancers, it is 
difficult to make generalizations regarding the level of impairment that 
will occur after the person has initiated or completed treatment. 
Nonsignificant impacts include those that are unlikely to have any 
effect on the individual's work capacity.

----------------------------------------------------------------------------------------------------------------
                                                                                Disability         Functional
           Cancer type                   2-year\1\           5-year\1\          status\2\          impact\3\
----------------------------------------------------------------------------------------------------------------
Brain:
  Local..........................  ....................                 26                  1                  S
  Regional.......................  ....................               27.9                  1                  S
  Distant........................  ....................               23.6                  1                  S
Female Breast:
  Regional.......................  ....................               71.1                  2                  S
  Distant........................  ....................               17.8                  1                  S
Colon:
  Local..........................  ....................                 91                  2                  S
  Regional.......................  ....................               60.1                  2                  S
  Distant........................  ....................                  6                  1                  S
Rectal:
  Local..........................  ....................               84.5                  2                  S
  Regional.......................  ....................               50.7                  2                  S
  Distant........................  ....................                5.3                  1                  S
Esophagus:
  Local..........................  ....................               18.5                  1                  S
  Regional.......................  ....................                5.2                  1                  S
  Distant........................  ....................                1.8                  1                  S
Hodgkin's Disease:\4\
  Stage 1........................  ....................              90-95                  3                  S
  Stage 2........................  ....................                 86                  2                  S
  Stage 3........................  ....................                <80                  2                  S
  Stage 4........................  ....................                <80                  1                  S
Kidney/Renal Pelvis:
  Local..........................  ....................               85.4                  3                  S
  Regional.......................  ....................               56.3                  2                  S
  Distant........................  ....................                  9                  1                  S
Larynx:
  Local..........................  ....................               84.2                  2                  S
  Regional.......................  ....................               52.5                  2                  S
  Distant........................  ....................                 24                  1                  S
Acute Lymphocytic Leukemia:
  All............................  ....................               51.1                  2                  S
Chronic Lymphocytic Leukemia:
  All............................  ....................               66.2                  2                  S

[[Page 370]]

 
Acute Myelogenous Leukemia:
  All............................  ....................                9.7                  1                  S
Chronic Myelogenous Leukemia:
  All............................  ....................               21.7                  1                  S
Liver/Intrahepatic Bile Duct:
  Local..........................  ....................               15.1                  1                  S
  Regional.......................  ....................                5.8                  1                  S
  Distant........................  ....................                1.9                  1                  S
Lung/Bronchus:\5\
  Local..........................  ....................               45.6                  2                  S
  Regional.......................  ....................               13.1                  1                  S
  Distant........................  ....................                1.3                  1                  S
Melanomas of Skin:
  Regional.......................  ....................               53.6                  2                  S
  Distant........................  ....................               12.8                  1                  S
Oral Cavity/Pharyngeal:
  Local..........................  ....................               76.2                  2                  S
  Regional.......................  ....................               40.9                  2                  S
  Distant........................  ....................               18.7                  1                  S
Pancreas:
  Local..........................  ....................                6.1                  1                  S
  Regional.......................  ....................                3.7                  1                  S
  Distant........................  ....................                1.4                  1                  S
Prostate:
  Local..........................  ....................                 91                  3                  S
  Regional.......................  ....................               80.4                  2                  S
  Distant........................  ....................                 28                  1                  S
Stomach:
  Local..........................  ....................               55.4                  1                  S
  Regional.......................  ....................               17.3                  1                  S
  Distant........................  ....................                2.1                  1                  S
Testicular:
  Distant........................  ....................               65.5                  1                  S
Thyroid:
  Regional.......................  ....................               93.1                  3                  S
  Distant........................  ....................               47.2                  1                  S
Bladder:
  Regional.......................  ....................                 46                  2                  S
  Distant........................  ....................                9.1                  1                  S
----------------------------------------------------------------------------------------------------------------
\1\Source of 2 and 5 year survival data: Miller BA et al. Cancer Statistics Review 1973-1989. NIH Publication
  No. 92-2789.
\2\Disability Status:
Category 1: Significant impact on functional capacity or life span.
Category 2: Intermediate impact.
Category 3: No significant impact on functional capacity or life span.
\3\Functional Impacts:
(S) Significant--significant potential for the effects of treatment (radiotheraphy, chemotherapy. surgery) to
  affect functional capacity.
\4\Hodgkin's disease data presented for each stage derived from American Cancer Society. American Cancer Society
  Textbook reference for unstaged cancer is derived from Cancer Statistics Review (See 3). In addition to other
  data, see: American Cancer Society Textbook of Clinical Oncology. Eds: Holleb AI, Fink DJ, Murphy GP, Atlanta:
  American Cancer Society, Inc. 1991.)
\5\Small cell carcinoma is classified as a 1.


                                                  B. Endocrine
----------------------------------------------------------------------------------------------------------------
          Confirmatory test                    Minimum result                        Requirements
----------------------------------------------------------------------------------------------------------------
                                              BODY PART: ENDOCRINE
                                               CONFIRMATORY TESTS
----------------------------------------------------------------------------------------------------------------
Diabetes, requiring insulin (IDDM):
  Medical record review..............  Confirmation of condition and  Highly recommended.
                                        need for insulin use.
----------------------------------------------------------------------------------------------------------------


----------------------------------------------------------------------------------------------------------------
           Disability test                      Test result                    Disability classification
----------------------------------------------------------------------------------------------------------------
                                              BODY PART: ENDOCRINE
                                               JOB TITLE: ENGINEER
----------------------------------------------------------------------------------------------------------------
Diabetes, requiring insulin (IDDM):
  Medical record review..............  Confirmation of condition and  D
                                        need for insulin use.
----------------------------------------------------------------------------------------------------------------


[[Page 371]]


                                                   C. Cardiac
----------------------------------------------------------------------------------------------------------------
          Confirmatory test                    Minimum result                        Requirements
----------------------------------------------------------------------------------------------------------------
                                               BODY PART: CARDIAC
                                               CONFIRMATORY TESTS
----------------------------------------------------------------------------------------------------------------
Angina:
  Medical record review..............  Confirmed history of ischemia  Recommended.
                                        including copies of
                                        electrocardiogram.
  Stress test........................  Definite ischemia on exercise  Recommended.
                                        test.
  Thallium study.....................  Definite ischemia with         Recommended.
                                        exercise.
Aortic valve disease:
  Cardiac catheterization............  Proven and significant.......  Recommended.
  Echocardiogram.....................  Significant valve disease....  Recommended.
Coronary artery disease:
  Medical record review..............  Documented ischemia with       Recommended.
                                        electrocardiogram
                                        confirmation.
  Medical record review..............  Documented myocardial          Recommended.
                                        infarction.
  Stress test........................  Positive.....................  Recommended.
  Thallium study.....................  Definite ischemia with         Recommended.
                                        exercise.
  Angiography........................  Definite occlusion (<=60%) of  Recommended.
                                        one vessel.
Cardiomyopathy:
  Echocardiogram.....................  Proven ejection fraction       Recommended.
                                        <=35%.
  Catheterization....................  Poor global function and not   Recommended.
                                        coronary artery disease.
Hypertension:
  Medical record review..............  Documentation of hypertension  Highly recommended.
                                        for one year.
  Medical record review..............  Definite diagnosis by          Highly recommended.
                                        cardiologist or internist.
  Medical record review..............  Confirmation of medication     Highly recommended.
                                        use.
Arrhythmia: heart block:
  Medical record review..............  Proven episode with            Recommended.
                                        electrocardiogram
                                        confirmation.
  Electrocardiogram..................  Documentation of arrhythmia..  Recommended.
Mitral valve disease:
  Cardiac catheterization............  Significant valve disease....  Recommended.
  Echocardiogram.....................  Significant valve disease....  Recommended.
Pericardial disease:
  Medical record review..............  Confirmed by cardiologist or   Highly recommended.
                                        internist.
Pulmonary hypertension:
  Physical examination...............  Increased pulmonic sound or    Recommended.
                                        pulmonary ejection murmur by
                                        cardiologist or internist.
  Electrocardiogram..................  Definite right ventricular     Highly recommended.
                                        hypertension.
Ventricular ectopy:
  Medical record review..............  Definite episode within one    Recommended.
                                        year.
  Holter monitoring..................  Definite arrhythmia..........  Recommended.
  Provocative testing................  Positive response............  Recommended.
Arrhythmia: supraventricular
 tachycardia:
  Medical record review..............  Definite episode within one    Recommended.
                                        year.
  Holter monitoring..................  Definite arrhythmia..........  Recommended.
Post heart transplant:
  Medical record review..............  Documented...................  Highly recommended.
----------------------------------------------------------------------------------------------------------------


----------------------------------------------------------------------------------------------------------------
           Disability test                      Test result                    Disability classification
----------------------------------------------------------------------------------------------------------------
                                               BODY PART: CARDIAC
                                               JOB TITLE: TRAINMAN
----------------------------------------------------------------------------------------------------------------
Angina:
  Echocardiogram.....................  Poor ejection fraction <=35%.  D
  Stress test........................  Peak exercise <=7 METS.......  D
  Medical record review..............  Unstable as diagnosed by       D
                                        cardiologist.
  Stress test........................  Documented hypotensive         D
                                        response.
  Stress test: significant ST changes  Definite ischemia <=7 METS...  D
Aortic valve disease:
  Cardiac catheterization............  Aortic gradient 25-50 mm HG..
  Echocardiogram.....................  Poor ejection fraction <=35%.  D
  Stress test........................  Peak exercise <=7 METS.......  D
Coronary artery disease:
  Myocardial infarction..............  Multiple infarctions.........  D
  Echocardiogram.....................  Confirmed ventricular          D
                                        aneurysm.
  Cardiac catheterization............  Aortic gradient 25-50 mm Hg..  D
  Cardiac catheterization............  Poor ejection fraction <=35%.  D

[[Page 372]]

 
  Stress test........................  Peak exercise <=7 METS.......  D
  Medical record review..............  Unstable as diagnosed by a     D
                                        Cardiologist.
  Stress test........................  Documented hypotensive         D
                                        response.
  Stress test........................  Definite ischemia <= 7 METS..  D
  Isotope, e.g., thallium study......  Definite ischemia <= 7 METS..  D
Cardiomyopathy:
  Cardiac catheterization............  Poor ejection fraction <=35%.  D
  Echocardiogram.....................  Poor ejection fraction <=35%.  D
  Stress test........................  Peak exercise <=7 METS.......  D
Hypertension:
  Medical record review..............  Diastolic <=120 and systolic   D
                                        <=160, 50% of the time and
                                        evidence of end organ damage
                                        (blood creatinine <=2;
                                        urinary protein <=\1/2\ gm;
                                        or EKG evidence of ischemia).
Arrhythmia: heart block:
  Holter.............................  Documented asystole length     D
                                        <=1.5-2 seconds.
  Medical record review..............  Documented syncope with        D
                                        proven arrhythmia.
Mitral valve disease:
  Cardiac catheterization............  Mitral valve gradient =5 mm Hg.
  Cardiac catheterization............  Mitral regurgitation severe..  D
  Cardiac catheterization............  Poor ejection fraction <=35%.  D
  Echocardiogram.....................  Poor ejection fraction <=35%.  D
  Stress test........................  Peak exercise <=7 METS.......  D
Pericardial disease:
  Cardiac catheterization............  Poor ejection fraction <=35%.  D
  Echocardiogram.....................  Poor ejection fraction <=35%.  D
Ventricular ectopy:
  Medical record review..............  Documented life threatening    D
                                        arrhythmia.
  Holter.............................  Uncontrolled ventricular       D
                                        rhythm.
  Medical record review..............  Documented related syncope...  D
Arrhythmia: supraventricular
 tachycardia:
  Medical record review..............  Documented related syncope...  D
Post heart transplant:
  Medical record review..............  Post heart transplant........  D
----------------------------------------------------------------------------------------------------------------
                                               BODY PART: CARDIAC
                                               JOB TITLE: ENGINEER
----------------------------------------------------------------------------------------------------------------
Angina:
  Echocardiogram.....................  Poor ejection fraction <=35%.  D
  Stress test........................  Peak exercise <=5 METS.......  D
  Medical record review..............  Unstable as diagnosed by       D
                                        cardiologist.
  Stress test........................  Documented hypotensive         D
                                        response.
  Stress test: significant ST changes  Definite ischemia <=5 METS...  D
Aortic valve disease:
  Cardiac catheterization............  Aortic gradient 25-50 mm HG..  D
  Echocardiogram.....................  Poor ejection fraction <=35%.  D
  Stress test........................  Peak exercise <=5 METS.......  D
Coronary artery disease:
  Myocardial infarction..............  Multiple infarctions.........  D
  Echocardiogram.....................  Confirmed ventricular          D
                                        aneurysm.
  Cardiac catheterization............  Aortic gradient 25-50 mm Hg..  D
  Cardiac catheterization............  Poor ejection fraction <=35%.  D
  Stress test........................  Peak exercise <=5 METS.......  D
  Medical record review..............  Unstable as diagnosed by a     D
                                        Cardiologist.
  Stress test........................  Documented hypotensive         D
                                        response.
  Stress test........................  Definite ischemia <=5 METS...  D
  Isotope, e.g., thallium study......  Definite ischemia <=5 METS...  D
Cardiomyopathy:
  Cardiac catheterization............  Poor ejection fraction <=35%.  D
  Echocardiogram.....................  Poor ejection fraction <=35%.  D
  Stress test........................  Peak exercise <=5 METS.......  D
Hypertension:
  Medical record review..............  Diastolic <=120 and systolic   D
                                        <=160, 50% of the time and
                                        evidence of end organ damage
                                        (blood creatinine <=2;
                                        urinary protein <=\1/2\ gm;
                                        or EKG evidence of ischemia).
Arrhythmia: heart block:
  Holter.............................  Documented asystole length     D
                                        <=1.5-2 seconds.

[[Page 373]]

 
  Medical record review..............  Documented syncope with        D
                                        proven arrhythmia.
Mitral valve disease:
  Cardiac catheterization............  Mitral valve gradient =10 mm Hg.
  Cardiac catheterization............  Mitral regurgitation severe..  D
  Cardiac catheterization............  Poor ejection fraction <=35%.  D
  Echocardiogram.....................  Poor ejection fraction <=35%.  D
  Stress test........................  Peak exercise <=5 METS.......  D
Pericardial disease:
  Cardiac catheterization............  Poor ejection fraction <=35%.  D
  Echocardiogram.....................  Poor ejection fraction <=35%.  D
Ventricular ectopy:
  Medical record review..............  Documented life threatening    D
                                        arrhythmia.
  Holter.............................  Uncontrolled ventricular       D
                                        rhythm.
  Medical record review..............  Documented related syncope...  D
Arrhythmia: supraventricular
 tachycardia:
  Medical record review..............  Documented related syncope...  D
Post heart transplant:
  Medical record review..............  Post heart transplant........  D
----------------------------------------------------------------------------------------------------------------
                                               BODY PART: CARDIAC
                                              JOB TITLE: DISPATCHER
----------------------------------------------------------------------------------------------------------------
Angina:
  Echocardiogram.....................  Poor ejection fraction <=35%.  D
  Stress test........................  Peak exercise <=5 METS.......  D
  Medical record review..............  Unstable as diagnosed by       D
                                        cardiologist.
  Stress test........................  Documented hypotensive         D
                                        response.
  Stress test: significant ST changes  Definite ischemia <=5 METS...  D
Aortic valve disease:
  Cardiac catheterization............  Aortic gradient 25-50 mm Hg..  D
  Echocardiogram.....................  Poor ejection fraction <=35%.  D
  Stress test........................  Peak exercise <=5 METS.......  D
Coronary artery disease:
  Myocardial infarction..............  Multiple infarctions.........  D
  Echocardiogram.....................  Confirmed ventricular          D
                                        aneurysm.
  Cardiac catheterization............  Aortic gradient 25-50 mm Hg..  D
  Cardiac catheterization............  Poor ejection fraction <=35%.  D
  Stress test........................  Peak exercise <=5 METS.......  D
  Medical record review..............  Unstable as diagnosed by       D
                                        cardiologist.
  Stress test........................  Documented hypotensive         D
                                        response.
  Stress test........................  Definite ischemia <=5 METS...  D
  Isotope, e.g., thallium study......  Definite ischemia <=5 METS...  D
Cardiomyopathy:
  Cardiac catheterization............  Poor ejection fraction <=35%.  D
  Echocardiogram.....................  Poor ejection fraction <=35%.  D
  Stress test........................  Peak exercise <=5 METS.......  D
Hypertension:
  Medical record review..............  Diastolic <=120 and systolic   D
                                        <=160, 50% of the time and
                                        evidence of end organ damage
                                        (blood creatinine <=2;
                                        urinary protein <=\1/2\ gm;
                                        or EKG evidence of ischemia).
Arrhythmia: heart block:
  Holter.............................  Documented asystole length     D
                                        <=1.5-2 seconds.
  Medical record review..............  Documented syncope with        D
                                        proven arrhythmia.
Mitral valve disease:
  Cardiac catheterization............  Mitral valve gradient =10 mm Hg.
  Cardiac catheterization............  Mitral regurgitation severe..  D
  Cardiac catheterization............  Poor ejection fraction <=35%.  D
  Echocardiogram.....................  Poor ejection fraction <=35%.  D
  Stress test........................  Peak exercise <=5 METS.......  D
Pericardial disease:
  Cardiac catheterization............  Poor ejection fraction <=35%.  D
  Echocardiogram.....................  Poor ejection fraction <=35%.  D
Ventricular ectopy:
  Medical record review..............  Documented life threatening    D
                                        arrhythmia.
  Holter.............................  Uncontrolled ventricular       D
                                        rhythm.
  Medical record review..............  Documented related syncope...  D
Arrhythmia: supraventricular
 tachycardia:
  Medical record review..............  Documented related syncope...  D

[[Page 374]]

 
Post heart transplant:
  Medical record review..............  Post heart transplant........  D
----------------------------------------------------------------------------------------------------------------
                                               BODY PART: CARDIAC
                                                JOB TITLE: CARMAN
----------------------------------------------------------------------------------------------------------------
Angina:
  Echocardiogram.....................  Poor ejection fraction <=35%.  D
  Stress test........................  Peak exercise <=5 METS.......  D
  Medical record review..............  Unstable as diagnosed by       D
                                        cardiologist.
  Stress test........................  Documented hypotensive         D
                                        response.
  Stress test: significant ST changes  Definite ischemia <=5 METS...  D
Aortic valve disease:
  Cardiac catheterization............  Aortic gradient 25-50 mm HG..
  Echocardiogram.....................  Poor ejection fraction <=35%.  D
  Stress test........................  Peak exercise <=5 METS.......  D
Coronary artery disease:
  Myocardial infarction..............  Multiple infarctions.........  D
  Echocardiogram.....................  Confirmed ventricular          D
                                        aneurysm.
  Cardiac catheterization............  Aortic gradient 25-50 mm Hg..  D
  Cardiac catheterization............  Poor ejection fraction <=35%.  D
  Stress test........................  Peak exercise <=5 METS.......  D
  Medical record review..............  Unstable as diagnosed by a     D
                                        Cardiologist.
  Stress test........................  Documented hypotensive         D
                                        response.
  Stress test........................  Definite ischemia <= 5 METS..  D
  Isotope, e.g., thallium study......  Definite ischemia <= 5 METS..  D
Cardiomyopathy:
  Cardiac catheterization............  Poor ejection fraction <=35%.  D
  Echocardiogram.....................  Poor ejection fraction <=35%.  D
  Stress test........................  Peak exercise <=5 METS.......  D
Hypertension:
  Medical record review..............  Diastolic <=120 and systolic   D
                                        <=160, 50% of the time and
                                        evidence of end organ damage
                                        (blood creatinine <=2;
                                        urinary protein <=\1/2\ gm;
                                        or EKG evidence of ischemia).
Arrhythmia: heart block:
  Holter.............................  Documented asystole length     D
                                        <=1.5-2 seconds.
  Medical record review..............  Documented syncope with        D
                                        proven arrhythmia.
Mitral valve disease:
  Cardiac catheterization............  Mitral valve gradient =10 mm Hg.
  Cardiac catheterization............  Mitral regurgitation severe..  D
  Cardiac catheterization............  Poor ejection fraction <=35%.  D
  Echocardiogram.....................  Poor ejection fraction <=35%.  D
  Stress test........................  Peak exercise <=5 METS.......  D
Pericardial disease:
  Cardiac catheterization............  Poor ejection fraction <=35%.  D
  Echocardiogram.....................  Poor ejection fraction <=35%.  D
Ventricular ectopy:
  Medical record review..............  Documented life threatening    D
                                        arrhythmia.
  Holter.............................  Uncontrolled ventricular       D
                                        rhythm.
  Medical record review..............  Documented related syncope...  D
Arrhythmia: supraventricular
 tachycardia:
  Medical record review..............  Documented related syncope...  D
Post heart transplant:
  Medical record review..............  Post heart transplant........  D
----------------------------------------------------------------------------------------------------------------
                                               BODY PART: CARDIAC
                                              JOB TITLE: SIGNALMAN
----------------------------------------------------------------------------------------------------------------
Angina:
  Echocardiogram.....................  Poor ejection fraction <=35%.  D
  Stress test........................  Peak exercise <=7 METS.......  D
  Medical record review..............  Unstable as diagnosed by       D
                                        cardiologist.
  Stress test........................  Documented hypotensive         D
                                        response.
  Stress test: significant ST changes  Definite ischemia <=7 METS...  D
Aortic valve disease:
  Cardiac catheterization............  Aortic gradient 25-50 mm HG..  D
  Echocardiogram.....................  Poor ejection fraction <=35%.  D
  Stress test........................  Peak exercise <=7 METS.......  D
Coronary artery disease:
  Myocardial infarction..............  Multiple infractions.........  D

[[Page 375]]

 
  Echocardiogram.....................  Confirmed ventricular          D
                                        aneurysm.
  Cardiac catheterization............  Aortic gradient 25-50 mm Hg..  D
  Cardiac catheterization............  Poor ejection fraction <=35%.  D
  Stress test........................  Peak exercise <=7 METS.......  D
 
  Medical record review..............  Unstable as diagnosed by       D
                                        cardiologist.
  Stress test........................  Documented hypotensive         D
                                        response.
  Stress test........................  Definite ischemia <=7 METS...  D
  Isotope, e.g., thallium study......  Definite ischemia <=7 METS...  D
Cardiomyopathy:
  Cardiac catheterization............  Poor ejection fraction <=35%.  D
  Echocardiogram.....................  Poor ejection fraction <=35%.  D
  Stress test........................  Peak exercise <=7 METS.......  D
Hypertension:
  Medical record review..............  Diastolic <=120 and systolic   D
                                        <=160, 50% of the time and
                                        evidence of end organ damage
                                        (blood creatinine <=2;
                                        urinary protein <=\1/2\ gm;
                                        or EKG evidence of ischemia).
Arrhythmia: heart block
  Holter.............................  Documented asystole length     D
                                        <=1.5-2 seconds.
  Medical record review..............  Documented syncope with        D
                                        proven arrhythmia.
Mitral valve disease:
  Cardiac catheterization............  Mitral valve gradient =5 mm Hg.
  Cardiac catherization..............  Mitral regurgitation severe..  D
  Cardiac catheterization............  Poor ejection fraction <=35%.  D
  Echocardiogram.....................  Poor ejection fraction <=35%.  D
  Stress test........................  Peak exercise <=7 METS.......  D
Pericardial disease:
  Cardiac catheterization............  Poor ejection fraction <=35%.  D
  Echocardiogram.....................  Poor ejection fraction <=35%.  D
Ventricular ectopy:
  Medical record review..............  Documented life threatening    D
                                        arrhythmia.
  Holter.............................  Uncontrolled ventricular       D
                                        rhythm.
  Medical record review..............  Documented related syncope...  D
Arrhythmia: supraventricular
 tachycardia:
  Medical record review..............  Documented related syncope...  D
Post heart transplant:
  Medical record review..............  Post heart transplant........  D
----------------------------------------------------------------------------------------------------------------
                                               BODY PART: CARDIAC
                                               JOB TITLE: TRACKMAN
----------------------------------------------------------------------------------------------------------------
Angina:
  Echocardiogram.....................  Poor ejection fraction <=35%.  D
  Stress test........................  Peak exercise <=7 METS.......  D
  Medical record review..............  Unstable as diagnosed by       D
                                        cardiologist.
  Stress test........................  Documented hypotensive         D
                                        response.
  Stress test: significant ST changes  Definite ischemia <=7 METS...  D
Aortic valve disease:
  Cardiac catheterization............  Aortic gradient 25-50 mm HG..  D
  Echocardiogram.....................  Poor ejection fraction <=35%.  D
  Stress test........................  Peak exercise <=7 METS.......  D
Coronary artery disease:
  Myocardial infarction..............  Multiple infarctions.........  D
  Echocardiogram.....................  Confirmed ventricular          D
                                        aneurysm.
  Cardiac catheterization............  Aortic gradient 25-50 mm Hg..  D
  Cardiac catheterization............  Poor ejection fraction <=35%.  D
  Stress test........................  Peak exercise <=7 METS.......  D
  Medical record review..............  Unstable as diagnosed by a     D
                                        cardiologist.
  Stress test........................  Documented hypotensive         D
                                        response.
  Stress test........................  Definite ischemia <=7 METS...  D
  Isotope, e.g., thallium study......  Definite ischemia <=7 METS...  D
Cardiomyopathy:
  Cardiac catheterization............  Poor ejection fraction <=35%.  D
  Echocardiogram.....................  Poor ejection fraction <=35%.  D
  Stress test........................  Peak exercise <=7 METS.......  D
Hypertension:
  Medical record review..............  Diastolic <=120 and systolic   D
                                        <=160, 50% of the time and
                                        evidence of end organ damage
                                        (blood creatinine <=2;
                                        urinary protein <=\1/2\ gm;
                                        or EKG evidence of ischemia).

[[Page 376]]

 
Arrhythmia: heart block:
  Holter.............................  Documented asystole length     D
                                        <=1.5-2 seconds.
  Medical record review..............  Documented syncope with        D
                                        proven arrhythmia.
Mitral valve disease:
  Cardiac catheterization............  Mitral valve gradient =5 mm Hg.
  Cardiac catheterization............  Mitral regurgitation severe..  D
  Cardiac catheterization............  Poor ejection fraction <=35%.  D
  Echocardiogram.....................  Poor ejection fraction <=35%.  D
  Stress test........................  Peak exercise <=7 METS.......  D
Pericardial disease:
  Cardiac catheterization............  Poor ejection fraction <=35%.  D
  Echocardiogram.....................  Poor ejection fraction <=35%.  D
Ventricular ectopy:
  Medical record review..............  Documented life threatening    D
                                        arrhythmia.
  Holter.............................  Uncontrolled ventricular       D
                                        rhythm.
  Medical record review..............  Documented related syncope...  D
Arrhythmia: supraventricular
 tachycardia:
  Medical record review..............  Documented related syncope...  D
Post heart transplant:
  Medical record review..............  Post heart transplant........  D
----------------------------------------------------------------------------------------------------------------
                                               BODY PART: CARDIAC
                                              JOB TITLE: MACHINIST
----------------------------------------------------------------------------------------------------------------
Angina:
  Echocardiogram.....................  Poor ejection fraction <=35%.  D
  Stress test........................  Peak exercise <=5 METS.......  D
  Medical record review..............  Unstable as diagnosed by       D
                                        cardiologist.
  Stress test........................  Documented hypotensive         D
                                        response.
  Stress test: significant ST changes  Definite ischemia <=5 METS...  D
Aortic valve disease:
  Cardiac catheterization............  Aortic gradient 25-50 mm HG..
  Echocardiogram.....................  Poor ejection fraction <=35%.  D
  Stress test........................  Peak exercise <=5 METS.......  D
Coronary artery disease:
  Myocardial infarction..............  Multiple infarctions.........  D
  Echocardiogram.....................  Confirmed ventricular          D
                                        aneurysm.
  Cardiac catheterization............  Aortic gradient 25-50 mm Hg..  D
  Cardiac catheterization............  Poor ejection fraction <=35%.  D
  Stress test........................  Peak exercise <=5 METS.......  D
  Medical record review..............  Unstable as diagnosed by a     D
                                        cardiologist.
  Stress test........................  Documented hypotensive         D
                                        response.
  Stress test........................  Definite ischemia <=5 METS...  D
  Isotope, e.g., thallium study......  Definite ischemia <=5 METS...  D
Cardiomyopathy:
  Cardiac catheterization............  Poor ejection fraction <=35%.  D
  Echocardiogram.....................  Poor ejection fraction <=35%.  D
  Stress test........................  Peak exercise <=5 METS.......  D
Hypertension:
  Medical record review..............  Diastolic <=120 and systolic   D
                                        <=160, 50% of the time and
                                        evidence of end organ damage
                                        (blood creatinine <=2;
                                        urinary protein <=\1/2\ gm;
                                        or EKG evidence of ischemia).
Arrhythmia: heart block:
  Holter.............................  Documented asystole length     D
                                        <=1.5-2 seconds.
  Medical record review..............  Documented syncope with        D
                                        proven arrhythmia.
Mitral valve disease:
  Cardiac catheterization............  Mitral valve gradient =10 mm Hg.
  Cardiac catheterization............  Mitral regurgitation severe..  D
  Cardiac catheterization............  Poor ejection fraction <=35%.  D
  Echocardiogram.....................  Poor ejection fraction <=35%.  D
  Stress test........................  Peak exercise <=5 METS.......  D
Pericardial disease:
  Cardiac catheterization............  Poor ejection fraction <=35%.  D
  Echocardiogram.....................  Poor ejection fraction <=35%.  D
Ventricular ectopy:
  Medical record review..............  Documented life threatening    D
                                        arrhythmia.
  Holter.............................  Uncontrolled ventricular       D
                                        rhythm.
  Medical record review..............  Documented related syncope...  D

[[Page 377]]

 
Arrhythmia: supraventricular
 tachycardia:
  Medical record review..............  Documented related syncope...  D
Post heart transplant:
  Medical record review..............  Post heart transplant........  D
----------------------------------------------------------------------------------------------------------------
 
                                               BODY PART: CARDIAC
                                             JOB TITLE: SHOP LABORER
----------------------------------------------------------------------------------------------------------------
Angina:
  Echocardiogram.....................  Poor ejection fraction <=35%.  D
  Stress test........................  Peak exercise <=5 METS.......  D
  Medical record review..............  Unstable as diagnosed by       D
                                        cardiologist.
  Stress test........................  Documented hypotensive         D
                                        response.
  Stress test: significant ST changes  Definite ischemia <=5 METS...  D
Aortic valve disease:
  Cardiac catheterization............  Aortic gradient 25-50 mm HG..
  Echocardiogram.....................  Poor ejection fraction <=35%.  D
  Stress test........................  Peak exercise <=5 METS.......  D
Coronary artery disease:
  Myocardial infarction..............  Multiple infarctions.........  D
  Echocardiogram.....................  Confirmed ventricular          D
                                        aneurysm.
  Cardiac catheterization............  Aortic gradient 25-50 mm Hg..
  Cardiac catheterization............  Poor ejection fraction <=35%.  D
  Stress test........................  Peak exercise <=5 METS.......  D
  Medical record review..............  Unstable as diagnosed by a     D
                                        Cardiologist.
  Stress test........................  Documented hypotensive         D
                                        response.
  Stress test........................  Definite ischemia <=5 METS...  D
  Isotope, e.g., thallium study......  Definite ischemia <=5 METS...  D
Cardiomyopathy:
  Cardiac catheterization............  Poor ejection fraction <=35%.  D
  Echocardiogram.....................  Poor ejection fraction <=35%.  D
  Stress test........................  Peak exercise <=5 METS.......  D
Hypertension:
  Medical record review..............  Diastolic <=120 and systolic   D
                                        <=160, 50% of the time and
                                        evidence of end organ damage
                                        (blood creatinine <=2;
                                        urinary protein <=\1/2\ gm;
                                        or EKG evidence of ischemia).
Arrhythmia: heart block:
  Holter.............................  Documented asystole length     D
                                        <=1.5-2 seconds.
  Medical record review..............  Documented syncope with        D
                                        proven arrhythmia.
Mitral valve disease:
  Cardiac catheterization............  Mitral valve gradient =10 mm Hg.
  Cardiac catheterization............  Mitral regurgitation severe..  D
  Cardiac catheterization............  Poor ejection fraction <=35%.  D
  Echocardiogram.....................  Poor ejection fraction <=35%.  D
  Stress test........................  Peak exercise <=5 METS.......  D
Pericardial disease:
  Cardiac catheterization............  Poor ejection fraction <=35%.  D
  Echocardiogram.....................  Poor ejection fraction <=35%.  D
Ventricular ectopy:
  Medical record review..............  Documented life threatening    D
                                        arrhythmia.
  Holter.............................  Uncontrolled ventricular       D
                                        rhythm.
  Medical record review..............  Documented related syncope...  D
Arrhythmia: supraventricular
 tachycardia:
  Medical record review..............  Documented related syncope...  D
Post heart transplant:
  Medical record review..............  Post heart transplant........  D
----------------------------------------------------------------------------------------------------------------
                                               BODY PART: CARDIAC
                                         JOB TITLE: SALES REPRESENTATIVE
----------------------------------------------------------------------------------------------------------------
Angina:
  Echocardiogram.....................  Poor ejection fraction <=35%.  D
  Stress test........................  Peak exercise <=5 METS.......  D
  Medical record review..............  Unstable as diagnosed by       D
                                        cardiologist.
  Stress test........................  Documented hypotensive         D
                                        response.
  Stress test: significant ST changes  Definite ischemia <=5 METS...  D
Aortic valve disease:
  Cardiac catheterization............  Aortic gradient 25-50 mm HG..  D
  Echocardiogram.....................  Poor ejection fraction <=35%.  D

[[Page 378]]

 
  Stress test........................  Peak exercise <=5 METS.......  D
Coronary artery disease:
  Myocardial infarction..............  Multiple infarctions.........  D
  Echocardiogram.....................  Confirmed ventricular          D
                                        aneurysm.
  Cardiac catheterization............  Aortic gradient 25-50 mm Hg..  D
  Cardiac catheterization............  Poor ejection fraction <=35%.  D
  Stress test........................  Peak exercise <=5 METS.......  D
 
  Medical record review..............  Unstable as diagnosed by a     D
                                        cardiologist.
  Stress test........................  Documented hypotensive         D
                                        response.
  Stress test........................  Definite ischemia <=5 METS...  D
  Isotope, e.g., thallium study......  Definite ischemia <=5 METS...  D
Cardiomyopathy:
  Cardiac catheterization............  Poor ejection fraction <=35%.  D
  Echocardiogram.....................  Poor ejection fraction <=35%.  D
  Stress test........................  Peak exercise <=5 METS.......  D
Hypertension:
  Medical record review..............  Diastolic <=120 and systolic   D
                                        <=160, 50% of the time and
                                        evidence of end organ damage
                                        (blood creatinine <=2;
                                        urinary protein <=\1/2\ gm;
                                        or EKG evidence of ischemia).
Arrhythmia: heart block:
  Holter.............................  Documented asystole length     D
                                        <=1.5-2 seconds.
  Medical record review..............  Documented syncope with        D
                                        proven arrhythmia.
Mitral valve disease:
  Cardiac catheterization............  Mitral valve gradient =10 mm Hg.
  Cardiac catheterization............  Mitral regurgitation severe..  D
  Cardiac catheterization............  Poor ejection fraction <=35%.  D
  Echocardiogram.....................  Poor ejection fraction <=35%.  D
  Stress test........................  Peak exercise <=5 METS.......  D
Pericardial disease:
  Cardiac catheterization............  Poor ejection fraction <=35%.  D
  Echocardiogram.....................  Poor ejection fraction <=35%.  D
Ventricular ectopy:
  Medical record review..............  Documented life threatening    D
                                        arrhythmia.
  Holter.............................  Uncontrolled ventricular       D
                                        rhythm.
  Medical record review..............  Documented related syncope...  D
Arrhythmia: supraventricular
 tachycardia:
  Medical record review..............  Documented related syncope...  D
Post heart transplant:
  Medical record review..............  Post heart transplant........  D
----------------------------------------------------------------------------------------------------------------
                                               BODY PART: CARDIAC
                                         JOB TITLE: GENERAL OFFICE CLERK
----------------------------------------------------------------------------------------------------------------
Angina:
  Echocardiogram.....................  Poor ejection fraction <=35%.  D
  Stress test........................  Peak exercise <=5 METS.......  D
  Medical record review..............  Unstable as diagnosed by       D
                                        cardiologist.
  Stress test........................  Documented hypotensive         D
                                        response.
  Stress test: significant ST changes  Definite ischemia <=5 METS...  D
Aortic valve disease:
  Cardiac catheterization............  Aortic gradient 25-50 mm HG..  D
  Echocardiogram.....................  Poor ejection fraction <=35%.  D
  Stress test........................  Peak exercise <=5 METS.......  D
Coronary artery disease:
  Myocardial infarction..............  Multiple infarctions.........  D
  Echocardiogram.....................  Confirmed ventricular          D
                                        aneurysm.
  Cardiac catheterization............  Aortic gradient 25-50 mm Hg..  D
  Cardiac catheterization............  Poor ejection fraction <=35%.  D
  Stress test........................  Peak exercise <=5 METS.......  D
  Medical record review..............  Unstable as diagnosed by a     D
                                        Cardiologist.
  Stress test........................  Documented hypotensive         D
                                        response.
  Stress test........................  Definite ischemia <=5 METS...  D
  Isotope, e.g., thallium study......  Definite ischemia <=5 METS...  D
Cardiomyopathy:
  Cardiac catheterization............  Poor ejection fraction <=35%.  D
  Echocardiogram.....................  Poor ejection fraction <=35%.  D
  Stress test........................  Peak exercise <=5 METS.......  D
Arrhythmia: heart block:
  Holter.............................  Documented asystole length     D
                                        <=1.5-2 seconds.

[[Page 379]]

 
  Medical record review..............  Documented syncope with        D
                                        proven arrhythmia.
Mitral valve disease:
  Cardiac catheterization............  Mitral valve gradient =10 mm Hg.
  Cardiac catheterization............  Mitral regurgitation severe..  D
  Cardiac catheterization............  Poor ejection fraction <=35%.  D
  Echocardiogram.....................  Poor ejection fraction <=35%.  D
  Stress test........................  Peak exercise <=5 METS.......  D
Pericardial disease:
  Cardiac catheterization............  Poor ejection fraction <=35%.  D
  Echocardiogram.....................  Poor ejection fraction <=35%.  D
Ventricular ectopy:
  Medical record review..............  Documented life threatening    D
                                        arrhythmia.
  Holter.............................  Uncontrolled ventricular       D
                                        rhythm.
  Medical record review..............  Documented related syncope...  D
Arrhythmia: supraventricular
 tachycardia:
  Medical record review..............  Documented related syncope...  D
Post heart transplant:
  Medical record review..............  Post heart transplant........  D
----------------------------------------------------------------------------------------------------------------


                                                 D. Respiratory
----------------------------------------------------------------------------------------------------------------
          Confirmatory test                    Minimum result                        Requirements
----------------------------------------------------------------------------------------------------------------
                                             BODY PART: RESPIRATORY
                                               CONFIRMATORY TESTS
----------------------------------------------------------------------------------------------------------------
Asthma:
  Spirometry.........................  FEV1/FVC ratio diminished....  Recommended.
  Spirometry.........................  <=15% change with              Recommended.
                                        administration of
                                        bronchodilator.
  Methacholine challenge test........  Positive: FEV1 decrease <=20%  Recommended
                                        at (PC <=8 mg/ml).
Bronchiectasis:
  Medical record review..............  Chronic cough and sputum.....  Recommended.
  Chest X-ray........................  Bronchiectasis demonstrated..  Recommended.
  Chest CAT scan.....................  Bronchiectasis demonstrated..  Recommended.
Chronic bronchitis:
  Medical record review..............  Frequent cough--2 years        Highly recommended.
                                        duration.
Chronic obstructive pulmonary
 disease:
  Spirometry.........................  FEV1/FVC ratio below 65% when  Highly recommended.
                                        stable.
  Spirometry.........................  FEV1 below 75% of predicted    Highly recommended.
                                        when stable.
Cor pulmonale:
  Electrocardiogram..................  Definite right ventricular     Recommended.
                                        hypertrophy.
  Echocardiogram.....................  Definite right ventricular     Recommended.
                                        hypertrophy.
Pulmonary fibrosis:
  Lung biopsy........................  Diffuse fibrosis.............  Recommended.
  Chest CAT scan.....................  More than minimal fibrosis...  Recommended.
Lung resection:
  Medical record review..............  At least one lobe resected...  Highly recommended.
Pneumothorax:
  Medical record review..............  Required hospitalization with  Highly recommended.
                                        chest tube drainage.
Restrictive lung disease:
  Chest X-ray........................  Restrictive lung changes.....  Recommended.
  DLCO...............................  Abnormal.....................  Highly recommended.
  Chest CAT scan.....................  Restrictive lung changes.....  Recommended.
  Spirometry.........................  FVC <75% predicted...........  Highly recommended.
Silicosis:
  Medical record review..............  Occupational exposure for at   Highly recommended.
                                        least 1 year.
Tuberculosis:
  Chest X-ray........................  Evidence of changes            Recommended.
                                        consistent with tuberculosis
                                        infection.
  Culture............................  Positive.....................  Recommended.
----------------------------------------------------------------------------------------------------------------


----------------------------------------------------------------------------------------------------------------
           Disability test                      Test result                    Disability classification
----------------------------------------------------------------------------------------------------------------
                                             BODY PART: RESPIRATORY
----------------------------------------------------------------------------------------------------------------
                                               JOB TITLE: TRAINMAN
Asthma:
  Spirometry.........................  Repeated spirometry FEV1 <40%
                                        over a 12 month period.

[[Page 380]]

 
Bronchiectasis:
  Resting ABG........................  PCO2 arterial <=50 mm Hg if    D
                                        stable.
  Pulmonary exercise test or exercise  PO2 drop <=5 torr at maximum   D
   ABG.                                 exercise.
  Pulmonary exercise test............  Maximum VO2 <15 ml/kg........  D
  Electrocardiogram..................  Definite positive right        D
                                        ventricular hypertrophy.
Chronic bronchitis:
  Spirometry.........................  Repeated spirometry FEV1 <40%  D
                                        over a 12 month period.
  Resting ABG........................  PCO2 arterial <=50 mm Hg if    D
                                        stable.
  Pulmonary exercise test or exercise  PO2 drop <=5 torr at maximum   D
   ABG.                                 exercise.
  Pulmonary exercise test............  Maximum VO2 <15 ml/kg........  D
  Electrocardiogram..................  Definite positive right        D
                                        ventricular hypertrophy.
Chronic obstructive pulmonary disease
 (COPD):
  Resting ABG........................  PCO2 arterial <=50 mm Hg if    D
                                        stable.
  Pulmonary exercise test or exercise  PO2 drop <=5 torr at maximum   D
   ABG.                                 exercise.
  Pulmonary exercise test............  Maximum VO2 <15 ml/kg........  D
  Electrocardiogram..................  Definite positive right        D
                                        ventricular hypertrophy.
Cor pulmonale:
  Electrocardiogram..................  Definite positive right        D
                                        ventricular hypertrophy.
Pulmonary fibrosis:
  Resting ABG........................  PCO2 arterial <=50 mm Hg if    D
                                        stable.
  Electrocardiogram..................  Definite positive right        D
                                        ventricular hypertrophy.
  DLCO...............................  <45% predicted...............  D
  Pulmonary exercise test or exercise  PO2 drop <=5 torr at maximum   D
   ABG.                                 exercise.
  Pulmonary exercise test............  Maximum VO2 <15 ml/kg........  D
  Spirometry.........................  FVC <50% predicted...........  D
Lung resection:
  Electrocardiogram..................  Definite positive right        D
                                        ventricular hypertrophy.
Restrictive lung disease:
  DLCO...............................  <45% predicted...............  D
  Pulmonary exercise test or exercise  PO2 drop <=5 torr at maximum   D
   ABG.                                 exercise.
  Pulmonary exercise test............  Maximum VO2 <15 ml/kg........  D
  Spirometry.........................  FVC <50% predicted...........  D
  Electrocardiogram..................  efinite positive right         D
                                        ventricular hypertrophy.
Silicosis:
  Resting ABG........................  PCO2 arterial <=50 mm Hg If    D
                                        stable.
  Electrocardiogram..................  Definite positive right        D
                                        ventricular hypertrophy.
----------------------------------------------------------------------------------------------------------------
                                             BODY PART: RESPIRATORY
                                                JOB TITLE: CARMAN
----------------------------------------------------------------------------------------------------------------
Asthma:
  Spirometry.........................  Repeated spirometry FEV1 <40%  D
                                        over a 12 month period.
Bronchiectasis:
  Resting ABG........................  PCO2 arterial <=50 mm Hg if    D
                                        stable.
  Pulmonary exercise test or exercise  PO2 drop <=5 torr at maximum   D
   ABG.                                 exercise.
  Pulmonary exercise test............  Maximum VO2 <15 ml/kg........  D
  Electrocardiogram..................  Definite positive right        D
                                        ventricular hypertrophy.
Chronic bronchitis:
  Spirometry.........................  Repeated spirometry FEV1 <40%  D
                                        over a 12 month period.
  Resting ABG........................  PCO2 arterial <=50 mm Hg if    D
                                        stable.
  Pulmonary exercise test or exercise  PO2 drop <=5 torr at maximum   D
   ABG.                                 exercise.
  Pulmonary exercise test............  Maximum VO2 <15 ml/kg........  D
  Electrocardiogram..................  Definite positive right        D
                                        ventricular hypertrophy.

[[Page 381]]

 
Chronic obstructive pulmonary disease
 (COPD):
  Resting ABG........................  PCO2 arterial <=50 mm Hg if    D
                                        stable.
  Pulmonary exercise test or exercise  PO2 drop <=5 torr at maximum   D
   ABG.                                 exercise.
  Pulmonary exercise test............  Maximum VO2 <15 ml/kg........  D
  Electrocardiogram..................  Definite positive right        D
                                        ventricular hypertrophy.
Cor pulmonale:
  Electrocardiogram..................  Definite positive right        D
                                        ventricular hypertrophy.
Pulmonary fibrosis:
  Resting ABG........................  PCO2 arterial <=50 mm Hg if    D
                                        stable.
  Electrocardiogram..................  Definite positive right        D
                                        ventricular hypertrophy.
  DLCO...............................  <45% predicted...............  D
  Pulmonary exercise test or exercise  PO2 drop <=5 torr at maximum   D
   ABG.                                 exercise.
  Pulmonary exercise test............  Maximum VO2 <15 ml/kg........  D
  Spirometry.........................  FVC <50% predicted...........  D
Lung resection:
  Electrocardiogram..................  Definite positive right        D
                                        ventricular hypertrophy.
Restrictive lung disease:
  DLCO...............................  <45% predicted...............  D
  Pulmonary exercise test or exercise  PO2 drop <=5 torr at maximum   D
   ABG.                                 exercise.
  Pulmonary exercise test............  Maximum VO2 <15 ml/kg........  D
  Spirometry.........................  FVC <50% predicted...........  D
  Electrocardiogram..................  Definite positive right        D
                                        ventricular hypertrophy.
Silicosis:
  Resting ABG........................  PCO2 arterial <=50 mm Hg if    D
                                        stable.
  Electrocardiogram..................  Definite positive right        D
                                        ventricular hypertrophy.
----------------------------------------------------------------------------------------------------------------
                                             BODY PART: RESPIRATORY
                                              JOB TITLE: SIGNALMAN
----------------------------------------------------------------------------------------------------------------
Asthma:
  Spirometry.........................  Repeated spirometry FEV1 <40%  D
                                        over a 12 month period.
Bronchiectasis:
  Resting ABG........................  PCO2 arterial <=50 mm Hg if    D
                                        stable.
  Pulmonary exercise test or exercise  PO2 drop <=5 torr at maximum   D
   ABG.                                 exercise.
  Pulmonary exercise test............  Maximum VO2 <15 ml/kg........  D
  Electrocardiogram..................  Definite positive right        D
                                        ventricular hypertrophy.
Chronic bronchitis:
  Spirometry.........................  Repeated spirometry FEV1 <40%  D
                                        over a 12 month period.
  Resting ABG........................  PCO2 arterial <=50 mm Hg if    D
                                        stable.
  Pulmonary exercise test or exercise  PO2 drop <=5 torr at maximum   D
   ABG.                                 exercise.
  Pulmonary exercise test............  Maximum VO2 <15 ml/kg........  D
  Electrocardiogram..................  Definite positive right        D
                                        ventricular hypertrophy.
Chronic obstructive pulmonary disease
 (COPD):
  Resting ABG........................  PCO2 arterial <=50 mm Hg if    D
                                        stable.
  Pulmonary exercise test or exercise  PO2 drop <=5 torr at maximum   D
   ABG.                                 exercise.
  Pulmonary exercise test............  Maximum VO2 <15 ml/kg........  D
  Electrocardiogram..................  Definite positive right        D
                                        ventricular hypertrophy.
Cor pulmonale:
  Electrocardiogram..................  Definite positive right        D
                                        ventricular hypertrophy.
Pulmonary fibrosis:
  Resting ABG........................  PCO2 arterial <=50 mm Hg if    D
                                        stable.
  DLCO...............................  <45% predicted...............  D
  Pulmonary exercise test or exercise  PO2 drop <=5 torr at maximum   D
   ABG.                                 exercise.

[[Page 382]]

 
  Pulmonary exercise test............  Maximum VO2 <15 ml/kg........  D
  Spirometry.........................  FVC <50% predicted...........  D
  Electrocardiogram..................  Definite positive right        D
                                        ventricular hypertrophy.
Lung resection:
  Electrocardiogram..................  Definite positive right        D
                                        ventricular hypertrophy.
Restrictive lung disease:
  DLCO...............................  <45% predicted...............  D
  Pulmonary exercise test or exercise  PO2 drop <=5 torr at maximum   D
   ABG.                                 exercise.
  Pulmonary exercise test............  Maximum VO2 <15 ml/kg........  D
  Spirometry.........................  FVC <50% predicted...........  D
  Electrocardiogram..................  Definite positive right        D
                                        ventricular hypertrophy.
Silicosis:
  Resting AGB........................  PCO2 arterial <=50 mm Hg if    D
                                        stable.
  Electrocardiogram..................  Definite positive right        D
                                        ventricular hypertrophy.
----------------------------------------------------------------------------------------------------------------
                                             BODY PART: RESPIRATORY
                                               JOB TITLE: TRACKMAN
----------------------------------------------------------------------------------------------------------------
Asthma:
  Spirometry.........................  Repeated spirometry FEV1 <40%  D
                                        over a 12 month period.
Bronchiectasis:
  Resting ABG........................  PCO2 arterial <=50 mm Hg if    D
                                        stable.
  Pulmonary exercise test or exercise  PO2 <=5 torr at maximum        D
   ABG.                                 exercise.
  Pulmonary exercise test............  Maximum VO2 <15 ml/kg........  D
  Electrocardiogram..................  Definite positive right        D
                                        ventricular hypertrophy.
Chronic bronchitis:
  Spirometry.........................  Repeated spirometry FEV1 <40%  D
                                        over a 12 month period.
  Resting ABG........................  PCO2 arterial <=50 mm Hg if    D
                                        stable.
  Pulmonary exercise test or exercise  PO2 drop <=5 torr at maximum   D
   ABG.                                 exercise.
  Pulmonary exercise test............  Maximum VO2 <15 ml/kg........  D
  Electrocardiogram..................  Definite positive right        D
                                        ventricular hypertrophy.
Chronic obstructive pulmonary disease
 (COPD):
  Resting ABG........................  PCO2 arterial <=50 mm Hg if    D
                                        stable.
  Pulmonary exercise test or exercise  PO2 drop <=5 torr at maximum   D
   ABG.                                 exercise.
  Pulmonary exercise test............  Maximum VO2 <15 ml/kg........  D
  Electrocardiogram..................  Definite positive right        D
                                        ventricular hypertrophy.
Cor pulmonale:
  Electrocardiogram..................  Definite positive right        D
                                        ventricular hypertrophy.
Pulmonary fibrosis:
  Resting ABG........................  PCO2 arterial <=50 mm Hg if    D
                                        stable.
  Electrocardiogram..................  Definite positive right        D
                                        ventricular hypertrophy.
  DLCO...............................  <45% predicted...............  D
  Pulmonary exercise test or exercise  PO2 drop <=5 torr at maximum   D
   ABG.                                 exercise.
  Pulmonary exercise test............  Maximum VO2 <15 ml/kg........  D
  Spirometry.........................  FVC <50% predicted...........  D
Lung resection:
  Electrocardiogram..................  Definite positive right        D
                                        ventricular hypertrophy.
Restrictive lung disease:
  DLCO...............................  <45% predicted...............  D
  Pulmonary exercise test or exercise  PO2 drop <=5 torr at maximum   D
   ABG.                                 exercise.
  Pulmonary exercise test............  Maximum VO2 <15 ml/kg........  D
  Spirometry.........................  FVC <50% predicted...........  D
  Electrocardiogram..................  Definite positive right        D
                                        ventricular hypertrophy.
Silicosis:
  Resting ABG........................  PCO2 arterial <=50 mm Hg if    D
                                        stable.

[[Page 383]]

 
  Electrocardiogram..................  Definite positive right        D
                                        ventricular hypertrophy.
----------------------------------------------------------------------------------------------------------------
                                             BODY PART: RESPIRATORY
                                              JOB TITLE: MACHINIST
----------------------------------------------------------------------------------------------------------------
Asthma:
  Spirometry.........................  Repeated spirometry FEV1 <40%  D
                                        over a 12 month period.
Bronchiectasis:
  Resting ABG........................  PCO2 arterial <=50 mm Hg if    D
                                        stable.
  Pulmonary exercise test or exercise  PO2 drop <=5 torr at maximum   D
   ABG.                                 exercise.
  Pulmonary exercise test............  Maximum VO2 <15 ml/kg........  D
  Electrocardiogram..................  Definite positive right        D
                                        ventricular hypertrophy.
Chronic bronchitis:
  Spirometry.........................  Repeated spirometry FEV1 <40%  D
                                        over a 12 month period.
  Resting AGB........................  PCO2 arterial <=50 mm Hg if    D
                                        stable.
  Pulmonary exercise test or exercise  PO2 drop <=5 torr at maximum   D
   ABG.                                 exercise.
  Pulmonary exercise test............  Maximum VO2 <15 ml/kg........  D
  Electrocardiogram..................  Definite positive right        D
                                        ventricular hypertrophy.
Chronic obstructive pulmonary disease
 (COPD):
  Resting ABG........................  PCO2 arterial <=50 mm Hg if    D
                                        stable.
  Pulmonary exercise test or exercise  PO2 drop <=5 torr at maximum   D
   ABG.                                 exercise.
  Pulmonary exercise test............  Maximum VO2 <15 ml/kg........  D
  Electrocardiogram..................  Definite positive right        D
                                        ventricular hypertrophy.
Cor pulmonale:
  Electrocardiogram..................  Definite positive right        D
                                        ventricular hypertrophy.
Pulmonary fibrosis:
  Resting ABG........................  PCO2 arterial <=50 mm Hg if    D
                                        stable.
  Electrocardiogram..................  Definite positive right        D
                                        ventricular hypertrophy.
  DLCO...............................  <45% predicted...............  D
  Pulmonary exercise test or exercise  PO2 drop <=5 torr at maximum   D
   ABG.                                 exercise.
  Pulmonary exercise test............  Maximum VO2 <15 ml/kg........  D
  Spirometry.........................  FVC <50% predicted...........  D
Lung resection:
  Electrocardiogram..................  Definite positive right        D
                                        ventricular hypertrophy.
Restrictive lung disease:
  DLCO...............................  <45% predicted...............  D
  Pulmonary exercise test or exercise  PO2 drop <=5 torr at maximum   D
   ABG.                                 exercise.
  Pulmonary exercise test............  Maximum VO2 <15 ml/kg........  D
  Spirometry.........................  FVC <50% predicted...........  D
  Electrocardiogram..................  Definite positive right        D
                                        ventricular hypertrophy.
Silicosis:
  Resting ABG........................  PCO2 arterial <=50 mm Hg if    D
                                        stable.
  Electrocardiogram..................  Definite positive right        D
                                        ventricular hypertrophy.
----------------------------------------------------------------------------------------------------------------
                                             BODY PART: RESPIRATORY
                                             JOB TITLE: SHOP LABORER
----------------------------------------------------------------------------------------------------------------
Asthma:
  Spirometry.........................  Repeated spirometry FEV1 <40%  D
                                        over a 12 month period.
Bronchiectasis:
  Resting ABG........................  PCO2 arterial <=50 mm Hg if    D
                                        stable.
  Pulmonary exercise test or exercise  PO2 drop <=5 torr at maximum   D
   ABG.                                 exercise.
  Pulmonary exercise test............  Maximum VO2 <15 ml/kg........  D
  Electrocardiogram..................  Definite positive right        D
                                        ventricular hypertrophy.

[[Page 384]]

 
Chronic bronchitis:
  Spirometry.........................  Repeated spirometry FEV1 <40%  D
                                        over a 12 month period.
  Resting ABG........................  PCO2 arterial <=50 mm Hg if    D
                                        stable.
  Pulmonary exercise test or exercise  PO2 drop <=5 torr at maximum   D
   ABG.                                 exercise.
  Pulmonary exercise test............  Maximum VO2 <15 ml/kg........  D
  Electrocardiogram..................  Definite positive right        D
                                        ventricular hypertrophy.
Chronic obstructive pulmonary disease
 (COPD):
  Resting ABG........................  PCO2 arterial <=50 mm Hg if    D
                                        stable.
  Pulmonary exercise test or exercise  PO2 drop <=5 torr at maximum   D
   ABG.                                 exercise.
  Pulmonary exercise test............  Maximum VO2 <15 ml/kg........  D
  Electrocardiogram..................  Definite positive right        D
                                        ventricular hypertrophy.
Cor pulmonale:
  Electrocardiogram..................  Definite positive right        D
                                        ventricular hypertrophy.
Pulmonary fibrosis:
  Resting ABG........................  PCO2 arterial <=50 mm Hg if    D
                                        stable.
  DLCO...............................  <45% predicted...............  D
  Pulmonary exercise test or exercise  PO2 drop <=5 torr at maximum   D
   ABG.                                 exercise.
  Pulmonary exercise test............  Maximum VO2 <15 ml/kg........  D
  Spirometry.........................  FVC <50% predicted...........  D
  Electrocardiogram..................  Definite positive right        D
                                        ventricular hypertrophy.
Lung resection:
  Electrocardiogram..................  Definite positive right        D
                                        ventricular hypertrophy.
Restrictive lung disease:
  DLCO...............................  <45% predicted...............  D
  Pulmonary exercise test or exercise  PO2 drop <=5 torr at maximum   D
   ABG.                                 exercise.
  Pulmonary exercise test............  Maximum VO2 <15 ml/kg........  D
  Spirometry.........................  FVC <50% predicted...........  D
  Electrocardiogram..................  Definite positive right        D
                                        ventricular hypertrophy.
Silicosis:
  Resting ABG........................  PCO2 arterial <=50 mm Hg if    D
                                        stable.
  Electrocardiogram..................  Definite positive right        D
                                        ventricular hypertrophy.
----------------------------------------------------------------------------------------------------------------


                                             E. Lumbar Sacral Spine
----------------------------------------------------------------------------------------------------------------
          Confirmatory test                    Minimum result                        Requirements
----------------------------------------------------------------------------------------------------------------
                                               BODY PART: LS SPINE
                                               CONFIRMATORY TESTS
----------------------------------------------------------------------------------------------------------------
Ankylosing spondylitis:
  X-ray-lumbar sacral spine..........  Sacroilitis..................  Highly recommended.
  HLA B27 (blood test)...............  Positive HLA B27 (90% case)..  Recommended.
Backache, unspecified:
  Medical record review..............  History of back pain under     Highly recommended.
                                        medical treatment for at
                                        least 1 year.
  Medical record review..............  History of back pain           Highly recommended.
                                        unresponsive to therapy for
                                        at least 1 year.
  Medical record review..............  History of back pain with      Highly recommended.
                                        functional limitations for
                                        at least 1 year.
  Chronic back pain, not otherwise
   specified:.
  Medical record review..............  History of back pain under     Highly recommended.
                                        medical treatment for at
                                        least 1 year.
  Medical record review..............  History of back pain           Highly recommended.
                                        unresponsive to therapy for
                                        at least 1 year.
  Medical record review..............  History of back pain with      Highly recommended.
                                        functional limitations for
                                        at least 1 year.
  Cauda equina syndrome with bowel or
   bladder dysfunction:.
  Magnetic resonance imaging.........  Neural impingement of spinal   Recommended.
                                        nerves below L1.

[[Page 385]]

 
  Computerized tomography............  Neural impingement of spinal   Recommended.
                                        nerves below L1.
  Cystometrogram.....................  Impaired bladder function....  Recommended.
  Rectal examination.................  Diminished rectal sphincter    Recommended.
                                        tone.
  Myelogram..........................  Neural impingement of spinal   Recommended.
                                        nerves below L1.
Degeneration of lumbar disc:
  X-ray lumbar sacral spine..........  Significant degenerative disc  Recommended.
                                        changes.
  Computerized tomography............  Significant degenerative disc  Recommended.
                                        changes.
  Magnetic resonance imaging.........  Significant degenerative disc  Recommended.
                                        changes.
  Myelogram..........................  Significant degenerative disc  Recommended.
                                        changes.
  Displacement of lumbar disc:.......
  X-ray-lumbar sacral spine..........  Significant degenerative disc  Recommended.
                                        changes.
  Computerized tomography............  Significant degenerative disc  Recommended.
                                        changes.
  Magnetic resonance imaging.........  Significant degenerative disc  Recommended.
                                        changes.
  Myelogram..........................  Significant degenerative disc  Recommended.
                                        changes.
  Fracture: vertebral body:..........
  Magnetic resonance imaging.........  Fracture vertebral body......  Recommended.
  Computerized tomography............  Fracture vertebral body......  Recommended.
  X-ray-lumbar sacral spine..........  Fracture vertebral body......  ommended.
Fracture: posterior element with
 spinal canal displacement:
  Magnetic resonance imaging.........  Fracture posterior spinal      Recommended.
                                        element with displacement of
                                        spinal canal.
  Computerized tomography............  Fracture posterior spinal      Recommended.
                                        element with displacement of
                                        spinal canal.
  X-ray-lumbar sacral spine..........  Fracture posterior spinal      Recommended.
                                        element with displacement of
                                        spinal canal.
  Fracture: posterior spinal element
   with no displacement:.
  X-ray-lumbar sacral spine..........  Fracture posterior spinal      Recommended.
                                        element.
  Magnetic resonance imaging.........  Fracture posterior spinal      Recommended.
                                        element.
  Computerized tomography............  Fracture posterior spinal      Recommended.
                                        element.
Fracture: spinous process:
  X-ray-lumbar sacral spine..........  Spinous process fracture.....  Recommended.
  Magnetic resonance imaging.........  Spinous process fracture.....  Recommended.
  Computerized tomography............  Spinous process fracture.....  Recommended.
Fracture: Transverse process:
  Lumbar sacral spine................  Transverse process fracture..  Recommended.
  Magnetic resonance imaging.........  Transverse process fracture..  Recommended.
  Computerized tomography............  Transverse process fracture..  Recommended.
Intervertebral disc disorder:
  X-ray-lumbar sacral spine..........  Significant disc degeneration  Recommended.
  Magnetic resonance imaging.........  Significant disc degeneration  Recommended.
  Computerized tomography............  Significant disc degeneration  Recommended.
  Myelogram..........................  Significant disc degeneration  Recommended.
Lumbago:
  Medical record review: lumbar......  History of back pain under     Highly recommended.
                                        medical treatment for at
                                        least 1 year.
  Medical record review: lumbar......  History of back pain           Highly recommended.
                                        unresponsive to therapy for
                                        at least 1 year.
  Medical record review: lumbar......  History of back pain with      Highly recommended.
                                        functional limitations for
                                        at least 1 year.
Lumbosacral neuritis:
  Magnetic resonance imaging.........  Evidence of neural             Recommended.
                                        compression.
  Electromyography...................  Definite denervation.........  Recommended.
  Nerve conduction velocity..........  Definite slowing.............  Recommended.
  Physical examination--atrophy......  Atrophy in affected limb with  Recommended.
                                        2 cm difference between
                                        limbs.
  Physical examination: straight leg   Positive straight leg raise..  Recommended.
   raise.
  Sensory examination................  Loss of sensation in affected  Recommended.
                                        dermatomes.
  Medical history....................  History of radicular pain....  Highly recommended.
  Computerized tomography............  Evidence of neural             Recommended.
                                        compression.
Lumbar spinal stenosis:
  Computerized tomography............  Significant narrowing: spinal  Recommended.
                                        cord canal or intervertebral
                                        foramen.
  Magnetic resonance imaging.........  Significant narrowing: spinal  Recommended.
                                        cord canal or intervertebral
                                        foramen.
  Myelogram..........................  Significant narrowing: spinal  Recommended.
                                        cord canal or intervertebral
                                        foramen.

[[Page 386]]

 
Mechanical complication of internal
 orthopedic device:
  Medical record review..............  Documentation of failure of    Highly recommended.
                                        implant following surgical
                                        procedure.
Osteomalacia:
  X-ray-lumbar sacral spine..........  Evidence of significant        Recommended.
                                        osteomalacia.
  Magnetic resonance imaging.........  Evidence of significant        Recommended.
                                        osteomalacia.
  Computerized tomography............  Evidence of significant        Recommended.
                                        osteomalacia.
Osteomyelitis, chronic-lumbar:
  X-ray-lumbar sacral spine..........  Evidence of chronic infection  Recommended.
  Magnetic resonance imaging.........  Evidence of chronic infection  Recommended.
  Computerized tomography............  Evidence of chronic infection  Recommended.
Osteoporosis:
  Computerized tomography............  Significant bone density loss  Recommended.
  Dual photon absorptiometry.........  Significant bone density loss  Recommended.
  X-ray-lumbar sacral spine..........  Significant bone density loss  Recommended.
Post laminectomy syndrome with
 radiculopathy:
  Medical record review: lumbar......  Documented surgical history    Highly recommended.
                                        of laminectomy.
  Magnetic resonance imaging.........  Evidence of laminectomy......  Recommended.
  Electromyography...................  Definite denervation.........  Recommended.
  Nerve conduction velocity..........  Definite slowing.............  Recommended.
  Physical examination--atrophy......  Atrophy in affected limb with  Recommended.
                                        2 cm difference between
                                        limbs.
  Physical examination: straight leg   Positive straight leg raise..  Recommended.
   raise.
  Sensory examination................  Loss of sensation in affected  Recommended.
                                        dermatomes.
  Medical record review: lumbar......  History of radicular pain....  Highly recommended.
  Computerized tomography............  Evidence of laminectomy......  Recommended.
  Myelogram..........................  Evidence of laminectomy......  Recommended.
Radiculopathy:
  Magnetic resonance imaging.........  Evidence of neural             Recommended.
                                        compression.
  Electromyography...................  Definite denervation.........  Recommended.
  Nerve conduction velocity..........  Definite slowing.............  Recommended.
  Physical examination--atrophy......  Atrophy in affected limb with  Recommended.
                                        2 cm difference between
                                        limbs.
  Physical examination: straight leg   Positive straight leg raise..  Recommended.
   raise.
  Sensory examination................  Loss of sensation in affected  Recommended.
                                        dermatomes.
  Medical record review: lumbar......  History of radicular pain....  Highly recommended.
  Computerized tomography............  Evidence of neural             Recommended.
                                        compression.
  Myelogram..........................  Evidence of neural             Recommended.
                                        compression.
Sciatica:
  Magnetic resonance imaging.........  Evidence of neural             Recommended.
                                        compression.
  Electromyography...................  Definite denervation.........  Recommended.
  Nerve conduction velocity..........  Definite slowing.............  Recommended.
  Physical examination--atrophy......  Atrophy in affected limb with  Recommended.
                                        2 cm difference between
                                        limbs.
  Physical examination: straight leg   Positive straight leg raise..  Recommended.
   raise.
  Sensory examination................  Loss of sensation in affected  Recommended.
                                        dermatomes.
  Medical history....................  History of radicular pain....  Highly recommended.
  Computerized tomography............  Evidence of neural             Recommended.
                                        compression.
  Myelogram..........................  Evidence of neural             Recommended.
                                        compression.
Strains and sprains, unspecified:
  Medical record review..............  History of back pain under     Highly recommended.
                                        medical treatment for at
                                        least 1 year.
  Medical record review..............  History of back pain           Highly recommended.
                                        unresponsive to therapy for
                                        at least 1 year.
  Medical record review..............  History of back pain with      Highly recommended.
                                        functional limitations for
                                        at least 1 year.
  Medical record review..............  Documented history of strain   Highly recommended.
                                        and/or sprain.
Spondylolisthesis grade 1:
  X-ray-lumbar sacral spine..........  1-25% slippage...............  Recommended.
  Computerized tomography............  1-25% slippage...............  Recommended.
  Magnetic resonance imaging.........  1-25% slippage...............  Recommended.
Spondylolisthesis grade 2:
  X-ray-lumbar sacral spine..........  26-50% slippage..............  Recommended.
  Computerized tomography............  26-50% slippage..............  Recommended.
  Magnetic resonance imaging.........  26-50% slippage..............  Recommended.
Spondylolisthesis grade 3:
  X-ray-lumbar sacral spine..........  51-75% slippage..............  Recommended.
  Computerized tomography............  51-75% slippage..............  Recommended.
  Magnetic resonance imaging.........  51-75% slippage..............  Recommended.

[[Page 387]]

 
Spondylolisthesis grade 4:
  X-ray-lumbar sacral spine..........  Complete slippage............  Recommended.
  Computerized tomography............  Complete slippage............  Recommended.
  Magnetic resonance imaging.........  Complete slippage............  Recommended.
Spondylolisthesis-acquired:
  X-ray-lumbar sacral spine..........  Slippage.....................  Recommended.
  Computerized tomography............  Slippage.....................  Recommended.
  Magnetic resonance imaging.........  Slippage.....................  Recommended.
Spondylolsis:
  X-ray-lumbar sacral spine..........  Defect--pars interarticularis  Recommended.
  Computerized tomography............  Defect--pars interarticularis  Recommended.
  Magnetic resonance imaging.........  Defect--pars interarticularis  Recommended.
Sprains and strains, sacral:
  Medical record review: lumbar......  History of back pain under     Highly recommended.
                                        medical treatment for at
                                        least 1 year.
  Medical record review: lumbar......  History of back pain           Highly recommended.
                                        unresponsive to therapy for
                                        at least 1 year.
  Medical record review: lumbar......  History of back with           Highly recommended.
                                        functional limitations for
                                        at least 1 year.
  Medical record review: lumbar......  Documented history of strain   Highly recommended.
                                        and/or sprain.
Sprains and strains, sacroiliac:
  Medical record review: lumbar......  History of back pain under     Highly recommended.
                                        medical treatment for at
                                        least 1 year.
  Medical record review: lumbar......  History of back pain           Highly recommended.
                                        unresponsive to therapy for
                                        at least 1 year.
  Medical record review: lumbar......  History of back pain with      Highly recommended.
                                        functional limitations for
                                        at least 1 year.
  Medical record review: lumbar......  Documented history of strain   Highly recommended.
                                        and/or sprain.
----------------------------------------------------------------------------------------------------------------


----------------------------------------------------------------------------------------------------------------
           Disability test                      Test result                    Disability classification
----------------------------------------------------------------------------------------------------------------
                                               BODY PART: LS SPINE
                                               JOB TITLE: TRAINMAN
----------------------------------------------------------------------------------------------------------------
Ankylosing spondylitis:
  Muscle strength assessment.........  Lifting capacity diminished    D
                                        by 50%.
Backache, unspecified:
  Muscle strength assessment.........  Lifting capacity diminished    D
                                        by 50%.
Chronic back pain, not otherwise
 specified:
  Muscle strength assessment.........  Lifting capacity diminished    D
                                        by 50%.
Cauda equina syndrome with bowel or
 bladder dysfunction:
  Computerized tomography............  Disc extrusion with neural     D
                                        impingement, nerves < L1.
  Magnetic resonance imaging.........  Disc extrusion with neural     D
                                        impingement, nerves < L1.
  Physical examination...............  Lower extremity weakness.....  D
  Cystometrogram.....................  Impaired bladder function....  D
  Myelogram..........................  Disc extrusion with neural     D
                                        impingement, nerves 
PART 221_JURISDICTION DETERMINATIONS--Table of Contents




Sec.
221.1 Introduction.
221.2 Railroad Retirement Board jurisdiction.
221.3 Social Security Administration jurisdiction.
221.4 When a jurisdiction decision may be reversed.

    Authority: Sec. 7(b)(1), Pub. L. 94-547 (45 U.S.C. 231f(b)(1)).

    Source: 47 FR 7656, Feb. 22, 1982, unless otherwise noted.



Sec. 221.1  Introduction.

    This part explains the factors involved in deciding whether the 
Social

[[Page 429]]

Security Administration or the Railroad Retirement Board will pay 
benefits to a railroad employee, and his or her eligible family members, 
both before and after the employee's death. The agency that has 
jurisdiction over the payment of benefits also has jurisdiction of the 
applicant's medicare coverage (see part 270 of this chapter). The Board 
is responsible for making this decision.



Sec. 221.2  Railroad Retirement Board jurisdiction.

    (a) Life cases. The Board has jurisdiction to pay monthly benefits 
to each living employee who has completed at least ten years (120 
months) of creditable service under the Railroad Retirement Act, and to 
his or her eligible spouse. Creditable service is described in part 220 
of this chapter.
    (b) Death cases. The Board has jurisdiction to pay monthly benefits 
or lump-sum death benefits to eligible survivors of a deceased employee, 
when the deceased employee has at least ten years (120 months) of 
service that is creditable under the Railroad Retirement Act and a 
current connection as described in part 216 of this chapter. Lump-sum 
death benefits are described in part 234 of this chapter. The Board also 
has jurisdiction to pay any residual benefits that may become payable at 
the death of an employee. Residual benefits are described in part 234 of 
this chapter. The Board retains jurisdiction to pay any residual that 
may be payable even after jurisdiction has been transferred to the 
Social Security Administration as described in Sec. 221.3.



Sec. 221.3  Social Security Administration jurisdiction.

    The Board transfers jurisdiction (railroad service and compensation 
credits earned by the employee which the Social Security Administration 
considers in determining benefits payable) to the Social Security 
Administration when--
    (a) Life and death cases. A living or deceased employee has less 
than 120 months of service that is creditable under the Railroad 
Retirement Act; or
    (b) Death cases. A deceased employee has at least 120 months of 
service that is creditable under the Railroad Retirement Act (see part 
220 of this chapter) but does not have a current connection with the 
railroad industry as described in part 216 of this chapter.



Sec. 221.4  When a jurisdiction decision may be reversed.

    The Board may reverse a jurisdiction decision whenever evidence is 
received by the Board indicating that the original decision was 
incorrect.



PART 222_FAMILY RELATIONSHIPS--Table of Contents




                            Subpart A_General

Sec.
222.1 Introduction.
222.2 Definitions.
222.3 Other regulations related to this part.
222.4 Homicide of employee.

          Subpart B_Relationship as Wife, Husband, or Widow(er)

222.10 When determinations of relationship as wife, husband, widow or 
          widower of employee are made.
222.11 Determination of marriage relationship.
222.12 Ceremonial marriage relationship.
222.13 Common-law marriage relationship.
222.14 Deemed marriage relationship.
222.15 When spouse is living with employee.
222.16 When spouse is living in the same household with employee.
222.17 ``Child in care'' when child of the employee is living with the 
          claimant.
222.18 ``Child in care'' when child of the employee is not living with 
          the claimant.

Subpart C_Relationship as Divorced Spouse, Surviving Divorced Spouse, or 
                           Remarried Widow(er)

222.20 When determination of relationship as divorced spouse, surviving 
          divorced spouse, or remarried widow(er) is made.
222.21 When marriage is terminated by final divorce.
222.22 Relationship as divorced spouse.
222.23 Relationship as surviving divorced spouse.
222.24 Relationship as remarried widow(er).

                     Subpart D_Relationship as Child

222.30 When determinations of relationship as child are made.
222.31 Relationship as child for annuity and lump-sum payment purposes.
222.32 Relationship as a natural child.
222.33 Relationship resulting from legal adoption.

[[Page 430]]

222.34 Relationship resulting from equitable adoption.
222.35 Relationship as stepchild.
222.36 Relationship as grandchild or stepgrandchild.

     Subpart E_Relationship as Parent, Grandchild, Brother or Sister

222.40 When determinations of relationship are made for parent, 
          grandchild, brother or sister.
222.41 Determination of relationship and support for parent.
222.42 When employee is contributing to support.
222.43 How the one-half support determination is made.
222.44 Other relationship determinations for lump-sum payments.

                 Subpart F_Child Support and Dependency

222.50 When child dependency determinations are made.
222.51 When a natural child is dependent.
222.52 When a legally adopted child is dependent--general.
222.53 When a legally adopted child is dependent--child adopted after 
          entitlement.
222.54 When a legally adopted child is dependent--grandchild or 
          stepgrandchild adopted after entitlement.
222.55 When a stepchild is dependent.
222.56 When a grandchild or stepgrandchild is dependent.
222.57 When an equitably adopted child is dependent.
222.58 When a child is living with an employee.

    Authority: 45 U.S.C. 231f.

    Source: 54 FR 42949, Oct. 19, 1989, unless otherwise noted.



                            Subpart A_General



Sec. 222.1  Introduction.

    This part sets forth and describes the family relationships that may 
make a claimant eligible for an annuity or lump-sum payment under the 
Railroad Retirement Act and furnishes the basic rules for determining 
when those relationships exist. Such relationships may result from a 
current or terminated marriage or through birth, death or adoption. 
Other relevant relationships are having a child in care, dependency or 
lack of it, contributing to support, living in the same household, and 
being under court order to contribute to support.



Sec. 222.2  Definitions.

    As used in this part--
    Annuity means a payment under the Railroad Retirement Act due to an 
entitlement claimant for a calendar month and made to him or her on the 
first day of the following month.
    Apply means to sign a form or statement that the Railroad Retirement 
Board accepts as an application for an annuity or lump-sum payment under 
the rules set out in part 217 of this chapter.
    Child has differing definitions for annuity and lump-sum payment 
purposes. See Sec. 222.31.
    Claimant means a person who files an application for an annuity or 
lump-sum payment or for whom an application is filed.
    Eligible means that a person would meet all the requirements for 
payment of an annuity or lump-sum payment as of a given date but has not 
yet applied therefor.
    Employee means an employee as defined in part 203 of this chapter.
    Final divorce means a divorce that completely dissolves a marriage 
and restores the parties to the status of single persons; it is also 
referred to as an absolute divorce.
    Finally divorced person means a person whose marriage has been 
terminated or dissolved by a final divorce.
    Legal impediment means that there was a defect in the procedures 
followed in a marriage ceremony or that a previous marriage of the 
employee or spouse had not ended at the time of the ceremony.
    Lump-sum payment means any of the following payments under the 
Railroad Retirement Act: lump-sum death payment, residual lump-sum, 
annuities due but unpaid at death, or lump-sum refund payment (see part 
234 of this chapter).
    Marriage means the social and legal relationship of husband and wife 
for family relationship purposes, as well as the act by which the 
married state is effected.

[[Page 431]]

    Permanent home means the employee's true and fixed home (legal 
domicile); it is the place to which the employee intends to return 
whenever he or she is absent therefrom.
    Relationship means a family connection by blood, marriage, or 
adoption between the employee and another person who is a claimant.
    Spouse means the husband or wife of the employee.
    State law means the law of the State in which the employee has his 
or her permanent home or, in the case of a deceased employee, the law of 
the State in which the employee had his or her permanent home at the 
time of his or her death. If the employee's permanent home is not in one 
of the 50 States, the Commonwealth of Puerto Rico, the Virgin Islands, 
Guam, or American Samoa, the laws of the District of Columbia are 
applied.



Sec. 222.3  Other regulations related to this part.

    This part is related to a number of other parts of this chapter:
    Part 216 describes when a person is eligible for an annuity under 
the Railroad Retirement Act.
    Part 217 describes how to apply for an annuity or for lump-sum 
payments.
    Part 218 sets forth the beginning and ending dates of annuities.
    Part 219 sets out what evidence is necessary to prove eligibility 
and the relationships described in this part.
    Part 220 describes when a person is eligible for a disability 
annuity under the Railroad Retirement Act or a period of disability 
under the Social Security Act.
    Part 225 explains how primary insurance amounts (PIA's) are 
computed.
    Part 226 outlines the computation of employee and spouse annuities.
    Part 228 describes how survivor annuities are computed.
    Part 229 describes when and how an employee and spouse annuity may 
be increased under the social security overall minimum provision.
    Part 234 describes lump-sum payments under the Railroad Retirement 
Act.



Sec. 222.4  Homicide of employee.

    No person convicted of the felonious and intentional homicide of an 
employee can be entitled to an annuity or lump-sum payment based on the 
employee's earnings record (service and compensation). Further, the 
convicted person is considered not to exist in deciding the rights of 
other persons to annuity or lump-sum payments. A minor may be denied a 
survivor annuity or lump-sum payment on the earnings record of a parent 
if the minor was convicted of intentionally causing the parent's death 
by an act which would be considered a felony if committed by an adult.



          Subpart B_Relationship as Wife, Husband, or Widow(er)



Sec. 222.10  When determinations of relationship as wife, husband, 
widow or widower of employee are made.

    (a) The claimant's relationship as the wife or husband of an 
employee is determined when the claimant applies for an annuity, or when 
there is a claim which would include a husband or wife in the 
computation of the social security overall minimum provision, or when a 
claim is filed for a lump-sum payment. If a deemed marriage (see Sec. 
222.14) is to be determined, the husband, wife, or widow(er) must also 
be found to be or to have been living in the same household as the 
employee (see Sec. 222.16).
    (b) The claimant's relationship as the widow(er) of an employee is 
determined as of the date on which the employee died. If the claimant 
applied for a lump-sum payment as the widow(er) of the employee, one of 
the following determinations is made:
    (1) Whether the widow(er) was living in the same household as the 
employee, as defined in Sec. 222.16 of this part, at the time of the 
employee's death, if the claimant is applying for the 1974 Act lump-sum 
death payment.
    (2) Whether the widow(er) was living with the employee, as defined 
in Sec. 222.15 of this part, at the time of the employee's death, if 
the claimant is applying for the 1937 Act lump-sum death payment, 
annuities due but unpaid at death, the residual lump-sum payment, or a 
lump-sum refund payment.

[[Page 432]]

    (c) In order for a claimant who has applied for a monthly survivor 
annuity to establish a deemed marriage, the claimant must have been 
living in the same household as the employee at the time of the 
employee's death (see Sec. 222.16).
    (d) If the husband, wife, widow(er), remarried widow(er), or 
surviving divorced spouse of the employee is a claimant for a monthly 
annuity on a basis other than age or disability, a child-in-care 
determination is required (see Sec. Sec. 222.17 and 222.18).



Sec. 222.11  Determination of marriage relationship.

    A claimant will be considered to be the husband, wife, or widow(er) 
of an employee if the law of the State in which the employee has or had 
a permanent home would recognize that the claimant and employee were 
validly married, or if a deemed marriage is established.
    (a) Generally, State courts will find that a claimant and employee 
were validly married if--
    (1) The employee and claimant were married in a civil or religious 
ceremony (see Sec. 222.12) or
    (2) The employee and claimant live together in a common-law marriage 
relationship which is recognized under applicable State law (see Sec. 
222.13), and no impediment to the marriage existed at the time it took 
place.
    (b) A deemed marriage relationship may be established as described 
in Sec. 222.14.



Sec. 222.12  Ceremonial marriage relationship.

    A valid ceremonial marriage is one which would be recognized as 
valid by the courts of the State in which the marriage ceremony took 
place. Generally, State law provides various procedures which must be 
followed, such as designation of who may perform the marriage ceremony, 
what licenses or witnesses are required, and similar rules. A ceremonial 
marriage may be a civil or religious ceremony, or a ceremony which 
follows tribal customs, Chinese customs, or similar traditional 
procedures.



Sec. 222.13  Common-law marriage relationship.

    Under the laws of some States, a common-law marriage is one which is 
not solemnized in a formal ceremony, but is generally evidenced by a 
consummated agreement to marry between two persons legally capable of 
making a marriage contract, followed by cohabitation. The laws of the 
various States which recognize common-law marriage delineate specific 
factors which must be present in order to establish a valid common-law 
marriage in those States.



Sec. 222.14  Deemed marriage relationship.

    If a ceremonial or common-law marriage relationship cannot be 
established under State law, a claimant may still be found to have the 
relationship as spouse of an employee based upon a deemed marriage. A 
claimant is deemed to be the wife, husband, or widow(er) of the employee 
if the person's marriage to the employee would have been valid under 
State law except for a legal impediment, and all of the following 
requirements are met:
    (a) The claimant married the employee in a civil or religious 
ceremony.
    (b) The claimant went through the marriage ceremony in good faith. 
Good faith means that at the time of the ceremony the claimant did not 
know that a legal impediment existed, or if the claimant did know, he or 
she thought that it would not prevent a valid marriage.
    (c) The claimant was living in the same household as the employee 
(see Sec. 222.16) when he or she applied for the spouse annuity or when 
the employee died.

[54 FR 42949, Oct. 19, 1989, as amended at 65 FR 20726, Apr. 18, 2000]



Sec. 222.15  When spouse is living with employee.

    A spouse, or widow(er) is living with the employee if--
    (a) He or she and the employee are living in the same household; or
    (b) The employee is contributing to the support of the spouse or 
widow(er); or

[[Page 433]]

    (c) The employee is under court order to contribute to the support 
of the spouse or widow(er).



Sec. 222.16  When spouse is living in the same household with employee.

    (a) Living in the same household means that the employee and spouse 
customarily live together as a married couple in the same residence.
    (b) The employee and spouse are also considered members of the same 
household when they live apart but expect to resume or continue living 
together after a temporary separation.
    (c) If the employee and spouse were separated solely for medical 
reasons, the Board will consider them ``living in the same household'' 
even if the separation was likely to be permanent.



Sec. 222.17  ``Child in care'' when child of the employee is living 
with the claimant.

    ``Child in care'' means a child who has been living with the 
claimant for at least 30 consecutive days unless--
    (a) The child is in active military service;
    (b) The child is 18 years old (16 with respect to male spouse, 
divorced spouse, surviving divorced spouse, or remarried widow(er) 
annuities) or older and is not disabled;
    (c) The child is 18 years old (16 with respect to male spouse, 
divorced spouse, surviving divorced spouse, or remarried widow(er) 
annuities) or older with a mental disability and the claimant does not 
exercise parental control and responsibility; or
    (d) The child is 18 years old (16 with respect to male spouse, 
divorced spouse, surviving divorced spouse, or remarried widow(er) 
annuities) or older with a physical disability, but it is not necessary 
for the claimant to perform personal services for the child.
    (e) Parental control and responsibility for the care and welfare of 
the child means that the parent supervises the child's activities and 
makes important decisions about the child's needs either alone or with 
another person. Personal services are services such as dressing, feeding 
and managing money which the child cannot do alone because of a 
disability.



Sec. 222.18  ``Child in care'' when child of the employee is not living 
with the claimant.

    (a) When child is in care. A child living apart from a claimant is 
in that claimant's care if--
    (1) The child lives apart or is expected to live apart from the 
claimant for not more than six months; or
    (2) The child is under 18 years old (16 with respect to male spouse, 
divorced spouse, surviving divorced spouse, or remarried widow(er) 
annuities), the claimant supervises the child's activities and makes 
important decisions about his or her needs, and one of the following 
circumstances applies:
    (i) The child is living apart because of attendance at school but 
generally spends a vacation of at least 30 consecutive days with the 
claimant each year, and, if the claimant and the child's other parent 
are separated, the school must look to the claimant for decisions about 
the child's welfare.
    (ii) The child is living apart because of the claimant's employment 
but the claimant makes regular and substantial contributions to the 
child's support. ``Contributing to support'' is defined in Sec. 222.42.
    (iii) The child is living apart because of the child's or the 
claimant's physical disability; or
    (3) The child is 18 years old (16 with respect to male spouse, 
divorced spouse, surviving divorced spouse, or remarried widow(er) 
annuities) or older and is mentally disabled and the claimant supervises 
the child's activities, makes important decisions about the child's 
needs, and helps in the child's upbringing and development.
    (b) When child is not in care. A child livng apart from a claimant 
is not in the claimant's care if--
    (1) The child is in active military service; or
    (2) The child is living with his or her other parent; or
    (3) A court order removed the child from the claimant's custody and 
control; or
    (4) The claimant gave the right to custody and control of the child 
to someone else; or
    (5) The claimant is mentally disabled.

[[Page 434]]



Subpart C_Relationship as Divorced Spouse, Surviving Divorced Spouse, or 
                           Remarried Widow(er)



Sec. 222.20  When determination of relationship as divorced spouse, 
surviving divorced spouse, or remarried widow(er) is made.

    (a) Divorced spouse. The claimant's relationship as the divorced 
spouse of an employee is determined when the purported divorced spouse 
applies for an annuity, or when there is a claim which would include a 
divorced spouse in the computation of the social security overall 
minimum provision. Such a determination is also made when a spouse 
annuitant age 62 or over secures a final divorce from the employee after 
10 years of marriage.
    (b) Surviving divorced spouse. The claimant's relationship as the 
surviving divorced spouse of an employee is determined when the 
purported surviving divorced spouse applies for an annuity on the basis 
of age, disability, or having a child in care. Such a determination is 
also made when there is a divorced spouse annuitant and the employee 
dies.
    (c) Remarried widow(er). The claimant's relationship as a remarried 
widow(er) of an employee is determined when the purported remarried 
widow(er) applies for an annuity. Such a determination is also made when 
a widow(er) who is receiving an annuity remarries after age 60, or when 
a widow(er) who is receiving a disability annuity remarries after age 
50.



Sec. 222.21  When marriage is terminated by final divorce.

    A final divorce, often referred to as an absolute divorce, 
completely dissolves the marriage relationship and restores the parties 
to the status of single persons. A legal separation, qualified or 
preliminary divorce, divorce from bed and board, interlocutory decree of 
divorce, or similar court order is not considered a final divorce for 
family relationship and benefit entitlement purposes.



Sec. 222.22  Relationship as divorced spouse.

    A claimant will be considered to be the divorced spouse of an 
employee if--
    (a) His or her marriage to the employee has been terminated by a 
final divorce; and
    (b) He or she is not married (if the claimant remarried after the 
divorce from the employee, the later marriage has been terminated by 
death, final divorce, or annulment); and
    (c) He or she had been validly married to the employee, as set forth 
in Sec. 222.11, for a period of 10 years immediately before the date 
the divorce became final. The claimant meets this requirement even if 
the claimant and employee were divorced within the ten-year period, 
provided that the claimant and employee were remarried no later than the 
calendar year immediately following the year in which the divorce took 
place.



Sec. 222.23  Relationship as surviving divorced spouse.

    A claimant will be considered to be the surviving divorced spouse of 
a deceased employee if the conditions in either paragraph (a) or (b) of 
this section are met:
    (a) Age or disability. The claimant applied for an annuity on the 
basis of age or disability, and the conditions set forth in Sec. 222.22 
are met.
    (b) Child in care. The claimant applied for an annuity on the basis 
of having a child in care, and--
    (1) His or her marriage to the employee has been terminated by a 
final divorce; and
    (2) He or she is not married (if the claimant remarried after the 
divorce from the employee, the later marriage has been terminated by 
death, final divorce, or annulment); and
    (3) He or she either--
    (i) Was the natural parent of the employee's child; or
    (ii) Had been married to the employee when either the employee or 
the claimant legally adopted the other's child or when they both legally 
adopted a child who was then under 18 years of age.

[[Page 435]]



Sec. 222.24  Relationship as remarried widow(er).

    (a) New eligibility. A claimant will have the relationship of a 
remarried widow(er) if he or she is the widow(er), as discussed in Sec. 
222.11, of an employee and the claimant--
    (1) Remarried after attaining age 60, or remarried after attaining 
age 50 and after the date on which he or she became disabled; or
    (2) Remarried before attaining age 60, but is now unmarried, or 
remarried before attaining age 50 or before the date on which he or she 
became disabled, but is now unmarried.
    (b) Reentitlement. A claimant will have the relationship of a 
remarried widow(er) if he or she remarries after his or her entitlement 
to an annuity as a widow(er) has been established, and the claimant--
    (1) Remarries after attaining age 60, or remarries after attaining 
age 50 and after the date on which he or she became disabled; or
    (2) Is entitled to an annuity based upon having a child of the 
employee in care and remarries, but this marriage is to a person who is 
entitled to a retirement, disability, widow(er)'s, mother's, father's, 
parent's, or disabled child's benefit under the Railroad Retirement Act 
or Social Security Act.



                     Subpart D_Relationship as Child



Sec. 222.30  When determinations of relationship as child are made.

    (a) Determinations will be made regarding a person's relationship as 
the child of the employee and that person's dependency on the employee 
(see subpart F of this part) when--
    (1) The wife or husband of an employee applies for a spouse's 
annuity based on having the employee's child in care; or
    (2) The employee's annuity can be increased under the social 
security overall minimum provision based on the child; or
    (3) The employee dies and the claimant applies for a child's 
annuity.
    (b) A determination will be made regarding a claimant's relationship 
as the child of the employee when the claimant applies for a share of a 
lump-sum payment as a child.



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 Sec. Sec. 222.32-222.33.

[65 FR 20726, Apr. 18, 2000]



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) State inheritance law. 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) Natural child. 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) By order of law. 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

[[Page 436]]

    (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) Other evidence of relationship. 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 Sec. Sec. 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 
slands, Guam, American Samoa, or the Northern Mariana Islands, the laws 
of the District of Columbia will apply.
    (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

[[Page 437]]

    (ii) Any law that supersedes a law declared unconstitutional, that 
was considered constitutional on the employee's date of death, will 
apply.

[65 FR 20726, Apr. 18, 2000]



Sec. 222.33  Relationship resulting from legal adoption.

    (a) Adopted by employee. A claimant will be considered to be the 
child of the employee for both annuity and lump-sum payment purposes if 
the employee legally adopted the claimant in accordance with applicable 
State law. Legal adoption differs from equitable adoption in that in the 
case of legal adoption formal adoption proceedings have been completed 
in accordance with applicable State law and such proceedings are not 
defective.
    (b) Adopted by widow or widower. A claimant who is legally adopted 
by the widow or widower of the employee after the employee's death will 
be considered to be the child of the employee for annuity but not for 
lump-sum payment purposes if--
    (1) Either the claimant is adopted by the widow or widower within 
two years after the date on which the employee died, or the employee 
commenced proceedings to legally adopt the claimant before the 
employee's death; and
    (2) The claimant was living in the employee's household at the time 
of the employee's death; and
    (3) The claimant was not receiving regular support contributions 
from any other person other than the employee or spouse at the time of 
the employee's death.
    (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.

[54 FR 42949, Oct. 19, 1989, as amended at 65 FR 20727, Apr. 18, 2000]



Sec. 222.34  Relationship resulting from equitable adoption.

    In many States, where a legal adoption proceeding was defective 
under State law or where a contemplated legal adoption was not 
completed, a claimant may be considered to be an equitably adopted 
child. A claimant will have the relationship of an equitably adopted 
child for annuity and lump-sum payment purposes if, in addition to 
meeting the other requirements of this part--
    (a) The employee had agreed to adopt the claimant; and
    (b) The natural parents or the person legally responsible for the 
care of the claimant agreed to the adoption; and
    (c) The employee and the claimant lived together as parent and 
child; and
    (d) The agreement to adopt is recognized under applicable State law 
such that, if the employee were to die without leaving a will, the 
claimant could inherit a share of the employee's personal estate as the 
child of the employee.



Sec. 222.35  Relationship as stepchild.

    A claimant will be considered to have the relationship of stepchild 
of an employee, and will be considered a child for annuity but not for 
lump-sum benefit purposes if--
    (a) The claimant's natural or adoptive parent married the employee 
after the claimant's birth; and
    (b) The marriage between the employee and the claimant's parent is a 
valid marriage under applicable State law (see Sec. Sec. 222.12 and 
222.13), or would be valid except for a legal impediment; and
    (c) The employee and the claimant's parent were married at least one 
year before the date--
    (1) On which the spouse applies for an annuity based on having the 
employee's child in care; or
    (2) On which the employee's annuity can be increased under the 
social security overall minimum provision; or
    (d) The employee and the claimant's parent were married at least 
nine months before the date on which the employee died if the claimant 
is applying for a child's annuity; or if the employee and the claimant's 
parent were married less than nine months, the employee was reasonably 
expected to live for nine months, and--
    (1) The employee's death was accidental; or
    (2) The employee died in the line of duty as a member of the armed 
forces of the United States; or

[[Page 438]]

    (3) The widow(er) was previously married to the employee for at 
least nine months.



Sec. 222.36  Relationship as grandchild or stepgrandchild.

    A claimant will have the relationship of grandchild or 
stepgrandchild of an employee, or the grandchild or stepgrandchild of an 
employee's spouse, and be considered a child for annuity purposes if the 
requirements in both paragraph (a) and either paragraph (b) or (c) of 
this section are met.
    (a) The claimant is the natural child, adopted child, or stepchild 
of a child of an employee, or of a child of the employee's spouse as 
defined in this subpart;
    (b) The claimant's natural or adoptive parents are deceased or are 
disabled, as defined in section 223(d) of the Social Security Act, in 
the month in which--
    (1) The employee, who is entitled to an age and service or 
disability annuity, under the Railroad Retirement Act, would also be 
entitled to an age benefit under section 202(a) of the Social Security 
Act or a disability benefit under section 223 of the Social Security 
Act, if his or her railroad compensation were considered wages under 
that Act; or
    (2) The employee dies; or
    (3) The employee's period of disability begins, if the employee has 
a period of disability which continues until he or she could be entitled 
to a social security benefit as described in paragraph (b)(1) of this 
section or until he or she dies.
    (c) The claimant was legally adopted in the United States by the 
employee's widow(er) after the employee's death, and the claimant's 
natural or adoptive parent or stepparent was not living in the 
employee's household and making regular contributions to the claimant's 
support at the time the employee died.
    Note: A grandchild or stepgrandchild does not have the relationship 
of ``child'' for lump-sum payment purposes (see Sec. 222.44).



     Subpart E_Relationship as Parent, Grandchild, Brother or Sister



Sec. 222.40  When determinations of relationship are made for parent, 
grandchild, brother or sister.

    (a) Parent. The claimant's relationship as a parent of the employee 
is determined when the claimant applies for an annuity or for lump-sum 
payments.
    (b) Grandchild. The claimant's relationship as a grandchild, rather 
than as a child, of the employee is determined when the claimant applies 
for lump-sum payments.
    (c) Brother or sister. The claimant's relationship as a brother or 
sister of the employee is determined when the claimant applies for lump-
sum payments.



Sec. 222.41  Determination of relationship and support for parent.

    (a) Annuity claimant. For purposes of applying for an annuity, a 
claimant is considered the employee's parent when the claimant--
    (1) Is the natural mother or father of the employee, and is 
considered the employee's parent under the law of the State in which the 
employee had a permanent home when the employee died; or
    (2) Is a person who legally adopted the employee before the employee 
became 16 years old; or
    (3) Is a stepparent who married the employee's natural or adoptive 
parent before the employee became 16 years old (the marriage must be 
valid under the law of the State in which the employee had a permanent 
home when the employee died); and
    (4) Was receiving at least one-half support from the employee (see 
Sec. Sec. 222.42 and 222.43 of this part) either when the employee died 
or at the beginning of the period of disability, if the employee had a 
period of disability.
    (b) Lump-sum payment claimant. For purposes of applying for lump-sum 
payments, a claimant is considered the employee's parent when he or 
she--
    (1) Is the natural mother or father of the employee, and is 
considered the employee's parent under applicable State law; or

[[Page 439]]

    (2) Legally adopted the employee, if thereby recognized as a parent 
under applicable State law; but
    (3) The claimant need not have received one-half support from the 
employee.



Sec. 222.42  When employee is contributing to support.

    (a) An employee is contributing to the support of a person if the 
employee gives cash, goods, or services to help support such person. 
Support includes food, clothing, housing, routine medical care, and 
other ordinary and necessary living expenses. The value of any goods 
which the employee contributes shall be based upon the replacement cost 
of those goods at the time they are contributed. If the employee 
provides services that would otherwise require monetary payment, the 
cash value of the employee's services may be considered a contribution 
to support.
    (b) The employee is contributing to the support of a person if that 
person receives an allotment, allowance, or benefit based upon the 
employee's military pay, veteran's pension or compensation, social 
security earnings, or railroad compensation.
    (c) Contributions must be made regularly and must be large enough to 
meet an important part of the person's ordinary and necessary living 
expenses. If the employee provides only occasional gifts or donations 
for special purposes, they will not be considered contributions for 
support. Although the employee's contributions must be made on a regular 
basis, temporary interruptions caused by circumstances beyond the 
employee's control, such as illness or unemployment, will be disregarded 
unless during these interruptions someone else assumes responsibility 
for support of the person on a regular basis.



Sec. 222.43  How the one-half support determination is made.

    (a) Amount of contributions. The employee provides one-half support 
to a person if the employee makes regular contributions to that person's 
support, and the amount of the contributions is equal to or in excess of 
one-half of the person's ordinary and necessary living expenses. 
Ordinary and necessary living expenses are the costs for food, clothing, 
housing, routine medical care, and similar necessities. A contribution 
may be in cash, goods, or services (see Sec. 222.42 of this part). For 
example, an employee pays rent and utilities amounting to $6,000 per 
year on an apartment in which his mother resides. In addition, the 
employee's mother receives $3,600 per year in social security benefits 
which she uses to pay for her food, clothing and medical care. The 
mother's total necessary living expenses are $9,600 ($6,000 + $3,600). 
Since the employee contributes $6,000 toward these expenses, he is 
contributing in excess of one-half of his mother's support.
    (b) Reasonable period of time. The employee is not providing at 
least one-half of a person's support unless the employee has made 
contributions for a reasonable period of time. Ordinarily, the Board 
will consider a reasonable period of time to be the 12-month period 
immediately preceding the time when the one-half support requirement 
must be satisfied. However, if the employee provided one-half or more of 
the person's support for at least 3 months of the 12-month period, and 
was forced to stop or reduce contributions because of circumstances 
beyond his or her control, such as illness or unemployment, and no one 
else took over responsibility for providing at least one-half of the 
person's support on a permanent basis, three months shall be considered 
a reasonable period of time.



Sec. 222.44  Other relationship determinations for lump-sum payments.

    Other claimants will be considered to have the relationships to the 
employee shown below for lump-sum payment purposes:
    (a) Grandchildren. A grandchild is a separate class of beneficiary 
to be considered for lump-sum payments and is not a child of the 
employee; he or she is a child of the employee's son or daughter as 
determined under State law. A stepgrandchild is not included in this 
class of beneficiary.
    (b) Brother or Sister. ``Brother'' or ``Sister'' means a full 
brother or sister or a half brother or half sister, but not a 
stepbrother or stepsister.

[[Page 440]]



                 Subpart F_Child Support and Dependency



Sec. 222.50  When child dependency determinations are made.

    (a) Dependency determination. One of the requirements for a child's 
annuity or for increasing an employee or spouse annuity under the social 
security overall minimum provision on the basis of the presence of a 
child in the family group is that the child be dependent upon the 
employee. The dependency requirements and the time when they must be met 
are explained in Sec. Sec. 222.51 through 222.57.
    (b) Related determinations. To prove a child's dependency, an 
applicant may be asked to show that at a specific time the child lived 
with the employee, that the child received contributions for his or her 
support from the employee, or that the employee provided at least one-
half of the child's support. The terms ``living with'', ``contributing 
to support'', and ``one-half support'' are defined in Sec. Sec. 222.58, 
222.42, an 222.43. These determinations are required when--
    (1) A natural child or legally adopted child of the employee is 
adopted by someone else; or
    (2) The child claimant is the stepchild, grandchild, or equitably 
adopted child of the employee.



Sec. 222.51  When a natural child is dependent.

    The employee's natural child, as defined in Sec. 222.32, is 
considered to be dependent upon the employee. However, if the child is 
legally adopted by someone else during the employee's lifetime and, 
after the adoption, a child's annuity or other annuity or annuity 
increase is applied for on the basis of the employee's earnings record 
and the relationship of the child to the employee, the child will be 
considered dependent upon the employee (the natural parent) only if he 
or she was either living with the employee or the employee was 
contributing to the child's support when either:
    (a) A spouse's annuity begins; or
    (b) The employee's annuity can be increased under the social 
security overall minimum provision; or
    (c) The employee dies; or
    (d) If the employee had a period of disability which lasted until he 
or she could have become entitled to an age or disability benefit under 
the Social Security Act (treating the employee's railroad compensation 
as wages under that Act), at the beginning of the period of disability 
or at the time the employee could have become entitled to the benefit.



Sec. 222.52  When a legally adopted child is dependent--general.

    (a) During employee's lifetime. If the employee adopts a child 
before he or she could become entitled to a social security benefit 
(treating his or her railroad compensation as wages under that Act), the 
child is considered dependent upon the employee. If the employee adopts 
a child, unless the child is his natural child or stepchild, after he or 
she could become entitled to an old age or disability benefit under the 
Social Security Act (treating his or her railroad compensation as wages 
under that Act), the child is considered dependent on the employee only 
if the requirements of Sec. 222.53 are met.
    (b) After employee's death. If the surviving spouse of an employee 
adopted a child after the employee's death, the child is considered 
dependent on the employee if either--
    (1) The employee began proceedings to adopt the child prior to his 
or her death, or the surviving spouse adopted the child within two years 
after the employee's death; and
    (2) The child was living in the employee's household at the time of 
the employee's death; and
    (3) The child was not receiving regular contributions from any 
person, including any public or private welfare organization, other than 
the employee or spouse at the time of the employee's death.



Sec. 222.53  When a legally adopted child is dependent--child adopted 
after entitlement.

    A child who is not the employee's natural child, stepchild, 
grandchild, or stepgrandchild, and who is adopted by the employee after 
the employee could become entitled to an old age or disability benefit 
under the Social Security Act (treating his or her railroad

[[Page 441]]

compensation as wages under that Act), is considered dependent on the 
employee during the employee's lifetime only if the requirements in 
paragraphs (a) and (b), and either (c) or (d) of this section are met:
    (a) The child is adopted in the United States;
    (b) The child began living with the employee before the child 
attained age 18;
    (c) The child is living with the employee in the United States and 
received at least one-half of his or her support from the employee for 
the year before the month in which--
    (1) The employee could become entitled to a social security benefit 
as described above; or
    (2) The employee becomes entitled to a period of disability which 
continues until he or she could become entitled to a social security 
benefit as described above.
    (d) In the case of a child born within the one-year period stated in 
paragraph (c) of this section, at the close of such period the child 
must have been living with and have been receiving at least one-half of 
his or her support from the employee for substantially all of the period 
that began on the date the child was born.
    (e) ``Substantially all'' means--
    (1) The child was living with and receiving one-half support from 
the employee when the employee could have become entitled to a social 
security benefit as described above; and
    (2) Any period during which the child was not living with or 
receiving one-half support from the employee is not more than one-half 
the period from the child's birth to the employee's date of entitlement 
or three months, whichever is less.



Sec. 222.54  When a legally adopted child is dependent--grandchild 
or stepgrandchild adopted after entitlement.

    If an employee legally adopts his or her grandchild or the spouse's 
grandchild after he could become entitled to an old age or disability 
benefit under the Social Security Act (treating his or her railroad 
compensation as wages under that Act), the grandchild is considered 
dependent on the employee during the employee's lifetime only if the 
requirements in paragraphs (a) and (b), and either (c) or (d) of this 
section are met:
    (a) The grandchild is adopted in the United States.
    (b) The grandchild began living with the employee before the 
grandchild attained age 18.
    (c) The grandchild is living with the employee in the United States 
and receives at least one-half of his or her support from the employee 
for the year before the month in which--
    (1) The employee's annuity was increased under the social security 
overall minimum provision by including the grandchild; or
    (2) The employee could become entitled to a social security benefit 
as described above; or
    (3) The employee becomes entitled to a period of disability which 
continues until he or she could become entitled to a social security 
benefit as described above.
    (d) In the case of a grandchild born within the one-year period 
referred to in paragraph (c) of this section, at the close of such 
period the child must have been living with and have been receiving at 
least one-half of his or her support from the employee for substantially 
all of the period that began on the date the grandchild was born. 
``Substantially all'' is defined in Sec. 222.53.



Sec. 222.55  When a stepchild is dependent.

    An employee's stepchild, as described in Sec. 222.35, is considered 
dependent on the employee if the stepchild receiving at least one-half 
of his or her support from the employee at one of the times shown in 
Sec. 222.51.

[54 FR 42949, Oct. 19, 1989, as amended at 62 FR 47138, Sept. 8, 1997]



Sec. 222.56  When a grandchild or stepgrandchild is dependent.

    An employee's grandchild or stepgrandchild, as described in Sec. 
222.36, is considered dependent on the employee if the requirements in 
both paragraphs (a) and (b), or paragraph (c) of this section are met:
    (a) The grandchild or stepgrandchild was living with the employee 
before

[[Page 442]]

the grandchild or stepgrandchild attained age 18.
    (b) The grandchild or stepgrandchild is living with the employee in 
the United States and receives at least one-half of his or her support 
from the employee for the year before the month in which--
    (1) The employee could become entitled to an age and service or 
disability annuity under the Social Security Act (treating his or her 
railroad compensation as wages under that Act); or
    (2) The employee dies; or
    (3) The employee becomes entitled to a period of disability that 
lasts until he or she could become entitled to a social security benefit 
as described above or until he or she dies.
    (c) In the case of a grandchild or stepgrandchild born within the 
one-year period referred to in paragraph (b) of this section, at the 
close of such period the child must have been living with and receiving 
at least one-half of his or her support from the employee for 
substantially all of the period that began on the date the grandchild or 
stepgrandchild was born. ``Substantially all'' is defined in Sec. 
222.53.



Sec. 222.57  When an equitably adopted child is dependent.

    An employee's equitably adopted child, as defined in Sec. 222.34, 
is considered dependent upon the employee if the employee was either 
living with or contributing to the support of the child at the time of 
his or her death. If the equitable adoption is found to have occurred 
after the employee could have become entitled to an old age or 
disability benefit under the Social Security Act (treating his or her 
railroad compensation as wages under that Act), the child is not 
considered dependent on the employee during the employee's lifetime. If 
the equitable adoption took place before such time, the child is 
dependent on the employee if the employee was living with or 
contributing to the support of the child at one of the times shown in 
Sec. 222.51.



Sec. 222.58  When a child is living with an employee.

    A child is living with the employee if the child normally lives in 
the same household with the employee and the employee has parental 
control and authority over the child's activities. The child is 
considered to be ``living with'' the employee while they are living 
apart if they expect to live together again after a temporary 
separation. A temporary separation may include the employee's absence 
because of working away from home or hospitalization. However, the 
employee must have parental control and authority over the child during 
the period of temporary separation. A child who is in active military 
service or in prison is not ``living with'' the employee, since the 
employee does not have parental control over the child.



PART 225_PRIMARY INSURANCE AMOUNT DETERMINATIONS--Table of Contents




                            Subpart A_General

Sec.
225.1 Introduction.
225.2 Definitions.
225.3 PIA computation formulas.
225.4 Limitation on amount of earnings used to compute a PIA.

 Subpart B_PIA's Used in Computing Employee, Spouse and Divorced Spouse 
                                Annuities

225.10 General.
225.11 Tier I PIA.
225.12 Combined Earnings Dual Benefit PIA.
225.13 Social Security Earnings Dual Benefit PIA.
225.14 Railroad Earnings Dual Benefit PIA.
225.15 Overall Minimum PIA.

 Subpart C_PIA's Used in Computing Survivor Annuities and the Amount of 
                      the Residual Lump-Sum Payable

225.20 General.
225.21 Survivor Tier I PIA.
225.22 Employee RIB PIA used in survivor annuities.
225.23 Combined Earnings PIA used in survivor annuities.
225.24 SS Earnings PIA used in survivor annuities.
225.25 RR Earnings PIA used in survivor annuities.
225.26 Residual Lump-Sum PIA.

                  Subpart D_Delayed Retirement Credits

225.30 General.
225.31 PIA's to which DRC's are added.
225.32 DRC's and the Special Minimum PIA.
225.33 Months for which DRC's are due.

[[Page 443]]

225.34 How the amount of the DRC is figured.
225.35 When a PIA used in computing a retirement annuity can be 
          increased for DRC's.
225.36 Effect of DRC's on survivor annuities.

                   Subpart E_Cost-of-Living Increases

225.40 General.
225.41 How a cost-of-living increase is determined and applied.
225.42 Notice of the percentage amount of a cost-of-living increase.
225.43 PIA's subject to cost-of-living increases.
225.44 When a cost-of-living increase is payable.

                       Subpart F_Recomputing PIA's

225.50 General.
225.51 PIA's that are subject to recomputation.
225.52 Reasons for recomputing a PIA.
225.53 Recomputation to consider additional earnings.
225.54 Recomputation when an employee is eligible for periodic pension 
          payments based on other than railroad or social security 
          earnings.
225.55 Recomputation to use a new or different PIA formula.
225.56 Automatic recomputation.
225.57 Requesting a recomputation.
225.58 Waiver of recomputation.

                        Subpart G_Adjusting PIA's

225.60 Adjustment at age 62 when employee is entitled to an annuity 
          based on 30 years of railroad service.

    Authority: 45 U.S.C. 231f(b)(5).

    Source: 54 FR 12903, Mar. 29, 1989, unless otherwise noted.



                            Subpart A_General



Sec. 225.1  Introduction.

    This part discusses Primary Insurance Amount, which is referred to 
as PIA throughout this part, and which is an important element in the 
calculation of any retirement or survivor annuity. There are a number of 
PIA computations based on different periods, amounts, and types of 
earnings. However, the formulas for computing any PIA are prescribed in 
section 215 of the Social Security Act and are described in detail in 
the regulations of the Social Security Administration (20 CFR part 404, 
subpart C). This part discusses PIA computation formulas and relates 
them to the PIA's which the Board uses. Descriptions of the majority of 
PIA's used in computing retirement or survivor annuities under the 
Railroad Retirement Act are contained in this part. Explanations are 
included of when delayed retirement credits and cost-of-living increases 
can be added to the PIA's used by the Board. This part also explains 
when and how a PIA is recomputed or adjusted. Since these regulations 
are intended to address annuities currently being awarded, certain 
PIA's, not used in the computation of annuities awarded after August 13, 
1981, are not included in these regulations. Parts 226, 228 and 229 of 
this chapter explain how PIA's are used in actual annuity computations.



Sec. 225.2  Definitions.

    As used in this part:
    Average Indexed Monthly Earnings means the result of dividing the 
total of the indexed earnings through the indexing year and the 
nonindexed earnings after the indexing year in the benefit computation 
years by the number of months in the benefit computation years. The 
indexing year for the Average Indexed Monthly Earnings PIA is the second 
year before the employee's eligibility year. Indexing of an employee's 
yearly earnings serves to put the earnings in proportion to the earnings 
level of all workers for the corresponding years, and to express the 
earnings in terms of a more recent dollar value. Indexed earnings are 
determined under section 215(b)(1) of the Social Security Act. The 
Average Indexed Monthly Earnings formula PIA is based on the Average 
Indexed Monthly Earnings amount.
    Average Monthly Earnings means the average determined by dividing 
the acutal earnings used in computing the PIA by the total months in the 
benefit computation years. The Average Monthly Earnings is determined 
under section 215(b)(4) of the Social Security Act. The Average Monthly 
Earnings formula PIA is based on the Average Monthly Earnings amount.
    Base Years means the years after 1950 (or 1936, if applicable) and 
up to the year in which the employee dies or is

[[Page 444]]

entitled to an annuity based on retirement or disability. When the 
employee's death occurs before he or she reaches retirement age as 
defined in section 216(l) of the Social Security Act, the Base Years 
include the year of the employee's death. Base Years are defined in 
sections 215(b)(2)(B)(ii) and 215(d) of the Social Security Act.
    Benefit Computation Years means the years with the highest earnings 
used in computing the Average Indexed Monthly Earnings or Average 
Monthly Earnings. The number of Benefit Computation Years is determined 
in accordance with section 215(b)(2)(B)(i) of the Social Security Act 
and is based on the employee's age or when the employee becomes disabled 
or dies.
    Compensation means railroad compensation which is the amount of 
creditable railroad earnings under the Railroad Retirement Act, as 
explained in part 211 of this chapter.
    Earnings means compensation creditable under the Railroad Retirement 
Act (other than compensation attributable to years of service prior to 
1937) or ``wages'' creditable under the Social Security Act or both.
    Eligible means that a person meets the necessary requirements and 
could qualify for payment if a valid application were filed.
    Eligibility Year means the earliest of: the employee's year of 
attainment of age 62; The year of disability onset; or the year of 
death. The Eligibility Year determines the formula used to compute a 
Primary Insurance Amount. Eligibility Year is defined in section 215(a) 
of the Social Security Act.
    Employee means any person who is working or has worked for a 
railroad employer who is eligible for a retirement annuity or on whose 
account a survivor is eligible for a survivor annuity, as explained in 
part 216 of this chapter. For a detailed discussion of Employees under 
the Railroad Retirement Act, see part 203 of this chapter.
    Entitled means that a person meets the necessary requirements, files 
a valid application and establishes his or her right to payment.
    Indexed Earnings means the employee's yearly earnings for the years 
after 1950 that have been adjusted to put the earnings in proportion to 
the earnings level of all workers for each of those years and to express 
the earnings in terms of a more recent dollar amount.
    Primary Insurance Amount (PIA) means the result obtained by applying 
one of three formulas in the Social Security Act to the employee's 
earnings as prescribed under that Act. A PIA can be based on the Average 
Indexed Monthly Earnings formula, the Average Monthly Earnings formula 
or, in the case of the Special Minimum PIA, on a special formula based 
on years of coverage. Averaging earnings and PIA formulas are prescribed 
in section 215 of the Social Security Act.
    Social Security Act means the Social Security Act as amended from 
time to time, unless the Act as in effect on a particular date is 
specified.
    Wages means creditable wages or self-employment under sections 209 
or 211, respectively, of the Social Security Act.
    Year of service means 12 months of railroad service credited in 
accordance with part 210 of this chapter.
    Years of coverage means years after 1936 as defined in section 
215(a)(1)(C)(ii) of the Social Security Act in which the employee had 
earnings over certain specified amounts. Years of Coverage is primarily 
a factor in determining the Special Minimum formula PIA amount.

[54 FR 12903, Mar. 29, 1989, as amended at 68 FR 39010, July 1, 2003]



Sec. 225.3  PIA computation formulas.

    (a) General. PIA's are generally computed under one of two normal 
formulas determined by the employee's eligibility year. In addition, 
there is a special PIA formula, based on an employee's years of 
coverage, that is used when it produces a PIA that is higher than the 
PIA computed under the appropriate PIA formula. The two most common PIA 
formulas are the Average Indexed Monthly Earnings PIA formula and the 
Average Monthly Earnings PIA formula. The special PIA formula is called 
the Special Minimum PIA formula.
    (b) Average Indexed Monthly Earnings PIA formula. When the 
employee's eligibility year is after 1978, the Tier I PIA, Overall 
Minimum PIA, Survivor

[[Page 445]]

Tier I PIA, Employee's Retirement Insurance Benefit PIA and Residual 
Lump-Sum PIA are computed under the Average Indexed Monthly Earnings PIA 
formula.
    (c) Average Monthly Earnings PIA formula. The Average Monthly 
Earnings PIA formula is used to compute a PIA for one of two reasons: 
either the employee's eligibility year is before 1979 or the type of PIA 
requires that it always be computed under the Average Monthly Earnings 
PIA formula.
    (1) Use of Average Monthly Earnings PIA formula based on the 
employee's eligibility year. The Average Monthly Earnings PIA formula is 
used in computing the Tier I PIA, the Overall Minimum PIA, the Employee 
Fictional Retirement Insurance Benefit PIA and the Residual Lump-Sum PIA 
when the employee's eligibility year is before 1979.
    (2) Types of PIA's always computed using the Average Monthly 
Earnings PIA formula. The following PIA's used by the Board are 
determined under the Social Security Act as in effect on December 31, 
1974, and are always computed using the Average Monthly Earnings PIA 
formula.
    (i) Combined Earnings Dual Benefit PIA described in Sec. 225.12.
    (ii) Social Security Earnings Dual Benefit PIA described in Sec. 
225.13.
    (iii) Railroad Earnings Dual Benefit PIA described in Sec. 225.14.
    (iv) Combined Earnings PIA described in Sec. 225.23.
    (v) Social Security Earnings PIA described in Sec. 225.24.
    (vi) Railroad Earnings PIA described in Sec. 225.25.
    (d) Special Minimum PIA formula. The Special Minimum PIA formula is 
based on the employee's years of coverage. The Special Minimum PIA 
formula usually applies when the employee had consistently low earnings 
during his or her working lifetime. The Special Minimum PIA formula is 
used when it is higher than the PIA calculated under the applicable 
Average Indexed Monthly Earnings formula or the Average Monthly Earnings 
formula.



Sec. 225.4  Limitation on amount of earnings used to compute a PIA.

    Certain PIA's used by the Board are based on a combination of 
compensation and wages, while other PIA's used by the Board are based 
solely on either compensation or wages. For purposes of crediting 
earnings when computing any PIA, compensation is always treated as 
wages. Regardless of whether a PIA is based on a combination of 
compensation and wages or exclusively on either compensation or wages, 
the total earnings for each year used in computing a PIA cannot be 
higher than the maximum social security earnings creditable in that year 
under sections 209(a) and 211(b) of the Social Security Act. The various 
PIA's used by the Board are described in subparts B and C of this part.



 Subpart B_PIA's Used in Computing Employee, Spouse and Divorced Spouse 
                                Annuities



Sec. 225.10  General.

    This subpart contains information about the PIA's that can be used 
in computing most employee, spouse and divorced spouse annuities. The 
Tier I PIA is used in computing the tier I component of an employee, 
spouse or divorced spouse annuity. The Combined Earnings Dual Benefit 
PIA, Social Security Earnings Dual Benefit PIA and Railroad Earnings 
Dual Benefit PIA are used in computing an employee's vested dual benefit 
component and a corresponding tier II component offset when entitlement 
to a vested dual benefit exists. Retirement annuity computations are 
discussed in part 226 of this chapter. The Overall Minimum PIA is used 
in computing the overall minimum guaranty formula rate as discussed in 
part 229 of this chapter.



Sec. 225.11  Tier I PIA.

    (a) General. The Tier I PIA is used in computing an employee, spouse 
or divorced spouse tier I amount. Except for the cases described in 
paragraphs (b) through (d) of this section, a Tier I PIA is determined 
under sections 215 and 223 of the Social Security Act. Railroad

[[Page 446]]

and Social Security earnings are included in the calculation of a Tier I 
PIA.
    (b) Employee attains age 60 and/or acquires 30 years of service 
after June 30, 1984. When an employee is entitled to an age and service 
annuity before the month of attaining age 62, as explained in part 216 
of this chapter, the following Railroad Retirement Act rules apply in 
addition to those in Sec. 225.11(a) in computing the Tier I PIA.
    (1) Four months before the first full month the employee is age 62, 
the Average Indexed Monthly Earnings is determined as if the employee's 
eligibility year were the year the annuity began.
    (2) The benefit computation years used in computing the Tier I PIA 
are based on the date of the employee's actual attainment of age 62.
    (3) The Tier I PIA is adjusted when the employee reaches age 62 to 
use the year in which the employee attains age 62 as the eligibility 
year.
    (4) Cost-of-living increases and recomputations apply after the 
employee attains age 62.
    (c) Employee attains age 60 and acquires 30 years of service before 
July 1, 1984. For purposes of determining the benefit computation years 
to be used in computing the Tier I PIA for an employee who is age 60 
through 64, and who both has 30 years of service and attains age 60 
prior to July 1, 1984, the employee is considered to be age 65 when the 
age and service annuity begins. For purposes of computing the Average 
Indexed Monthly Earnings, the eligibility year is the year the annuity 
begins or age 62, if earlier. Cost-of-living increases are paid from the 
year the annuity begins. Recomputations are paid after the employee 
actually attain age 62.
    (d) Disability annuity. When an employee is entitled to a disability 
annuity, as explained in subpart B of part 216 of this chapter, the 
following Railroad Retirement Act rule applies in addition to those in 
Sec. 225.11(a) in computing the Tier I PIA. The Tier I PIA is computed 
as if the employee were 62 years old on the date, as determined by the 
Board, of onset of disability, if the employee is under age 62 on that 
date.



Sec. 225.12  Combined Earnings Dual Benefit PIA.

    (a) General. The Combined Earnings Dual Benefit PIA is used in 
computing the employee vested dual benefit when the employee meets 
certain eligibility requirements as described in part 216 of this 
chapter. The Combined Earnings Dual Benefit PIA is also used in 
computing the employee's tier II annuity component when the employee 
becomes entitled to a vested dual benefit. This PIA is determined under 
section 215 of the Social Security Act as in effect on December 31, 
1974. Railroad and social security earnings after 1950 (or after 1936, 
if applicable) and through December 31, 1974, or the last year of 
railroad service before 1974 are included in the calculation of this 
PIA.
    (b) Employee insured on own wage record on December 31, 1974. 
Railroad and social security earnings after 1950 (or after 1936, if a 
higher PIA would result) and through 1974 are used in computing the 
Combined Earnings Dual Benefit PIA if the employee--
    (1) Had at least 25 years of railroad service before January 1, 
1975; or
    (2) Had at least 10 years of railroad service as of December 31, 
1974, and worked in the railroad industry anytime during calendar year 
1974; or
    (3) Had at least 10 years of railroad service as of December 31, 
1974, and had a current connection with the railroad industry (as 
described in part 216 of this chapter) on December 31, 1974, or when the 
employee annuity began.
    (c) Employee insured on own wage record in last year of railroad 
service. Railroad and social security earnings after 1950 (or after 
1936, if a higher PIA would result) and through December 31 of the year 
before 1974 in which the employee last worked in railroad service are 
used in computing the Combined Earnings Dual Benefit PIA if the 
employee--
    (1) Had at least 10 but less than 25 years of railroad service 
through December 31, 1974; and
    (2) Did not work in the railroad industry during 1974; and
    (3) Did not have a current connection with the railroad industry (as 
described in part 216 of this chapter) on December 31, 1974, or when the 
employee annuity began.

[[Page 447]]



Sec. 225.13  Social Security Earnings Dual Benefit PIA.

    (a) General. The Social Security Earnings Dual Benefit PIA is used 
in computing the employee vested dual benefit when the employee meets 
certain eligibility requirements as described in part 216 of this 
chapter. The Social Security Dual Benefit PIA is also used in computing 
the employee's tier II annuity component when the employee becomes 
entitled to a vested dual benefit. This PIA is determined under section 
215 of the Social Security Act as in effect on December 31, 1974. Social 
security earnings after 1950 (or after 1936, if applicable) and through 
December 31, 1974, or the last year of railroad service before 1974 are 
included in the calculation of this PIA.
    (b) Employee insured on own wage record on December 31, 1974. Social 
security earnings after 1950 (or after 1936, if a higher PIA would 
result) and through 1974 are used in computing the Social Security 
Earnings Dual Benefit PIA if the employee--
    (1) Had at least 25 years of railroad service before January 1, 
1975; or
    (2) Had at least 10 years of railroad service as of December 31, 
1974, and worked in the railroad industry anytime during calendar year 
1974; or
    (3) Had at least 10 years of railroad service as of December 31, 
1974, and has a current connection with the railroad industry (as 
described in part 216 of this chapter) on December 31, 1974, or when the 
employee annuity began.
    (c) Employee insured on own wage record in last year of railroad 
service. Social security earnings after 1950 (or after 1936, if a higher 
PIA would result) and through December 31 of the year before 1974 in 
which the employee last worked in the railroad industry are used in 
computing the Social Security Earnings Dual Benefit PIA if the 
employee--
    (1) Had at least 10 but less than 25 years of railroad service 
through December 31, 1974; and
    (2) Did not work in the railroad industry during 1974; and
    (3) Did not have a current connection with the railroad industry (as 
described in part 216 of this chapter) on December 31, 1974, or when the 
employee annuity began.



Sec. 225.14  Railroad Earnings Dual Benefit PIA.

    (a) General. The Railroad Earnings Dual Benefit PIA is used in 
computing the employee vested dual benefit when the employee meets 
certain eligibility requirements as described in part 216 of this 
chapter. The Railroad Earnings Dual Benefit PIA is also used in 
computing the employee's tier II annuity component when the employee 
becomes entitled to a vested dual benefit. This PIA is determined under 
section 215 of the Social Security Act as in effect on December 31, 
1974. Railroad earnings after 1950 (or after 1936, if applicable) and 
through December 31, 1974, or the last year of railroad service before 
1974 are included in the calculation of this PIA.
    (b) Employee insured on own wage record on December 31, 1974. 
Railroad earnings after 1950 (or after 1936, if a higher PIA would 
result) and through 1974 are used in computing the Railroad Earnings 
Dual Benefit PIA if the employee--
    (1) Had at least 25 years of railroad service before January 1, 
1975; or
    (2) Had at least 10 years of railroad service as of December 31, 
1974, and worked in the railroad industry anytime during calendar year 
1974; or
    (3) Had at least 10 years of railroad service as of December 31, 
1974, and had a current connection with the railroad industry (as 
described in part 216 of this chapter) on December 31, 1974, or when the 
employee annuity began.
    (c) Employee insured on own wage record in last year of railroad 
service. Railroad earnings after 1950 (or after 1936, if a higher PIA 
would result) and through December 31 of the year before 1974 in which 
the employee last worked in railroad service are used in computing the 
Railroad Earnings Dual Benefit PIA if the employee--
    (1) Had at least 10 but less than 25 years of railroad service 
through December 31, 1974; and
    (2) Did not work in the railroad industry during 1974; and
    (3) Did not have a current connection with the railroad industry (as 
described in part 216 of this chapter) on December 31, 1974, or when the 
employee annuity began.

[[Page 448]]



Sec. 225.15  Overall Minimum PIA.

    The Overall Minimum PIA is considered when the employee would be 
eligible for an old age insurance benefit or a disability insurance 
benefit under section 202 or 223 of the Social Security Act based on 
combined railroad and social security earnings. The Overall Minimum PIA 
is used in computing the social security overall minimum guaranty 
amount. The overall minimum guaranty rate annuity formula is discussed 
in part 229 of this chapter. The Overall Minimum PIA is determined under 
the rules in sections 215 and 223 of the Social Security Act. Railroad 
and social security earnings are included in the calculation of the 
Overall Minimum PIA. The Overall Minimum PIA is used to determine the 
amount which is treated as a social security benefit for the purpose of 
taxation pursuant to section 86(d) of the Internal Revenue Code of 1986.



 Subpart C_PIA's Used in Computing Survivor Annuities and the Amount of 
                      the Residual Lump-Sum Payable



Sec. 225.20  General.

    The Survivor Tier I PIA and the Employee RIB PIA are used in 
computing the tier I component of a survivor annuity. The Combined 
Earnings PIA, Social Security Earnings PIA and Railroad Earnings PIA may 
be used in computing a vested dual benefit offset in the survivor tier 
II component when the survivor tier II is based on a percentage of the 
employee annuity tier II. In addition, these three PIA's are identical 
to those dual benefit PIA's used in computing an employee retirement 
annuity, as described in subpart B of this part, when the employee died 
after being entitled to an annuity. Survivor annuity computations are 
discussed in part 228 of this chapter. The Residual Lump-Sum PIA (RLS 
PIA) is used in computing the amount of the residual lump-sum payable 
when retirement annuity payments were made, as explained in part 234 of 
this chapter.



Sec. 225.21  Survivor Tier I PIA.

    The Survivor Tier I PIA is used in computing the tier I component of 
a survivor annuity. This PIA is determined in accordance with section 
215 of the Social Security Act using the deceased employee's combined 
railroad and social security earnings after 1950 (or after 1936 if a 
higher PIA would result) through the date of the employee's death.



Sec. 225.22  Employee RIB PIA used in survivor annuities.

    The Employee Retirement Insurance Benefit PIA (Employee RIB PIA) is 
used to compute the employee RIB amount when the employee had received a 
retirement annuity which was reduced for early retirement. As explained 
in part 228 of this chapter, the employee RIB amount may be used in the 
survivor tier I component. This PIA is computed in accordance with 
section 215 of the Social Security Act using the deceased employee's 
combined railroad and social security earnings. The Employee RIB PIA is 
the same as the Survivor Tier I PIA when the employee had no earnings in 
the year of death. Earnings in the year of death are used in the 
recomputed PIA beginning January 1 of the year after the employee's 
death. (See subpart F of this part for a discussion of PIA 
recomputations.)



Sec. 225.23  Combined Earnings PIA used in survivor annuities.

    The Combined Earnings PIA used in survivor annuities may be used in 
computing the tier II component when the survivor tier II is based on a 
percentage of the employee annuity tier II and the employee had been or 
would be, if he or she were still alive, entitled to a vested dual 
benefit. If the employee received a retirement annuity before death, 
this PIA is identical to the retirement Combined Earnings Dual Benefit 
PIA described in subpart B of this part. If a retirement annuity was not 
paid before the employee's death, the PIA is determined as if the 
employee were 65 years old in the month of his or her death. The 
Combined Earnings PIA used in survivor annuities is determined in 
accordance with section 215 of the Social Security Act as in effect on 
December 31, 1974. It is computed using the deceased employee's combined 
railroad and social security earnings after

[[Page 449]]

1950 (or after 1936 if a higher PIA would result) through December 31, 
1974.



Sec. 225.24  SS Earnings PIA used in survivor annuities.

    The Social Security Earnings PIA (SS Earnings PIA) used in survivor 
annuities may be used in computing the tier II component when the 
survivor tier II is based on a percentage of the employee annuity tier 
II and the employee had been or would be, if he or she were still alive, 
entitled to a vested dual benefit. If the employee received a retirement 
annuity before death, this PIA is identical to the retirement SS 
Earnings Dual Benefit PIA described in subpart B of this part. If a 
retirement annuity was not paid before the employee's death, the PIA is 
determined as if the employee were 65 years old in the month of his or 
her death. The SS Earnings PIA used in survivor annuities is determined 
in accordance with section 215 of the Social Security Act as in effect 
on December 31, 1974. It is computed using the deceased employee's 
social security earnings after 1950 (or after 1936, if a higher PIA 
would result) through December 31, 1974.



Sec. 225.25  RR Earnings PIA used in survivor annuities.

    The Railroad Earnings PIA (RR Earnings PIA) used in survivor 
annuities may be used in computing the tier II component when the 
survivor tier II is based on a percentage of the employee annuity tier 
II and the employee had been or would be, if he or she were still alive, 
entitled to a vested dual benefit. If the employee received a retirement 
annuity before death, this PIA is identical to the retirement RR 
Earnings Dual Benefit PIA described in Subpart B of this part. If a 
retirement annuity was not paid before the employee's death, the PIA is 
determined as if the employee were 65 years old in the month of his or 
her death. The RR Earnings PIA used in survivor annuities is determined 
in accordance with section 215 of the Social Security Act as in effect 
on December 31, 1974. It is computed using the deceased employee's 
railroad earnings after 1950 (or after 1936, if a higher PIA would 
result) through December 31, 1974.



Sec. 225.26  Residual Lump-Sum PIA.

    The Residual Lump-Sum PIA (RLS PIA) is used to compute the regular 
retirement annuity amounts to be deducted from the gross residual lump-
sum amount in determining the amount of the residual lump-sum payable, 
as explained in Part 234 of this chapter. The RLS PIA is determined in 
accordance with section 215 of the Social Security Act using the 
employee's railroad compensation after 1950 (or after 1936, if a higher 
PIA would result) as if it were social security earnings. The RLS PIA is 
computed just like the retirement Tier I PIA described in Subpart B of 
this part, except that social security earnings are not used to compute 
the RLS PIA.



                  Subpart D_Delayed Retirement Credits



Sec. 225.30  General.

    (a) A delayed retirement credit (DRC) is a percentage increase in a 
PIA. An employee who would have an insured status in accordance with 
section 214(a) of the Social Security Act based on combined railroad and 
social security earnings can earn DRC's. A DRC can be earned by the 
employee for each month, in or after the month of attaining full 
retirment age and before the month of attaining age 70 (72 before 1984), 
in which the employee does not receive either--
    (1) An annuity because the employee did not apply for an annuity; or
    (2) The tier I and vested dual benefit work deduction annuity 
components or the social security overall minimum annuity rate because 
they are not paid since the employee works and has earnings in excess of 
the exempt amount. (The tier I and vested dual benefit work deduction 
annuity components, the social security overall minimum annuity rate and 
the exempt amount are described in parts 226, 229 and 230 of this 
chapter, respectively.)
    (b) Any credit earned by the employee also extends to the employee's 
widow(er), remarried widow(er) or surviving divorced spouse when he or 
she receives a survivor annuity that is based on age or disability.

[[Page 450]]

    (c) Credit earned by the employee does not extend to the employee's 
spouse or divorced spouse.

[54 FR 12903, Mar. 29, 1989, as amended at 68 FR 39010, July 1, 2003]



Sec. 225.31  PIA's to which DRC's are added.

    (a) DRC's can be added to the following PIA's when used in computing 
the following benefits:
    (1) Tier I PIA used in computing a retirement employee annuity.
    (2) Overall Minimum PIA used in computing a retirement employee 
annuity.
    (3) Survivor Tier I PIA used in computing a widow(er), remarried 
widow(er) or surviving divorced spouse annuity based on age or 
disability.
    (4) Employee RIB PIA used in computing a widow(er), remarried 
widow(er) or surviving divorced spouse annuity based on age or 
disability.
    (5) RLS PIA used in computing the amount of the residual lump-sum 
payable (as explained in part 234 of this chapter).



Sec. 225.32  DRC's and the Special Minimum PIA.

    Delayed retirement credits cannot be added to the Special Minimum 
PIA. Delayed retirement credits can only be added to the regular PIA's 
used in computing the benefits outlined in Sec. 225.31.



Sec. 225.33  Months for which DRC's are due.

    (a) A DRC is due for each month after 1970 in which the employee 
is--
    (1) Full retirement age or older and under age 70 (72 before 1984); 
and
    (2) Fully insured under section 214(a) of the Social Security Act 
based on combined railroad and social security earnings; and either--
    (i) Is not entitled to an annuity because he or she did not apply 
for an annuity; or
    (ii) Is entitled to an annuity but has the full amount of the tier I 
and vested dual benefit work deduction component (described in part 226 
of this chapter) or the social security overall minimum rate (described 
in part 229 of this chapter) withheld because of earnings in excess of 
the exempt amount (as explained in part 230 of this chapter).
    (b) The months for which credit is due need not be consecutive.

[54 FR 12903, Mar. 29, 1989, as amended at 68 FR 39010, July 1, 2003]



Sec. 225.34  How the amount of the DRC is figured.

    (a) The amount of the DRC depends on--
    (1) The year the employee reaches full retirement age; and
    (2) The number of months for which the credit is due, as explained 
in Sec. 225.33.
    (b) The percent given in paragraph (b)(1), (2), or (3) of this 
section is multiplied by the PIA; that product is then multiplied by the 
number of months for which credit is due and rounded to the next lowest 
multiple of $0.10, if the answer is not already a multiple of $0.10. The 
result is the DRC which is added to the PIA.
    (1) Employee attained age 65 before 1982. The DRC equals one-twelfth 
of one percent of the PIA times the number of months after 1970 in which 
the employee is age 65 or older and for which credit is due.
    (2) Employee attains age 65 after 1981 and before 1990. The DRC 
equals one-fourth of one percent of the PIA times the number of months 
in which the employee is age 65 or older and for which credit is due.
    (3) Employee attains age 65 in 1990 and before 2003.
    (i) The rate of the DRC (one-fourth of one percent) is increased by 
one-twenty-fourth of one percent in each even year through 2002. 
Therefore, depending on when the employee attains age 65, the DRC 
percent will be as follows:

------------------------------------------------------------------------
                                             Delayed retirement credit
       Year employee attains age 65                   percent
------------------------------------------------------------------------
1990.....................................  \7/24\ of 1%.
1991.....................................  Do.
1992.....................................  \1/3\ of 1%.
1993.....................................  Do.
1994.....................................  \3/8\ of 1%.
1995.....................................  Do.
1996.....................................  \5/12\ of 1%.
1997.....................................  Do.
1998.....................................  \11/24\ of 1%.
1999.....................................  Do.
2000.....................................  \1/2\ of 1%.
2001.....................................  Do.
2002.....................................  \13/24\ of 1%.
------------------------------------------------------------------------


[[Page 451]]

    (ii) The delayed retirement credit equals the appropriate percent of 
the PIA times the number of months in which the employee is age 65 or 
older and for which credit is due.
    (4) Employee attains full retirement age in 2003 or later. The rate 
of the DRC (one-fourth of one percent) is increased by one-twenty-fourth 
of one percent in each even year through 2008. Therefore, depending on 
when the employee attains full retirement age, the DRC percent will be 
as follows:

------------------------------------------------------------------------
                                             Delayed retirement credit
Year employee attains full retirement age             percent
------------------------------------------------------------------------
2003.....................................  \13/24\ of 1%.
2004.....................................  \7/12\ of 1%.
2005.....................................  Do.
2006.....................................  \5/8\ of 1%.
2007.....................................  Do.
2008 and later...........................  \2/3\ of 1%.
------------------------------------------------------------------------

    (c) Example: Mr. Jones was qualified for a full age and service 
annuity when he reached age 65 in January 1985, but decided not to apply 
for an annuity because he was still working. Mr. Jones stopped working 
on December 31, 1985, and applied for his annuity to begin January 1, 
1986. Based on his earnings, his PIA was $350.50. Since Mr. Jones did 
not receive an annuity for the 12 months from the month in which he 
became 65 (January 1985) until the month following the month he stopped 
working (January 1986), he is due credit for each of those 12 months. 
The total amount of his DRC's is calculated as follows:

----------------------------------------------------------------------------------------------------------------
                                                                              Unrounded            Total amount
    Percent                    PIA                 No. of months               result                of DRC's
----------------------------------------------------------------------------------------------------------------
      .25%          X         350.50         X           12           =         10.51         =       $10.50
----------------------------------------------------------------------------------------------------------------


Mr. Jones' PIA increase for DRC's is $361.00 (350.50 + 10.50).

[54 FR 12903, Mar. 29, 1989; 54 FR 21203, May 17, 1989; 68 FR 39010, 
July 1, 2003; 68 FR 43515, Aug. 1, 2003]



Sec. 225.35  When a PIA used in computing a retirement annuity can be 
increased for DRC's.

    Delayed retirement credits earned at different times are added to 
the PIA used in computing a retirement annuity as follows:

------------------------------------------------------------------------
         DRC's earned for month in                Are added to PIA
------------------------------------------------------------------------
Years before the year the employee annuity  On the date the annuity
 begins.                                     begins.
Year the annuity begins...................  On January 1 of the year
                                             after the annuity begins.
Years after the annuity begins, and before  On January 1 of the year
 the year the employee attains age 70 (72    after the credits are
 before 1984).                               earned.
Year the employee attains age 70 (72        In the month age 70 (or 72)
 before 1984).                               is attained.
------------------------------------------------------------------------



Sec. 225.36  Effect of DRC's on survivor annuities.

    (a) Widow(er), remarried widow(er) or surviving divorced spouse. 
Delayed retirement credits that the employee earned are used in 
computing the tier I component of a widow(er), remarried widow(er) or 
surviving divorced spouse annuity. All DRC's, including credits earned 
in the year of death, can be used in computing the widow(er) or 
surviving divorced spouse annuity beginning with the month of death. 
Delayed retirement credits for months up to, but not including, the 
month of death are used.
    (b) Other survivor annuities. Delayed retirement credits cannot be 
used in computing any other survivor annuity based on the deceased 
employee's record.



                   Subpart E_Cost-of-Living Increases



Sec. 225.40  General.

    A cost-of-living increase is an automatic increase in a PIA provided 
under section 215(i) of the Social Security Act. The Social Security 
Administration determines the percentage amount of any cost-of-living 
increase paid by the Board.

[[Page 452]]



Sec. 225.41  How a cost-of-living increase is determined and applied.

    Depending on the condition of the social security trust funds, the 
increase can be based on rises in either the consumer price index as 
published by the Department of Labor or the average wage index which is 
the average of the annual total wages used for computing a PIA. The 
increase is payable when the appropriate index for the third calendar 
quarter of one year shows an increase of at least three percent over the 
same index for the third calendar quarter of the previous year (or the 
last calendar quarter within which a legislated general benefit increase 
became effective). No increase is payable for the calendar year that 
immediately follows a year in which a legislated general benefit 
increase was effective. The increase amount is determined by multiplying 
the PIA by the percentage increase in the appropriate quarter of a 
previous year.



Sec. 225.42  Notice of the percentage amount of a cost-of-living 
increase.

    The percentage amount of the cost-of-living increase is published in 
the Federal Register by the Secretary of Health and Human Services 
within 45 days of the end of the measuring period used in finding the 
increase.



Sec. 225.43  PIA's subject to cost-of-living increases.

    The Retirement Tier I, Overall Minimum, Survivor Tier I, Employee 
RIB and RLS PIA's are adjusted for cost-of-living increases. The 
remaining PIA's described in subparts B and C of this part are frozen at 
the amounts determined under the Social Security Act as in effect on 
December 31, 1974.



Sec. 225.44  When a cost-of-living increase is payable.

    A cost-of-living increase is payable beginning with December of the 
year for which the increase is due. The increase is paid in the January 
payment.



                       Subpart F_Recomputing PIA's



Sec. 225.50  General.

    After an annuitant begins receiving an annuity, the PIA's may be 
recomputed as explained in Sec. 225.52. Most recomputations result in 
an increase in the PIA. The Board pays a recomputed PIA when an increase 
of at least $1 results. Most recomputations are processed automatically 
and require no action by the annuitant.



Sec. 225.51  PIA's that are subject to recomputation.

    The following PIA's are subject to recomputation--
    (a) Tier I PIA;
    (b) Survivor Tier I PIA;
    (c) Overall Minimum PIA;
    (d) Employee RIB PIA; and
    (e) Residual Lump-Sum PIA.



Sec. 225.52  Reasons for recomputing a PIA.

    There are three major reasons for recomputing a PIA:
    (a) Recomputation to consider additional earnings.
    (b) Recomputation when an employee is eligible for periodic pension 
payments based on other than railroad or social security earnings.
    (c) Recomputation to use a new or different PIA formula, as provided 
in section 215(f) of the Social Security Act.



Sec. 225.53  Recomputation to consider additional earnings.

    (a) Additional earnings that cause a recomputation--(1) Earnings not 
included in earlier computation or recomputation. The most common reason 
for recomputing a PIA is to include earnings that were not used 
previously, as described in paragraphs (a)(2) through (a)(4) of this 
section. The inclusion of these earnings may result in a revised Average 
Monthly Earnings or revised Average Indexed Monthly Earnings amount and, 
consequently, cause recomputation of the PIA.
    (2) Earnings in the year an employee becomes entitled to an age 
annuity or becomes disabled. Earnings in the year an employee becomes 
entitled to an age annuity or becomes disabled are not used in the 
initial computation of the PIA. However, the Board does consider those 
earnings in a recomputation of the PIA and begins paying the higher 
benefits at the time described in paragraph (b) of this section.

[[Page 453]]

    (3) Earnings not reported in time to use them in the computation of 
the PIA. Because of the way reports of earnings are made, the earnings 
an employee has in the year before he or she becomes entitled to an 
annuity, becomes disabled, or dies, might not be reported in time to use 
them in computing the PIA. The Board recomputes the PIA with the new 
earnings information and begins paying annuitants the higher benefits 
based on the additional earnings at the time described in paragraph (b) 
of this section.
    (4) Earnings after entitlement that are used in a recomputation. 
Earnings for a year after an employee becomes entitled to an annuity are 
used in a recomputation of a PIA when the earnings are higher than those 
for a year used in the previous PIA computation.
    (b) Effective date of recomputation to consider additional earnings. 
A PIA that is recomputed to include additional earnings becomes payable 
at the latest of the following times:
    (1) Date the annuity begins.
    (2) January of the year following the year an employee receiving an 
age annuity attains age 62.
    (3) January of the year following the year an employee becomes 
disabled.
    (4) January of the year following the year in which the earnings are 
earned.

    Example: Mr. Jones, a railroad employee, becomes entitled to an age 
annuity in June 1986, at the age of 62. Although Mr. Jones has earnings 
of $23,000 in the first five months of 1986, those earnings cannot be 
used in the initial computation of the Tier I PIA. However, effective 
with January 1, 1987, the Tier I PIA is recomputed to include the 
earnings for 1986.



Sec. 225.54  Recomputation when an employee is eligible for periodic 
pension payments based on other than railroad or social security earnings.

    (a) Description. This recomputation serves as a reduction in the PIA 
for entitlement to a periodic pension based, in part or in whole, on 
earnings after 1956 not covered under either the Social Security Act or 
the Railroad Retirement Act. A recomputation for a periodic pension is 
made in accordance with sections 215(a)(7) and 215(f)(9) of the Social 
Security Act. A recomputation affecting the Retirement Tier I, Overall 
Minimum, or Residual Lump-Sum PIA is required when all the following 
conditions exist--
    (1) The employee has less than 30 years of coverage as defined in 
section 215(a) of the Social Security Act. The years of coverage include 
railroad and social security earnings;
    (2) The employee becomes eligible for an annuity after 1985; and
    (3) The employee becomes eligible for the periodic pension payments 
after 1985 based, in part or in whole, on earnings after 1956 not 
covered under either the Social Security Act or the Railroad Retirement 
Act.
    (b) Effective date of recomputation. The Retirement Tier I, Overall 
Minimum or Residual Lump-Sum PIA is recomputed when the employee becomes 
eligible for a periodic pension payment based on other than railroad or 
social security earnings. However, payment of the recomputed PIA is 
effective with the month in which the employee becomes entitled to the 
periodic pension.



Sec. 225.55  Recomputation to use a new or different PIA formula.

    (a) Description--(1) New computation formula. If a new formula for 
computing or recomputing PIA's is enacted into law and the annuitant is 
eligible for the recomputation, the Board will recompute the PIA under 
the new formula.
    (2) Recomputation under different formula. In some cases, a PIA may 
be recomputed under a computation formula different from the formula 
used in the computation (or earlier recomputation) of the PIA. The 
annuitant must be eligible for a computation or recomputation under the 
different formula.
    (b) Effective date of recomputation--(1) New computation formula. A 
PIA recomputed under a newly enacted formula is effective with the month 
as directed in the legislation that establishes the new formula. The new 
PIA formula applies when it produces a PIA that is higher than the 
amount on which the existing annuity is based.
    (2) Different computation formula. A PIA recomputed under a 
different formula is effective with the first month that the different 
formula produces a PIA that is higher than the PIA on which the existing 
annuity is based.

[[Page 454]]



Sec. 225.56  Automatic recomputation.

    Periodically, the Board reviews the earnings record of every 
retired, disabled and recently deceased employee to see if a 
recomputation of the PIA is necessary. When a recomputation is called 
for due to a change in the reported railroad or social security 
earnings, the Board processes it automatically. Increased benefits 
resulting from a recomputation are paid from the earliest month that the 
recomputation is effective. The annuitant does not have to request a 
recomputation to consider additional earnings, although the annuitant 
may request a recomputation before the automatic recomputation is 
processed. However, the effective date of the recomputation is the same, 
whether the recomputation is done automatically or at the request of the 
annuitant.



Sec. 225.57  Requesting a recomputation.

    An annuitant who meets the conditions for a recomputation may 
request that his or her PIA be recomputed sooner than it would be 
recomputed automatically. Providing inclusion of the additional earnings 
increases the PIA, the Board will recompute the PIA from the earliest 
permissible date as described in this part.



Sec. 225.58  Waiver of recomputation.

    If the employee or the employee's family are disadvantaged in any 
way by a recomputation of a PIA to consider additional earnings, a 
request can be made to waive or give up the right to the recomputation. 
Such a request must be in writing and be made by every entitled family 
member. A request for waiver of a recomputation applies only to that 
recomputation for which the request is made.



                        Subpart G_Adjusting PIA's



Sec. 225.60  Adjustment at age 62 when employee is entitled to an 
annuity based on 30 years of railroad service.

    (a) Description. The Tier I PIA of an employee who is entitled to an 
age annuity based on 30 years of railroad service is adjusted when the 
employee reaches age 62. The Average Indexed Monthly Earnings on which 
the PIA is based is adjusted by using the year in which the employee 
attains age 62 as the eligibility year. This adjustment applies to any 
employee who attained age 60 or acquired 30 years of railroad service 
after June 30, 1984. The adjustment affects the tier I of the employee 
and spouse annuity.
    (b) Effective date of adjustment. A PIA adjustment based on the 
employee's attainment of age 62 is effective with the first full month 
in which the employee is age 62. For purposes of a spouse age annuity 
tier I, the adjusted PIA is used beginning with the first full month 
both the employee and spouse are age 62.



PART 226_COMPUTING EMPLOYEE, SPOUSE, AND DIVORCED SPOUSE ANNUITIES
--Table of Contents




                            Subpart A_General

Sec.
226.1 Introduction.
226.2 Definitions.
226.3 Other regulations related to this part.

                 Subpart B_Computing An Employee Annuity

226.10 Employee tier I.
226.11 Employee tier II.
226.12 Employee vested dual benefit.
226.13 Cost-of-living increase in employee vested dual benefit.
226.14 Employee regular annuity rate.
226.15 Deductions from employee regular annuity rate.
226.16 Supplemental annuity.

         Subpart C_Computing a Spouse or Divorced Spouse Annuity

226.30 Spouse or divorced spouse tier I.
226.31 Reduction for public pension.
226.32 Spouse tier II.
226.33 Spouse regular annuity rate.
226.34 Divorced spouse regular annuity rate.
226.35 Deductions from regular annuity rate.

              Subpart D_Railroad Retirement Family Maximum

226.50 General.
226.51 Maximum monthly amount.
226.52 Total annuity subject to maximum.

       Subpart E_Years of Service and Average Monthly Compensation

226.60 General.

[[Page 455]]

226.61 Use of military service.
226.62 Computing average monthly compensation.
226.63 Determining monthly compensation.

 Subpart F_Reduction for Workers' Compensation and Disability Benefits 
              Under a Federal, State, or Local Law or Plan

226.70 General.
226.71 Initial reduction.
226.72 Benefits that do not cause a reduction.
226.73 Changes in reduction amount.
226.74 Redetermination of reduction.

   Subpart G_Recomputation To Include Additional Railroad Service and 
                              Compensation

226.90 When recomputation applies.
226.91 How an employee annuity rate is recomputed.
226.92 Effect of recomputation on spouse and divorced spouse annuity.

    Authority: 45 U.S.C. 231f(b)(5).

    Source: 60 FR 22262, May 5, 1995, unless otherwise noted.



                            Subpart A_General



Sec. 226.1  Introduction.

    This part explains how employee, spouse, and divorced spouse 
annuities are computed. It describes how to determine the years of 
railroad service and average monthly compensation used in computing the 
employee annuity rate. The railroad retirement family maximum, cost-of-
living increases, and the recomputation of an annuity to include 
additional railroad earnings are also explained in this part.



Sec. 226.2  Definitions.

    Except as otherwise expressly noted, as used in this part--
    Annuity means a payment due an entitled individual for a calendar 
month and payable to him or her on the first day of the following month.
    Eligible means that an individual meets all the requirements for 
payment of an annuity but has not yet applied for one.
    Employee means an individual who is or has been in the service of an 
employer as defined in part 202 of this chapter.
    Entitled means that an individual has applied for and has 
established his or her rights to benefits.
    Railroad Retirement Act means the Railroad Retirement Act of 1974, 
as amended.
    Retirement age means, with respect to an employee, spouse or 
divorced spouse who attains age 62 before January 1, 2000, age 65. For 
an employee, spouse or divorced spouse who attains age 62 after December 
31, 1999, retirement age means the age provided for in section 216(l) of 
the Social Security Act.
    Social Security Act means the Social Security Act as amended.



Sec. 226.3  Other regulations related to this part.

    This part is closely related to part 216 of this chapter, which 
describes when an employee, spouse, or divorced spouse is eligible for 
an annuity, part 225 of this chapter, which explains the primary 
insurance amounts (PIA's) used in computing the employee, spouse and 
divorced spouse annuity rates, and part 229 of this chapter, which 
describes when and how employee and spouse annuities can be increased 
under the social security overall minimum. The creditable service and 
compensation used in determining the years of service and average 
monthly compensation are explained in parts 210 and 211 of this chapter. 
The beginning and ending dates of annuities are explained in part 218 of 
this chapter.



                 Subpart B_Computing an Employee Annuity



Sec. 226.10  Employee tier I.

    Tier I of an employee annuity is an amount similar to the social 
security benefit the employee would receive based on combined railroad 
and social security earnings. The tier I benefit is computed as follows:
    (a) A tier I PIA is computed based on combined railroad and social 
security earnings, as shown in Sec. 225.11 of this chapter. This PIA is 
adjusted for any delayed retirement credits or cost-of-living increases, 
as shown in subparts D and E of part 225 of this chapter, and is reduced 
for receipt of a pension

[[Page 456]]

based upon non-covered service in accordance with section 215(a)(7) of 
the Social Security Act. The tier I of a disability annuity may also be 
adjusted for other benefits based on disability, as shown in Sec. Sec. 
226.70-226.74 of this part. Except in the case of an employee who 
retires at age 60 with 30 years of service, if the result is not a 
multiple of $1, it is rounded to the next lower multiple of $1. In the 
case of an employee who retires with an age reduced annuity based upon 
30 years of service (see Sec. 216.31 of this chapter) the tier I is not 
rounded until all reductions have been made.
    (b) If the employee is entitled to a reduced age annuity (see Sec. 
216.31 of this chapter), the rate from paragraph (a) of this section is 
multiplied by a fraction for each month the employee is under retirement 
age on the annuity beginning date. The result is subtracted from the 
rate in paragraph (a) of this section. At present the fraction is \5/9\ 
of 1% (or \1/180\). If the employee retires before age 62 with at least 
30 years of service, the employee is deemed age 62 for age reduction 
purposes and a 20% reduction is applied. This reduction remains in 
effect until the first full month throughout which the employee is age 
62, at which time the tier I is recomputed to reflect interim increases 
in the national wage levels and the age reduction factor is recomputed, 
if necessary, in accordance with this paragraph.
    (c) The amount from paragraph (a) or (b) of this section is reduced 
by the amount of any monthly benefit payable to the employee under title 
II of the Social Security Act, including any social security benefit 
payable under a totalization agreement between the Social Security 
Administration and another country. The social security benefit used to 
reduce the tier I may be an age or disability benefit on the employee's 
own earnings record, a benefit based on the earnings record of another 
person, or the total of two types of benefits. The amount of the social 
security benefit used to reduce tier I is before any deduction for 
excess earnings. It is after any reduction for other benefits based on 
disability. The result cannot be less than zero.
    (d) The tier I is subject to automatic annual increases as provided 
for in subpart E of part 225 of this chapter.

    Example: An employee born on November 3, 1919, becomes entitled to 
an age annuity effective October 1, 1982. Retirement age for individuals 
born in 1919 is age 65. He has less than 30 years of service. His tier I 
PIA Is $712.60, which is rounded down to $712. Since the employee is 25 
months under age 65 when his annuity begins, $712 is multiplied by \25/
180\ (\1/180\ for each month under age 65), to produce an age reduction 
of $98.89, and a tier I rate after age reduction of $613.11. The 
employee is also entitled to a social security benefit of $190 a month. 
The employee's final tier I rate is $423.11.



Sec. 226.11  Employee tier II.

    The tier II of an employee annuity is based only on railroad 
service. For annuities awarded after September 1981, the tier II benefit 
is computed as follows:
    (a) The product obtained by multiplying the employee's creditable 
years of service by the average monthly compensation, determined as 
shown in subpart E of this part, is multiplied by seven-tenths of 1 
percent (.007).
    (b) If the employee is entitled to a vested dual benefit (see Sec. 
226.12 of this part), the result from paragraph (a) of this section is 
reduced by 25 percent of the vested dual benefit amount. This reduction 
is made before reduction of the tier II benefit for age. The result 
cannot be less than zero.
    (c) If the railroad retirement family maximum applies, as shown in 
Sec. Sec. 226.50-226.52 of this part, the amount from paragraph (a) or 
(b) of this section is reduced by the smaller of--
    (1) The difference between the total railroad retirement maximum 
reduction amount and the reductions in the spouse and supplemental 
annuities; or
    (2) The total tier II amount from paragraph (a) or (b) of this 
section.
    (d) If the employee is entitled to a reduced age annuity (see Sec. 
216.31 of this chapter), the rate from paragraph (a) through (c) of this 
section is reduced in the same manner as the tier I as provided for in 
Sec. 226.10 of this part. In the case of an employee with 30 years of 
service who is entitled to a reduced age annuity (see Sec. 216.31 of 
this chapter), the age reduction only applies to the

[[Page 457]]

tier I component; no age reduction applies to the tier II component.
    (e) The total tier II amount (paragraphs (a) through (d) of this 
section), is increased by 32.5 percent of the percentage increase in the 
cost-of-living increase to the tier I annuity component. Each cost-of-
living increase is paid only to an employee whose annuity begins on or 
before the effective date of the increase. The increases are effective 
on the same date as any cost-of-living increase to the tier I annuity 
component.



Sec. 226.12  Employee vested dual benefit.

    (a) General. An employee vested dual benefit is payable, in addition 
to tiers I and II, to an employee who meets one of the following 
requirements:
    (1) Employee worked in the railroad industry in 1974. An employee 
who worked for a railroad in 1974 and retired after 1974 is considered 
vested if on December 31, 1974, he or she had both 10 years of railroad 
service and sufficient quarters of coverage under the Social Security 
Act to qualify for a social security benefit. An employee qualified on 
this basis is eligible for vested dual benefit amounts computed on his 
or her railroad and social security credits through December 31, 1974.
    (2) Employee who did not work for a railroad in 1974. An employee 
who did not work in the railroad industry in 1974, but who had 25 or 
more years of railroad service before 1975 or a current connection with 
the railroad industry on December 31, 1974, as defined in part 216 of 
this chapter, or a current connection when he or she retired, is also 
considered vested under the same conditions as an employee who had 
worked in the railroad industry in 1974.
    (3) An employee who completed 10 years or more years of railroad 
service (but less than 25) before 1975 but left the industry before 1975 
and did not have a current connection on December 31, 1974 or when he or 
she retired. Such an employee is considered vested only if he or she had 
sufficient social security quarters of coverage to qualify for a social 
security retirement benefit as of the end of the year prior to 1975 in 
which he or she left the railroad industry. The vested dual benefit 
amount is based only on credits acquired through the last year of pre-
1975 railroad service instead of through December 31, 1974.
    (b) Computation. The employee vested dual benefit is computed as 
follows:
    (1) The combined earnings dual benefit PIA is subtracted from the 
total of the railroad earnings dual benefit PIA and the social security 
earnings dual benefit PIA (see part 225 of this chapter for an 
explanation of these PIA's).
    (2) The result from paragraph (b)(l) of this section is adjusted for 
any applicable cost-of-living increase, as shown in Sec. 226.13 of this 
part.
    (3) If the employee is entitled to a reduced age annuity (see Sec. 
216.1 of this chapter), the rate from paragraph (b)(2) of this section 
is reduced in the same manner as the tier I as provided for in Sec. 
226.10 of this part. In the case of an employee with 30 years of service 
who is entitled to an annuity reduced for age, the age reduction applies 
only to the tier I component; no age reduction applies to the vested 
dual benefit.
    (4) The vested dual benefit payable in a given year may also be 
reduced for insufficient funding as shown in part 233 of this chapter.

    Example: An employee born on November 3, 1919, becomes entitled to 
an annuity including a vested dual benefit on October 1, 1982. His 
combined earnings dual benefit PIA is $254.90, his railroad earnings 
dual benefit PIA is $93.80, and his social security earnings dual 
benefit PIA is $244.70. The vested dual benefit before cost-of-living 
increase is $83.60 ($93.80 + $244.70 -$254.90 = $83.60). A cost-of-
living increase of $67.72 (81 percent of $83.60. See Sec. 226.13 of 
this part) results in a vested dual benefit of $151.32. Retirement age 
for a person born in 1919 is age 65. Since the employee is 25 months 
under age 65 when the annuity begins, $151.32 is multiplied by 25/180, 
to produce an age reduction of $21.02 and a vested dual benefit rate 
after age reduction of $130.30.



Sec. 226.13  Cost-of-living increase in employee vested dual benefit.

    If the employee's annuity begins June 1, 1975 or later, a cost-of-
living increase is added to the total vested dual benefit amount. This 
increase is based on the cost-of-living increases in social security 
benefits during the period from January 1, 1975, to the earlier of the 
date the employee's annuity begins or January 1, 1982. The increases are 
effective on June 1 of each year through

[[Page 458]]

1981. The percentage increase for annuities that begin June 1, 1981, or 
later is 81 percent.



Sec. 226.14  Employee regular annuity rate.

    The regular annuity rate payable to the employee is the total of the 
employee tier I, tier II, and vested dual benefit amounts, from 
Sec. Sec. 226.10-226.12.



Sec. 226.15  Deductions from employee regular annuity rate.

    The employee annuity as computed under this subpart may be reduced 
by premiums required for supplemental medicare coverage, income tax 
withholding, recovery of debts due the Federal government, garnishment 
pursuant to part 350 of the chapter and property awards as provided for 
in part 295 of this chapter.



Sec. 226.16  Supplemental annuity.

    A supplemental annuity is payable in addition to tiers I and II and 
the vested dual benefit to an employee who meets the requirements of 
Sec. 216.41 of this chapter. The supplemental annuity is equal to $23 
plus $4 for each full year of service, over 25 years of service, up to a 
maximum of $43. The supplemental annuity may be reduced by the railroad 
retirement family maximum as shown in Sec. Sec. 226.50-226.52 of this 
part, or for the receipt of a private pension benefit as explained in 
part 227 of this chapter.



         Subpart C_Computing a Spouse or Divorced Spouse Annuity



Sec. 226.30  Spouse or divorced spouse tier I.

    (a) General. The tier I of a spouse or divorced spouse annuity is an 
amount similar to the social security benefit the spouse or divorced 
spouse would receive based on the employee's combined railroad and 
social security earnings. In the case of an employee who retires before 
age 62 with 30 years of service, the spouse tier I is simply 50% of the 
employee tier I until the first month throughout which both the employee 
and spouse are age 62 at which time the tier I is an amount similar to 
the social security benefit on the employee's combined railroad and 
social security earnings.
    (b) Reduction for other disability benefits. The spouse or divorced 
spouse tier I may be adjusted for other disability benefits received by 
a disabled employee, as shown in Sec. Sec. 226.70-226.74 of this part.
    (c) Reduction for government pension. The amount in paragraphs (a) 
or (b) of this section is reduced (but not below zero) by the amount of 
any government pension payable on the spouse's or divorced spouse's 
earnings record, as described in Sec. 226.31 of this part.
    (d) Rounding. The last tier I rate from paragraph (a), (b) or (c) of 
this section, if not a multiple of $1, is rounded to the next lower 
multiple of $1. However, in cases in which the spouse is in receipt of 
an age reduced 60/30 annuity or in which the employee with 30 years of 
service began a disability annuity July 1, 1984, or later, the spouse 
tier I is not rounded until all reductions have been made. See Sec. 
226.10(a).
    (e) Age reduction. If the spouse or divorced spouse is entitled to a 
reduced age annuity (see Sec. Sec. 216.51 and 216.52 of this chapter), 
the rounded tier I rate from paragraph (d) of this section is multiplied 
by a fraction for each month the spouse or divorced spouse is under 
retirement age on the date the annuity begins. The result is subtracted 
from the rate from paragraph (d) of this section. At present the 
fraction is 25/36 of 1% (or 1/144). In the case of an employee with 30 
years of service who is awarded a disability annuity on July 1, 1984, or 
later, where the spouse does not have a child of the employee under age 
18 in care, the spouse tier I is reduced for each month the spouse is 
under retirement age on the date the spouse annuity begins. If the 
spouse is age 60 or 61, he or she is deemed to be age 62 for purposes of 
the age reduction. The age reduction is applied before reduction for a 
government pension.
    (f) Reduction for social security benefit. The previous tier I rate, 
from paragraph (d) or (e) of this section, is reduced by the amount of 
any monthly benefit payable to the spouse or divorced spouse under title 
II of the Social Security Act. The social security benefit used to 
reduce tier I may be an age or disability benefit on the spouse's

[[Page 459]]

or divorced spouse's own earnings record, a benefit based on the 
earnings record of another person, or the total of two types of 
benefits. The result cannot be less than zero.
    (g) Reduction for employee annuity. If the spouse or divorced spouse 
is entitled to an employee annuity on his or her own wage record, the 
spouse or divorced spouse tier I is reduced for the spouse's own 
employee annuity as follows:
    (1) Spouse. If either the employee or the spouse had some railroad 
service before 1975, the previous tier I rate from paragraphs (d) 
through (f) of this section, whichever applies, is reduced (but not 
below zero) by the spouse's own employee tier I rate, as computed under 
Sec. 226.10 of this part. If both the employee and spouse began 
railroad service after 1974, the spouse's total annuity rate, as shown 
in Sec. 226.33, is reduced (but not below zero) by the spouse's own 
employee total annuity rate, as shown in Sec. 226.14. These reductions 
are effective from the later of the date the employee or spouse annuity 
begins.
    (2) Divorced spouse. The previous tier I rate from paragraphs (d) 
through (f) of this section, whichever applies, is reduced (but not 
below zero) by the divorced spouse's own employee total annuity rate as 
shown in Sec. 226.14.

    Example: The computation of the spouse tier I may be illustrated as 
follows: A railroad employee's wife who was born on September 16, 1920, 
becomes entitled to a spouse annuity on October 1, 1982. She is also 
entitled to a social security benefit of $190 a month effective October 
1, 1982. Her husband's employee tier I PIA is $712.60. The spouse tier I 
is $356.30 (50 percent of $712.60). This is rounded down to $356. Since 
she is 35 months under age 65, the present retirement age when the 
annuity begins, $356 is multiplied by 35/144, to produce an age 
reduction of $86.53 and a tier I rate after age reduction of $269.47. 
Her final tier I rate effective October 1, 1982, after reduction for 
social security benefits, is $79.47 ($269.47 -$190.00).



Sec. 226.31  Reduction for public pension.

    (a) The tier I annuity component of a spouse/divorced spouse 
annuity, as described in the preceding sections of this part, is reduced 
if the spouse/divorced spouse is in receipt of a public pension.
    (b) When reduction is required. Unless the spouse or divorced spouse 
annuity meets one of the exceptions in paragraph (d) of this section, 
the tier I annuity component is reduced each month the annuitant is 
receiving a monthly pension from a Federal, state, or local government 
agency (government pension), but excluding a pension paid by a 
government of a foreign country, for which he or she was employed in 
work not covered by social security on the last day of such employment. 
For purposes of this section, Federal government employees are not 
considered to be covered by social security if they are covered for 
Medicare but are not otherwise covered by social security.
    (c) Payment in a lump sum. If the government pension is not paid 
monthly or is paid in a lump-sum payment, the Board will determine how 
much the pension would be if it were paid monthly and then reduce the 
monthly railroad retirement annuity accordingly. The number of years 
covered by a lump-sum payment and thus the period when the annuity will 
be reduced, will generally be clear from the pension plan. If one of the 
alternatives to a lump-sum payment is a life annuity, and the amount of 
the monthly benefit for the life annuity can be determined, the 
reduction will be based on that monthly benefit amount. Where the period 
or the equivalent monthly pension benefit is not clear, it may be 
necessary for the Board to determine the reduction period on an 
individual basis.
    (d) Exceptions. The reduction does not apply:
    (1) If the annuitant is receiving a government pension based on 
employment for an interstate instrumentality; or
    (2) If the annuitant receives or is eligible to receive a government 
pension for one or more months in the period December 1977 through 
November 1982 and he or she meets the requirements for social security 
benefits that were applied in January 1977 (even though he or she did 
not actually claim such benefits nor become entitled to such benefits 
until a later month). The January 1977 requirements are, for a man, a 
one-half support test (see paragraph (e) of this section), and, for a 
woman

[[Page 460]]

claiming benefits as a divorced spouse, marriage for at least 20 years 
to the insured worker. A person is considered eligible for a government 
pension for any month in which he or she meets all the requirements for 
payment except that he or she is working or has not applied; or
    (3) If the annuitant was receiving or eligible (as defined in 
paragraph (d)(2) of this section) to receive a government pension for 
one or more months before July 1983, and he or she meets the one-half 
support test (see paragraph (e) of this section). If the annuitant meets 
the exception in this paragraph but he or she does not meet the 
exception in paragraph (d)(2) of this section, December 1982 is the 
earliest month for which the reduction will not affect his benefits; or
    (4) If the annuitant has been eligible for a government pension in a 
given month except for a requirement which delayed eligibility for such 
pension until the month following the month in which all other 
requirements were met, the Board will consider the annuitant to be 
eligible in that given month for the purpose of meeting one of the 
exceptions in paragraphs (d)(2) and (d)(3) of this section. If the 
annuitant meets an exception solely because of this paragraph, his or 
her benefits will be unreduced for months after November 1984 only.
    (e) The one-half support test. For a man to meet the January 1977 
requirement as provided in the exception in paragraph (d)(2) of this 
section and for a man or a woman to meet the exception in paragraph 
(d)(3) of this section, he or she must meet a one-half support test. 
One-half support is defined in part 222 of this chapter. One-half 
support must be met at one of the following times:
    (1) If the employee upon whose compensation the spouse or divorced 
spouse annuity is based had a period of disability, as defined in part 
220 of this chapter, which did not end before he or she became entitled 
to an age and service or disability annuity, the spouse/divorced spouse 
annuitant must have been receiving at least one-half support from the 
employee either--
    (i) At the beginning of the employee's period of disability; or
    (ii) At the time the employee became entitled to an age and service 
or disability annuity.
    (2) If the employee upon whose compensation the spouse or divorced 
spouse annuity is based did not have a period of disability, as defined 
in part 220 of this chapter, at the time of his or her entitlement, the 
spouse or divorced spouse annuitant must have been receiving at least 
one-half support from the employee at the time the employee became 
entitled to an age and service or disability annuity.
    (f) Amount of reduction. (1) If the spouse/divorced spouse annuitant 
becomes eligible for a government pension after June 1983, the Board 
will reduce (to zero, if necessary) the tier I annuity component by two-
thirds of the amount of the monthly pension. If the amount of the 
reduction is not a multiple of 10 cents, it will be rounded to the next 
higher multiple of 10 cents.
    (2) If the spouse/divorced spouse annuitant became eligible for a 
government pension before July 1983 and he or she did not meet one of 
the exceptions in paragraph (d) of this section, the Board will reduce 
(to zero, if necessary) the tier I component by the full amount of the 
pension for months before December 1984 and by two-thirds the amount of 
his or her monthly pension for months after November 1984. If the amount 
of the reduction is not a multiple of 10 cents, it will be rounded to 
the next higher multiple of 10 cents.
    (g) Reduction not applicable. This reduction is not applied to 
claimants who both filed and were entitled to a spouse benefit prior to 
December 1977.



Sec. 226.32  Spouse tier II.

    The spouse tier II benefit is computed as follows:
    (a) The employee's tier II amount as computed under Sec. 226.11 of 
this part, after any reduction for entitlement to a vested dual benefit 
but before reduction for the railroad retirement family maximum, is 
multiplied by 45 percent. The spouse tier II is recomputed if the 
employee's tier II rate is reduced for entitlement to a vested dual 
benefit after the beginning date of the spouse annuity.

[[Page 461]]

    (b) If tier I of a spouse annuity is reduced for the spouse's 
employee annuity, as provided for in Sec. 226.30(g) of this part, the 
reduction is restored in tier II. The restored amount is payable on the 
effective date of the spouse or the employee tier I benefit, whichever 
is later. The previous tier II rate is increased by the restored amount, 
which is determined as follows:
    (1) Initial restored amount. The restored amount is the amount by 
which the spouse tier I was reduced by reason of receipt of an employee 
annuity on the date the restored amount is first payable. The restored 
amount is only payable if either the employee or spouse had railroad 
service prior to 1975.
    (2) Recomputation of restored amount. The restored amount is 
recomputed if the spouse becomes entitled to a government pension, a 
social security benefit, or a different type of social security benefit 
after the date the initial restored amount is effective. The recomputed 
amount is the amount by which the spouse tier I is reduced by reason of 
receipt of an employee annuity on the effective date of the entitlement 
to a government pension or social security benefit.
    (3) Cost-of-living increase in restored amount. If an initial or 
recomputed restored amount is effective before the effective date of the 
cost-of-living increase shown in paragraph (e) of this section, the 
restored amount is multiplied by the percentage increase that applies. 
The result is added to the restored amount on the effective date of the 
increase for each year that the increase is payable.
    (c) If the employee's tier II has been reduced pursuant to section 
3(g)(2) of the Railroad Retirement Act (takeback provision) the spouse 
tier II is reduced by one half of the ``takeback'' in the employee tier 
II.
    (d) If the railroad retirement family maximum applies, as shown in 
Sec. Sec. 226.50-226.52 of this part, the spouse tier II rate, as 
determined in paragraphs (a) through (c) of this section, is reduced by 
the smaller of--
    (1) The total railroad retirement maximum reduction amount; or
    (2) The previous spouse tier II rate.
    (e) The tier II rate, from paragraphs (a) through (d) of this 
section, is increased by the same percentage as the employee tier II 
increase described in Sec. 226.11(e) of this part.
    (f) If the spouse is entitled to a reduced age annuity (see Sec. 
216.51 of this chapter), the tier II rate, as determined in paragraphs 
(a) through (e) of this section is reduced in the same manner as the 
tier I as provided for in Sec. 226.30(e) of this part.

    Example: An employee's tier II rate is $329.63 effective October 17, 
1981. The spouse rate is $148.33 (45 percent x $329.63) effective 
October 17, 1981. This is increased to $151.89 effective June 1, 1982, 
by a cost-of-living increase of 2.4 percent. The spouse is 35 months 
under age 65, the present retirement age, when the annuity begins. The 
$151.89 rate is multiplied by 35/144 to produce an age reduction of 
$36.92. This is subtracted from $151.89 to produce a final rate of 
$114.97.



Sec. 226.33  Spouse regular annuity rate.

    The final tier I and tier II rates, from Sec. Sec. 226.30 and 
226.32, are added together to obtain the total spouse regular annuity 
rate.



Sec. 226.34  Divorced spouse regular annuity rate.

    The regular annuity rate of a divorced spouse is equal to his or her 
tier I amount. The divorced spouse is not entitled to a tier II benefit.



Sec. 226.35  Deductions from regular annuity rate.

    The regular annuity rate of the spouse and divorced spouse annuity 
may be reduced by premiums required for supplemental medicare coverage, 
income tax withholding (spouse annuity only), recovery of debts due the 
Federal government, and garnishment pursuant to part 350 of this 
chapter.



              Subpart D_Railroad Retirement Family Maximum



Sec. 226.50  General.

    There is a monthly ceiling on total family benefits which limits the 
amount of certain portions of the employee and spouse annuity. This 
railroad retirement family maximum amount varies according to the 
employee's earnings in the ten-year period

[[Page 462]]

that ends with the year in which his or her annuity begins. If the 
employee and spouse annuity amounts described in Sec. 226.52 of this 
part are higher than the maximum from Sec. 226.51 of this part, first 
the spouse tier II, then the supplemental annuity and, finally, the 
employee tier II are reduced until the total annuity amount is equal to 
the maximum or until the spouse tier II and the employee supplemental 
annuity and tier II have been reduced to zero, whichever comes first. 
The reduction for the railroad retirement family maximum is first 
computed from the date the employee's annuity begins. It is recomputed 
if the employee's tier II rate is reduced for entitlement to a vested 
dual benefit. It is also recomputed if a workers' compensation or other 
disability benefit begins or ends, or the employee's tier I benefit or 
supplemental annuity begins after the beginning date of the regular 
employee annuity. Finally, it is recomputed if a spouse who was entitled 
to an annuity divorces the employee or the spouse annuity entitlement 
ends.



Sec. 226.51  Maximum monthly amount.

    The railroad retirement family maximum is equal to an employee's 
``final average monthly compensation'' (FAMC) up to \1/2\ of \1/12\ of 
the annual maximum tier I earnings as shown in part 224 of this chapter 
in the year the annuity begins plus 80 percent of so much of his or her 
FAMC as exceeds \1/2\ of \1/12\ of the tier I maximum in the year the 
annuity begins. For this purpose, the FAMC is determined by dividing the 
individual's total earnings up to the tier II earnings limit as shown in 
part 211 of this chapter for the two highest-earnings years out of the 
last 10 calendar years, including the year of retirement, by 24. The 
railroad retirement maximum cannot be more than the FAMC and cannot be 
less than $1,200.

    Example: An employee's annuity begins on December 2, 1982. He has 
yearly earnings that exceed the tier II annual maximum of $24,300 in 
1982 and $22,200 in 1981. The FAMC is the sum of the tier II maximum for 
1981 and 1982 divided by 24 ($24,300 + $22,200/24) or $1,937.50. The 
maximum which may be credited to a month for tier I in 1982 is $2,700. 
The family maximum is $1,350 (\1/2\ of \1/12\ of the annual tier I 
maximum) plus $470 (80% of the difference between $1,937.50 and $1,350) 
or $1,820.



Sec. 226.52  Total annuity subject to maximum.

    The total annuity amount which is compared to the maximum monthly 
amount to determine if a reduction for the railroad retirement family 
maximum applies is determined by adding together the amounts in 
paragraphs (a) and (b) of this section. A hypothetical spouse annuity 
amount is included from the beginning date of the employee annuity if 
the spouse is not entitled to an annuity at the time the maximum 
calculation is made.
    (a) Employee annuity amounts. The following amounts are added 
together--
    (1) The employee tier I amount, effective on the date the employee's 
tier I benefit begins or, if later, on the date a reduction for other 
disability benefits begins or ends, as shown in Sec. 226.71 of this 
part. This amount is before any reduction for age or social security 
benefits but after including any delayed retirement credits, after any 
reduction for other disability benefits, and after rounding; and
    (2) The employee tier II rate before reduction for the railroad 
retirement family maximum, effective on the employee's annuity beginning 
date and, if later, on the date the tier II is first reduced for a 
vested dual benefit, as shown in Sec. 226.11 of this part; and
    (3) The initial supplemental annuity rate effective on the date the 
supplemental annuity begins, before any reduction for a private pension, 
as shown in part 227 of this chapter.
    (b) Spouse annuity amounts. The following amounts are added 
together--
    (1) The spouse tier I amount, which is or would be effective on the 
date the employee's annuity or tier I benefit begins, as shown in Sec. 
226.30. This amount is before any reduction for other disability 
benefits, age, or social security benefits, but after any reduction for 
a government pension or employee annuity; and
    (2) The spouse tier II rate which is or would be effective on the 
employee's annuity beginning date, the date the employee's tier I 
benefit begins, or the

[[Page 463]]

date the employee's tier II rate is reduced for a vested dual benefit, 
as shown in Sec. 226.11. This rate includes the restored amount but 
does not include any cost-of-living increase in the tier II original 
rate or restored amount. It is the rate before reduction for the 
railroad retirement family maximum or age minus any cost-of-living 
increases.



       Subpart E_Years of Service and Average Monthly Compensation



Sec. 226.60  General.

    The years of service and average monthly compensation used in 
computing an employee's tier II annuity rate are based on the employee's 
creditable railroad service and compensation as described in parts 210 
and 211 of this chapter. In computing the average monthly compensation, 
the compensation for each year cannot be higher than twelve times the 
tier II monthly maximum creditable for that year, as described in part 
211 of this chapter.



Sec. 226.61  Use of military service.

    (a) Claim for use of military service. An employee is deemed to have 
filed a claim for the use of military service and earnings as service 
and compensation under the Railroad Retirement Act if--
    (1) The employee indicates on the annuity application or another 
signed statement that he or she has military service;
    (2) The employee does not specifically request that the military 
service be credited as wages under the Social Security Act;
    (3) The military service is creditable under the Railroad Retirement 
Act, as shown in part 212 of this chapter; and
    (4) Using the military service as railroad service and compensation 
would be to the employee's advantage (the employee and his or her family 
would receive higher total benefits than if the military service were 
credited under the Social Security Act).
    (b) Effective date for use of military service. Military service can 
be used as service and compensation under the Railroad Retirement Act 
starting with the date the annuity begins but no earlier than twelve 
months before the employee files an application or statement showing 
that he or she has military service.



Sec. 226.62  Computing average monthly compensation.

    The employee's average monthly compensation is computed by first 
determining the employee's highest 60 months of railroad compensation 
(disregarding compensation in excess of the maximum creditable tier II 
compensation for that year). The total of the highest 60 months is then 
divided by 60 to determine the average monthly compensation.



Sec. 226.63  Determining monthly compensation.

    (a) Based on yearly compensation. If Board records do not show 
monthly compensation for a year, the monthly compensation is determined 
by dividing the total compensation reported for the year by the number 
of months of service credited to the employee for that year.
    (b) For employee with government employment and no railroad service 
for 60-month period before annuity begins--(1) General. The compensation 
used in determining the average monthly compensation (AMC) is indexed 
for an employee who has not worked in the railroad industry for the 60-
month period before the month the employee's annuity begins and whose 
major employment during that period was for a government agency listed 
in Sec. 216.16 of this chapter. The compensation is indexed by 
multiplying it by the quotient obtained by dividing the average annual 
wage for the indexing year by the average annual wage for the year being 
indexed. If the month for which compensation is being indexed is before 
1951, the average annual wage for 1951 is used.
    (2) Indexing year defined. The indexing year is the second year 
before the year in which the annuity begins.

[[Page 464]]



 Subpart F_Reduction for Workers' Compensation and Disability Benefits 
              Under a Federal, State, or Local Law or Plan



Sec. 226.70  General.

    For any month an employee disability annuitant is entitled to 
workers' compensation or a public disability benefit, the tier I benefit 
of the spouse or divorced spouse is reduced due to receipt of such 
benefits. (If both spouse and divorced spouse annuities are payable, the 
reduction amount is divided and applied in equal amounts to both the 
spouse and divorced spouse tier I benefits.) The employee tier I is 
reduced by the difference between the total reduction amount, described 
in Sec. 226.71 of this part, and the reduction in the spouse and 
divorced spouse tier I benefits.



Sec. 226.71  Initial reduction.

    (a) When reduction is effective. A reduction for other disability 
benefits begins with the first month the employee is receiving both a 
disability annuity and workers' compensation or a public disability 
benefit. The reduction ends with the month before the month in which the 
employee becomes 65 years old or with the month in which the workers 
compensation or public disability benefit ends.
    (b) Amount of reduction. The reduction for other disability benefits 
equals the difference between--
    (1) The total tier I rates of the employee, spouse, and divorced 
spouse, before any reductions (age, public pension, social security 
benefits, etc.) plus the monthly amount of the workers' compensation of 
public disability benefit; and
    (2) The higher of--
    (i) Eighty percent of the employee's average current earnings, as 
defined in this section; or
    (ii) The total tier I rates, as described in paragraph (b)(1) of 
this section.

    Example 1: Harold is entitled to a monthly disability annuity with a 
tier I component of $507 and a monthly public disability benefit of $410 
from the state. Eighty percent of Harold's average current earnings is 
$800. Because this amount is higher than Harold's tier I component, to 
determine the reduction for other disability benefits the Board 
subtracts this amount ($800) from the total of Harold's tier I component 
($507) and public disability benefit ($410) which results in a reduction 
amount of $117 ($917-$800). This leaves Harold with a reduced tier I 
amount of $390 ($507-$117).
    Example 2: Tom is entitled to a disability annuity with a tier I 
component of $560. His wife and divorced wife are both entitled to 
annuities with tier I components of $280 each. Total benefits are 
$1,120. Tom is receiving a monthly workers' compensation benefit of $500 
from the state. Eighty percent of Tom's average current earnings is 
$820. Because the total benefit ($1,120) is higher than Tom's average 
current earnings, to determine the reduction for other disability 
benefits the Board subtracts this amount from $1,620 ($1,120 plus $500) 
which results in a reduction amount of $500. This means that the tier I 
of the spouse and divorced spouse annuity are each reduced by $250.

    (c) Average current earnings, defined. An employee's ``average 
current earnings'' is the highest of--
    (1) The average monthly wage (AMW) used to compute the tier I AMW 
PIA. (The earnings are not indexed, even if the tier I PIA which is 
being paid is based on average indexed monthly earnings. See part 225 of 
this chapter.); or
    (2) One-sixtieth of the employee's total earnings covered under 
either the Social Security or Railroad Retirement Acts (including 
earnings that exceed the maximum earnings used in computing social 
security benefits) for the five consecutive years after 1950 in which 
the employee had the highest earnings. The result, if not a multiple of 
$1, is rounded to the next lower multiple of $1; or
    (3) One-twelfth of the employee's total earnings covered under 
either the Social Security or Railroad Retirement Acts (including 
earnings that exceed the maximum earnings used in computing social 
security benefits) for the year of highest earnings in the period which 
includes the year in which the employee became disabled and the five 
preceding years. The result, if not a multiple of $1, is rounded to the 
next lower multiple of $1.



Sec. 226.72  Benefits that do not cause a reduction.

    The tier I is not reduced for the following types of benefits:

[[Page 465]]

    (a) A benefit paid under a law or plan that provided, on February 
18, 1981, for reducing the benefit for entitlement to a disability 
insurance benefit under the Social Security Act.
    (b) A Federal disability benefit based on service for other than a 
state or local government, if all or part of that service is covered 
under the Social Security Act.
    (c) A disability benefit paid by the Federal government or a state 
or local government based on state or local employment, if all or 
substantially all of that employment is covered under the Social 
Security Act. ``Substantially all'' means 85 percent or more of the 
employment.
    (d) A benefit paid by the Veteran's Administration.
    (e) Private disability benefits.
    (f) Amounts paid under the Federal Employers' Liability Act (FELA).
    (g) Benefits based on need, such as welfare benefits or supplemental 
security income.



Sec. 226.73  Changes in reduction amount.

    The reduction amount is not changed when a tier I benefit increases 
because of a recomputation or a general adjustment in annuity rates, 
such as a cost-of-living increase. However, the reduction amount may 
change for the following reasons:
    (a) A spouse or divorced spouse becomes entitled to a tier I benefit 
after the effective date of the reduction. The reduction amount is 
recomputed as if the spouse or divorced spouse were entitled to a tier I 
benefit on the date the reduction first applied. The new reduction 
amount applies beginning with the date the spouse or divorced spouse 
tier I benefit begins.

    Example: An employee became entitled to an annuity with a tier I 
component of $500 on May 1, 1991. He was also receiving a state 
disability benefit of $300 a month based on employment not covered under 
the Social Security Act. On June 1, 1991, the employee's tier I 
increased to $520.70. On October 1, 1991, the employee's wife becomes 
entitled to an annuity with a tier I benefit of $260.00. The tier I 
amount ($250) that would have been payable to the wife on May 1, 1991 
(assuming she had been eligible for a benefit at that time) is used to 
determine the reduction for other disability benefits beginning October 
1, 1991.

    (b) The tier I benefit of a spouse or divorced spouse annuity ends 
after the effective date of the reduction. The new reduction amount is 
computed using the tier I rate to which the employee was entitled when 
the reduction first applied. The new reduction amount applies beginning 
with the month after the month in which the spouse or divorced spouse 
tier I benefit ends.
    (c) The average current earnings are redetermined, as shown in Sec. 
226.74.
    (d) The amount of the other disability benefit changes. The 
reduction amount is recomputed to use the new benefit rate beginning 
with the date on which the new rate is payable. Any increases in the 
tier I amounts which were effective after the reduction first applied 
are not included in computing the new reduction amount.

    Example: The employee's tier I benefit is $500 on May 1, 1991, when 
the annuity is first reduced for other disability benefits. The tier I 
increases to $520 effective June 1, 1991. When the amount of the 
disability benefit changes on October 1, 1991, $500, not $520, is used 
as the employee tier I amount in recomputing the reduction amount.



Sec. 226.74  Redetermination of reduction.

    (a) General. The average current earnings are redetermined in the 
second year after the year the reduction for other disability benefits 
was first applied and every third year after that. The redetermined 
amount is used only if it results in a lower reduction amount. The new 
reduction amount is effective with January of the year after the 
redetermination is made.
    (b) Redetermined average current earnings. The average current 
earnings are redetermined by multiplying the initial average current 
earnings amount by--
    (1) The average of the total wages (including wages that exceed the 
maximum used in computing social security benefits) of all persons for 
whom wages were reported to the Secretary of the Treasury for the year 
before the year of redetermination, divided by the average of the total 
wages reported to the Secretary of the Treasury for 1977 or, if later, 
the year before the year for which the reduction was first computed. If 
the result is not a multiple of

[[Page 466]]

$1, it is rounded to the next lower multiple of $1; or
    (2) If the reduction was first computed before 1978, the average of 
all taxable wages reported to the Secretary of Health and Human Services 
for the first quarter of 1977, divided by the average of all taxable 
wages reported to the Secretary of Health and Human Services for the 
first quarter of the year before the year for which the reduction was 
first computed. If the result is not a multiple of $1, it is rounded to 
the next lower multiple of $1.



   Subpart G_Recomputation To Include Additional Railroad Service and 
                              Compensation



Sec. 226.90  When recomputation applies.

    An employee's annuity may be recomputed to include additional 
railroad service and compensation and social security wages which the 
employee earns after the beginning date of the employee annuity. The 
annuity is recomputed only if the recomputation increases the annuity 
rate by more than $1 a month or results in a lump-sum payment of more 
than $5. Before a recomputed rate can be paid, the employee must stop 
working in the railroad industry. A recomputed tier I component is 
payable beginning with January 1 of the year after the year in which the 
wages or compensation are earned or (provided the employee is age 62 or 
disabled), in the case of railroad compensation, in the year after the 
employee stops working in the railroad industry. A recomputed tier II 
component is payable from the date the annuity is reinstated after the 
employee has ceased railroad work.



Sec. 226.91  How an employee annuity rate is recomputed.

    (a) Tier I. A recomputation is made if any social security wages or 
railroad compensation for a year in which the employee returned to work 
are higher than the earnings for a year included in the previous 
computation of the tier I PIA, as shown in part 225 of this chapter. The 
higher earnings are used instead of the lower earnings for the earlier 
year to determine the average monthly wage or average indexed monthly 
earnings. Part 225 of this chapter describes how a PIA is recomputed.
    (b) Tier II. The additional service is added to the years of service 
previously used in computing the tier II rate. The additional 
compensation is used to recompute the average monthly compensation, if 
the compensation for a month in which the employee returned to railroad 
service is higher than the compensation for a month used in the previous 
computation of the average monthly compensation. The higher monthly 
compensation is used instead of the lower compensation for a previous 
month to determine the new average monthly compensation as shown in 
Sec. 226.62 of this part. The increased years of service and average 
monthly compensation are used in computing a new tier II rate, as shown 
in Sec. 226.11 of this part.

    Example: An employee receiving an annuity which began on January 1, 
1992, returns to railroad service for 10 months in 1992 and 2 months in 
1993. He stops work on February 20, 1993. He has earnings of $34,500.00 
in 1992 and $5,200.00 in 1993. His tier II rate effective January 1, 
1992, was based on 26 years (312 months) of service and an average 
monthly compensation of $2,995 ($179,700/60). The additional 12 months 
of service increases the year of service used in computing the tier II 
rate to 27 (312 months + 12 months = 324 months / 12 = 27). The 1992 
earnings of $34,500.00 are used instead of 1987 earnings of $32,700.00. 
The 1993 earnings are not used because they are lower than the earnings 
for previous months used in computing the average monthly compensation. 
The additional $1,800.00 in earnings increases the average monthly 
compensation to $3,025 ($179,100 + $1,800.00 = $181,500.00/60). The 
initial tier II amount is increased from $545.09 (26x$2,995x.007) to 
$571.73 (27x$3,025x.007), effective with the date of annuity 
reinstatement, March 1, 1993.



Sec. 226.92  Effect of recomputation on spouse and divorced spouse 
annuity.

    The annuity of a spouse or divorced spouse is recomputed to use the 
employee's recomputed tier I PIA and tier II rate, if the recomputation 
results in a lump-sum payment of more than $5 or an increase in the 
spouse or divorced spouse annuity rate of more than $1 a month. The 
spouse or divorced spouse annuity rate is recomputed beginning with the 
same date the employee's annuity rate is recomputed.

[[Page 467]]



PART 227_COMPUTING SUPPLEMENTAL ANNUITIES--Table of Contents




Sec.
227.1 Introduction.
227.2 Initial supplemental annuity rate.
227.3 Reduction for railroad retirement family maximum.
227.4 Reduction for employer pension.
227.5 Employer tax credits.

    Authority: 45 U.S.C. 231f(b)(5).

    Source: 50 FR 11502, Mar. 22, 1985, unless otherwise noted.



Sec. 227.1  Introduction.

    This part explains how to compute a supplemental annuity. A 
supplemental annuity is payable to an employee who meets the 
requirements in Sec. 216.12 of this chapter.



Sec. 227.2  Initial supplemental annuity rate.

    The supplemental annuity rate, before reduction for the railroad 
retirement family maximum or any private pension, is $23 for an 
employee's first 25 years of service plus $4 for each added year of 
service up to 30 years. The highest supplemental annuity rate is $43 for 
an employee with 30 or more years of service.



Sec. 227.3  Reduction for railroad retirement family maximum.

    If the railroad retirement family maximum applies, and the reduction 
amount is higher than the spouse tier II rate, as shown in part 226 of 
this chapter, the initial supplemental annuity rate from Sec. 227.2 is 
reduced by the smaller of--
    (a) The difference between the total railroad retirement maximum 
reduction amount and the reduction in the spouse annuity; or
    (b) The total supplemental annuity rate from Sec. 227.2.

[50 FR 11502, Mar. 22, 1985, as amended at 54 FR 12903, Mar. 29, 1989]



Sec. 227.4  Reduction for employer pension.

    (a) General. The supplemental annuity for each month is reduced by 
the amount of any private pension the employee is receiving for that 
month based on the contributions of a railroad employer. This reduction 
is applied to the supplemental annuity amount after any reduction for 
railroad retirement family maximum. Private pension is explained in 
Sec. 216.14 of this chapter.
    (b) Private pension reduced for supplemental annuity. If the 
employer reduces the private pension for the employee's entitlement to 
the supplemental annuity, the reduced pension amount is subtracted from 
the supplemental annuity. However, the reduction in the supplemental 
annuity can be no greater than the difference between the supplemental 
annuity amount, after any reduction for railroad retirement family 
maximum, and the amount the private pension is reduced for the 
supplemental annuity. This guarantees that the sum of the reduced 
supplemental annuity and the reduced employer pension is not less than 
the amount of the full employer pension.

    Example: The full employer pension is $80. This is reduced by $35 
because of the employee's entitlement to a supplemental annuity. The 
initial supplemental annuity rate is $43.

Full employer pension...........................................     $80
Reduction for supplemental annuity..............................     -35
                                                                 -------
Reduced pension amount..........................................      45
Supplemental annuity............................................      43
Reduced pension amount..........................................     -45
                                                                 -------
                                                                       0
Guarantee amount:
    Supplemental annuity........................................      43
    Reduction in private pension................................     -35
                                                                 -------
                                                                       8
    Supplemental annuity........................................      43
    Reduction in private pension................................      -8
                                                                 -------
    Reduced supplemental annuity................................      35
 

    The reduced supplemental annuity amount is $35. This amount plus the 
reduced employer pension of $45 equals $80, the full amount of the 
employer pension.

    (c) Part of private pension based on employee contributions. If the 
employer pension is based on both employer and employee contributions, a 
special formula is used to determine the amount to be subtracted from 
the supplemental annuity. The Board first computes the pension amount 
the employee's contributions could have purchased from a private 
insurance company. That amount is subtracted from the total employer 
pension. The result is the pension amount used to reduce the 
supplemental annuity.

[[Page 468]]



Sec. 227.5  Employer tax credits.

    Employers are entitled to tax credits if they pay non-negotiated 
pensions to former employees whose supplemental annuities are reduced 
because of the pensions. Non-negotiated pensions are paid under pension 
plans that are not established by collective bargaining agreements. The 
tax credits for each month equal the sum of the reductions for employer 
pensions in the supplemental annuities of all former employees for that 
month. The Board sends a report of total tax credits to each employer 
after the end of each calendar quarter. The credits are applied to the 
man-hour supplemental annuity tax the employer pays the Internal Revenue 
Service under section 3221 of the Railroad Retirement Tax Act.



PART 228_COMPUTATION OF SURVIVOR ANNUITIES--Table of Contents




                            Subpart A_General

Sec.
228.1 Introduction.
228.2 Tier I and tier II annuity components.

                 Subpart B_The Tier I Annuity Component

228.10 Computation of the tier I annuity component for a widow(er), 
          disabled widow(er), remarried widow(er), and a surviving 
          divorced spouse.
228.11 Computation of the tier I annuity component of a widow(er) with a 
          child in care, remarried widow(er) with a child in care, or a 
          surviving divorced spouse with a child in care.
228.12 Computation of the tier I annuity component of a child's 
          insurance annuity.
228.13 Computation of the tier I annuity component of a parent's 
          insurance annuity.
228.14 Family maximum.
228.15 Reduction for age.
228.16 Adjustments in the age reduction factor (ARF).
228.17 Adjustments to the widow(er)'s, disabled widow(er)'s, surviving 
          divorced spouse's, and remarried widow(er)'s tier I annuity 
          amount.
228.18 Reduction for public pension.
228.19 Reduction for a social security benefit.
228.20 Reduction for an employee annuity.
228.21 Entitlement as a spouse or divorced spouse and as a survivor.
228.22 Entitlement to more than one survivor annuity.
228.23 Priority of reductions.
228.40 Cost of living increase applicable to the tier I annuity 
          component.

                 Subpart C_The Tier II Annuity Component

228.50 Tier II annuity component widow(er), child, or parent.
228.51 Takeback amount.
228.52 Restored amount.
228.53 Spouse minimum guarantee.
228.60 Cost-of-living increase.

    Authority: 45 U.S.C. 231f.

    Source: 60 FR 16368, Mar. 30, 1995, unless otherwise noted.



                            Subpart A_General



Sec. 228.1  Introduction.

    (a) What does this part include? This part includes the computation 
of a widow(er)'s, disabled widow(er)'s, remarried widow(er)'s, surviving 
divorced spouse's, parent's, and child's insurance annuity under the 
Railroad Retirement Act. This part describes the two annuity components 
or tiers which are included in these annuities. The tier I annuity 
component, which may be payable in all of the above annuities, is 
described in subpart B of this part. Subpart C of this part describes 
the tier II annuity component which is only applicable to the 
widow(er)'s, disabled widow(er)'s, parent's, and child's annuity.
    (b) Other relevant parts. (1) Part 225, Primary Insurance Amount 
Determinations, describes the various types of primary insurance amounts 
which form the basis of the computation of the tier I annuity component 
described in this part.
    (2) Part 216, Eligibility for an Annuity, describes the eligibility 
requirements for receipt of the annuity computations described in this 
part.



Sec. 228.2  Tier I and tier II annuity components.

    (a) Tier I annuity component. The Tier I annuity component is 
generally the amount that would have been payable under the Social 
Security Act if all of the employee's earnings after 1936 under both the 
railroad retirement system and the social security system had been 
creditable under the Social Security Act.

[[Page 469]]

    (b) Tier II annuity component. The tier II annuity component is the 
portion of the survivor's annuity which is based on an employee's 
railroad earnings only. The tier II component of an annuity described in 
this part is a specified percentage of the employee's actual or 
anticipated tier II annuity component.



                 Subpart B_The Tier I Annuity Component



Sec. 228.10  Computation of the tier I annuity component for a 
widow(er), disabled widow(er), remarried widow(er), and a surviving 
divorced spouse.

    The tier I annuity component for these beneficiaries is generally 
based on the survivor tier I Primary Insurance Amount (PIA). The 
survivor tier I PIA is determined in accordance with section 215 of the 
Social Security Act using the deceased employee's combined railroad and 
social security earnings after 1950 (or after 1936 if a higher PIA would 
result) up to the maximum creditable amounts through the year of the 
employee's death. See part 225 of this chapter. This amount may be 
further adjusted for certain reductions or deductions as described in 
Sec. Sec. 228.15-228.20 of this part and is subject to the family 
maximum. See Sec. 228.14 of this part.



Sec. 228.11  Computation of the tier I annuity component of a widow(er) 
with a child in care, remarried widow(er) with a child in care, or a 
surviving divorced spouse with a child in care.

    The tier I annuity component of a widow(er), remarried widow(er), or 
a surviving divorced spouse with a child of the employee in his or her 
care is 75 percent of the PIA computed under Sec. 228.10 of this part. 
The amount may be adjusted for certain reductions and deductions 
described in Sec. Sec. 228.15-228.20 of this part and is subject to the 
family maximum. See Sec. 228.14 of this part.



Sec. 228.12  Computation of the tier I annuity component of a child's 
insurance annuity.

    The tier I annuity component of a child's insurance annuity is 75 
percent of the PIA computed under Sec. 228.10 of this part. The amount 
may be adjusted for the family maximum. See Sec. 228.14 of this part.



Sec. 228.13  Computation of the tier I annuity component of a parent's 
insurance annuity.

    The tier I annuity component of a parent's insurance annuity is 
dependent on whether one or two parents are entitled.
    (a) One parent entitled. A parent's tier I annuity component is 
equal to 82\1/2\ percent of the PIA computed under Sec. 228.10 of this 
part.
    (b) More than one parent entitled. A parent's tier I annuity 
component is equal to 75 percent of the PIA computed under Sec. 228.10 
of this part.
    (c) The amounts computed under paragraph (a) or (b) of this section 
may be adjusted for the family maximum. See Sec. 228.14 of this part.



Sec. 228.14  Family maximum.

    (a) Family maximum defined. Under the Social Security Act, the 
amount of total monthly benefits that can be paid for any month on one 
person's earnings record is limited. This limited amount is called the 
family maximum. The family maximum is based on the survivor tier I PIA 
(see part 225 of this chapter). Generally, if three or more persons are 
entitled to benefits, their benefits will be adjusted for the family 
maximum.
    (b) Computation of the family maximum--(1) The employee attains age 
62, has a period of disability or dies prior to 1979. The maximum is the 
amount appearing in column V of the applicable table published each year 
by the Secretary of Health and Human Services on the line on which 
appears in column IV the primary insurance amount of the insured 
individual whose compensation is the basis for the benefits payable. 
Where the total of the survivor benefits exceeds the maximum, the total 
tier I benefits for each month after 1964 are reduced to the amount 
appearing in column V. Each survivor's benefit is proportionately 
reduced, based on the percentage of the PIA used to compute the survivor 
benefits. However, when any of the persons entitled to benefits on the 
insured individual's compensation would, except for the limitation 
described in Sec. 404.353(b)

[[Page 470]]

of title 20 (dealing with the entitlement to more than one child's 
benefit), be entitled to a child's annuity on the basis of the 
compensation of one or more other insured individuals, the total 
benefits payable may not be reduced to less than the smaller of--
    (i) The sum of the maximum amounts of benefits payable on the basis 
of the compensation of all such insured individuals, or
    (ii) The last figure in column V of the applicable table published 
each year by the Secretary of Health and Human Services. The 
``applicable table'' refers to the table which is effective for the 
month the benefit is payable.
    (2) The employee attains age 62, has a period of disability or dies 
in 1979. The maximum is computed as follows:
    (i) 150 percent of the first $230 of the individual's primary 
insurance amount, plus
    (ii) 272 percent of the primary insurance amount over $230 but not 
over $332, plus
    (iii) 134 percent of the primary insurance amount over $332 but not 
over $433, plus
    (iv) 175 percent of the primary insurance amount over $433.

If the total of this computation is not a multiple of $0.10, it will be 
rounded to the next lower multiple of $0.10.
    (3) The employee attains age 62, or has a period of disability or 
dies after 1979. The maximum is computed as in paragraph (b)(2) of this 
section. However, the dollar amounts shown there will be updated each 
year after 1979 as average earnings rise. This updating is done by first 
dividing the average of the total wages for the second year before the 
individual dies or becomes eligible, by the average of the total wages 
for 1977. The result of that computation is then multiplied by each 
dollar amount in the formula in paragraph (b)(2) of this section. Each 
updated dollar amount will be rounded to the nearer dollar, if the 
amount is an exact multiple of $0.50 (but not of $1), it will be rounded 
to the next higher $1. Before November 2 of each calendar year after 
1978, the Secretary of Health and Human Services will publish in the 
Federal Register the formula and updated dollar amounts to be used for 
determining the monthly maximum for the following year.
    (c) Special minimum PIA. Regardless of the method used to compute 
the primary insurance amount, if the special minimum primary insurance 
amount described in Sec. 404.261 to this title is higher, then the 
family maximum will be based upon the special minimum primary insurance 
amount.



Sec. 228.15  Reduction for age.

    (a) Widow(er), surviving divorced spouse, or remarried widow(er). 
The tier I annuity component is reduced 19/40 of 1 percent multiplied by 
the number of months before the annuitant attains full retirement age 
(presently age 65) effective with the annuity beginning date for 
widow(ers) born before 1/2/40. (For widow(ers) born after 1/1/40, see 
section 216(l) of the Social Security Act.)
    (b) Disabled widow(er), disabled surviving divorced spouse, or 
disabled remarried widow(er). The tier I annuity component is reduced 
for a maximum of 60 months even though the annuity may begin at age 50.



Sec. 228.16  Adjustments in the age reduction factor (ARF).

    Upon the attainment of retirement age, the previously-computed age 
reduction factor is adjusted to remove those months for which a full 
annuity was not paid even though the individual was entitled.



Sec. 228.17  Adjustments to the widow(er)'s, disabled widow(er)'s, 
surviving divorced spouse's, and remarried widow(er)'s tier I annuity 
amount.

    (a) If the employee died before attaining age 62 and after 1978 and 
the widow(er), disabled widow(er), remarried widow(er), or surviving 
divorced spouse is first eligible after 1984, the Board will compute the 
tier I annuity amount as if the employee had not died but had reached 
age 62 in the second year after the indexing year (see Sec. 225.2 of 
this chapter); provided, however, that if the employee was entitled to a 
primary insurance amount based on average monthly wages this section is 
not applicable. The indexing year is never earlier than the second year 
before the

[[Page 471]]

year of the employee's death. Except for this limitation it is the 
earlier of----
    (1) The year the employee attained age 60, or would have attained 
age 60 had the employee lived, and
    (2) The second year before the year in which the widow(er), 
remarried widow(er), or surviving divorced spouse becomes eligible for 
such an annuity, has attained age 60, or is age 50-59 and disabled.
    (b) The tier I annuity component is increased if the employee's 
annuity was increased or would have been increased based on delayed 
retirement credits (see Sec. 225.36 of this chapter).
    (c) The tier I annuity component is reduced if the employee had been 
entitled to an age reduced annuity, including an annuity based on 30 
years of service, which is reduced for age because it began before the 
employee attained age 62. In this instance, the widow(er)'s, remarried 
widow(er)'s, or surviving divorced spouse's tier I annuity component 
after applying any reduction for age is further reduced to the larger of 
amount the employee would have received as a tier I annuity component if 
still alive or 82\1/2\ percent of his or her primary insurance amount.



Sec. 228.18  Reduction for public pension.

    (a) The tier I annuity component of a widow(er), remarried 
widow(er), surviving divorced spouse, or disabled widow(er) annuity, as 
described in the preceding sections of this part, is reduced if the 
survivor is in receipt of a public pension.
    (b) When reduction is required. Unless the survivor annuitant meets 
one of the exceptions in paragraph (d) of this section, the tier I 
annuity component is reduced each month the survivor annuitant is 
receiving a monthly pension from a Federal, State, or local government 
agency (Government pension) for which he or she was employed in work not 
covered by social security on the last day of such employment. For 
purposes of this section, Federal government employees are not 
considered to be covered by social security if they are covered for 
Medicare but are not otherwise covered by social security, or if they 
are covered under social security solely by an election to become 
subject to the Federal Employees and Retirement System made after 
December 31, 1987, and have not worked 60 months under that system.
    (c) Payment in a lump sum. If the Government pension is not paid 
monthly or is paid in a lump-sum payment, the Board will determine how 
much the pension would be if it were paid monthly. If one of the 
alternatives to a lump-sum payment is a life annuity, and the amount of 
the monthly benefit for the life annuity can be determined, the 
reduction will be based on that monthly benefit amount. Where the period 
for the equivalent monthly pension benefit is not clear, it may be 
necessary for the Board to determine the reduction period on an 
individual case basis.
    (d) Exceptions. The reduction does not apply:
    (1) If the survivor is receiving a Government pension based on 
employment for an interstate instrumentality; or
    (2) If the survivor receives or is eligible to receive a Government 
pension for one or more months in the period December 1977 through 
November 1982 and he or she meets the requirements for social security 
benefits that were applied in January 1977, assuming the employee's 
earnings had been covered under that Act (even though he or she did not 
actually claim such benefits or become entitled for such benefits until 
a later month). The January 1977 requirements are, for a man, a one-half 
support test (see paragraph (e) of this section), and, for a woman 
claiming benefits as a surviving divorced spouse, marriage for at least 
20 years to the insured worker. A person is considered eligible for a 
Government pension for any month in which he or she meets all the 
requirements for payment except that he or she is working or has not 
applied; or
    (3) If a survivor annuitant was receiving or eligible (as defined in 
paragraph (d)(2) of this section) to receive a Government pension for 
one or more months before July 1983, and he or she meets the one-half 
support test (see paragraph (e) of this section). If a survivor 
annuitant meets the exception in this paragraph but he or she does not 
meet the exception in paragraph (d)(2) of this section, December 1982 is 
the

[[Page 472]]

earliest month for which the reduction will not affect his benefits; or
    (4) If a survivor annuitant was eligible for a Government pension in 
a given month except for a requirement which delayed eligibility for 
such pension until the month following the month in which all other 
requirements were met, the Board will consider the annuitant to be 
eligible in that given month for the purpose of meeting one of the 
exceptions in paragraphs (d)(2) and (3) of this section. If an annuitant 
meets an exception solely because of this paragraph, his or her benefits 
will be unreduced for months after November 1984 only.
    (e) The one-half support test. For a man to meet the January 1977 
requirement as provided in the exception in paragraph (d)(2) of this 
section and for a man or a woman to meet the exception in paragraph 
(d)(3) of this section, he or she must meet a one-half support test. 
One-half support is defined in part 222 of this chapter. One-half 
support must be met at one of the following times:
    (1) If the employee upon whose compensation the survivor annuity is 
based had a period of disability which did not end before he or she 
became entitled to an age and service or disability annuity, or died, 
the survivor annuitant must have been receiving at least one-half 
support from the employee--
    (i) At the beginning of his or her period of disability; or
    (ii) At the time he or she became entitled to an age and service or 
disability annuity; or
    (iii) At the time of his or her death.
    (2) If the employee upon whose compensation the survivor annuity is 
based did not have a period of disability at the time of his or her 
entitlement or death, the survivor annuitant must have been receiving at 
least one-half support from the employee--
    (i) At the time he or she became entitled to an age and service 
annuity or disability annuity; or
    (ii) At the time of his or her death.
    (f) Amount of reduction. (1) If a survivor annuitant becomes 
eligible for a Government pension after June 1983, the Board will reduce 
(but not below zero) the tier I annuity component by two-thirds of the 
amount of the monthly pension. If the amount of the reduction is not a 
multiple of 10 cents, it will be rounded to the next higher multiple of 
10 cents.
    (2) If a survivor annuitant became eligible for a Government pension 
before July 1983 and he or she did not meet one of the exceptions in 
paragraph (d) of this section, the Board will reduce (but not below 
zero) the tier I component by the full amount of the pension for months 
before December 1984 and by two-thirds the amount of his or her monthly 
pension for months after November 1984. If the amount of the reduction 
is not a multiple of 10 cents, it will be rounded to the next higher 
multiple of 10 cents.
    (g) Reduction not applicable. This reduction is not applied to 
claimants who both filed and were entitled to benefits prior to December 
1977.



Sec. 228.19  Reduction for a social security benefit.

    The tier I annuity component is reduced for the amount of any social 
security benefit to which the survivor annuitant is entitled.



Sec. 228.20  Reduction for an employee annuity.

    (a) General. If an individual is entitled to an annuity as a 
survivor, and is also entitled to an employee annuity, then the survivor 
annuity must be reduced by the amount of the employee annuity. However, 
this reduction does not apply (except as provided in paragraph (b) of 
this section) if the survivor or the individual upon whose earnings 
record the survivor annuity is based worked for a railroad employer or 
as an employee representative before January 1, 1975.
    (b) Tier I reduction. If an individual is entitled to an annuity as 
a survivor, then the tier I component of the survivor annuity must be 
reduced by the amount of the tier I component of the employee annuity 
after reduction for age. Where the survivor is entitled to a tier II 
component and either the survivor or the employee had railroad earnings 
before 1975, a portion of this reduction may be restored in the 
computation of the tier II component (see Sec. 228.52 of this part).

[[Page 473]]



Sec. 228.21  Entitlement as a spouse or divorced spouse and as a 
survivor.

    If an individual is entitled to both a spouse or divorced spouse and 
survivor annuity, only the larger annuity will be paid. However, if the 
individual so chooses, he or she may receive the smaller annuity rather 
than the larger annuity.



Sec. 228.22  Entitlement to more than one survivor annuity.

    If an individual is entitled to more than one survivor annuity, only 
the larger annuity will be paid. However, if the individual so chooses, 
he or she may receive the smaller annuity rather than the larger 
annuity.



Sec. 228.23  Priority of reductions.

    The tier I component of the survivor annuity is first reduced by the 
family maximum, if applicable, then any applicable age reduction, then 
by any public pension offset, then by any social security benefit 
payable, then by the tier I component of any employee annuity payable to 
the survivor annuitant.



Sec. 228.40  Cost of living increase applicable to the tier I annuity 
component.

    The tier I annuity component of a survivor annuity is increased at 
the same time and by the same percentage as the increase provided for 
under section 215(i) of the Social Security Act. The amount of the 
increase is published in the Federal Register annually. The cost-of-
living increase is payable beginning with the benefit for the month of 
December of the year for which the increase is due. The increase is paid 
in the January payment.



                 Subpart C_The Tier II Annuity Component



Sec. 228.50  Tier II annuity component widow(er), child, or parent.

    (a) General. The tier II annuity component is an additional amount 
payable to a widow(er), disabled widow(er), child, or parent, but not to 
a surviving divorced spouse or remarried widow(er), and a parent as 
provided in paragraph (b)(2) of this section, based on the railroad 
employee's earnings in the railroad industry. Unlike the tier I annuity 
component it is not reduced for any other social insurance benefit 
except a railroad retirement annuity. See Sec. Sec. 228.20-228.23 of 
this part.
    (b) Amount of the tier II annuity component (1981 amendment)--(1) 
Widow(er) or disabled widow(er). The amount of a widow(er)'s or disabled 
widow(er)'s tier II annuity component is 50 percent of the amount of the 
employee's tier II which would have been payable in the month in which 
the widow became entitled had the employee been alive and in receipt of 
an annuity under the Railroad Retirement Act at that time.
    (2) Parent. The amount of a parent's tier II annuity component is 35 
percent of the amount of the employee's tier II annuity component which 
would have been payable in the month in which the parent became entitled 
had the employee been alive and in receipt of an annuity under the 
Railroad Retirement Act at that time. However, if another survivor is 
entitled, or potentially entitled, to a tier II annuity component, the 
parent tier II annuity component is zero.
    (3) Child. The amount of each child's tier II annuity component is 
15 percent of the employee's tier II annuity component which would have 
been payable in the month in which the child became entitled had the 
employee been alive and in receipt of an annuity under the Railroad 
Retirement Act at that time.
    (c) Minimum tier II survivor annuity components. If the total tier 
II annuity components payable to survivors is less than 35 percent of 
the employee's tier II annuity component which would have been payable 
in the month the survivors became entitled had the employee been alive 
and in receipt of an annuity under the Railroad Retirement Act at that 
time, the individual tier II annuity components computed in paragraph 
(b) of this section shall be increased proportionally so that the total 
of all such tier II annuity components equals 35 percent of the 
employee's tier II annuity component.
    (d) Maximum tier II annuity components. If the total tier II 
survivor annuity components payable to survivors exceeds 80 percent of 
the employee's tier II annuity component which would

[[Page 474]]

have been payable in the month the survivors became entitled had the 
employee been alive and entitled to an annuity under the Railroad 
Retirement Act at that time, the individual tier II annuity components 
computed in paragraph (b) of this section shall be reduced 
proportionally so that the total of all such tier II annuity components 
totals no more than 80 percent of the employee's tier II annuity 
component.
    (e) Age reduction. The tier II annuity component of a widow(er) or 
disabled widow(er) is subject to reduction by the same age reduction 
factor as is applicable to the tier I annuity component. See Sec. 
228.15 of this part.



Sec. 228.51  Takeback amount.

    (a) The 1983 amendments to the Railroad Retirement Act provided that 
a portion of the cost-of-living increases payable on the tier I annuity 
component be offset from the amount of the tier II annuity. This amount 
is the takeback amount. The amount of the takeback and its application 
depends on the employee and survivor's annuity beginning dates.
    (b)(1) The tier II takeback amount for survivors whose annuity 
beginning date is January 1, 1984 or later is usually the amount of the 
employee's takeback amount. That amount is equal to 5 percent of the 
employee's primary insurance amount, less all applicable reductions (net 
tier I), on November 1, 1983. However, if the employee's annuity was 
reduced for a social security benefit but the survivor's annuity is not, 
the takeback amount is the amount the employee's annuity would have been 
reduced for the takeback if the employee's annuity had not been reduced 
for a social security benefit. If the employee's annuity had not been 
tiered or was being paid under the overall minimum, the Board will 
compute the amount of the tier II takeback that would have been 
applicable to the employee's annuity.
    (2) The tier II takeback amount for survivors whose annuity 
beginning date is before January 1, 1984 is equal to 5 percent of the 
survivor's net tier I annuity component, before deduction on account of 
work, on November 1, 1983.
    (3) The tier II takeback will be applied in accord with the above 
paragraphs in any case where the employee died or retired before January 
1, 1984. If the employee died or retires after December 31, 1983, or the 
employee never retired and dies after December 31, 1993, no takeback 
will be applied to the survivor's annuity.
    (c) No takeback is applied if the survivor tier II annuity amount 
before the takeback is applied is $10.00 or less and cost-of-living 
increases have not increased the tier II annuity amount to more than 
$10.00 (the takeback may never reduce the tier II to an amount less than 
$10.00).



Sec. 228.52  Restored amount.

    (a) General. A restored amount is added to the tier II annuity 
component of a widow(er)'s annuity whose annuity is reduced for receipt 
of an employee annuity under the Railroad Retirement Act provided either 
the employee or the widow(er) had ten years of creditable railroad 
service prior to January 1, 1975.
    (b) Amount. The amount of the tier II restored amount for a 
widow(er) is the difference between the amount payable as a widow(er) 
under the Railroad Retirement Act of 1937 as increased by all annual 
social security cost-of-living percentage increases from January 1, 
1975, until the later of the annuity beginning date of either the 
employee's annuity or the widow(er)'s annuity and the amount payable to 
the widow(er) under the Railroad Retirement Act of 1974 under the rules 
set forth in this part.
    (c) Widower. In order to qualify for an annuity under the 1937 Act 
and thus for a restored amount, a widower must have been dependent on 
his spouse for at least 50 percent of his support in the year prior to 
her death or at the time the spouse's annuity began.



Sec. 228.53  Spouse minimum guarantee.

    The Railroad Retirement Act provides that a spouse should receive no 
less as a widow(er) than he or she received as a spouse. However, if the 
widow(er) becomes entitled to a social security benefit, thus reducing 
his or her annuity, the spouse minimum guarantee is payable only to the 
extent

[[Page 475]]

that it guarantees the amount that the widow(er) would have received as 
a spouse had he or she been entitled to a social security benefit in the 
month preceding the employee's death in an amount equal to the amount of 
the social security benefit payable at the time the widow(er) first 
became entitled to the social security benefit.



Sec. 228.60  Cost-of-living increase.

    The tier II annuity component of a survivor annuity under the 
Railroad Retirement Act is increased by 32.5 percent of the percentage 
increase under section 215(i) of the Social Security Act at the same 
time that any such increase is payable. The amount of the increase is 
published in the Federal Register annually. The cost-of-living is 
payable beginning with the benefit payable for the month of December of 
the year for which the increase is due. The increase is paid in the 
January payment. In addition, in determining the amount of the tier II 
component at the time the survivor annuity begins, all cost-of-living 
increases that were applied or would have been applied after the 
employee's annuity beginning date or death and prior to the surviving 
annuity beginning date are taken into consideration.



PART 229_SOCIAL SECURITY OVERALL MINIMUM GUARANTEE--Table of Contents




                            Subpart A_General

Sec.
229.1 Introduction.
229.2 Definitions.
229.3 Other regulations related to this part.
229.4 Applying for the overall minimum.

       Subpart B_Social Security Overall Minimum Guarantee Defined

229.10 What the social security overall minimum guarantee is.
229.11 100 percent overall minimum.

      Subpart C_Eligibility for Increase Under the Overall Minimum

229.20 When an employee is eligible for an increase under the overall 
          minimum.
229.21 When a spouse is eligible for an increase under the overall 
          minimum.
229.22 Beginning date of increase under overall minimum.

    Subpart D_Family Members Included in Overall Minimum Computation

229.30 Who can be included in the computation of an annuity under the 
          overall minimum.
229.31 When a spouse can be included in the computation of the overall 
          minimum rate.
229.32 When a child can be included in the computation of the overall 
          minimum rate.
229.33 When a divorced spouse can be included in the computation of the 
          overall minimum rate.

        Subpart E_When Entitlement Under the Overall Minimum Ends

229.40 When an annuity increase under the overall minimum ends.
229.41 When a spouse can no longer be included in computing an annuity 
          rate under the overall minimum.
229.42 When a child can no longer be included in computing an annuity 
          rate under the overall minimum.
229.43 When a divorced spouse can no longer be included in computing an 
          annuity under the overall minimum.

            Subpart F_Computation of the Overall Minimum Rate

229.45 Employee benefit.
229.46 Spouse or divorced spouse benefit.
229.47 Child's benefit.
229.48 Family maximum.
229.49 Adjustment of benefits under family maximum for change in family 
          group.
229.50 Age reduction in employee or spouse benefit.
229.51 Adjustment of age reduction.
229.52 Age reduction when a reduced age O/M is effective before DIB O/M.
229.53 Reduction for social security benefits on employee's wage record.
229.54 Reduction for social security benefit paid to employee on another 
          person's earnings record.
229.55 Reduction for spouse social security benefit.
229.56 Reduction for child's social security benefit.
229.57 Reduction in spouse overall minimum benefit for employee annuity.
229.58 Rounding of overall minimum amounts.

  Subpart G_Reduction for Worker's Compensation or Disability Benefits 
              Under a Federal, State, or Local Law or Plan

229.65 Initial reduction.
229.66 Changes in reduction amount.
229.67 Redetermination of reduction.
229.68 Reduction of DIB O/M.

[[Page 476]]

            Subpart H_Miscellaneous Deductions and Reductions

229.80 Earnings restrictions.
229.81 Refusual to accept vocational rehabilitation.
229.82 Failure to have child in care.
229.83 Deportation.
229.84 Conviction of subversive activities.
229.85 Substantial gainful activity by blind employee or child.

                Subpart I_Payment of Overall Minimum Rate

229.90 Proportionate shares of overall minimum.
229.91 Payment of the overall minimum for part of a month.

    Authority: 45 U.S.C. 231(f)(b)(5).

    Source: 58 FR 53397, Oct. 15, 1993, unless otherwise noted.



                            Subpart A_General



Sec. 229.1  Introduction.

    This part explains when an annuity can be increased under the social 
security overall minimum guarantee, also sometimes referred to as the 
``special guaranty'', and how the increased amount is determined. 
Deductions and reductions in the overall minimum rate are explained.



Sec. 229.2  Definitions.

    The following definitions are used in this part:
    Annuity means a payment under the Railroad Retirement Act due and 
payable to an entitled claimant for a calendar month and made to him or 
her on the first day of the following month. The recipient of an annuity 
is called an annuitant.
    Average Indexed Monthly Earnings or AIME means the average of the 
employee's monthly creditable earnings in both railroad and social 
security covered employment in the years used in computing the Primary 
Insurance Amount, after the earnings are adjusted or ``indexed''. The 
indexing is a means of expressing prior years earnings in terms of their 
current dollar value. It is based on increases in the average wages of 
all wage earners from 1951 although the second year before the year the 
worker dies or becomes eligible for benefits.
    Contribution and benefit base means the maximum earnings used in 
computing a social security benefit under section 230 of the Social 
Security Act.
    1974 Act means the Railroad Retirement Act approved October 16, 
1974, including all amendments.
    Railroad formula rate means the amount computed in accord with the 
regular railroad computations (sections 3(a), 3(b) and 3(h) of the 
Railroad Retirement Act).
    Retirement age means age 65, with respect to an employee or spouse 
who attains age 62 before January 1, 2000 (age 60 in the case of a 
widow(er), remarried widow(er) or surviving divorced spouse). For an 
employee or spouse who attains age 62 (or age 60 in the case of a 
widow(er), remarried widow(er), or surviving divorced spouse) after 
December 31, 1999, retirement age means the age provided for in section 
216(l) of the Social Security Act.



Sec. 229.3  Other regulations related to this part.

    This part is related to a number of other parts of this chapter 
(listed numerically):
    Part 216 describes when a person is eligible for an annuity under 
the Railroad Retirement Act.
    Part 217 describes how to apply for an annuity or for lump-sum 
payments.
    Part 218 sets forth the beginning and ending dates of annuities.
    Part 219 sets out what evidence is necessary to prove eligibility 
and the relationships described in this part.
    Part 220 describes when a person is eligible for a disability 
annuity under the Railroad Retirement Act or a period of disability 
under the Social Security Act.
    Part 222 describes the family relationships which may cause an 
annuity to be increased under this part.
    Part 225 explains how Primary Insurance Amounts (PIA's) are 
computed.



Sec. 229.4  Applying for the overall minimum.

    The Board may require an annuitant to provide information regarding 
his or her family and regarding his or her earnings from employment and 
self-employment in order to determine

[[Page 477]]

whether the claimant or annuitant qualifies for the overall minimum.

(Approved by the Office of Management and Budget under control number 
3220-0083)



       Subpart B_Social Security Overall Minimum Guarantee Defined



Sec. 229.10  What the social security overall minimum guarantee is.

    The social security overall minimum guarantee is the amount of total 
family benefits which would be paid under the Social Security Act if the 
employee's railroad service had been covered by that Act. A 100 percent 
overall minimum benefit may be paid, as described in Sec. 229.11. A 100 
percent overall minimum based on age (age O/M) may be payable when the 
employee is 62 years old. The age O/M is reduced for age for months in 
which the O/M is payable before the employee attains retirement age. An 
overall minimum may also be payable before age 62 based on an employee's 
disability (DIB O/M). The DIB O/M is not reduced for age.



Sec. 229.11  100 percent overall minimum.

    Section 3(f)(3) of the 1974 Act guarantees that the total annuities 
payable to the employee and spouse, including the vested dual benefits 
but not including a supplemental annuity, will not be less than 100 
percent of the total family benefits payable under the Social Security 
Act if the employee's railroad service after 1936 were credited as 
social security earnings. Subpart F describes how the 100 percent 
overall minimum rate is computed.



      Subpart C_Eligibility for Increase Under the Overall Minimum



Sec. 229.20  When an employee is eligible for an increase under the 
overall minimum.

    (a) Overall minimum based on age. An employee annuity can be 
increased under the age O/M if all the following conditions are met:
    (1) The employee is entitled to an age or disability annuity as 
shown in part 216 of this chapter.
    (2) The employee is at least 62 years old throughout the whole 
month. The O/M is reduced for each month it is payable before the month 
the employee attains retirement age.
    (3) The employee is fully insured under section 214 or 227 of the 
Social Security Act based on railroad and social security earnings.
    (b) Overall minimum based on disability. An employee annuity can be 
increased under the DIB O/M if the employee is under retirement age, and
    (1) Is entitled to an age or disability annuity; and
    (2) Is disabled under Sec. 404.1505 of this title; and
    (3) Is insured for a disability benefit under Sec. 404.130 of this 
title based upon combined railroad and social security earnings.
    (c) Spouse with child in care or spouse retirement age or older. If 
the employee has not attained the age required to qualify the spouse for 
a spouse annuity but the employee meets the conditions of paragraph (a) 
or (b) of this section, the employee annuity can be increased under the 
overall minimum if:
    (1) The employee and spouse complete the required statements 
concerning the family and earnings as provided for in Sec. 229.4 of 
this part; and
    (2) The spouse meets the marriage requirements as provided for in 
part 222 of this chapter; and
    (3) The spouse has an eligible child in care, or the spouse is 
retirement age or older.
    (d) Spouse election. If the employee has not attained the age 
required to quality the spouse for a spouse annuity but the employee 
meets the conditions of paragraph (a) or (b) of this section, the 
employee annuity can be increased under the overall minimum if:
    (1) The employee and spouse complete the required statements 
concerning the family and earnings as provided for in Sec. 229.4 of 
this part; and
    (2) The spouse meets the marriage requirements as provided for in 
part 222 of this chapter; and
    (3) The spouse is between age 62 and retirement age and does not 
have a child in care; and
    (4) The spouse files an election to be included.

[[Page 478]]



Sec. 229.21  When a spouse is eligible for an increase under the 
overall minimum.

    Normally, only the employee annuity receives the amount of the 
overall minimum increase. However, a spouse annuity may be increased 
under the O/M in cases in which the O/M benefit amount exceeds the total 
amount of the employee and spouse annuity.



Sec. 229.22  Beginning date of increase under overall minimum.

    (a) Employee age O/M. An increase under the overall minimum in an 
employee annuity based on age can be paid beginning with the later of:
    (1) The first day of the first full month throughout which the 
employee is age 62; or
    (2) The beginning date of the employee's age or disability annuity; 
or
    (3) The first month of the quarter in which the employee becomes 
insured under section 214 or 227 of the Social Security Act based on 
railroad and social security earnings; or
    (4) The month the employee attains retirement age, if a DIB O/M was 
paid in the previous month. A DIB O/M is changed to an age O/M in the 
month the employee attains retirement age.
    (b) Employee DIB O/M. An increase under the overall minimum in an 
employee annuity based on disability can be paid beginning with the 
later of--
    (1) The beginning date of the employee's disability annuity; or
    (2) The month after the month in which the disability waiting period 
described in Sec. 404.315(d) of this title ends; or
    (3) If no disability waiting period is required, the first month in 
which the employee is disabled and is insured for a disability benefit 
under Sec. 404.130 of this title.
    (c) Spouse. An increase in a spouse annuity under the overall 
minimum can be paid on the later of:
    (1) The date the increase in the employee's annuity is paid; or
    (2) The date the spouse is both eligible under the O/M and entitled 
to a spouse annuity.



    Subpart D_Family Members Included in Overall Minimum Computation



Sec. 229.30  Who can be included in the computation of an annuity under 
the overall minimum.

    (a) Spouse. In order to be included as a spouse in the computation 
of the overall minimum rate, a person must be the employee's wife or 
husband, as defined in part 222 of this chapter, as of the date 
described in Sec. 229.31 of this part. The spouse must also be 62 years 
or older throughout the whole month in which he or she is first included 
or have the employee's child who is under 16 years old or disabled 
(before attaining age 22) in his or her care. If a spouse is 62 years 
old or older and under retirement age, and does not have an eligible 
child in his or her care, the spouse will be included only if he or she 
requests the payment of a reduced spouse annuity.
    (b) Child. In order to be included as a child in the computation of 
the overall minimum, a person must meet the following requirements as of 
the date described in Sec. 229.32 of this part. The person must be:
    (1) The employee's child as defined in part 222 of this chapter; and
    (2) Dependent on the employee, as shown in part 222 of this chapter; 
and
    (3) Not married; and either
    (4) Under 18 years old, or 18 years old to 19 years old and a full-
time student, as defined in part 216 of this chapter, or 18 years old or 
older and disabled for any regular employment (see part 220 of this 
chapter) before attaining age 22.
    (c) Divorced spouse. In order to be included as a divorced spouse in 
the computation of the overall minimum, a person must be eligible for a 
benefit as a divorced spouse under the Railroad Retirement Act as of the 
date described in Sec. 229.33 of this part.



Sec. 229.31  When a spouse can be included in the computation of the 
overall minimum rate.

    (a) A spouse who is married to the employee when the employee's 
application is filed can be included in the computation of the overall 
minimum rate beginning in the later of the month in which:

[[Page 479]]

    (1) The employee first is eligible for an increase in his or her 
annuity under the overall minimum, as shown in Sec. 229.22 of this 
part; or
    (2) The spouse first becomes eligible to be included under the 
overall minimum, as shown in Sec. 229.30 of this part.
    (b) A spouse who marries the employee after the employee application 
is filed can be included in the overall minimum computation in the month 
in which he or she becomes eligible, as shown in Sec. 229.30 of this 
part, if the overall minimum rate is already payable in the previous 
month. If the railroad formula rate is payable in the month before the 
spouse becomes eligible, the spouse can be included in the overall 
minimum computation in the later of the month in which:
    (1) The employee first is eligible for an increase in his or her 
annuity rate under the overall minimum, as shown in Sec. 229.22; or
    (2) The spouse annuity begins.



Sec. 229.32  When a child can be included in the computation of the 
overall minimum rate.

    A child who meets the requirements of Sec. 229.30(b) of this part 
can be included in the computation of the overall minimum rate in the 
month in which:
    (a) The employee first is eligible for an increase in his or her 
annuity rate under the overall minimum, as shown in Sec. 229.22 of this 
part; or
    (b) In the case of a child born or adopted by the employee after the 
employee's annuity beginning date, such child can be included only when 
the overall minimum rate is already payable in the month before the 
month in which the child is born, or adopted except where:
    (1) The child is born or adopted prior to the employee's attaining 
age 62 or becoming eligible for a period of disability (see Sec. 220.36 
of this chapter); or
    (2) The child who is adopted after the employee's annuity beginning 
date meets the dependency requirements set forth in Sec. 222.53 of this 
chapter.
    (c) In the case of a child who has attained age 18 and has become 
re-entitled as a full-time student or disabled child, as described in 
Sec. 229.30 of this part, such child can only be included when the 
overall minimum rate is already payable in the month before the month 
the child becomes re-entitled.



Sec. 229.33  When a divorced spouse can be included in the computation 
of the overall minimum rate.

    A divorced spouse annuitant can be included in the computation of 
the overall minimum rate in the later of the month in which:
    (1) The employee first is eligible for an increase in his or her 
annuity rate under the overall minimum, as shown in Sec. 229.22; or
    (2) The divorced spouse annuity begins.



        Subpart E_When Entitlement Under the Overall Minimum Ends



Sec. 229.40  When an annuity increase under the overall minimum ends.

    (a) Employee Age O/M. An increase in an employee's annuity under the 
overall minimum based on age ends with the month before the month in 
which the employee dies. If a disability annuity is increased under the 
overall minimum based on age rather than disability, and the employee is 
under retirement age, the increase ends with the second month after the 
month the disability ends as shown in part 220 of this chapter.
    (b) Employee DIB O/M. An increase in an employee's annuity under the 
overall minimum based on disability ends with the earlier of:
    (1) The month before the month in which the employee dies; or
    (2) The month before the month the employee attains retirement age 
(the DIB O/M is changed to an age O/M); or
    (3) The second month after the month the disability ends, as 
explained in part 220 of this chapter.
    (c) Spouse. An increase in a spouse annuity under the overall 
minimum ends when the increase in the employee annuity ends, as shown in 
paragraphs (a) and (b) of this section, when the spouse can no longer be 
included in computing the annuity rate under the overall minimum as 
shown in Sec. 229.41 of this part, or when the spouse annuity ends as 
shown in part 218 of this chapter.

[[Page 480]]



Sec. 229.41  When a spouse can no longer be included in computing an 
annuity rate under the overall minimum.

    A spouse's inclusion in the computation of the overall minimum rate 
ends the earlier of:
    (a) The month before the month in which the spouse dies; or
    (b) The month before the month in which the spouse's marriage to the 
employee legally terminates; or
    (c) If the spouse has an eligible child in care, the earlier of the 
month before the month in which the child leaves the spouse's care, 
attains age 16 and is not disabled, or, if disabled, recovers from being 
disabled; or
    (d) The month before the month the employee dies.



Sec. 229.42  When a child can no longer be included in computing an 
annuity rate under the overall minimum.

    A child's inclusion in the computation of the overall minimum rate 
ends the earlier of:
    (a) The month before the month in which the child dies; or
    (b) The month before the month in which the child marries; or
    (c) The month before the month the child becomes 18 years old, 
unless the child is disabled or a full-time student, as shown in part 
216 of this chapter; or
    (d) The second month after the month the child's disability ends, if 
the child is 18 years old or older, and not a full-time student; or
    (e) The month in which a student child's annuity would end, as shown 
in part 218 of this chapter, if the child is 18 years old or older, a 
full-time student in an elementary or secondary school, and not 
disabled; or
    (f) The month before the month the child becomes entitled to an 
overall minimum benefit or child's annuity on another earning record, if 
including the child on the other earnings record would result in higher 
monthly benefits; or
    (g) In the case of a stepchild of the employee, the month after the 
month in which the divorce between the stepparent and the natural parent 
becomes final.

[58 FR 53397, Oct. 15, 1993, as amended at 62 FR 47138, Sept. 8, 1997]



Sec. 229.43  When a divorced spouse can no longer be included in 
computing an annuity under the overall minimum.

    A divorced spouse's inclusion in the computation of the overall 
minimum rate ends the earlier of:
    (a) The month before the month in which the divorced spouse dies; or
    (b) The month before the month the employee dies; or
    (c) The month before the month in which the divorced spouse 
remarries; or
    (d) The month before the month in which the divorced spouse becomes 
entitled to a retirement or disability benefit under the Social Security 
Act based upon a primary insurance amount which is equal to or exceeds 
the divorced spouse annuity before reduction for age.



            Subpart F_Computation of the Overall Minimum Rate



Sec. 229.45  Employee benefit.

    The original employee 100 percent overall minimum amount, before 
adjustment for age, other family members, or other benefits, is the 
Overall Minimum PIA, as described in part 225 of this chapter. This is 
the PIA which would be used under the Social Security Act if the 
employee's railroad service had been covered under that Act instead of 
the Railroad Retirement Act. The Overall Minimum PIA may be recomputed 
for additional earnings and adjusted for cost-of-living increases. 
Delayed retirement credits are added to the Overall Minimum PIA as shown 
in part 225, subpart D of this chapter.



Sec. 229.46  Spouse or divorced spouse benefit.

    If a spouse or divorced spouse is included in the computation of the 
overall minimum, a benefit of 50 percent times the Overall Minimum PIA 
is computed. In the case of a spouse, the benefit may be adjusted for 
the family maximum, age, or other benefits. In the case of a divorced 
spouse, the benefit may be adjusted only for age or other benefits.

[[Page 481]]



Sec. 229.47  Child's benefit.

    If a child is included in the computation of the overall minimum, a 
child's benefit of 50 percent times the Overall Minimum PIA is computed. 
This amount may be adjusted for the family maximum or other benefits.



Sec. 229.48  Family maximum.

    (a) Family maximum defined. Under the Social Security Act, the 
amount of monthly benefits that can be paid for any month on one 
person's earnings record is limited. This limited amount is called the 
family maximum. The family maximum used to adjust the social security 
overall minimum rate is based on the employee's Overall Minimum PIA. The 
divorced spouse overall minimum is never reduced because of the family 
maximum.
    (b) Computation of the family maximum--(1) The employee attains 
retirement age prior to 1979. The maximum is the amount appearing in 
column V of the applicable table published each year by the Secretary of 
Health and Human Services on the line on which appears in column IV the 
primary insurance amount of the insured individual whose compensation is 
the basis for the benefits payable. Where the maximum is exceeded, the 
total tier I benefits for each month after 1964 are reduced to the 
amount appearing in column V. However, when any of the persons entitled 
to benefits on the insured individual's compensation would, except for 
the limitation described in Sec. 404.353(b) of title 20 (dealing with 
the entitlement to more than one child's benefit), be entitled to a 
child's annuity on the basis of the compensation of one or more other 
insured individuals, the total benefits payable may not be reduced to 
less than the smaller of:
    (i) The sum of the maximum amounts of benefits payable on the basis 
of the compensation of all such insured individuals, or
    (ii) The last figure in column V of the applicable table published 
each year by the Secretary of Health and Human Services. The 
``applicable'' table refers to the table which is effective for the 
month the benefit is payable.
    (2) The employee attains retirement age in 1979. (i) The maximum is 
computed as follows:
    (A) 150 percent of the first $230 of the individual's primary 
insurance amount, plus
    (B) 272 percent of the primary insurance amount over $230 but not 
over $332, plus
    (C) 134 percent of the primary insurance amount over $332 but not 
over $433, plus
    (D) 175 percent of the primary insurance amount over $433.
    (ii) If the total of this computation is not a multiple of $0.10, it 
will be rounded to the next lower multiple of $0.10.
    (3) The employee attains retirement age after 1979. The maximum is 
computed as in paragraph (b)(2) of this section. However, the dollar 
amount shown there will be updated each year as average earnings rise. 
This updating is done by first dividing the average of the total wages 
(see 20 CFR 404.203(m)) for the second year before the individual dies 
or becomes eligible, by the average of the total wages for 1977. The 
result of that computation is then multiplied by each dollar amount in 
the formula in paragraph (b)(2) of this section. Each updated dollar 
amount will be rounded to the nearer dollar, if the amount is an exact 
multiple of $0.50 (but not of $1), it will be rounded to the next higher 
$1. Before November 2 of each calendar year after 1978, the Secretary of 
Health and Human Services will publish in the Federal Register the 
formula and updated dollar amounts to be used for determining the 
monthly maximum for the following year.
    (c) Disability family maximum. If an employee's first month of 
entitlement to the DIB O/M is July 1980 or later, the family maximum is 
85 percent of the employee's Average Indexed Monthly Earnings but not 
less than the employee's Overall Minimum PIA, and no more than 150 
percent of the employee's Overall Minimum PIA.
    (d) Reduction for family maximum. The spouse's and child(ren)'s 
share of the Overall Minimum PIA are reduced if the total benefits are 
higher than the family maximum amount. These auxiliary shares are 
adjusted so that they each receive a proportionate share of the family 
maximum amount over and above the employee benefit. This adjustment is 
before adjustment for age

[[Page 482]]

or other benefits. The spouse and child(ren)'s benefits are computed as 
follows:
    (1) The Overall Minimum PIA is subtracted from the family maximum 
amount.
    (2) The result from paragraph (d)(1) of this section is divided by 
the total number of auxiliary beneficiaries (spouse and children).
    (3) If the amount of each benefit from paragraph (d)(2) of this 
section is not a multiple of $0.10, it is rounded to the next lower 
multiple of $0.10. After determining the beneficiary's share (the amount 
after reduction for other benefits) the amount is rounded to the next 
lowest multiple of $1.00, if it is not already a multiple of $1.00.
    (e) Combined family maximum. If a child is eligible to be included 
in the computation of the overall minimum on more than one railroad 
retirement annuity, a combined family maximum may apply, if it results 
in higher annuity rates. The combined family maximum is the smaller of:
    (1) The sum of the individual family maximums on each earnings 
record; or
    (2) 1.75 times the highest primary insurance amount possible in a 
year using average indexed monthly earnings equal to one-twelfth of the 
contribution and benefit base for that year. Average indexed monthly 
earnings and contribution and benefit base are explained in Sec. 229.2 
of this part.
    (f) This section may be illustrated by the following examples:
    (1) An employee, age 62, applies for an age and service annuity 
under the Railroad Retirement Act (RRA). His annuity rate is $700. The 
employee has a son who was disabled for all regular employment prior to 
his attaining age 18. The RRA does not provide an annuity for a disabled 
child of a living employee. If the employee had been covered under the 
Social Security Act he would have received a benefit of $500 (the 
Overall Minimum PIA) and his child would have received a benefit of $250 
(50 percent of $500), which produces a total family benefit of $750. The 
family maximum is $804.90. Under the O/M guarantee, the employee would 
receive $750 since it is higher than his annuity rate of $700. Since 
$750 is less than the family maximum computed for this employee, there 
is no reduction for the family maximum.
    (2) It is determined that a disabled employee is entitled to a DIB 
O/M computed as follows:

Overall Minimum PIA........................................     $ 600.00
Spouse (50% x 600).........................................       300.00
Child (50% x 600)..........................................       300.00
                                                            ------------
                                                                 1200.00
 


However, the employee's family maximum is $900 (150 percent of $600). 
Consequently, the DIB O/M will be paid as follows:

Employee...................................................     $ 600.00
Spouse.....................................................       150.00
Child......................................................       150.00
                                                            ------------
                                                                  900.00
 



Sec. 229.49  Adjustment of benefits under family maximum for change 
in family group.

    (a) Increase in family group. If an overall minimum rate is adjusted 
for the family maximum and an additional family member can be included, 
the benefits payable to previous auxiliary beneficiaries (spouse and 
children) are reduced to provide a share for the new family member. The 
difference between the Overall Minimum PIA (see Sec. 225.15 of this 
part) and the family maximum amount is divided by the increased number 
of auxiliary beneficiaries. If the amount of each benefit is not a 
multiple of $0.10, it is rounded to the next lower multiple of $0.10. 
After determining a beneficiary's share (the amount after reduction for 
other benefits) the amount is rounded to the next lowest multiple of 
$1.00, if it is not already a multiple of $1.00.
    (b) Decrease in family group. If an overall minimum rate is adjusted 
for the family maximum and there is a decrease in the number of eligible 
family members, the benefits for the remaining auxiliary beneficiaries 
(spouse and children) are increased. If the family maximum still 
applies, the difference between the Overall Minimum PIA and the family 
maximum amount is divided by the number of remaining auxiliary 
beneficiaries. If the amount of each benefit is not a multiple of $0.10, 
it is rounded to the next lower multiple of

[[Page 483]]

$0.10. After determining the beneficiary's share (the amount after 
reduction for other benefits) the amount is rounded to the next lowest 
multiple of $1.00, if it is not already a multiple of $1.00.
    (c) Effective date of rate change. The overall minimum rate changes 
described in paragraphs (a) and (b) of this section are effective the 
month in which the number of auxiliary beneficiaries changes.



Sec. 229.50  Age reduction in employee or spouse benefit.

    (a) When age reduction applies. The employee overall minimum benefit 
is reduced for each month the employee is under retirement age on the 
date the employee becomes eligible for an increase under the overall 
minimum, as shown in Sec. 229.22 of this part, unless the employee has 
a period of disability and Sec. 229.52 of this part does not apply, in 
which case no age reduction is applied. The spouse overall minimum 
benefit is reduced for each month a spouse, who is not a spouse with the 
employee's child under 16 years old or disabled before attaining age 22 
in his or her care, is under retirement age on the date the spouse is 
eligible for an increase under the overall minimum (see Sec. 229.21 of 
this part). If a spouse's overall minimum benefit is reduced for age and 
he or she later begins caring for an eligible child, no age reduction 
will apply for the months the child is in his or her care.
    (b) Employee age reduction. The Overall Minimum PIA plus any delayed 
retirement credits is reduced by \1/180\ for each month the employee is 
under retirement age on the date the employee becomes eligible for the 
overall minimum. When the PIA amount is increased, the amount of the 
increase is reduced by \1/180\ for the same number of months used to 
determine the initial age reduction.
    (c) Spouse age reduction. The amount of the spouse overall minimum 
benefit, after any adjustment for the family maximum, is reduced by \1/
144\ for each month the spouse is under retirement age on the date when 
he or she becomes eligible under the overall minimum. When the spouse 
benefit increases, the amount of the increase is reduced by \1/144\ for 
the same number of months used to compute the initial age reduction.
    (d) Age reduction after 1999. Beginning in the year 2000 the amount 
of age reduction shall be as specified in paragraphs (b) and (c) of this 
section for the first 36 months of the reduction period, as defined in 
paragraph (e) of this section, and \1/240\ for any additional months 
included in such period.
    (e) Reduction period defined. The reduction period is the number of 
months beginning with the first month for which the O/M is payable and 
ending with the month before the month the beneficiary attains 
retirement age.



Sec. 229.51  Adjustment of age reduction.

    (a) General. If an age reduced employee or spouse overall minimum 
benefit is not paid for certain months before the employee or spouse 
attains retirement age, or the employee becomes entitled to a DIB O/M, 
the age reduction may be adjusted to drop the months for which no 
payment was made or the overall minimum rate was not reduced for age.
    (b) Employee adjusted age reduction. The following months are 
deducted from the months used to determine the age reduction in the 
Overall Minimum PIA amount, effective the month in which the employee 
attains retirement age or becomes entitled to a DIB O/M:
    (1) Months in which the increase under the overall minimum is 
completely or partially deducted because of the employee's excess 
earnings; and
    (2) Months in which the employee is entitled to a DIB O/M as well as 
a reduced O/M.
    (c) Spouse adjusted age reduction. The following months are deducted 
from the months used to determine the age reduction in the spouse 
overall minimum benefit, effective the month in which the spouse attains 
retirement age:
    (1) Months in which the spouse O/M benefit is completely or 
partially deducted because of the employee's or spouse's excess 
earnings:
    (2) Months after entitlement to a spouse O/M benefit ends for any 
reason;
    (3) Months in which a spouse has in her care the employee's child 
who is

[[Page 484]]

under 16 years old or disabled before age 22;
    (4) Months in which a DIB O/M benefit is not payable because the 
employee refused rehabilitation service (see Sec. 229.81 of this part).



Sec. 229.52  Age reduction when a reduced age O/M is effective before 
DIB O/M.

    If an employee received a reduced age O/M before the effective date 
of a DIB O/M, the PIA amount for the DIB O/M is reduced as if the 
employee had attained retirement age on the effective date of the DIB O/
M.



Sec. 229.53  Reduction for social security benefits on employee's 
wage record.

    The total annuity rate under the overall minimum is reduced, but not 
below zero, by the total amount of the social security benefits being 
paid to all family members on the employee's wage record.



Sec. 229.54  Reduction for social security benefit paid to employee 
on another person's earnings record.

    The employee PIA amount under the overall minimum, after any age 
reduction, is reduced, but not below zero, by the amount of any social 
security benefit being paid to the employee on another person's earnings 
record.



Sec. 229.55  Reduction for spouse social security benefit.

    A spouse benefit under the overall minimum, after any adjustment for 
the family maximum and for age, is reduced, but not below zero, by the 
amount of any social security benefit being paid to the spouse on other 
than the employee's earnings record. If the social security benefit is 
equal to or higher than the spouse overall minimum benefit and the 
family maximum applies, the overall minimum rate is recomputed so that 
the spouse is not included, if it would result in a higher overall 
minimum rate.



Sec. 229.56  Reduction for child's social security benefit.

    A child's benefit under the overall minimum, after any adjustment 
for the family maximum, is reduced, but not below zero, by the amount of 
any social security benefit being paid to the child on other than the 
employee's earnings record. If the social security benefit is equal to 
or higher than the child's overall minimum benefit and the family 
maximum applies, the overall minimum rate is recomputed so that the 
child is not included, if it would result in a higher overall minimum 
rate.



Sec. 229.57  Reduction in spouse overall minimum benefit for employee 
annuity.

    If an annuitant is entitled to both an employee annuity on his or 
her own earnings record and a spouse annuity on a different earnings 
record, the total overall minimum rates on both earnings records must be 
higher than the total railroad formula rates for the overall minimum to 
apply. The spouse overall minimum benefit amount, after adjustment for 
the family maximum and for age, is reduced by the employee-only overall 
minimum rate on the spouse's own earnings record (the employee benefit 
adjusted for age and social security benefits) plus the amount of any 
social security benefit payable to the spouse on other than the 
empoyee's earnings record.



Sec. 229.58  Rounding of overall minimum amounts.

    The overall minimum amount for each beneficiary which is not a 
multiple of $0.10 is rounded to the next lower multiple of $0.10. After 
reducing each beneficiary's share for other benefits, if the result is 
not a multiple of $1.00 it is rounded to the next lower multiple of 
$1.00.



  Subpart G_Reduction for Worker's Compensation or Disability Benefits 
              Under a Federal, State, or Local Law or Plan



Sec. 229.65  Initial reduction.

    (a) When reduction is effective. A benefit computed under the 
overall minimum based on disability (DIB O/M) is reduced (not below 
zero) for any month the employee is under retirement age and is entitled 
to worker's compensation or disability benefits under a Federal, State, 
or local law or plan (public disability benefit). The reduction is 
effective with the month the employee is

[[Page 485]]

entitled to worker's compensation or a public disability benefit.
    (b) When reduction is not made. A reduction for worker's 
compensation is not made if the law or plan under which the worker's 
compensation or public disability benefit is paid provides for the 
reduction of the benefit provided due to entitlement to a social 
security disability benefit, and so provided on February 18, 1981.
    (c) Amount of reduction. The reduction in the DIB O/M for worker's 
compensation or public disability benefit equals the difference between:
    (1) The sum of the monthly DIB O/M rate, including benefits for all 
family members (subject to the family maximum), plus the monthly 
worker's compensation or public disability benefit; and
    (2) The higher of 80 percent of the employee's average current 
earnings before becoming disabled or the monthly DIB O/M rate (before 
reduction for worker's compensation or public disability benefit).
    (d) Average current earnings, defined. Beginning January 1, 1979, an 
employee's average current earnings for purposes of this section are the 
highest of:
    (1) The average monthly wage (see Sec. 225.2 of this chapter) used 
to compute the DIB O/M under the Social Security Act rules which were in 
effect before 1979; or
    (2) One-sixtieth of the employee's total earnings from employment or 
self-employment under either the Social Security or Railroad Retirement 
Acts (including earnings that exceed the maximum used in computing 
social security benefits) for the 5 consecutive years after 1950 in 
which the earnings were the highest; or
    (3) One-twelfth of the employee's total earnings from employment or 
self-employment under either the Social Security or Railroad Retirement 
Acts (including earnings that exceed the maximum used in computing 
social security benefits) for the year of highest earnings in the period 
from 5 years before through the year in which the employee became 
disabled. The result is rounded to the next lower multiple of $1.00.



Sec. 229.66  Changes in reduction amount.

    (a) Change in DIB O/M. The amount of the worker's compensation or 
public disability benefit reduction does not change when there is an 
increase in the DIB O/M rate because of an amendment or cost of living 
increase. However, the reduction amount does change if there is a change 
in the family members included in the DIB O/M. When the number of family 
members changes and the DIB O/M is still payable, the amount of the 
reduction is recomputed using the DIB O/M rate, including the changed 
family group, as if the new family composition had existed when the 
worker's compensation or public disability benefit reduction first 
applied. However, this new reduction is not effective until the date of 
the change of the family group. The worker's compensation or public 
disability benefit and average current earnings are the same as those 
used before the change in the family group.
    (b) Change in amount of worker's compensation/public disability 
benefit. The amount of the reduction for worker's compensation or public 
disability benefit changes when there is a change in the amount of the 
worker's compensation or public disability benefit. If the worker's 
compensation or public disability benefit increases, the change in the 
reduction amount is effective with the month of the increase. If the 
worker's compensation or public disability benefit decreases, the change 
in the reduction amount is effective with the month of the decrease, no 
matter when the notice of the decrease is received.



Sec. 229.67  Redetermination of reduction.

    (a) General. All cases reduced for worker's compensation or public 
disability benefit are recomputed in the second year after the year the 
reduction was first applied and every third year after that. The 
redetermined rate is effective with January of the year after the year 
the redetermination is made. The redetermined reduction is used only if 
it provides an annuity rate that is higher than the previous annuity 
rate.
    (b) Redetermined average current earnings. The average current 
earnings amount used in redetermining a worker's compensation or public 
disability

[[Page 486]]

benefit reduction is determined by multiplying the initial average 
current earnings amount by:
    (1) The average total wages (including wages that exceed the maximum 
used in computing social security benefits) of all persons for whom 
wages were reported to the Secretary of the Treasury for the year before 
the year or redetermination, divided by the average total wages for 1977 
or, if later, the year before the year the reduction was first computed. 
If the result is not a multiple of $1.00, it is rounded to the next 
lower multiple of $1.00; or
    (2) If the reduction was first computed before 1978, the average 
taxable wages reported to the Secretary of Health and Human Services for 
the first quarter of 1977, divided by the average taxable wages for the 
first quarter of the year before the year the reduction was first 
computed. If the result is not a multiple of $1.00, it is rounded to the 
next lower multiple of $1.00.



Sec. 229.68  Reduction of DIB O/M.

    A reduction for entitlement to worker's compensation or a public 
disability benefit is applied after the DIB O/M is reduced for age and 
the family maximum. The spouse and child O/M benefits are first reduced 
proportionately. The employee O/M benefit is decreased by any remaining 
reduction amount.



            Subpart H_Miscellaneous Deductions and Reductions



Sec. 229.80  Earnings restrictions.

    The O/M may be reduced due to earnings from employment or self-
employment in the same manner as a social security benefit. These 
restrictions on earnings are found at subpart E of part 404 of this 
chapter. Earnings can never reduce an employee's benefit below the 
railroad formula rate less the amount that those benefits would be 
reduced by earnings.



Sec. 229.81  Refusal to accept vocational rehabilitation.

    The DIB O/M is not payable for any month in which the disabled 
employee refuses, without good reason, to accept vocational 
rehabilitation services available under an approved state program. A 
disabled child's benefit under the O/M is not payable for any month in 
which the child refuses, without good reason, to accept such vocational 
rehabilitation services, unless the child is a full-time student.



Sec. 229.82  Failure to have child in care.

    (a) General. The full amount of the spouse overall minimum benefit 
is not payable for any month a spouse, who is included in the overall 
minimum because he or she has a child in his or her care, is under 
retirement age and is no longer caring for an eligible child. However, 
if the spouse is at least 62 years old, a reduced spouse annuity or a 
reduced overall minimum benefit is payable if the spouse has stated that 
he or she will accept a reduced benefit.
    (b) Report required. When the overall minimum, which includes a 
benefit for a spouse who has the employee's child in his or her care, is 
payable, both the employee and spouse are responsible for reporting when 
the child leaves the spouse's care. The report is due before the 
benefits are paid for the second month after the first month in which 
the child is no longer in the spouse's care.
    (c) Penalty for failure to report. If the employee or spouse does 
not report the fact that a spouse included in the overall minimum no 
longer has an eligible child in his or her care within the time limit 
shown in paragraph (b) of this section, a penalty is deducted from the 
overall minimum amount, unless there is a good reason for the person's 
failure to report. The penalty deduction for the first failure to make a 
timely report equals the amount of the overall minimum increase for the 
first month in which a report should have been made. The deduction for 
the second failure to make a timely report is twice the amount of the 
overall minimum increase for the first month in which a report should 
have been made. The deduction for the third and later failures to make a 
timely report is three times the amount of the overall minimum increase 
for the first month in which a report should have been made or, if less, 
the overall minimum increase times the number of months for which a 
timely report was not made.

[[Page 487]]



Sec. 229.83  Deportation.

    The age DIB O/M is not payable for any month after the month the 
Board receives notice that the employee has been deported for a reason 
shown in section 202(h) of the Social Security Act. This restriction no 
longer applies if the employee is later legally admitted to the United 
States for permanent residence.



Sec. 229.84  Conviction for subversive activities.

    If a person is convicted of subversive activities (under chapter 37, 
105, or 115 of title 18 of the U.S. Code or section 4, 112, or 113 of 
the Internal Security Act of 1950, as amended), the court may order that 
earnings in the year of the conviction and previous years are to be 
disregarded in determining whether the person is entitled to social 
security benefits. These earnings would also be ignored in determining 
entitlement to the age or DIB O/M.



Sec. 229.85  Substantial gainful activity by blind employee or child.

    A blind employee or child who is 55 years old or older is entitled 
to an O/M benefit based on disability while he or she is working in 
substantial gainful activity that does not require skills or ability 
used in his or her previous work. However, the DIB O/M or child's O/M 
benefit is not payable for any month in which the employee or child 
works in any type of substantial gainful activity which requires skills 
or abilities comparable to those of any gainful activity in which he or 
she has previously engaged with some regularity and over a substantial 
period of time.



                Subpart I_Payment of Overall Minimum Rate



Sec. 229.90  Proportionate shares of overall minimum.

    When both the employee and the spouse are entitled to annuities and 
the overall minimum rate is higher than the railroad formula rate, the 
overall minimum amount must be divided between the employee and spouse. 
The employee receives two-thirds of the total O/M rate. The spouse 
receives one-third of the total O/M rate.



Sec. 229.91  Payment of the overall minimum for part of a month.

    (a) Employee annuity payable for part of a month. If an employee 
annuity begins after the first day of the month, the O/M amount payable 
for the partial month is \1/30\ of the monthly rate times the number of 
days in the partial month.
    (b) Spouse annuity payable for part of a month--(1) Spouse not 
included in O/M before beginning date of spouse annuity and O/M applies 
as of the spouse annuity beginning date. If a spouse annuity begins 
after the first day of a month, and the spouse is not includable in the 
O/M before the beginning date of the spouse annuity, and the O/M rate 
paid to the family group, including the spouse, as of the spouse annuity 
beginning date exceeds the amounts payable using the benefit formulas 
under the Railroad Retirement Act, the amount payable to the spouse for 
the partial month is \1/30\ of the spouse's share of the O/M rate times 
the number of days in the month beginning with the spouse's annuity 
beginning date. In such a case, if the employee annuity is payable from 
the first day of the month, the amount payable to the employee is:
    (i) One-thirtieth of the higher of the railroad formula or the O/M 
rate, without the spouse included, times the number of days in the month 
before the spouse annuity begins, plus
    (ii) One-thirtieth of the employee's share of the O/M rate, with the 
spouse included, times the number of days in the month beginning with 
the spouse's annuity beginning date.
    (2) Spouse included in O/M before beginning date of spouse annuity 
and the O/M continues to apply. If a spouse annuity begins after the 
first day of a month, and the spouse is includable in the O/M before the 
beginning date of the spouse annuity, and the O/M rate paid to the 
family group, including the spouse, as of the spouse annuity beginning 
date continues to exceed the amounts payable using the benefit formulas 
under the Railroad Retirement Act, the amount payable to the spouse for 
the partial month is \1/30\ of the spouse's share of the O/M rate times

[[Page 488]]

the number of days in the month beginning with the spouse's annuity 
beginning date. In such a case, if the employee annuity is payable from 
the first of the month, the amount payable to the employee is:
    (i) One-thirtieth of the O/M rate, with the spouse included, times 
the number of days in the month before the spouse annuity begins; plus
    (ii) One-thirtieth of the employee's share of the O/M rate, with the 
spouse included, times the number of days in the month beginning with 
the spouse's annuity beginning date.
    (3) O/M rate applies before beginning date of spouse annuity and the 
railroad formula applies as of the spouse annuity beginning date. If a 
spouse annuity begins after the first day of a month and the O/M rate 
applies to the family group, with or without the spouse included, before 
the beginning date of the spouse annuity, and the O/M rate paid to the 
family group, including the spouse, as of the spouse annuity beginning 
date is less than the amounts payable using the formulas under the 
Railroad Retirement Act, the amount payable to the spouse for the 
partial month is \1/30\ of the spouse's railroad formula rate times the 
number of days in the month beginning with the spouse's annuity 
beginning date. In such a case, if the employee annuity is payable from 
the first day of the month, the amount payable to the employee is:
    (i) One-thirtieth of the O/M times the number of days in the month 
before the spouse annuity begins; plus
    (ii) One-thirtieth of the employee's railroad formula rate times the 
number of days in the month beginning with the spouse's annuity 
beginning date.



PART 230_MONTHS ANNUITIES NOT PAYABLE BY REASON OF WORK--Table of Contents




Sec.
230.1 Statutory provisions.
230.2 Loss of annuity for month in which compensated service is 
          rendered.
230.5 Exception concerning service to a local lodge or division.

    Authority: 45 U.S.C. 231f.

    Source: Board Order 60-2, 25 FR 593, Jan. 23, 1960, unless otherwise 
noted. Redesignated at 47 FR 7656, Feb. 22, 1982.



Sec. 230.1  Statutory provisions.

    No annuity shall be paid with respect to any month in which an 
individual in receipt of any annuity hereunder shall render compensated 
service to an employer or to the last person by whom he was employed 
prior to the date on which the annuity began to accrue. Individuals 
receiving annuities shall report to the Board immediately all such 
compensated service. No annuity under paragraph 4 or 5 of subsection (a) 
of this section shall be paid to an individual with respect to any month 
in which the individual is under age sixty-five and is paid more than 
$100 in earnings from employment or self-employment of any form: 
Provided, That for purposes of this paragraph, if a payment in any one 
calendar month is for accruals in more than one calendar month, such 
payment shall be deemed to have been paid in each of the months in which 
accrued to the extent accrued in such month. Any such individual under 
the age of sixty-five shall report to the Board any such payment of 
earnings for such employment or self-employment before receipt and 
acceptance of an annuity for the second month following the month of 
such payment. A deduction shall be imposed, with respect to any such 
individual who fails to make such report, in the annuity or annuities 
otherwise due the individual, in an amount equal to the amount of the 
annuity for each month in which he is paid such earnings in such 
employment or self-employment, except that the first deduction imposed 
pursuant to this sentence shall in no case exceed an amount equal to the 
amount of the annuity otherwise due for the first month with respect to 
which the deduction is imposed. If pursuant to the third sentence of 
this subsection an annuity was not paid to an individual with respect to 
one or more months in any calendar year, and it is subsequently 
established that the total amount of such individual's earnings during 
such year as determined in accordance with that sentence (but exclusive 
of earnings for services described in the first sentence of this 
subsection) did not exceed $1,200, the annuity with respect to such 
month or months, and any deduction imposed by reason of the failure to 
report earnings for such month or months under the fifth sentence of 
this subsection, shall then be payable. If the total amount of such 
individual's earnings during such year (exclusive of earnings for 
services described in the first sentence of this subsection) is in 
excess of $1,200, the number of months in such year with respect to 
which an annuity is not payable by reason of such third and fifth 
sentences shall not exceed one month for each $100 of such excess, 
treating

[[Page 489]]

the last $50 or more of such excess as $100; and if the amount of the 
annuity has changed during such year, any payments of annuity which 
become payable solely by reason of the limitation contained in this 
sentence shall be made first with respect to the month or months for 
which the annuity is larger. (Section 2(d) of the act.)



Sec. 230.2  Loss of annuity for month in which compensated service 
is rendered.

    If an individual in receipt of an annuity renders compensated 
service, he shall not be paid an annuity with respect to any month in 
which such service is rendered to:
    (a) An employer;
    (b) Any person whether or not an employer by whom he was most 
recently employed when his annuity begins to accrue;
    (c) Any person with whom he held, at the time the annuity begins to 
accrue, any rights to return to service;
    (d) Any person with whom he ceased service in order to have his 
annuity begin to accrue.

[Board Order 60-2, 25 FR 593, Jan. 23, 1960; 25 FR 1074, Feb. 6, 1960. 
Redesignated at 47 FR 7656, Feb. 22, 1982]



Sec. 230.5  Exception concerning service to a local lodge or division.

    In determining whether an annuity is subject to the provisions of 
this part the Board shall disregard any compensated service rendered 
after December 31, 1936, to a local lodge or division of a railway-
labor-organization employer if the compensation for such service is 
required to be disregarded under the provisions of Sec. 222.3(f) of 
this chapter.

[Board Order 40-742, 6 FR 298, Jan. 14, 1941. Redesignated at 47 FR 
7656, Feb. 22, 1982]



PART 233_REDUCTION IN THE WINDFALL BENEFIT ANNUITY COMPONENT--Table 
of Contents




Sec.
233.1 When reduction must be made.
233.2 Computation of reduction.
233.3 Reduction of retroactive and other similar payments.
233.4 Reconsideration of the reduction computation.

    Authority: Sec. 1122(c), Pub. L. 97-35, 95 Stat. 638 (45 U.S.C. 
231f).

    Source: 46 FR 50786, Oct. 15, 1981, unless otherwise noted.



Sec. 233.1  When reduction must be made.

    On or before August 31 of each fiscal year, the Board shall, in 
accordance with this section, determine the amount of the reduction, if 
any that will have to be made in the following fiscal year in the amount 
of the windfall benefit components of persons entitled to such benefit 
components under the Railroad Retirement Act. A reduction must be made 
where it is determined that the balance in the Dual Benefits Payments 
Account, comprised of such funds as will be available for the payment of 
windfall benefits in the following fiscal year including the enacted or 
estimated appropriation to the Account for the next succeeding fiscal 
year, disregarding any interest which may be earned by the moneys in the 
Account during the next fiscal year, is less than the estimate of the 
amount of the windfall benefits that would be payable under the Railroad 
Retirement Act during such fiscal year if no reduction were to be 
applicable. The amount of the windfall benefit as determined by the 
Board and paid to a person under this section shall constitute full and 
complete payment of the person's windfall component and there shall be 
no further liability on the part of the Board, the U.S. Government, or 
any other person or entity for the amount of any reduction imposed.



Sec. 233.2  Computation of reduction.

    The amount of the reduction to be made in the windfall benefit 
components of annuities shall be determined in the following manner: the 
balance in the Dual Benefits Payments Account as determined under Sec. 
233.1 shall be divided by the amount of the estimated windfall benefits 
that would be payable for the fiscal year as determined under Sec. 
233.1 to obtain a percentage. This percentage of the unreduced windfall 
benefit component shall be the amount of that component to which persons 
are entitled under the Railroad Retirement Act. In no event, however, 
shall the amount of the windfall benefit exceed the amount that would be 
payable under the Railroad Retirement Act without regard to this 
section.

[[Page 490]]



Sec. 233.3  Reduction of retroactive and other similar payments.

    If a person is entitled to a retroactive payment for a month or 
months in an earlier fiscal year, the reduction factor as imposed with 
respect to the windfall component of the person's annuity, including 
that portion attributable to an earlier fiscal year, shall be the 
reduction factor applicable in the year of payment: Provided, however, 
That if the application of the payment year reduction factor would 
result in a larger payment than would the application of the earlier 
year reduction factor, the earlier year reduction factor shall be 
applied. The reduction factor imposed in the case of a replacement 
payment shall be that reduction factor which was applicable to the 
original payment. The term ``replacement payment'' means a payment made 
to a beneficiary to replace a check which was issued to the beneficiary 
in an earlier month, but which was not negotiated, and ``replacement 
payment'' also means a payment made to the beneficiary for an earlier 
month in which his or her annuity was not paid for some reason such as 
lack of a current address.



Sec. 233.4  Reconsideration of the reduction computation.

    The Board shall periodically, but at least quarterly, examine the 
determinations and calculations made under Sec. Sec. 233.1 and 233.2, 
in view of changes which may occur in the estimates used. If, as a 
result of this examination, the Board determines that the balance in the 
Dual Benefits Payments Account will be insufficient to pay benefits from 
that Account for the balance of the fiscal year at the established rate, 
the Board shall establish a new rate of reduction to be applied to 
benefits to be paid for the remaining months so that the balance in the 
Dual Benefits Payments Account will be sufficient to pay benefits for 
the remainder of the fiscal year. If, as a result of this examination, 
the Board finds that the balance in the Account is greater than would be 
required to pay benefits at the then applicable reduction percentage for 
the remainder of the fiscal year, the Board may, at its discretion, 
decrease the reduction percentage with respect to benefits to be paid 
for the remaining months.



PART 234_LUMP-SUM PAYMENTS--Table of Contents




                            Subpart A_General

Sec.
234.1 Introduction.
234.2 Definitions.

                    Subpart B_Lump-Sum Death Payment

234.10 General.
234.11 1974 Act lump-sum death payment.
234.12 1937 Act lump-sum death payment.
234.13 Payment to a funeral home.
234.14 Payment to an equitably entitled person.
234.15 When an employee's estate is entitled.
234.16 When a widow(er) is eligible as an equitably entitled person.
234.17 When an equitably entitled person's estate is payable.
234.18 Payment of a deferred lump-sum to a widow(er).
234.19 Effect of payment on future entitlement.
234.20 Computation of the employee's 1937 Act LSDP basic amount.
234.21 Definitions of ``living with'' and ``living in the same 
          household.''

               Subpart C_Annuities Due but Unpaid at Death

234.30 General.
234.31 Regular employee retirement and supplemental annuities.
234.32 Spouse or divorced spouse annuities.
234.33 Survivor annuities.
234.34 When an entitled relative of the employee dies before receiving 
          payment of a due but unpaid annuity.

                   Subpart D_Residual Lump-Sum Payment

234.40 General.
234.41 Persons to whom an RLS is payable.
234.42 How the employee may designate beneficiaries.
234.43 Payment to designated beneficiaries.
234.44 Payment to surviving relatives.
234.45 Payment to the employee's estate.
234.46 Amount of the RLS payable.
234.47 Election of the RLS by a widow(er) or parent.
234.48 Computation of the gross RLS amount.

                    Subpart E_Lump-Sum Refund Payment

234.50 General.
234.51 Persons to whom a lump-sum refund payment is payable.
234.52 Effect of payment on other benefits.

[[Page 491]]

234.53 Computation of the lump-sum refund payment.

         Subpart F_Tier II Separation Allowance Lump-Sum Payment

234.55 General.
234.56 Persons to whom a separation allowance lump-sum payment is 
          payable.
234.57 Effect of payment on other benefits.
234.58 Computation of the separation allowance lump-sum payment.

                         Subpart G_Miscellaneous

234.60 Escheat.
234.61 Assignment of interest by an eligible person.
234.62 Effect of conviction of a felony on entitlement.

    Authority: 45 U.S.C. 231f.

    Source: 51 FR 3036, Jan. 23, 1986, unless otherwise noted.



                            Subpart A_General



Sec. 234.1  Introduction.

    This part contains information about the various lump-sum payments 
payable under sections 6(a)(1) through 6(d)(2) of the 1974 Act.



Sec. 234.2  Definitions.

    As used in this part:
    Applicant means the person who signs an application for an annuity 
or lump-sum for himself, herself or for some other person.
    Apply means to sign a form or statement that the Board accepts as an 
application.
    Burial expenses means expenses in connection with the actual burial 
or other disposition of the remains of the deceased employee.
    Eligible means a person meets all the requirements for payment of an 
annuity or a lump-sum, but has not yet applied.
    Employee means any person who is working or has worked for a 
railroad employer.
    Entitled means a person who meets all the requirements for an 
annuity or a lump-sum, and has applied.
    Equitably entitled person means the person whose funds were used to 
pay the burial expenses of a deceased employee.
    Lump-sum means any non-recurring payment due because of an 
employee's or beneficiary's death.
    Person means an individual, partnership, trust estate, association, 
corporation, government unit, or estate of a deceased individual.
    Reimbursable burial expenses means that part of the burial expenses 
not previously reimbursed by another Federal agency.



                    Subpart B_Lump-Sum Death Payment



Sec. 234.10  General.

    A lump-sum death payment (LSDP) is payable when an employee with ten 
or more years of railroad service and a current connection with the 
railroad industry dies and is not survived by an individual who is 
eligible for a monthly annuity in the month the employee died. The 
amount of the LSDP and the priority for payment depend upon when the 
employee acquired his or her 120th month of railroad service. If the 
employee acquired the 120th month of railroad service after 1974, a 1974 
Act lump-sum death payment is payable to the employee's widow(er). If 
the employee acquired the 120th month of railroad service before 1975, a 
1937 Act lump-sum death payment is payable to the employee's widow(er), 
the funeral home or the payer of the employee's burial expenses. An 
application for an LSDP must be filed within two years after the 
employee's death.

(Approved by the Office of Management and Budget under control number 
3220-0031)

[51 FR 3036, Jan. 23, 1986, as amended at 52 FR 11017, Apr. 6, 1987]



Sec. 234.11  1974 Act lump-sum death payment.

    (a) The total amount of the 1974 Act LSDP is payable to the 
employee's widow(er), if she or he was ``living in the same household'' 
as the employee at the time of the employee's death. (Refer to Sec. 
234.21 for an explanation of ``living in the same household.'')
    (b) The amount of the 1974 Act LSDP is equal to three times the 
amount of the PIA, as determined by section 215 of the Social Security 
Act, or $255.00, whichever is less.

[[Page 492]]



Sec. 234.12  1937 Act lump-sum death payment.

    (a) The 1937 Act LSDP is payable in the following order and amounts:
    (1) The employee's ``living with'' widow(er) is paid the total 
amount of the LSDP. (Refer to Sec. 234.21 for an explanation of 
``living with.'')
    (2) A funeral home, which has unpaid expenses, is paid the amount of 
the unpaid expenses or the total amount of the LSDP, whichever is less.
    (3) An equitably entitled person is paid the total amount of the 
LSDP or a proportionate share of the LSDP, depending upon the amount of 
burial expenses he or she paid.
    (b) The 1937 Act LSDP is equal to ten times the basic amount. (Refer 
to Sec. 234.20 for an explanation of the computation of the employee's 
basic amount.)



Sec. 234.13  Payment to a funeral home.

    The 1937 Act LSDP is paid to a funeral home under the following 
conditions:
    (a) A person who has assumed responsibility for all or part of the 
burial expenses files an application authorizing payment to the funeral 
home. Usually, the Board considers the person who makes the arrangements 
with the funeral home or makes a voluntary payment to the funeral home 
to be the person who has assumed responsibility for the burial expenses.
    (b) An official of the funeral home with unpaid expenses files an 
application on behalf of the funeral home after 90 days have elapsed 
from the date of the employee's death, if during that 90-day period no 
one has assumed responsibility for the payment of the burial expenses.

(Approved by the Office of Management and Budget under control number 
3220-0031)



Sec. 234.14  Payment to an equitably entitled person.

    (a) An equitably entitled person's funds used to pay burial expenses 
may consist of:
    (1) The individual's own money;
    (2) Money in a joint account with the employee or another 
individual;
    (3) Money paid to an individual who was named beneficiary to receive 
the money;
    (4) A promissory note; or
    (5) Money which several people placed into a pooled fund.
    (b) Payment is made to equitably entitled persons in the following 
order:
    (1) The person who paid the funeral home expenses;
    (2) The person who paid the grave opening and closing expenses;
    (3) The person who provided the burial plot; and
    (4) The person who paid any type of expenses not listed in 
paragraphs (b)(1) through (3) of this section.



Sec. 234.15  When an employee's estate is entitled.

    (a) The employee's estate is considered an equitably entitled person 
if the funds used to pay burial expenses consisted of:
    (1) Money in the employee's single-ownership bank account;
    (2) Money paid directly to the funeral home by the employee before 
death;
    (3) Money paid by the employee under a contract, plan, system or 
general practice where no beneficiary was named to receive the money;
    (4) Money found among the employee's effects;
    (5) Unpaid salary due the employee by the employee's employer;
    (6) Money obtained by selling the employee's real or personal 
property; or
    (7) Money from a trust fund.
    (b) If the employee's estate is the equitably entitled person, the 
Board will pay the LSDP to the legal representative of the employee's 
estate. When no legal representative of the employee's estate has been 
or is expected to be appointed, the Board will pay the LSDP according to 
state statutory procedures applicable when no formal probate or 
administration occurs.



Sec. 234.16  When a widow(er) is eligible as an equitably entitled 
person.

    When a widow(er) files for an LSDP and the ``living with'' 
requirement (described in Sec. 234.21) is not met, the widow(er) could 
be paid as an equitably entitled person.



Sec. 234.17  When an equitably entitled person's estate is payable.

    When an equitably entitled person dies before negotiating the LSDP

[[Page 493]]

check, that person's share is payable to his or her estate.



Sec. 234.18  Payment of a deferred lump-sum to a widow(er).

    In certain cases, a deferred LSDP may be payable to the employee's 
widow(er), even if someone may be entitled to a monthly annuity in the 
month of the employee's death. A deferred LSDP is the difference between 
the amount of the LSDP and the total of the monthly survivor annuities 
paid during the 12-month period which begins in the month of the 
employee's death.



Sec. 234.19  Effect of payment on future entitlement.

    Payment of an LSDP does not affect the entitlement of survivors to 
monthly annuities at a later date.



Sec. 234.20  Computation of the employee's 1937 Act LSDP basic amount.

    (a) Definition of terms used in this section:
    Average monthly remuneration (AMR) means the amount obtained by 
adding together the creditable compensation and wages earned by the 
employee after 1936 and before the LSDP closing date and dividing that 
sum by three times the number of calendar quarters in that period. 
(Refer to part 211 of this chapter for a definition of creditable 
compensation and section 209 of the Social Security Act for a definition 
of creditable wages.)
    Closing date means whichever of the following produce the highest 
AMR:
    (1) The first day of the calendar year in which the employee both 
attained age 65 and was completely insured;
    (2) The first day of the calendar year in which the employee died; 
or
    (3) The first day of the calendar year following the year in which 
the employee died;
    (4) However, if paragraphs (a)(1) through (3) of this definition do 
not occur before January 1, 1975, the closing date is January 1, 1975.
    (b) LSDP basic amount formula. The basic amount is computed using 
the following formula:
    (1) Determine 52.4% of the AMR up to and including $75.00;
    (2) Determine 12.8% of the AMR exceeding $75.00;
    (3) Determine 1% of the sum of paragraphs (b)(1) and (2) of this 
section;
    (4) Multiply the result of paragraph (b)(3) of this section by the 
number of years after 1936 through 1974 in which the employee earned 
$200 or more;
    (5) Add the results of paragraphs (b)(1), (2) and (3) of this 
section. If the resulting basic amount is less than $18.14, increase it 
to $18.14.



Sec. 234.21  Definitions of ``living with'' and ``living in the same 
household.''

    (a) Living with. A widow(er) is considered ``living with'' the 
employee at the time of the employee's death, if one of the following 
conditions applies:
    (1) The employee and spouse were members of the same household;
    (2) The spouse was receiving regular contributions for support from 
the employee; or
    (3) The employee was under court order to contribute to the spouse's 
support.
    (b)(1) Living in the same household. An employee and spouse were 
``living in the same household'' if they lived together as a married 
couple in the same residence. However, an employee and spouse, who were 
temporarily living apart, will be considered ``living in the same 
household'' if there was intent to share the same residence had the 
employee not died. The Board will usually assume that a married couple 
was living apart temporarily, if the separation was caused by 
circumstances beyond their control, for example, ill health, financial 
difficulties, service with the Armed Forces, or confinement in a 
curative, custodial, or penal institution.
    (2) If the employee and spouse were separated solely for medical 
reasons, the Board will consider them ``living in the same household,'' 
even if the separation was likely to be permanent.



               Subpart C_Annuities Due but Unpaid at Death



Sec. 234.30  General.

    When an applicant or an annuitant dies before being paid any 
annuities that may be due, the total of those annuities become payable 
to certain survivors in a lump-sum. Refer to Sec. 234.31

[[Page 494]]

through Sec. 234.34 for information about when and to whom each type of 
unpaid annuity is payable. An application for an unpaid annuity must be 
filed within two years after the death of the person originally entitled 
to the annuity.

(Approved by the Office of Management and Budget under control numbers 
3220-0031 and 3220-0032 and 3220-0042)

[51 FR 3036, Jan. 23, 1986, as amended at 52 FR 11017, Apr. 6, 1987]



Sec. 234.31  Regular employee retirement and supplemental annuities.

    A regular employee retirement annuity or a supplemental annuity 
which is unpaid at the death of the employee is payable in the following 
order and amounts:
    (a) A surviving spouse, who was ``living with'' (see Sec. 234.21) 
the employee at the time of the employee's death, receives the full 
amount of the unpaid annuity.
    (b) Each person who paid the employee's burial expenses receives a 
share of the unpaid annuities in the same proportion that he or she paid 
the burial expenses, but only to the extent that he or she is not 
reimbursed by the LSDP. If a payer of the employee's burial expenses 
dies before negotiating his or her check, that payment becomes payable 
to his or her estate.
    (c) Surviving children of the employee receive equal shares.
    (d) Surviving grandchildren of the employee receive equal shares.
    (e) Surviving parents of the employee each receive equal shares.
    (f) Surviving brothers and sisters of the employee receive equal 
shares. Half blood brothers and sisters share equally with full blood 
brothers and sisters.



Sec. 234.32  Spouse or divorced spouse annuities.

    A spouse annuity or divorced spouse annuity which is unpaid at the 
death of the spouse or divorced spouse is paid in the following order 
and amounts:
    (a) The employee receives the full amount.
    (b) If the employee died before negotiating the check in payment of 
the unpaid annuities, the unpaid spouse annuity or divorced spouse 
annuity is paid in the same order and amounts as described in Sec. 
234.31 (b) through (f).



Sec. 234.33  Survivor annuities.

    Any survivor annuity which is unpaid at the death of the survivor is 
paid in the same order and amounts as described in Sec. 234.31(a) and 
Sec. 234.31(c) through Sec. 234.31(f).



Sec. 234.34  When an entitled relative of the employee dies before 
receiving payment of a due but unpaid annuity.

    If a person, who is entitled to unpaid annuities based upon his or 
her relationship to the employee, dies before negotiating the check in 
payment of the unpaid annuities, the amount to which he or she was 
entitled becomes payable to other relatives of the employee in the same 
degree of relationship. If no relatives in that degree of relationship 
survive, the amount becomes payable to relatives in the next degree of 
relationship.



                   Subpart D_Residual Lump-Sum Payment



Sec. 234.40  General.

    The residual lump-sum (RLS) is the means by which railroad employees 
and their survivors are guaranteed to receive at least as much in 
benefits as the employee paid in railroad retirement taxes during the 
years 1937 through 1974. An RLS payment can be made only if it appears 
that no other benefits based at least in part on railroad service will 
be payable under either the Railroad Retirement Act or Social Security 
Act in the future. The residual is reduced for any retirement benefits 
that were paid on the basis of the employee's railroad service, and for 
any survivor benefits based on the employee's earnings already paid by 
either the Board or the Social Security Administration. A widow(er) or 
dependent parent can, before attaining age 60, elect to waive future 
rights to monthly benefits based on the employee's railroad service in 
order to receive the RLS.



Sec. 234.41  Persons to whom an RLS is payable.

    After the death of an employee, the RLS is payable, in the following 
order,

[[Page 495]]

to: beneficiaries designated by the employee; surviving relatives of the 
employee in order provided by law (see Sec. 234.44); or the employee's 
estate.



Sec. 234.42  How the employee may designate beneficiaries.

    The employee may designate one or more persons as beneficiaries of 
the RLS on a form available at any Board office. The employee may 
specify the share that each beneficiary is to receive. Also, the 
employee may designate alternate beneficiaries in the event that all 
primary beneficiaries die before the RLS becomes payable.

(Approved by the Office of Mangement and Budget under Control No. 3220-
0031)



Sec. 234.43  Payment to designated beneficiaries.

    (a) How designated beneficiaries are paid. Primary beneficiaries are 
paid the RLS to the exclusion of alternate beneficiaries. If a 
designated beneficiary dies before the date on which the RLS becomes 
payable, his or her share of the RLS becomes payable to any other 
designated beneficiaries. If an entitled designated beneficiary dies 
before negotiating the RLS check, that share is payable to his or her 
estate.
    (b) Amount designated beneficiaries are paid. If the employee 
specified the share that each beneficiary is to receive, payment is made 
in the proportion specified. Otherwise, if there is more than one 
designated beneficiary, each is paid an equal share of the RLS.



Sec. 234.44  Payment to surviving relatives.

    (a) How surviving relatives are paid. If the employee either did not 
designate a beneficiary or was not survived by a designated beneficiary, 
the RLS is payable to surviving relatives of the employee in the 
following order of relationship to the employee:
    (1) Widow(er) who was ``living with'' the employee at the time of 
the employee's death (see Sec. 234.21 for a definition of ``living 
with'');
    (2) Child;
    (3) Grandchild;
    (4) Parent;
    (5) Brother or sister, including half blood brother or sister.
    (b) Amount surviving relatives are paid. If more than one relative 
in an equal degree of relationship survives the employee, each one is 
paid an equal share of the RLS. If an entitled relative of the employee 
dies before negotiating the RLS check, that share becomes payable to 
other surviving relatives of the employee in the same degree of 
relationship. If no relatives in that degree of relationship survive, 
relatives in the next degree of relationship are payable.



Sec. 234.45  Payment to the employee's estate.

    (a) When the employee's estate is paid. If no designated 
beneficiaries or relatives survive the employee when the RLS becomes 
payable, the employee's estate may be paid the RLS. Employees may also 
designate their estates to receive all or a share of the RLS as 
beneficiaries.
    (b) How the employee's estate is paid. If a legal representative of 
the employee's estate has been appointed and has not been discharged, 
the Board will pay the RLS to the legal representative. When no legal 
representative of the employee's estate has been or is expected to be 
appointed, or the estate of the deceased employee has been closed and 
reopening is not expected, the Board will pay the RLS according to state 
statutory procedures applicable when no formal probate or administration 
occurs.



Sec. 234.46  Amount of the RLS payable.

    The gross RLS amount is equal to certain percentages of the 
employee's creditable compensation, including military service, as 
described in Sec. 234.48. (Creditable compensation and military service 
are discussed in parts 211 and 212 of this chapter, respectively.) The 
amount of the RLS payable is equal to the gross RLS minus the sum of all 
retirement benefits that have been paid on the basis of the employee's 
railroad service and all survivor benefits based on the employee's 
earnings previously paid by either the Board or the Social Security 
Administration.

[[Page 496]]



Sec. 234.47  Election of the RLS by a widow(er) or parent.

    (a) An RLS cannot be paid if it appears that there are immediate or 
future monthly survivor benefits payable to anyone other than a 
widow(er) or parent. A widow(er) or parent can elect to have the RLS 
paid in lieu of future monthly benefits based on the employee's railroad 
earnings under either the Railroad Retirement Act or Social Security 
Act.
    (b) When an election must be filed. An election to have the RLS paid 
must be filed before the widow(er) or parent attains age 60 if he or she 
would be entitled to benefits under the Railroad Retirement Act, or 
before the age of eligibility if he or she would be entitled to future 
benefits under the Social Security Act instead of the Railroad 
Retirement Act.
    (c) Filing an election. An election to have the RLS paid must be 
made on the certification provided by the Board for that purpose, and 
must contain an irrevocable election to have the RLS paid in lieu of all 
benefits based on the employee's railroad service to which the widow(er) 
or parent might otherwise become entitled. Once the RLS check is 
negotiated, the election cannot be revoked.



Sec. 234.48  Computation of the gross RLS amount.

    The amount of the gross RLS is equal to the percentages of the 
employee's creditable compensation shown in Table I. However, 
compensation may only be credited up to the maximum amounts shown in 
Table II.
    (a) Percentages of the employee's creditable compensation and the 
periods to which those percentages apply:

                                 Table I
------------------------------------------------------------------------
           Percent                               Period
------------------------------------------------------------------------
4............................  Jan. 1, 1937 through December 1946.
7............................  Jan. 1, 1947 through December 1958.
7.5..........................  Jan. 1, 1959 through December 1961.
8............................  Jan. 1, 1962 through December 1965.
8.1..........................  Jan. 1, 1966 through December 1966.
8.65.........................  Jan. 1, 1967 through December 1967.
8.8..........................  Jan. 1, 1968 through December 1968.
9.45.........................  Jan. 1, 1969 through December 1970.
9.85.........................  Jan. 1, 1971 through December 1972.
10.1.........................  Jan. 1, 1973 through September 1973.
5.35.........................  Oct. 1, 1973 through December 1973.
5.45.........................  Jan. 1, 1974 through December 1974.
------------------------------------------------------------------------

    (b) Maximum compensation which may be credited per month:

                                Table II
------------------------------------------------------------------------
    Compensation per Month                       Period
------------------------------------------------------------------------
$300.........................  Jan. 1, 1937 through June 1954.
$350.........................  July 1, 1954 through May 1959.
$400.........................  June 1, 1959 through October 1963.
$450.........................  Nov. 1, 1963 through December 1965.
$550.........................  Jan. 1, 1966 through December 1967.
$650.........................  Jan. 1, 1968 through December 1971.
$750.........................  Jan. 1, 1972 through December 1972.
$900.........................  Jan. 1, 1973 through December 1973.
$1,100.......................  Jan. 1, 1974 through December 1974.
------------------------------------------------------------------------



                    Subpart E_Lump-Sum Refund Payment



Sec. 234.50  General.

    Under the 1974 Act, railroad employees with 10 or more years of 
railroad service, who are not entitled to a vested dual benefit payment, 
may be eligible for a lump-sum refund payment if they had concurrent 
railroad and social security earnings within the period 1951 through 
1974. The combined earnings from the railroad retirement and social 
security systems in any of those years must exceed the maximums given in 
Sec. 234.53. The lump-sum refund is payable to either the employee or 
the employee's survivors.



Sec. 234.51  Persons to whom a lump-sum refund payment is payable.

    Employees receive their lump-sum refund payment from the Board, 
without applying for it, at the time their regular annuity is awarded. 
If an employee dies without receiving payment of a regular annuity, the 
lump-sum refund payment is payable to the employee's survivors in the 
same order of priority as shown for the RLS in Sec. 234.44.



Sec. 234.52  Effect of payment on other benefits.

    The lump-sum refund payment is deductible from the RLS; however, it 
has no effect on the payment of other benefits.



Sec. 234.53  Computation of the lump-sum refund payment.

    (a) The lump-sum refund payment is calculated as follows:

[[Page 497]]

    (1) Combine the railroad employee's creditable earnings, including 
military service, under the Social Security Act and Railroad Retirement 
Act for each of the years 1951 through 1974;
    (2) Determine the amount of the employee's creditable earnings in 
excess of the amounts for each year shown in the chart in paragraph (b) 
of this section;
    (3) Multiply the results of paragraph (a)(2) of this section by the 
percentage shown in the chart in paragraph (b) of this section; and
    (4) Add the results of paragraph (a)(3) of this section. The total 
is the amount of the lump-sum refund payment.
    (b) Chart for calculation of lump-sum refund payment.

------------------------------------------------------------------------
                     Year                         Amount     Percentage
------------------------------------------------------------------------
1951-53......................................       $3,600         1.5
1954-56......................................        4,200         2.0
1957-58......................................        4,200         2.25
1959.........................................        4,800         2.5
1960-61......................................        4,800         3.0
1962.........................................        4,800         3.125
1963-65......................................        5,400         3.625
1966.........................................        6,600         4.2
1967.........................................        6,600         4.4
1968.........................................        7,800         3.3
1969-70......................................        7,800         4.2
1971.........................................        7,800         4.6
1972.........................................        9,000         4.6
1973.........................................       10,800         4.85
1974.........................................       13,200         4.95
------------------------------------------------------------------------



         Subpart F_Tier II Separation Allowance Lump-Sum Payment

    Source: 56 FR 1573, Jan. 16, 1991, unless otherwise noted.



Sec. 234.55  General.

    Under the Railroad Retirement Act certain railroad employees who 
have received separation or severance payments may be entitled to a 
lump-sum payment if tier II railroad retirement taxes were deducted from 
these payments. This part sets forth the conditions for entitlement to 
the lump-sum payment and explains how the payment is computed.



Sec. 234.56  Persons to whom a separation allowance lump-sum payment 
is payable.

    (a) An employee who has completed 10 years of service at the time of 
his or her retirement or death and who has received on or after January 
1, 1985, a separation allowance or severance payment (see Sec. 210.11 
of this chapter) which would have been used to increase his or her tier 
II benefit, except for the fact that he or she was neither in an 
employment relation to one or more employers as defined in part 204 of 
this chapter nor an employee representative (see part 205 of this 
chapter), shall be entitled to a lump sum in the amount provided for in 
Sec. 234.58.
    (b) If an employee, otherwise eligible for the lump sum provided for 
in this section, dies before he or she becomes entitled to a regular 
annuity or before he or she receives payment of the lump sum, the lump 
sum is payable to the employee's widow or widower who will not have died 
before receiving payment. If the employee is not survived by a widow or 
widower who will not have died before receiving payment, the lump sum is 
payable to the employee's survivors in the same order of priority as 
shown for the residual lump-sum (RLS) in Sec. 234.44.



Sec. 234.57  Effect of payment on other benefits.

    The tier II separation allowance lump-sum payment has no effect on 
the payment of other benefits.



Sec. 234.58  Computation of the separation allowance lump-sum payment.

    The separation allowance lump-sum payment is calculated as follows:
    (a) Determine the amount of the compensation due to the receipt of 
separation or severance pay that could not be considered in the 
computation of tier II;
    (b) Multiply this amount by the rate or rates of tax imposed by 
section 3201(b) of the Internal Revenue Code of 1954 or 1986 on the 
compensation (tier II tax); and
    (c) The product is the amount of the separation allowance lump-sum 
payment.

    Example: In January of 1988 an employee with 10 years of railroad 
service relinquished his seniority rights in order to receive a 
separation allowance of $20,000, thereby severing his employment 
relation. This was the only creditable railroad compensation earned by 
the employee in 1988. Both the employer and employee would have paid 
their share of railroad retirement taxes on this amount. With respect to 
the employee tier II tax, the tax

[[Page 498]]

rate for 1988 was 4.9% under section 3201(b) of the Internal Revenue 
Code of 1986. Although the full $20,000 was creditable under the 
Railroad Retirement Act for tier I benefit computation purposes, only 
one month's compensation, $2,800, one-twelfth of the annual tier II 
earnings base of $33,600 for 1988, was creditable for tier II benefit 
purposes. This is because section 3(i)(4) of the Railroad Retirement Act 
does not permit crediting of compensation for tier II computation 
purposes after the employment relation has been severed. Under the lump-
sum provision discussed above, the employee in this example would, upon 
award of his employee annuity, receive a payment of $842.80 ($20,000 
minus $2,800, the amount of separation allowance that was creditable, or 
$17,200 times 4.9%).



                         Subpart G_Miscellaneous

    Source: 51 FR 3036, Jan. 23, 1986. Redesignated at 56 FR 1573, Jan. 
16, 1991.



Sec. 234.60  Escheat.

    Any payment under this part which would be payable to any state, 
political subdivision of a state, the U.S. government or a foreign 
government because of the lack of a legal heir, shall remain in the 
Railroad Retirement Account.



Sec. 234.61  Assignment of interest by an eligible person.

    (a) Any person who is eligible to receive a share of a lump-sum 
payment may assign his or her share to another eligible applicant, 
provided the share is not more than $500.
    (b) If an LSDP or accrued annuity is payable, the request that a 
share be assigned must be received at a Board office no later than two 
years after the death of the employee or the originally entitled person.

(Approved by the Office of Management and Budget under control number 
3220-0031)



Sec. 234.62  Effect of conviction of a felony on entitlement.

    A person who has been convicted of a felony or an act in the nature 
of a felony of intentionally causing the employee's death shall not be 
entitled to any benefits under the Railroad Retirement Act. If a charge 
of felony is pending against an applicant for a lump-sum payment, the 
Board will make no payment until the applicant submits proof that the 
charge has been withdrawn, that no further action will be taken on the 
charge, or that he or she has been cleared of the charge.



PART 235_PAYMENT OF SOCIAL SECURITY BENEFITS BY THE RAILROAD RETIREMENT 
BOARD--Table of Contents




Sec.
235.1 Basis and purpose.
235.2 Other regulations related to this part.
235.3 Who is paid social security benefits by the Board.
235.4 How the Board pays social security benefits.

    Authority: 45 U.S.C. 231f.

    Source: 54 FR 5225, Feb. 2, 1989, unless otherwise noted.



Sec. 235.1  Basis and purpose.

    Effective January 1, 1975, the Railroad Retirement Act of 1974 (Act) 
requires the Railroad Retirement Board (Board) to provide for the 
payment of monthly social security benefit payments on behalf of the 
Social Security Administration to certain individuals as described in 
Sec. 235.3 of this part. However, any such individual who was receiving 
benefits from the Social Security Administration prior to January 1, 
1975, will continue to receive benefits from that agency unless he or 
she becomes eligible for a different type of social security benefit 
after that date and files a new application with the Social Security 
Administration for that benefit. Benefits under the new entitlement will 
be paid by the Board. The Act provides an offset in the railroad 
retirement benefits of individuals who are also eligible for social 
security benefits. Because the Board is required to make this offset, 
the payment of social security benefits by the Board is authorized for 
the purpose of convenience in the administration of the Act.



Sec. 235.2  Other regulations related to this part.

    This part is related to a number of other parts in this chapter:
    (a) Part 216 describes when a person is eligible for an annuity 
under the Railroad Retirement Act.
    (b) Part 222 defines family relationships (for example, who is the 
wife or widow of an employee) for use when it

[[Page 499]]

is necessary to establish such a relationship in order to receive a 
benefit under the Railroad Retirement Act.



Sec. 235.3  Who is paid social security benefits by the Board.

    The following individuals, if entitled to social security benefits, 
are paid such benefits by the Board:
    (a) A railroad employee who has been credited with at least 120 
months of railroad service;
    (b) A wife or husband of a railroad employee who has been credited 
with at least 120 months of railroad service;
    (c) A divorced wife or husband of a railroad employee who has been 
credited with at least 120 months of railroad service, but only if the 
divorced wife or husband is claiming social security benefits based upon 
the railroad employee's social security wages;
    (d) A survivor of a railroad employee, including a surviving 
divorced spouse, remarried widow(er), surviving divorced mother or 
father, who is entitled, or upon application would be entitled, to an 
annuity under the Railroad Retirement Act;
    (e) Any other person entitled to benefits under title II of the 
Social Security Act based on the social security wages of a railroad 
employee who has been credited with at least 120 months of railroad 
service, except survivors of a railroad employee when the Social 
Security Administration has jurisdiction for survivor benefits. See part 
221 of this title.



Sec. 235.4  How the Board pays social security benefits.

    (a) When an individual described in Sec. 235.3 of this part is 
determined by the Social Security Administration to be entitled to 
social security benefits, the Social Security Administration certifies 
such benefits to the Board for payment by the Board. Once social 
security entitlement is certified to the Board, the Board then certifies 
the amount of the social security benefit to the Department of the 
Treasury for payment and makes any necessary adjustments in the 
individual's railroad retirement benefit.
    (b) The Board has no authority with respect to the adjudication of 
the benefit to be paid under the Social Security Act. Entitlement to and 
the computation of such benefits is a matter solely within the 
jurisdiction of the Social Security Administration.

                        PARTS 236-238 [RESERVED]

                           PART 240 [RESERVED]



PART 243_TRANSFER, ASSIGNMENT, OR WAIVER OF PAYMENTS--Table of Contents




Sec.
243.1 Prohibition against garnishment.
243.2 Legal process for the enforcement of child support and alimony 
          obligations.
243.3 Payments pursuant to court decree or court-approved property 
          settlement.
243.4 Taxation of benefits.
243.5 Assignment of a portion of an annuity paid under the social 
          security overall minimum provision.
243.6 Waiver of annuity payments.

    Authority: 45 U.S.C. 231f(b)(5).

    Source: 53 FR 35806, Sept. 15, 1988, unless otherwise noted.



Sec. 243.1  Prohibition against garnishment.

    Except as hereinafter provided in this part, no benefits paid under 
the Railroad Retirement Act are assignable or subject to any tax or to 
garnishment, attachment, or other legal process (including any order 
issued by any court in connection with a bankruptcy proceeding), nor 
shall any payment be anticipated.



Sec. 243.2  Legal process for the enforcement of child support and 
alimony obligations.

    Benefits paid by the Board are subject to legal process brought for 
the enforcement of legal obligations to provide child support or to make 
alimony payments, as provided in part 350 of this chapter.



Sec. 243.3  Payments pursuant to court decree or court-approved 
property settlement.

    Certain annuity components are subject to division pursuant to a 
court decree or to a court-approved property settlement incident to any 
such decree, as provided in part 295 of this chapter.

[[Page 500]]



Sec. 243.4  Taxation of benefits.

    (a) Annuities paid by the Board are subject to Federal income tax in 
accord with the Internal Revenue Code. The annuity portion equivalent to 
the amount of the benefit that the person would have actually received 
under the Social Security Act if railroad service had been creditable 
under that Act is treated for Federal income tax purposes the same way 
as a social security benefit. Annuity payments computed under the social 
security overall minimum provision contained in section 3(f)(3) of the 
Railroad Retirement Act (see Sec. 243.5 of this part) are also treated 
as social security benefits for Federal income tax purposes. Railroad 
retirement annuity amounts exceeding social security equivalent 
payments, vested dual benefits, and supplemental annuities are taxed in 
the same manner as benefits provided under an employer plan which meets 
the requirements of section 401(a) of the Internal Revenue Code.
    (b) Pursuant to section 14 of the Railroad Retirement Act, no 
annuity or supplemental annuity, in whole or in part, is subject to any 
tax by any state or any political subdivision thereof.



Sec. 243.5  Assignment of a portion of an annuity paid under the social 
security overall minimum provision.

    Section 3(f)(3) of the Railroad Retirement Act, the social security 
overall minimum provision, guarantees that an annuitant will receive, in 
combined benefits under the Railroad Retirement and Social Security 
Acts, not less than the amount which would have been paid to the 
employee and to members of his or her family under the Social Security 
Act if the employee's railroad service had been creditable under that 
Act. An annuitant whose annuity is computed under that provision may 
assign all or any portion of that annuity to any of the members of his 
or her family who are or who could be included in the computation of the 
annuity. Any assignment issued pursuant to this section will terminate:
    (a) When revoked by the annuitant by notification to the Board; or
    (b) When the annuity is no longer computed under the social security 
overall minimum provision.



Sec. 243.6  Waiver of annuity payments.

    (a) Any individual who has been awarded an annuity under the 
Railroad Retirement Act shall have the right to waive such annuity in 
whole or in part by filing with the Board a statement to that effect 
signed by him or her.
    (b) Such a waiver shall be effective as of the date specified in the 
waiver statement, except that if an annuity has been awarded, a waiver 
shall not be effective before the first day of the month after the month 
in which the waiver form is received at an office of the Board and shall 
not be effective as to any annuity payment which has already been made 
or which cannot be prevented.
    (c) For the period during which a waiver is in effect, no payment of 
the amount of the annuity waived can ever be made to any person. A 
waiver of an annuity shall not, however, have any effect on the amount 
of a spouse's annuity otherwise payable or on a lump sum under section 
6(c) of the Act otherwise due, nor shall it serve to make an individual 
eligible for a lump-sum death benefit under section 6(b) of the Act or 
any insurance benefit under the Social Security Act on the basis of the 
wages of the same deceased employee.
    (d) A waiver once made shall continue in effect until the annuitant 
requests in writing that it be terminated.

                           PART 250 [RESERVED]



PART 255_RECOVERY OF OVERPAYMENTS--Table of Contents




Sec.
255.1 Introduction.
255.2 Overpayments.
255.3 When overpayments are to be recovered.
255.4 Persons from whom overpayments may be recovered.
255.5 Recovery by cash payment.
255.6 Recovery by setoff.
255.7 Recovery by deduction in computation of death benefit.
255.8 Recovery by adjustment in connection with subsequent payments.
255.9 Individual enrolled under supplementary medical insurance plan.
255.10 Waiver of recovery.
255.11 Fault.
255.12 When recovery is contrary to the purpose of the Railroad 
          Retirement Act.

[[Page 501]]

255.13 When recovery is against equity or good conscience.
255.14 Waiver not available when recovery can be made from accrual of 
          social security benefits.
255.15 Waiver to an estate.
255.16 Administrative relief from recovery.
255.17 Recovery of overpayments from a representative payee.
255.18 Compromise of overpayments.
255.19 Suspension or termination of the collection of overpayments.

    Authority: 45 U.S.C. 231f(b)(5); 45 U.S.C. 231i.

    Source: 62 FR 64163, Dec. 4, 1997, unless otherwise noted.



Sec. 255.1  Introduction.

    Section 10 of the Railroad Retirement Act provides for the recovery 
of an overpayment of benefits to an individual. This part explains when 
an overpayment must be recovered, from whom an overpayment may be 
recovered, and when recovery of the overpayment may be waived or 
administrative relief from recovery granted, and circumstances under 
which the overpayment may be compromised, or circumstances under which 
recovery of the overpayment may be suspended or terminated.



Sec. 255.2  Overpayments.

    An overpayment, within the meaning of this part, is made in any case 
in which an individual receives a payment under the Railroad Retirement 
Act, all or part of which payment he or she is not entitled to receive.



Sec. 255.3  When overpayments are to be recovered.

    Overpayments shall be recovered in all cases except those in which 
recovery is waived under Sec. 255.10 of this part or administrative 
relief from recovery is granted under Sec. 255.16 of this part, or 
where the overpayment is compromised or recovery is terminated or 
suspended under Sec. Sec. 255.18 or 255.19 of this part.



Sec. 255.4  Persons from whom overpayments may be recovered.

    (a) Overpaid individual. The Board may recover an overpayment from 
the individual to whom the overpayment has been made by any method 
permitted by this part, or by the Federal Claims Collection Standards (4 
CFR chapter 2) (Example 1 of this section). If the overpaid individual 
dies before recovery is completed, then recovery may be effected by 
recovery from the estate or the heirs of such individual.
    (b) Other than overpaid individual. The Board may recover an 
overpayment from a person other than the overpaid individual if such 
person is receiving benefits based upon the same record of compensation 
as the overpaid individual under a statute administered by the Board. In 
such a case, the Board will ordinarily recover the overpayment by setoff 
against such benefits as are provided for in Sec. 255.6 of this part 
(Example 2 of this section). However, the Board may ask for a cash 
refund of the overpayment.
    (c) Individual not in the same household. Recovery under paragraph 
(b) of this section may be made from an individual who was not living in 
the same household, as defined in part 216 of this chapter, as the 
overpaid individual at the time of the overpayment, if the individual 
from whom recovery is to be made either was aware that benefits were 
being paid incorrectly or benefitted from the overpayment. (Example 3 of 
this section).
    (d) Examples. This section may be illustrated by the following 
examples:

    Example (1). An employee receiving a disability annuity returns to 
work without notifying the Board. The Board discovers that the employee 
is working and determines that the employee has recovered from his 
disability and has been overpaid. The Board requests that the employee 
repay the overpayment by cash refund either in one lump sum or in 
installment payments. If the employee refuses, the Board may refer the 
debt to a collection agency or the Department of Justice for civil suit 
or may collect the debt in any other manner permitted by law.
    Example (2). The employee in Example 1 agrees to refund the 
overpayment by cash installment payments. However, the employee dies 
before repaying the total amount of the overpayment. At his death the 
employee's widow, who was living with the employee at the time the 
overpayment was incurred, becomes entitled to a widow's annuity. The 
Board may recover the remainder of the overpayment from any benefits due 
the widow.
    Example (3). C, a child of a deceased employee by his first 
marriage, is receiving a disability annuity on the employee's record of 
compensation. W, the employee's second wife, is receiving a widow's 
annuity on the

[[Page 502]]

employee's record of compensation. C lives with his mother, the 
employee's first wife. C marries without notifying the Board. Marriage 
terminates a child's annuity. W is not aware of C's marriage. Upon 
discovery of C's marriage, the Board demands that C refund the overpaid 
annuities; C refuses. Even though W is receiving an annuity based upon 
the same record of compensation as that of C, the Board will not recover 
the overpayment from W because she is not in the same household as C, 
was not aware of the incorrect benefits paid, and did not benefit from 
them.



Sec. 255.5  Recovery by cash payment.

    The Board shall have the right to require that an overpayment to an 
individual be immediately and fully repaid in cash by that individual. 
However, if the Board determines that the individual is financially 
unable to pay the amount of the indebtedness in a lump sum, payment may 
be accepted in regular installments in accordance with the Federal 
Claims Collection Standards, found in 4 CFR chapter 2. These standards 
provide that whenever possible installment payments should be sufficient 
in amounts and frequency to liquidate the debt in not more than 3 years.



Sec. 255.6  Recovery by setoff.

    An overpayment may be recovered by setoff from any subsequent 
payment determined to be payable under any statute administered by the 
Board to the individual who received the overpayment. An overpayment may 
be recovered from someone other than the overpaid individual by setoff 
from a subsequent payment determined to be payable to that other 
individual on the basis of the same record of compensation as that of 
the overpaid individual.



Sec. 255.7  Recovery by deduction in computation of death benefit.

    In computing the residual lump sum provided for in part 234, subpart 
D, of this chapter, the Board shall include in the benefits to be 
deducted from the applicable percentages of the aggregate compensation 
provided for in that part all overpayments, whether waived under Sec. 
255.10 of this part or otherwise not recovered, that were paid to the 
employee or to his or her spouse or to his or her survivors with respect 
to the employee's employment.



Sec. 255.8  Recovery by adjustment in connection with subsequent 
payments.

    (a) Recovery of an overpayment may be made by permanently reducing 
the amount of any annuity payable to the individual or individuals from 
whom recovery is sought. This method of recovery is called an actuarial 
adjustment of the annuity. The Board cannot require any individual to 
take an actuarial adjustment in order to recover an overpayment nor is 
an actuarial adjustment available as a matter of right. An actuarial 
adjustment becomes effective and the debt is considered recovered when, 
in the case of an individual paid by electronic funds transfer, the 
first annuity payment reflecting the annuity rate after actuarial 
adjustment is deposited to the account of the overpaid individual, or, 
in the case of an individual paid by check, the first annuity check 
reflecting the annuity rate after actuarial adjustment is negotiated.

    Example. An annuitant agrees to recovery of a $5,000 overpayment by 
actuarial adjustment. However, the annuitant dies before negotiating the 
first annuity check reflecting the actuarially-reduced rate. The $5,000 
is not considered recovered. If the annuitant had negotiated the check 
before he died, the $5,000 would be considered fully recovered.

    (b) In calculating any adjustment under this section, beginning with 
the first day of January after the tables and long-term or ultimate 
interest rate go into effect under section 15(g) of the Railroad 
Retirement Act (the triennial evaluation), the Board shall use those 
tables and long-term or ultimate interest rate.

[63 FR 29548, June 1, 1998]



Sec. 255.9  Individual enrolled under supplementary medical insurance 
plan.

    Where recovery of the overpayment is by setoff as provided for in 
Sec. 255.6 of this part, and where recovery of the overpayment by such 
means will be accomplished within a period of 5 months, and the 
individual from whom recovery is sought is an enrollee under Part B of 
Title XVIII of the Social Security Act (Supplementary Medical Insurance 
Benefits for the Aged and Disabled), an amount of such individual's 
monthly benefit which is equal to his

[[Page 503]]

or her obligation for supplementary medical insurance premiums will be 
applied toward payment of such premiums, and the balance of the monthly 
benefit will be applied toward recovery of the overpayment.



Sec. 255.10  Waiver of recovery.

    There shall be no recovery from any person in any case where more 
than the correct amount of annuities or other benefits has been paid to 
an individual or where payment has been made to an individual not 
entitled thereto if in the judgment of the Board:
    (a) The overpaid individual is without fault, and
    (b) Recovery would be contrary to the purpose of the Railroad 
Retirement Act or would be against equity or good conscience.



Sec. 255.11  Fault.

    (a) Before recovery of an overpayment may be waived, it must be 
determined that the overpaid individual was without fault in causing the 
overpayment. If recovery is sought from other than the overpaid 
individual but the overpaid individual was not without fault, then 
waiver is not available. However, see Sec. 255.16 of this part for 
provisions as to when administrative relief from recovery may be granted 
in such circumstances.
    (b) Fault means a defect of judgment or conduct arising from 
inattention or bad faith. Judgment or conduct is defective when it 
deviates from a standard of reasonable care taken to comply with the 
entitlement provisions of this chapter. Conduct includes both action and 
inaction. Unlike fraud, fault does not require a deliberate intent to 
deceive.
    (c) Whether an individual is at fault in causing an overpayment 
generally depends on all circumstances surrounding the overpayment. 
Among the factors the Board will consider are: the ability of the 
overpaid individual to understand the reporting requirements of the 
Railroad Retirement Act or to realize that he or she is being overpaid 
(e.g., age, education, comprehension, physical and mental condition); 
the particular cause of non-entitlement to benefits; and the number of 
instances in which the individual may have made erroneous statements.
    (d)(1) Circumstances in which the Board will find an individual at 
fault include but are not limited to:
    (i) Failure to furnish to the Railroad Retirement Board information 
which the individual knew or should have known to be material;
    (ii) An incorrect statement made by the individual which he or she 
knew or should have known was incorrect (including furnishing an opinion 
or conclusion when asked for facts); and
    (iii) Failure to return a payment which the individual knew or 
should have known was incorrect.
    (2) Where any of the circumstances listed in paragraph (d)(1) are 
found to have occurred, the individual shall be presumed to be not 
without fault. This presumption may be rebutted, but the burden of 
presenting evidence to rebut the presumption is on the individual.
    (3) For purposes of paragraph (d)(1)(i), furnishing information to 
the Social Security Administration or any other agency shall not be 
considered to constitute furnishing information to the Railroad 
Retirement Board.
    (4) For purposes of this section, an error on the part of the agency 
shall not extinguish fault on the part of the individual.
    (e) Circumstances in which the Board will find an individual not at 
fault include but are not limited to:
    (1) The overpayment is the result of Board error of which the 
overpaid individual was not aware and could not reasonably have been 
expected to be aware (Example 1 of this section).
    (2) The overpayment is the result of an adjustment to the overpaid 
individual's annuity because of entitlement of another individual to an 
annuity on the same record of compensation as that of the overpaid 
individual (Example 2 of this section).
    (3) The overpayment is the result of the Board's continuing to pay 
an individual after he or she has notified the Board of an event which 
caused or should have caused a reduction in his or her benefit; provided 
that continued payment of the unreduced benefit led the individual to 
believe in good faith that he or she was entitled to the payments 
subsequently received.

[[Page 504]]

    (f) The application of this section may be illustrated by the 
following examples:

    Example (1). The Board makes a mathematical error in the computation 
of an employee's annuity, thus giving the employee a higher rate than he 
or she is entitled to but which is sufficiently close to the estimated 
rate given the employee at the time he or she applied for the annuity 
that the employee believed, in good faith, that the amount was correct. 
The employee is not at fault in causing the overpayment in this case. 
The overpayment may be waived if the requirements of Sec. 255.12 or 
Sec. 255.13 of this part are met.
    Example (2). The widow and four minor children of a railroad 
employee are receiving benefits from the Board under the family maximum. 
Another minor child not living in the same household as the above 
individuals is also determined to be the child of the deceased employee. 
The widow was not aware of the existence of this child. An award of 
benefits to this child causes a reduction in benefits to the other 
individuals under the family maximum benefit provision of the Social 
Security Act. Because of normal administrative delay this reduction does 
not take place for a period of 2 months after its effective date. The 
widow and her children are without fault with respect to this 
overpayment. The overpayment may be waived if the requirements of Sec. 
255.12 or Sec. 255.13 of this part are met.



Sec. 255.12  When recovery is contrary to the purpose of the Railroad 
Retirement Act.

    (a) The purpose of the Railroad Retirement Act is to pay retirement 
and survivor annuities and other benefits to eligible beneficiaries. It 
is contrary to the purpose of the Act for an overpayment to be recovered 
from income and resources which the individual requires to meet ordinary 
and necessary living expenses. If either income or resources, or a 
combination thereof, are sufficient to meet such expenses, recovery of 
an overpayment is not contrary to the purpose of the Act.
    (b) For purposes of this section, income includes any funds which 
may reasonably be considered available for the individual's use, 
regardless of source, including inheritance prospects. Income to the 
individual's spouse or dependents is available to the individual if the 
spouse or dependent lived with the individual at the time waiver is 
considered. Types of income include but are not limited to:
    (1) Government benefits, such as Black Lung, Social Security, 
Workers' Compensation, and Unemployment Compensation benefits;
    (2) Wages and self-employment income;
    (3) Regular incoming payments, such as rent or pensions; and
    (4) Investment income.
    (c) For purposes of this section, resources may include:
    (1) Liquid assets, such as cash on hand, the value of stocks, bonds, 
savings accounts, mutual funds and the like;
    (2) Non-liquid assets (except an individual's primary residence) at 
their fair market value; and
    (3) Accumulated, unpaid Federal benefits.
    (4) For purposes of paragraphs (c)(1) and (2) of this section, 
assets concealed or improperly transferred on and after the date of 
notification of the overpayment, other than cash expended to meet 
ordinary and necessary living expenses, shall be included.
    (d) Whether an individual has sufficient income and resources to 
meet ordinary and necessary living expenses depends not only on the 
amount of his or her income and resources, but also on whether the 
expenses are ordinary and necessary. While the level of expenses which 
is ordinary and necessary may vary among individuals, it must be held at 
a level reasonable for an individual who is living on a fixed income. 
The Board will consider the discretionary nature of an expense in 
determining whether it is reasonable. Ordinary and necessary living 
expenses include:
    (1) Fixed living expenses such as food and clothing, rent, mortgage 
payments, utilities, maintenance, insurance (e.g., life, accident, and 
health insurance), taxes, installment payments, etc.;
    (2) Medical, hospital, and other similar expenses;
    (3) Expenses for the support of others for whom the individual is 
legally responsible; and
    (4) Miscellaneous expenses (e.g., newspapers, haircuts).

[[Page 505]]

    (e) Where recovery of the full amount of an overpayment would be 
made from income and resources required to meet ordinary and necessary 
living expenses, but recovery of a lesser amount would leave income or 
resources sufficient to meet such expenses, recovery of the lesser 
amount is not contrary to the purpose of the Act.
    (f) This section may be illustrated by the following examples:

    Example (1). A remarried widow, W, is overpaid $6000 due to receipt 
of benefits on the wage records of both her late husbands. It has been 
determined that she is without fault. Her financial disclosure statement 
reveals monthly income greater than monthly expenses, and assets of 
$12,000, $10,000 of which is in cash. She claims to be saving these 
funds for future medical expenses, because she has a progressive 
disease. While it is not necessarily contrary to the purposes of the Act 
to recover the overpayment in these circumstances, the legitimate 
medical expenses associated with the disease must be considered.
    Example (2). A disability annuitant, D, is overpaid $33,000 because 
of simultaneous entitlement to workers' compensation payments. He is 
determined to be without fault. He claims he has assumed financial 
responsibility for his adult child and her children. A claimed expense 
for which the annuitant has no legal obligation to pay does not make 
recovery contrary to the purposes of the Act.



Sec. 255.13  When recovery is against equity or good conscience.

    (a) Recovery is considered to be against equity or good conscience 
if a person, in reliance on payments made to him or her or on notice 
that payment would be made, relinquished a significant and valuable 
right (Example 1 of this section) or changed his or her position to his 
or her substantial detriment (Example 2 of this section).
    (b) An individual's ability to repay an overpayment is not material 
to a finding that recovery would be against equity or good conscience 
but is relevant with respect to the credibility of a claim of 
detrimental reliance under paragraph (a) of this section.
    (c) This section may be illustrated by the following examples:

    Example (1). After being informed by the Board that he had been 
credited with sufficient years of railroad service to retire at age 60, 
an employee quit his railroad job and applied for benefits under the 
Railroad Retirement Act. He receives benefits for six months when it is 
discovered that he had insufficient railroad service to retire at age 60 
and was not entitled to the benefits he received. His annuity was 
terminated. Because the employee gave up his seniority rights when he 
quit his railroad job, he cannot get his job back. It is determined that 
the employee was not at fault in causing the overpayments. In this 
situation recovery of the overpayment would be against equity or good 
conscience because the overpaid individual gave up a valuable right.
    Example (2). A widow, having been awarded annuities for herself and 
her daughter, entered her daughter in a private school. The widow did 
not have substantial assets and her income, apart from the annuities she 
received in the amounts payable, would not have been sufficient for her 
to have undertaken the obligation to send her daughter to private 
school. In order to pay for the schooling she took out a loan and used 
the monthly annuities to pay interest and principal on the loan. After 
the widow and her daughter had received payments for almost a year, the 
deceased employee was found not to have been insured under the Railroad 
Retirement Act. Therefore, all payments to the widow and child were 
erroneous and the annuities were terminated. It is determined that the 
widow was not at fault in causing the overpayment. Having incurred a 
financial obligation (the school loan) toward which the benefits had 
been applied, the widow was in a worse position financially than if she 
and her daughter had never been entitled to benefits. In this situation, 
the recovery of the overpayment would be against equity or good 
conscience.



Sec. 255.14  Waiver not available when recovery can be made from 
accrual of social security benefits.

    Where the overpayment is the result of a reduction of benefits 
payable under the Railroad Retirement Act due to the overpaid 
individual's entitlement to social security benefits and recovery of 
such overpayment may be made by offset against an accrual of social 
security benefits, it shall not be considered to be against equity or 
good conscience or contrary to the purpose of the Railroad Retirement 
Act to recover the overpayment by offset against the accrual. 
Consequently, in such a case recovery of an overpayment is not subject 
to waiver consideration.



Sec. 255.15  Waiver to an estate.

    It shall never be considered contrary to the purpose of the Railroad 
Retirement Act to recover an overpayment

[[Page 506]]

from the estate of an overpaid individual.



Sec. 255.16  Administrative relief from recovery.

    (a) Where the Board seeks to recover an overpayment from someone 
other than the overpaid individual, as provided for in Sec. 255.4 of 
this part, and where waiver of recovery, as provided for in Sec. 255.10 
of this part, is not available because the overpaid individual was at 
fault as defined in Sec. 255.11 of this part, the Board may forego 
recovery of the overpayment where the individual from whom recovery is 
sought was not at fault in causing the overpayment and where recovery is 
contrary to the purpose of the Railroad Retirement Act as defined in 
Sec. 255.12 of this part.
    (b) Application of administrative relief from recovery with respect 
to a given person from whom recovery may be made shall have no effect on 
the authority of the Board to recover the overpayment from anyone else 
from whom recovery may be sought.
    (c) This section may be illustrated by the following examples:

    Example (1): An employee, through his own fault, causes an 
overpayment in his annuity. The employee dies before the overpayment can 
be recovered from him and he leaves no estate. A widow's annuity is 
payable on the employee's compensation record. The widow was not at 
fault in causing the overpayment. The Board may recover the remainder of 
the overpayment by setoff against the widow's annuity. However, it may 
forego recovery under this section if such recovery would be contrary to 
the purpose of the Railroad Retirement Act as defined in Sec. 255.12 of 
this part. Since this is not a waiver of the overpayment, the Board is 
free to recover the overpayment from the widow at a later date, for 
example, if an accrual of benefits should become payable, or if it 
determines that such recovery would not be against the purpose of the 
Railroad Retirement Act.
    Example (2): A representative payee for a retarded child, through 
her own fault, causes an overpayment in the child's annuity. The 
overpaid amounts were used for the benefit of the child. The 
representative payee dies before the overpayment can be recovered from 
her and she leaves no estate. The Board may not waive the remainder of 
the overpayment with respect to the child since for purposes of waiver 
the representative payee is considered the overpaid individual (see 
Sec. 255.17 of this part) and the overpaid individual was at fault. 
However, if the child was not at fault in causing the overpayment and 
recovery would be contrary to the purpose of the Railroad Retirement Act 
as defined in Sec. 255.12 of this part, then the Board may forego 
recovery of the overpayment from the child's annuity under this section.



Sec. 255.17  Recovery of overpayments from a representative payee.

    (a) Joint liability. In general, if an overpayment is made to an 
individual receiving benefits as a representative payee (see part 266 of 
this chapter) the Board may recover the overpayment from either the 
representative payee or the beneficiary, or both. If the beneficiary is 
currently receiving benefits, either in his or her own right or through 
a representative payee, the Board will generally propose to recover the 
overpayment by setoff against those benefits as provided for in Sec. 
255.6 of this part. If the beneficiary is not currently receiving 
benefits but the representative payee is receiving benefits, then the 
Board will generally propose to recover the overpayment by setoff 
against those benefits.
    (b) Waiver of overpayments. For purposes of Sec. 255.10 of this 
part (Waiver of recovery), if it is determined that the representative 
payee was at fault in causing the overpayment there may be no waiver of 
the overpayment either as to the representative payee or the 
beneficiary. However, if the beneficiary was not at fault in causing the 
overpayment he or she may be eligible for administrative relief from 
recovery under Sec. 255.16 of this part.
    (c) This section may be illustrated by the following examples:

    Example (1). M is receiving a child's annuity as a representative 
payee for her disabled son, S. With M's knowledge S marries. Although 
both M and S know that marriage terminates the child's annuity, neither 
of them informs the Board of this event. Both M and S are liable for any 
overpayment caused. Waiver is not available since M would be considered 
at fault in causing the overpayment. Administrative relief from recovery 
is not available to S since he would also be considered at fault.
    Example (2). R is a representative payee for B, who resides in a 
skilled-care facility. R is found to be at fault in causing an 
overpayment of benefits to B. The Board may recover the overpayment from 
either R or B. Waiver is not available because R was at fault in causing 
the overpayment. However,

[[Page 507]]

if B was not at fault in causing the overpayment he or she may be 
entitled to administrative relief from recovery under Sec. 255.16 of 
this part.



Sec. 255.18  Compromise of overpayments.

    (a) This section sets forth the principal standards which the Board 
applies in exercising its authority under 31 U.S.C. 3711 to compromise 
an overpayment. In addition, the Board may compromise an overpayment 
under the Federal Claims Collection Standards set forth in 4 CFR part 
103.
    (b) An overpayment may be compromised only if it is in the best 
interest of the agency. Circumstances and factors to be considered are:
    (1) The overpayment cannot be collected because of the overpaid 
individual's inability to pay the full amount of the overpayment within 
a reasonable time;
    (2) The overpaid individual refuses to pay the overpayment in full 
and it appears that enforced collection procedures will take an 
inordinate amount of time or that the cost of collecting does not 
justify the enforced collection of the full amount; or
    (3) There is doubt that the Board could prove its case in court for 
the full amount claimed because of a bona fide dispute as to the facts 
or because of the legal issues involved.



Sec. 255.19  Suspension or termination of the collection of overpayments.

    This section sets forth the principal standards which the Board 
applies in approving the suspension or termination of the collection of 
an overpayment. In addition the Board may suspend or terminate 
collection under the Federal Claims Collection Standards set forth in 4 
CFR part 104.
    (a) Collection action on a Board claim may be suspended temporarily 
when the debtor cannot be located and there is reason to believe future 
collection action may be productive or collection may be effected by 
offset in the near future.
    (b) Collection action may be terminated when:
    (1) The debtor is unable to make any substantial payment;
    (2) The debtor cannot be located and offset is too remote to justify 
retention of the claim;
    (3) The cost of collection action will exceed the amount 
recoverable; or
    (4) The claim is legally without merit or cannot be substantiated by 
the evidence.



PART 258_HEARINGS BEFORE THE BOARD OR DESIGNATED EXAMINERS--Table of 
Contents




Sec.
258.1 Hearings.
258.2 Witnesses.
258.3 Application for witnesses.
258.4 Service of subpoenas.
258.5 Exhibits.
258.6 Procedure when examiner appointed.
258.7 Board decisions and opinions and dissenting opinions.

    Authority: Sec. 10, 50 Stat. 314, as amended; 45 U.S.C. 228j, unless 
otherwise noted.

    Source: 43 FR 56888, Dec. 5, 1978, unless otherwise noted.



Sec. 258.1  Hearings.

    (a) To such extent as may be necessary to determine (1) the employee 
status of any individual or group of individuals, (2) the employer 
status of any person, and (3) any other matter arising out of or 
necessary for the administration of the Railroad Unemployment Insurance 
Act and the Railroad Retirement Acts of 1935, 1937, and 1974, other than 
those matters specifically provided for in parts 260 and 320 of this 
chapter, the Board may itself or through one of its members or a 
designated examiner, conduct hearings, require and compel the attendance 
of witnesses and the production of records and documents, administer 
oaths, take testimony, make all pertinent investigations and findings of 
fact, and render decisions upon such findings.
    (b) Where the Board determines that an oral hearing is necessary to 
the determination of a matter before it, the Board shall notify all 
parties to the proceeding that a hearing will be conducted, and, if the 
hearing is to be before a single Board member or a designated examiner, 
the notice shall identify the member or examiner authorized to conduct 
the hearing. The Board or the person authorized to conduct the hearing 
shall fix a time and place for the holding of the hearing and shall 
notify all parties thereof.

[[Page 508]]



Sec. 258.2  Witnesses.

    (a) In any hearing held pursuant to the provisions of this part, 
witnesses may be compelled to appear, give testimony, and produce 
records and documents.
    (b) Designation by the Board of any person as an examiner to preside 
at and conduct such hearings shall constitute a delegation of authority 
to such examiner to require and compel the attendance of witnesses and 
the production of records and documents, to administer oaths, and to 
take testimony.



Sec. 258.3  Application for witnesses.

    (a) Any person or persons conducting a hearing pursuant to the 
provisions of this part or part 260 of this chapter may, upon such 
person's or persons' own motion or upon application of any party to such 
hearing, issue a subpoena for a witness or witnesses. An application for 
a subpoena shall be by affidavit filed with the person or persons 
conducting the hearing within such period of time as will permit service 
and return of a subpoena prior to the date set for the hearing at which 
the witness is to appear, but in no case shall such application be filed 
later than 10 days prior to the date of hearing. The application shall 
set forth:
    (1) The name and address of the witness;
    (2) The title of the matter to be heard, i.e., names of parties;
    (3) The issue to which the testimony of the witness will be 
directed;
    (4) The substance of the testimony which such witness is expected to 
give or the facts to which such witness will testify; and
    (5) The specific books, papers or documents which are requested, if 
a subpoena duces tecum is applied for.
    (b) In addition to the above, the party filing such application 
shall, at the time of filing, deposit therewith a sum of money 
sufficient to cover the fees and transportation allowance of the 
witness, or, in lieu thereof, shall state in the application that 
satisfactory arrangements have been made with the witness for the direct 
payment of his or her fees and transportation allowance and any other 
allowable expense.



Sec. 258.4  Service of subpoenas.

    Service of subpoenas issued under Sec. 258.3 may be made by any 
individual designated by the Board. Such individual shall deliver a copy 
of the subpoena to the person or persons named therein, and shall at 
that time tender to that person or persons the fees for one day's 
attendance and the transportation allowance authorized by law; Provided, 
however, That if the witness or witnesses be summoned to appear upon 
motion of the person or persons designated to conduct the hearing, no 
fees or transportation allowance need be tendered. Fees and 
transportation allowances shall be in the same amount as is allowed to 
witnesses in the courts of the United States. The person serving the 
subpoena shall make certification of the manner and time of service on 
the original subpoena and shall file such original subpoena with the 
person or persons by whom it was issued.



Sec. 258.5  Exhibits.

    Copies of all exhibits admitted in evidence at any hearing held 
pursuant to the provisions of this part shall be furnished by the party 
offering the same to all other parties participating in the proceedings.



Sec. 258.6  Procedure when examiner appointed.

    (a) Where an examiner has been designated by the Board under this 
part to conduct a hearing with respect to a matter before it, the 
examiner shall preside at the hearing and shall cause all testimony to 
be recorded. The examiner shall, as soon as practicable following the 
conclusion of the hearing, mail to each party at the address stated in 
his or her appearance a free transcript of the record of the proceedings 
had before the examiner. Thereafter, the examiner shall give all parties 
participating in the hearing the opportunity to present argument upon 
both law and facts. Upon conclusion of the proceedings before him or 
her, the examiner shall prepare a report which, together with the record 
of the proceedings before him or her, shall be submitted to the Board. 
The report shall set forth the examiner's findings

[[Page 509]]

of fact, conclusions of law, and recommendations as to decision. The 
report may also contain such discussion of the question raised, both 
legal and factual, as the examiner may desire to present to the Board. A 
copy of the examiner's report shall be served by the examiner upon each 
party participating in the hearing by mailing such copy to each such 
party at the address stated in his or her appearance. Each party shall, 
within 30 days after the date of mailing to him or her of the examiner's 
report, file with the Board and serve upon other parties by mailing to 
their addresses as stated in their appearances such exceptions in 
writing as he or she desires to make to the examiner's findings of fact 
and conclusions of law. Each exception shall specifically designate the 
particular findings of fact or conclusions of law to which objection is 
taken, and shall set forth in detail the grounds for the objection. 
General exceptions and exceptions not specifically directed to 
particular findings of fact or conclusions of law will not be considered 
by the Board. Exceptions to findings of fact shall make specific 
reference by page numbers to those portions of the record upon which 
reliance is placed.
    (b) Each party shall have 10 days after receipt of exceptions taken 
by other parties in which to file with the Board replies to those 
exceptions. Replies to exceptions to findings of fact shall make 
specific reference by page number to those portions of the record upon 
which reliance is placed.
    (c) The Board may, upon the application of a party and for cause 
shown, extend the time for filing and serving of exceptions or filing of 
replies thereto. The Board will render its decision upon the record, the 
examiner's report, and such exceptions and replies thereto as are made.
    (d) The examiner's report shall be advisory only and the Board may, 
in any case, exercise its right to reject or adopt the examiner's report 
in whole or in part or adopt such report with modifications. Findings of 
fact to which no exceptions are taken will, subject only to the power of 
the Board upon its own consideration to reject or modify, be presumed to 
be correct.
    (e) The decision of the Board shall be communicated to the parties 
participating in the hearing within 30 days of the date upon which the 
decision of the Board is entered upon its records.



Sec. 258.7  Board decisions and opinions and dissenting opinions.

    The following shall apply to all decisions of the Board except 
decisions relating to matters of internal administration:
    A decision made by at least two members of the Board shall 
constitute the decision of the Board. The decision of the Board shall be 
stated in a written opinion filed in the record of the proceedings. A 
dissenting opinion may be stated by a member of the Board who disagrees 
with the decision of the Board and any such dissenting opinion shall 
also be filed in the record of the proceedings.



PART 259_INITIAL DETERMINATIONS AND APPEALS FROM INITIAL DETERMINATIONS 
WITH RESPECT TO EMPLOYER STATUS AND EMPLOYEE STATUS--Table of Contents




Sec.
259.1 Initial determinations with respect to employer and employee 
          status.
259.2 Parties to determinations with respect to employer and employee 
          status.
259.3 Reconsideration of initial determinations with respect to employer 
          or employee status.
259.4 Authority to conduct investigations.
259.5 Appeals from decisions of the Board.
259.6 Finality of determinations issued under this part.

    Authority: 45 U.S.C. 231f; 45 U.S.C. 362(l).

    Source: 43 FR 56889, Dec. 5, 1978, unless otherwise noted.



Sec. 259.1  Initial determinations with respect to employer and 
employee status.

    (a) All requests for a determination with respect to employer or 
employee status shall be filed with the Secretary to the Board.
    (b) The General Counsel of the Railroad Retirement Board or his or 
her designee shall make the initial investigations with respect to:
    (1) The status of any person as an employer under the Railroad 
Retirement

[[Page 510]]

Act and the Railroad Unemployment Insurance Act and the rules and 
regulations issued thereunder; and
    (2) The status of any individual or group of individuals as an 
employee or employees of an employer covered under the Railroad 
Retirement Act and the Railroad Unemployment Insurance Act.
    (c) Upon completion of this investigation the General Counsel, or 
his or her designee, shall submit to the Board the results of the 
investigation together with a recommendation concerning the coverage 
determination. The Board shall make the initial determination with 
respect to the status of any person as an employer or as an employee 
under the Railroad Retirement Act and Railroad Unemployment Insurance 
Act. The Secretary to the Board shall promptly notify the party or 
parties, as defined in Sec. 259.2 of this part, and other interested 
persons or entities of the Board's determination.

[57 FR 4366, Feb. 5, 1992]



Sec. 259.2  Parties to determinations with respect to employer and 
employee status.

    (a) With respect to any determination under this part concerning the 
status of a person as an employer under the Railroad Retirement Act and 
the Railroad Unemployment Insurance Act, that person shall be a party to 
such determination and may submit written briefs or argument, as well as 
any documentary evidence pertinent to the matter at issue, to the 
decision maker to be considered in the rendition of a determination. The 
employees of such person may submit written briefs or argument with 
respect to such determination, but shall not be parties thereto.
    (b) With respect to any determination under this part concerning the 
status of an individual or group of individuals as an employee or 
employees of an employer covered by the Railroad Retirement Act and the 
Railroad Unemployment Insurance Act, the employer alleged to be the 
employer of the individual or group of individuals and the individual or 
group of individuals shall each be considered a party to such 
determination and may submit written briefs or argument, and documentary 
evidence pertinent to the matter at issue, to the decision maker to be 
considered in the rendition of a determination.



Sec. 259.3  Reconsideration of initial determinations with respect to 
employer or employee status.

    (a) A party to an initial decision issued under Sec. 259.1 shall 
have the right to request reconsideration of that decision. A request 
for reconsideration shall be in writing and must be filed with the 
Secretary to the Board within one year following the date on which the 
initial determination was issued. Where a request for reconsideration 
has been timely filed, the Secretary to the Board shall notify all other 
parties to the initial determination of such request. The party who 
requested reconsideration and any other party shall have the right to 
submit briefs or written argument, as well as any documentary evidence 
pertinent to the issue under consideration. The General Counsel or his 
or her designee shall review the material furnished all parties and 
shall submit it to the Board with a recommendation as to the 
determination upon reconsideration. The Board shall then issue a 
determination with respect to the request for reconsideration. The 
Secretary to the Board shall promptly notify all parties and other 
interested persons or entities of the determination upon 
reconsideration.
    (b) A party who claims to be aggrieved by an initial decision of the 
Board but who fails to timely request reconsideration under this section 
shall forfeit any further right to appeal under this part.

[57 FR 4366, Feb. 5, 1992]



Sec. 259.4  Authority to conduct investigations.

    In performing his or her responsibilites under Sec. 259.1 or Sec. 
259.3, the General Counsel or his or her designee shall have the 
authority and the power to conduct any investigations he deems 
necessary. In addition, the General Counsel or his or her designee shall 
have the power to compel, by subpoena, any person, company, corporation, 
or other entity to produce any

[[Page 511]]

records or other documents pertinent to the matter under consideration.

(45 U.S.C. 231f(b)(5))

[43 FR 56889, Dec. 5, 1978, as amended at 48 FR 51447, Nov. 9, 1983; 57 
FR 4366, Feb. 5, 1992]



Sec. 259.5  Appeals from decisions of the Board.

    A party who claims to be aggrieved by a decision of the Board under 
this part may obtain review of such decision by filing a petition for 
review in the United States court of appeals for the circuit in which 
the party resides or has its principal place of business or principal 
executive office, in the United States Court of Appeals for the Seventh 
Circuit, or in the United States Court of Appeals for the District of 
Columbia. The petition for review must be filed within 90 days following 
the date on which the notice of the Board's decision was mailed to that 
party.

[43 FR 56889, Dec. 5, 1978. Redesignated at 57 FR 4366, Feb. 5, 1992]



Sec. 259.6  Finality of determinations issued under this part.

    Any determination rendered by the Board at the initial or 
reconsideration stages shall be considered a final determination and 
shall be binding with respect to all parties unless reversed on 
reconsideration or upon judicial review. A final determination may be 
reopened at the request of a party who was, or could have been, a party 
to the final determination when the party alleges that the law or the 
facts upon which the final determination was based have changed 
sufficiently to warrant a contrary determination. Such a request shall 
be submitted to the Secretary to the Board, who shall consider such 
request as a request for an initial determination under Sec. 259.1.

[57 FR 4366, Feb. 5, 1992]



PART 260_REQUESTS FOR RECONSIDERATION AND APPEALS WITHIN THE BOARD
--Table of Contents




Sec.
260.1 Initial decisions.
260.2 Initial decisions on the amount of service and compensation 
          credited to an employee.
260.3 Request for reconsideration of initial decision.
260.4 Request for waiver of recovery of an overpayment and/or for 
          reconsideration of an initial erroneous payment decision.
260.5 Appeal from a reconsideration decision.
260.6 Time limits for issuing a hearing decision.
260.7 Time limits for issuing a decision when a hearing is not held.
260.8 Pre-hearing case review.
260.9 Final appeal from a decision of the hearings officer.
260.10 Determination of date of filing.

    Authority: 45 U.S.C. 231f; 45 U.S.C. 231g; 45 U.S.C. 355.

    Source: 47 FR 36809, Aug. 24, 1982, unless otherwise noted.



Sec. 260.1  Initial decisions.

    (a) General. Claims for benefits shall be adjudicated and initial 
decisions made by the Board concerning:
    (1) Applications for benefits under the Railroad Retirement Act;
    (2) The withdrawal of an application;
    (3) A change in an annuity beginning date;
    (4) The termination of an annuity;
    (5) The modification of the amount of an annuity or lump-sum 
benefit;
    (6) The reinstatement of an annuity which had been terminated or 
modified;
    (7) The existence of an erroneous payment;
    (8) The recovery of the amount of an erroneous payment;
    (9) The eligibility of an individual for a supplemental annuity or 
the amount of such supplemental annuity;
    (10) Whether representative payment shall serve the best interests 
of an annuitant as a result of that individual's incapacity to manage 
his annuity payments; and
    (11) Who shall be designated or continued as representative payee on 
behalf of an annuitant.
    (b) Adjudication of claim and the issuance of initial decision. 
Adjudication of a claim and the issuance of an initial decision shall be 
in accordance with instructions issued by the Board and shall be made 
upon the basis of evidence submitted by the claimant and evidence 
otherwise available.
    (c) Recovery of erroneous payment. A decision to recover the amount 
of an erroneous payment under paragraph

[[Page 512]]

(a)(8) of this section by suspension or reduction of a monthly benefit 
payable by the Board shall not be made prior to a date 30 calendar days 
after the date on which notice of the erroneous payment decision is sent 
to the beneficiary or payee of the benefit as provided in Sec. 
260.1(d)(6).
    (d) Notice of initial decision. (1) In all cases except those 
described in paragraph (d)(2) through (4) and (6) of this section, 
written notice of an initial decision shall be mailed by the Board to 
the claimant, annuitant or payee of an annuity at the individual's last 
known address within 30 calendar days after such decision is made. Such 
notice shall inform the claimant, annuitant or payee of an annuity of 
the reason(s) for the decision and such individual's right to 
reconsideration of such initial decision as provided in Sec. 260.3.
    (2) No notice of an initial decision by the Board shall be required 
when the death of an annuitant causes the entitlement to an annuity to 
cease.
    (3) When an initial decision is made that an annuitant's entitlement 
to a disability has ended, written notice of the decision shall be 
mailed to the annuitant or payee of an annuity at the annuitant's or 
payee's last known address. Such notice shall inform the annuitant or 
payee of an annuity:
    (i) Of the date on which the recovery from disability is found to 
have occurred;
    (ii) Of the reason(s) supporting such a finding of recovery;
    (iii) That entitlement to the annuity ends on the last day of the 
second month after the month in which disability ends as described in 
Sec. 220.181;
    (iv) That the Board will stop payment of the annuitant's disability 
annuity with the last day of the second month following the month in 
which disability ends as described in Sec. 220.181, or the last day of 
the first month following the month in which the notice provided by this 
paragraph is sent by the Board, whichever date is later:
    (v) That any annuity payments received after entitlement has ended 
will have to be repaid unless waiver of recovery is appropriate;
    (vi) That prior to the termination date of the annuity the annuitant 
or payee of an annuity may submit to the Board any information in 
writing which the annuitant or payee desires to be considered by the 
Board in its review;
    (vii) That if no information in writing is received by the Board 
before the termination date the annuity will be terminated as scheduled 
on that date; and
    (viii) That the annuitant or payee has the right to reconsideration 
of such decision as provided in Sec. 260.3.
    (4) When an initial decision would result in the termination of an 
annuity for which there are competing claims or as a result of the 
receipt by the Board of information from a source other than the 
annuitant or payee of an annuity, written notice of the proposed 
decision shall be mailed to the annuitant or payee of an annuity at such 
annuitant's or payee's last known address. Such notice shall inform the 
annuitant or payee of an annuity:
    (i) Of the reason(s) for the annuity termination;
    (ii) That the annuitant or payee has 30 calendar days from the date 
of the notice to submit to the Board any information in writing which 
such annuitant or payee desires to be considered by the Board in its 
review;
    (iii) That payment of the annuity will either cease or a decision to 
continue payment of such annuity shall be made after the Board has 
considered any information in writing which may be submitted to the 
Board within 30 calendar days from the date of the notice;
    (iv) That if no information in writing is received within 30 
calendar days from the date of the notice, payment of the annuity will 
cease at the end of that 30-day period; and
    (v) That the annuitant or payee has the right to reconsideration of 
such decision as provided in Sec. 260.3.
    (5) Whenever the Board receives any significant information in 
writing from an annuitant or payee of an annuity as a result of mailing 
the notice described in paragraph (d)(4) of this section, the Board 
shall forward a copy of such information to each of the individuals who 
has filed a competing claim for such annuity informing them that:

[[Page 513]]

    (i) The annuity will either be terminated at the specified time or a 
decision to continue payment of the annuity will be made by the Board; 
and
    (ii) They may respond to such information and their response will be 
considered by the Board provided that it is received by the Board within 
a reasonable time. When the Board decision in such case is to continue 
payment of the annuity, the Board shall send notice of such initial 
decision to each of the competing claimants in accordance with paragraph 
(d)(1) of this section.
    (6) When an initial decision that an erroneous payment has been made 
to a beneficiary is made under paragraph (a)(7) of this section, written 
notice of that decision shall be mailed to the beneficiary or payee of 
the benefit at such beneficiary's or payee's last known address within 
30 calendar days after such decision is made. Such notice shall inform 
the beneficiary or payee:
    (i) Of the reason(s) for the decision;
    (ii) Of the methods by which recovery may be made;
    (iii) Of the possibility of waiver of recovery of the erroneous 
payment;
    (iv) Of the conditions which must be met before waiver of recovery 
could be granted;
    (v) That the beneficiary may request waiver of recovery of the 
erroneous payment and/or reconsideration of the erroneous payment 
decision as provided in Sec. 260.4; and
    (vi) Of the possibility of an oral hearing with respect to the 
issues of waiver of recovery and reconsideration of the erroneous 
payment decision.

[47 FR 36809, Aug. 24, 1982, as amended at 55 FR 39146, Sept. 25, 1990; 
56 FR 13040, Mar. 28, 1991; 67 FR 77153, Dec. 17, 2002]



Sec. 260.2  Initial decisions on the amount of service and compensation 
credited to an employee.

    Within 30 days after receipt of a timely request by an employee for 
amendment with respect to the number of service months and amount of 
compensation credited to the employee by the Board under the Railroad 
Retirement Act and the Railroad Unemployment Insurance Act, the Board 
shall appoint a qualified employee to make a determination with respect 
to such matter. The employee appointed by the Board shall promptly 
render a decision. Written notice of such decision shall be communicated 
to the employee within 30 days after such decision is made. Such 
decision shall include notification of the employee's right to 
reconsideration of the initial decision as provided in Sec. 260.3. For 
purposes of this section, a timely request to amend an employee's record 
of service months and compensation maintained under the Railroad 
Retirement Act shall be filed within four years after the date on which 
the report of service months and compensation was required to be made to 
the Board by the employee's employer. See Sec. 211.16 of this chapter.

[67 FR 77153, Dec. 17, 2002]



Sec. 260.3  Request for reconsideration of initial decision.

    (a) Right to file request for reconsideration. Every claimant shall 
have the right to file a request for reconsideration of an initial 
decision described in Sec. 260.1(a) or in Sec. 260.2. Provided, 
however, That:
    (1) An individual under age 18 shall not have the right to 
reconsideration of a finding of incapacity to manage his or her annuity 
payments, but shall have the right to contest the finding that he or she 
is, in fact, under age 18;
    (2) An individual who has been adjudged legally incompetent shall 
not have the right to reconsideration of a finding of incapacity to 
manage his or her annuity payments, but shall have the right to contest 
the fact of his or her having been adjudged legally incompetent; and
    (3) An individual shall not have the right to reconsideration of a 
denial of his or her application to serve as representative payee on 
behalf of an annuitant. Such request for reconsideration shall be filed 
and disposed of in the manner prescribed in this section, except that a 
request for reconsideration of an initial erroneous payment decision 
under Sec. 260.1(a)(7) shall be filed and disposed of in the manner 
prescribed in Sec. 260.4.
    (b) Written request for reconsideration. A written request for 
reconsideration may be filed with any office of the Board within 60 days 
from the date on which notice of the initial decision is

[[Page 514]]

mailed to the claimant. The claimant shall state the basis for the 
reconsideration request and provide any additional evidence which is 
available. No hearing will be provided.
    (c) Right to further review of initial decision. The right to 
further review of an initial decision shall be forfeited unless a 
written request for reconsideration is filed within the time period 
prescribed in this section or good cause is shown by the claimant for 
failing to file a timely request for reconsideration.
    (d) Timely request for reconsideration. In determining whether the 
claimant has good cause for failure to file a timely request for 
reconsideration the bureau director shall consider the circumstances 
which kept the claimant from filing the request on time and if any 
action by the Board misled the claimant. Examples of circumstances where 
good cause may exist include, but are not limited to:
    (1) A serious illness which prevented the claimant from contacting 
the Board in person, in writing, or through a friend, relative or other 
person;
    (2) A death or serious illness in the claimant's immediate family 
which prevented him or her from filing;
    (3) The destruction of important and relevant records;
    (4) A failure to be notified of a decision;
    (5) An unusual or unavoidable circumstance existed which 
demonstrates that the claimant would not have known of the need to file 
timely or which prevented the claimant from filing in a timely manner; 
or
    (6) The claimant thought that his or her representative had 
requested reconsideration.
    (e) Impartial review. The reconsideration of the initial decision 
shall be conducted by a person who shall not have any interest in the 
parties or in the outcome of the proceedings, shall not have directly 
participated in the initial decision which has been requested to be 
reconsidered and shall not have any other interest in the matter which 
might prevent a fair and impartial decision.
    (f) Timely review. The Board shall make every effort to issue a 
decision upon reconsideration and send a copy of the decision to the 
claimant within 60 days of the date that the decision for 
reconsideration is filed.
    (g) Right to appeal adverse decision. If the reconsideration 
decision is adverse to the claimant, annuitant or payee, he or she shall 
be notifed of his or her right to appeal the decision to the Bureau of 
Hearings and Appeals, as provided in Sec. 260.5.

[47 FR 36809, Aug. 24, 1982, as amended at 48 FR 51448, Nov. 9, 1983; 55 
FR 39146, Sept. 25, 1990; 67 FR 77153, Dec. 17, 2002]



Sec. 260.4  Request for waiver of recovery of an overpayment and/or 
for reconsideration of an initial erroneous payment decision.

    (a) General. A beneficiary who has been determined to have received 
an erroneous payment under Sec. 260.1(a)(7) shall have the right, upon 
the filing of a timely request in accordance with the requirements of 
this section, to request waiver of recovery of the erroneous payment 
and/or reconsideration of the erroneous payment decision. The 
beneficiary shall have the right to an informal oral hearing on the 
issue of waiver of recovery and/or reconsideration of the erroneous 
payment decision, before an employee of the Board designated to conduct 
such a hearing, prior to commencement of recovery by suspension or 
reduction of a monthly benefit.
    (b) Request for waiver of recovery and/or reconsideration of an 
erroneous payment decision and for a personal conference. A request for 
reconsideration of an erroneous payment decision must be filed in 
accordance with Sec. 260.3(b) of this part. A request for waiver of 
recovery of an overpayment decision and for a personal conference under 
this section shall be in writing and addressed to the field office of 
the Board set forth in the initial decision letter or to the Debt 
Recovery Manager and shall be filed within 60 calendar days from the 
date on which notice of the overpayment decision was sent to the 
beneficiary. The beneficiary shall state in the request whether he or 
she elects to have a personal conference. If the beneficiary does not 
elect to have a personal conference with respect to his or her request 
for waiver of recovery or for reconsideration of the overpayment 
decision, he or she may, along with the

[[Page 515]]

request, submit any evidence and argument which he or she would like to 
present in support of his or her case.
    (c) Right to further review of an initial overpayment decision. The 
right to further review of an initial overpayment decision shall be 
forfeited unless a written request for reconsideration is filed within 
the time period prescribed in Sec. 260.3(b) of this part (60 days) or 
good cause, as defined in section 260.3(d) of this part, is shown by the 
beneficiary for failing to file a timely request for reconsideration. 
Nothing in this section shall be taken to mean that waiver of recovery 
will not be considered in these cases where the request for waiver is 
not filed within 60 days, but action to recover the erroneous payment 
will not be deferred if such a request is not filed within 60 days. Any 
amounts recovered prior to the date on which the request for waiver as 
permitted under the preceding sentence is filed shall not be waived 
under part 255 of this chapter.
    (d) Delay in commencement of recovery of erroneous payment. Where a 
timely request for waiver or reconsideration is filed as provided in 
this section, the Board shall not commence recovery of the erroneous 
payment by suspension or reduction of a monthly benefit payable by the 
Board until a decision with respect to such request for waiver or 
reconsideration has been made and notice thereof mailed to the claimant.
    (e) Impartial review. Upon receipt of a timely request for personal 
conference under this section, the Board shall promptly arrange for the 
selection of a Board employee to conduct a personal conference in the 
case. The employee designated to conduct the personal conference under 
this section shall not have had any prior involvement with the initial 
erroneous payment decision and shall conduct the personal conference in 
a fair and impartial manner. The employee designated to conduct the 
personal conference under this section shall promptly schedule a time 
and place for the personal conference and promptly notify the 
beneficiary of such. If the beneficiary agrees, the personal conference 
may be conducted by telephone.
    (f) Personal conference. The beneficiary shall upon request have the 
opportunity to review, prior to the personal conference, his or her 
claim folder and all documents pertinent to the issues raised. A 
personal conference conducted under this section shall be informal. At 
the personal conference the beneficiary shall be afforded the following 
rights:
    (1) To present his or her case orally and to submit evidence, 
whether through witnesses or documents;
    (2) To cross-examine adverse witnesses who appear at the personal 
conference; and
    (3) To be represented by counsel or other person.
    (g) Preparation of recommended decision. Upon completion of the 
personal conference the employee who conducts the personal conference 
shall prepare a summary of the case including a statement of the facts, 
the employee's findings of fact and law, and a recommended decision.
    (h) Timely review. The Board shall make every effort to render a 
decision with respect to the beneficiary's request for reconsideration 
of the initial erroneous payment determination and/or waiver of recovery 
and notify the beneficiary of that decision within 60 days of the date 
that the request for reconsideration and/or waiver is filed or the date 
that the summary of the case is received from the employee who conducts 
the personal conference, whichever is later.
    (i) Right to appeal adverse decision. If the Board renders a 
decision adverse to the beneficiary, he or she may appeal the decision 
to the Bureau of Hearings and Appeals, as provided in Sec. 260.5 of 
this part.
    (j) Repayment is not a bar to requesting waiver and/or 
reconsideration. The fact that a beneficiary may have notified the Board 
with respect to the method by which he or she could choose to have the 
recovery made, or the fact that such beneficiary may have actually 
tendered to the Board a portion or

[[Page 516]]

all of the amount of the erroneous payment, shall in no way operate to 
prejudice his or her right to request reconsideration of the initial 
erroneous payment determination or to request waiver of recovery.

[47 FR 36809, Aug. 24, 1982, as amended at 55 FR 39146, Sept. 25, 1990; 
67 FR 77153, Dec. 17, 2002]



Sec. 260.5  Appeal from a reconsideration decision.

    (a) General. Every claimant shall have a right to appeal to the 
Bureau of Hearings and Appeals from any reconsideration decision with 
which he or she disagrees.
    (b) Appeal from a reconsideration decision. Appeal from a 
reconsideration decision shall be made by filing the form prescribed by 
the Board for such purpose. Such appeal must be filed with the Bureau of 
Hearings and Appeals within 60 days from the date upon which notice of 
the reconsideration decision is mailed to the claimant. Any written 
request stating an intent to appeal which is received within the 60-day 
period will protect the claimant's right to appeal, provided that the 
claimant files the appeal form within the later of the 60-day period 
following the date of the reconsideration decision, or the 30-day period 
following the date of the letter sending the form to the claimant.
    (c) Right to review of a reconsideration decision. The right to 
review of a reconsideration decision shall be forfeited unless an appeal 
is filed in the manner and within the time prescribed in this section. 
However, when a claimant fails to file an appeal with the Bureau of 
Hearings and Appeals within the time prescribed in this section, the 
hearings officer may waive this requirement of timeliness. Such waiver 
shall only occur in cases where the claimant has made a showing of good 
cause for failure to file a timely appeal. Good cause for failure to 
file a timely appeal will be determined by a hearings officer in the 
manner prescribed in Sec. 260.3(d) of this part.
    (d) Delay in the commencement of recovery of erroneous payment. 
Where a timely appeal seeking waiver of recovery of an erroneous payment 
has been filed with the Bureau of Hearings and Appeals, the Board shall 
not commence recovery of the erroneous payment by suspension or 
reduction of a monthly benefit payable by the Board until a decision 
with respect to such appeal seeking waiver has been made and notice 
thereof has been mailed to the claimant.
    (e) Impartial review. Within 30 days after the claimant has filed a 
proper appeal, the Director of Hearings and Appeals shall appoint a 
hearings officer to act on the appeal. The Director of Hearings and 
Appeals may, if the Bureau of Hearings and Appeals' caseload dictates, 
appoint a qualified Board employee, other than a hearings officer 
assigned to the Bureau of Hearings and Appeals, to act as a hearings 
officer with respect to a case. Such hearings officer shall not have any 
interest in the parties or in the outcome of the proceedings, shall not 
have directly participated in the initial decision or the 
reconsideration decision from which the appeal is made, and shall not 
have any other interest in the matter which might prevent a fair and 
impartial decision.
    (f) Power of hearings officer to conduct hearings. In the 
development of appeals, the hearings officer shall have the power to 
hold hearings, require and compel the attendance of witnesses by 
subpoena or otherwise in accordance with the procedures set forth in 
part 258 of this chapter, administer oaths, rule on motions, take 
testimony, and make all necessary investigations.
    (g) Evidence presented in support of appeal. (1) The appellant, or 
his or her representative, shall be afforded full opportunity to present 
testimony, or written evidence or exhibits upon any controversial 
question of fact; to examine and cross-examine witnesses; and to present 
argument in support of the appeal.
    (2) The formal rules of evidence shall not apply; however, the 
hearings officer may exclude evidence which he or she finds is 
irrelevant or repetitious. Any evidence excluded by the hearings officer 
shall be described and that description made part of the record.
    (3) If, in the judgment of the hearings officer, evidence not 
offered by the appellant is available and is relevant and material to 
the merits of the claim, the

[[Page 517]]

hearings officer may obtain such evidence upon his or her own 
initiative. If new evidence is obtained after an oral hearing, other 
than evidence submitted by the appellant or his or her representative, 
the hearings officer shall provide the appellant or his or her 
representative with a copy of such evidence. In such event, the 
appellant shall have 30 days to submit rebuttal evidence or argument or 
to request a supplemental hearing to confront and challenge such new 
evidence. The appellant may move for an extension of time to submit 
rebuttal evidence or argument and the hearings officer may grant the 
motion upon a showing of good cause.
    (h) Submission of written argument in lieu of oral hearings. Where 
the hearings officer finds that no factual issues are presented by an 
appeal, and the only issues raised by the appellant are issues 
concerning the application or interpretation of law, the appellant or 
his or her representative shall be afforded full opportunity to submit 
written argument in support of the claim but no oral hearing shall be 
held.
    (i) Conduct of oral hearing. (1) In any case in which an oral 
hearing is to be held, the hearings officer shall schedule a time and 
place for the conduct of the hearing. The hearing shall not be open to 
the public. The hearings officer shall promptly notify by mail the party 
or parties to the proceeding as to the time and place for the hearing. 
The notice shall include a statement of the specific issues involved in 
the case. The hearings officer shall make every effort to hold the 
hearing within 150 days after the date the appeal is filed.
    (2) If the appellant objects to the time or place of the hearing, he 
or she must notify the hearings officer no later than 5 calendar days 
before the time set for the hearing. The appellant must state the reason 
for his or her objection. If at all possible, the request should be in 
writing. The hearings officer will change the time or place of the 
hearing if he or she finds there is good cause to do so.
    (3) The hearings officer shall rule on any objection timely filed by 
a party under paragraph (i) of this section and shall notify the party 
of his or her ruling thereon. The hearings officer may for good cause 
shown, or upon his or her own motion, reschedule the time and/or place 
of the hearing. The hearings officer also may limit or expand the issues 
to be resolved at the hearing.
    (4) If neither a party nor his or her representative appears at the 
time and place scheduled for the hearing, that party shall be deemed to 
have waived his or her right to an oral hearing unless said party either 
filed with the hearings officer a notice of objection showing good cause 
why the hearing should have been rescheduled, which notice was timely 
filed but not ruled upon, or, within 10 days following the date on which 
the hearing was scheduled, said party files with the hearings officer a 
motion to reschedule the hearing showing good cause why neither the 
party nor his or her representative appeared at the hearing and further 
showing good cause as to why said party failed to file at the prescribed 
time any notice of objection to the time and place of the hearing.
    (5) If the hearings officer finds either that a notice of objection 
was timely filed showing good cause to reschedule the hearing, or that 
the party has within 10 days following the date of the hearing filed a 
motion showing good cause for failure to appear and to file a notice of 
objection, the hearings officer shall reschedule the hearing. If the 
hearings officer finds that the hearing shall not be rescheduled, he or 
she shall so notify the party in writing.
    (j) Record of evidence considered. The hearings officer will make a 
record of the material evidence. The record will include the 
applications, written statements, reports, and other documents that were 
used in making the determination under review and any other additional 
evidence the appellant or any other party to the hearing presents in 
writing. If a hearing was held in the appeal, the tape recording of the 
hearing will be part of the record while the appeal is pending. The 
hearings officer's decision will be based on the record. The entire 
record at any time during the pendency of the appeal shall be available 
for examination by the appellant or by his or her duly authorized 
representative.

[[Page 518]]

    (k) Extension of time to submit evidence. Except where the hearings 
officer has determined that additional evidence not offered by the 
appellant at or prior to the hearing is available, the record shall be 
closed as of the conclusion of the hearing. The appellant may request an 
extension of time to submit evidence and the hearings officer will grant 
the request upon a showing of good cause for failure to have submitted 
the evidence earlier. The extension shall be for a period not exceeding 
30 days.
    (l) Hearing by telephone. At the discretion of the hearings officer, 
any hearing required under this part may be conducted by telephone 
conference.

(The information collection requirements contained in paragraph (b) were 
approved by the Office of Management and Budget under control number 
3220-0007)

[67 FR 77154, Dec. 17, 2002]



Sec. 260.6  Time limits for issuing a hearing decision.

    (a) General. The hearings officer shall make every effort to issue a 
decision within 45 days after the hearing is held.
    (b) Submission of additional evidence. If the hearings officer 
requests additional evidence, he or she shall do so within 30 days after 
the hearing is held and he or she shall make every effort to issue the 
hearing decision within 45 days after the additional evidence is 
received and the period for comment has ended. If the claimant wishes to 
submit additional evidence or written statements of fact or law, the 
hearings officer shall make every effort to issue the hearing decision 
within 45 days after the written statements are received or the 
additional evidence is received and the period for comment has ended.
    (c) Supplemental hearing. If on the basis of additional evidence the 
hearings officer decides a supplemental hearing is necessary, the 
supplemental hearing will be held within 30 days after the receipt of 
the additional evidence and the hearings officer shall make every effort 
to issue a decision within 30 days after the supplemental hearing is 
held.
    (d) Reassignment of case to another hearings officer. If, after a 
hearing has been held, it is necessary to reassign a case to another 
hearings officer due to the unavailability of the original hearings 
officer (e.g., resignation, retirement, illness), the case will be 
promptly reassigned. The new hearings officer shall make every effort to 
issue a hearing decision within 30 days after the reassignment.



Sec. 260.7  Time limits for issuing a decision when a hearing is not 
held.

    If a claimant waives his or her right to appear at a hearing and the 
hearings officer does not schedule the case for hearing, or the evidence 
in the record supports a favorable decision without a hearing, or a 
hearing is not required pursuant to Sec. 260.5(g), the hearings officer 
shall make every effort to issue a decision within 90 days from the date 
the appeal is filed: Provided, however, that if the hearings officer 
requests additional evidence it shall be requested within 45 days of the 
filing of the appeal and the hearings officer shall make every effort to 
issue a decision within 30 days after the additional evidence is 
received and the appellant comments on the evidence, or if no comment is 
received after the close of the comment period.



Sec. 260.8  Pre-hearing case review.

    (a) General. The hearings officer assigned to a case may, prior to 
an oral hearing, upon his or her own motion, refer the case back to the 
office of the Board which issued the initial decision for the purpose of 
reconsideration of that decision, where the hearings officer finds that:
    (1) Additional evidence pertinent to the resolution of the issues on 
appeal was submitted by the appellant at the time the appeal was filed, 
or subsequent thereto; or
    (2) Additional evidence pertinent to the resolution of the issues on 
appeal is available and should be procured; or
    (3) There is some other indication in the record that the initial 
decision may be revised in a manner favorable to the appellant.
    (b) Referral of case for further review by initial adjudicating 
unit. Where the hearings officer finds that referral of a case back to 
the office which issued the initial decision for the purpose of 
reconsideration of that decision would be warranted, the hearings 
officer shall

[[Page 519]]

give that office the reason for such referral, together with specific 
directions as to the handling of the case on reconsideration.
    (c) Reconsideration of case by initial adjudicating unit. The office 
to which a case is referred shall promptly undertake any additional 
development required, and shall make a determination as to whether the 
initial determination may be revised in whole or in part in a manner 
favorable to the appellant. Upon issuance of its determination, the 
office in question shall return the case along with a copy of its 
decision to the hearings officer.
    (d) Revision of initial decision in whole or in part. Where the 
office to which a case is referred determines to revise its initial 
decision in whole or in part, that office shall notify the appellant of 
such determination. If the revised determination is wholly favorable to 
the appellant, he or she shall be notified that the appeal to the Bureau 
of Hearings and Appeals will be dismissed by the hearings officer 
assigned to the case. If the revised decision is partially favorable to 
the appellant, the notice shall inform the appellant that the hearings 
officer will proceed with the portion of the appellant's case not 
revised in his or her favor, unless the appellant should request 
dismissal of the appeal.
    (e) Timely conduct of oral hearing. The fact that a case on appeal 
has been referred back to the office which issued the initial decision 
in the case shall not delay the conduct of a hearing scheduled with 
respect to the appeal, unless the appellant agrees to a delay. If it 
appears that the office to which a case has been referred will not have 
completed its reconsideration of the case prior to the date of a 
scheduled hearing on an appeal and the appellant has not agreed to a 
delay in the conduct of the hearing, the hearings officer shall proceed 
with the hearing and the handling of the case as though the case had not 
been referred back to the office.

[47 FR 36809, Aug. 24, 1982, as amended at 67 FR 77155, Dec. 17, 2002]



Sec. 260.9  Final appeal from a decision of the hearings officer.

    (a) General. Every appellant shall have a right to a final appeal to 
the Railroad Retirement Board from any decision of a hearings officer by 
which he or she claims to be aggrieved.
    (b) Appeal from decision of hearings officer. Final appeal from a 
decision of a hearings officer shall be made by the execution and filing 
of the final appeal form prescribed by the Board. Such appeal must be 
filed with the Board within 60 days from the date upon which notice of 
the decision of the hearings officer is mailed to the appellant at the 
last address furnished by him or her. Any written request stating an 
intent to appeal which is received within the 60-day period will protect 
the claimant's right to appeal, Provided that the claimant files the 
appeal form within the later of the 60-day period following the date of 
the hearing officer's decision, or the 30-day period following the date 
of the letter sending the form to the claimant.
    (c) Timely filing. The right to further review of a decision of a 
hearings officer shall be forfeited unless formal final appeal is filed 
in the manner and within the time prescribed in Sec. 260.9(b). However, 
when a claimant fails to file an appeal before the Board within the time 
prescribed in this section, the Board may waive this requirement if, 
along with the final appeal form, the appellant in writing requests an 
extension of time. The request for an extension of time must give the 
reasons why the final appeal form was not filed within the time limit 
prescribed in this section. If in the judgment of the Board the reasons 
given establish that the appellant had good cause for not filing the 
final appeal form within the time prescribed, the Board will consider 
the appeal to have been filed in a timely manner. The Board will use the 
standards found in Sec. 260.3(d) of this chapter in determining if good 
cause exists.
    (d) Delay in the commencement of recovery of erroneous payment. 
Where a timely appeal seeking waiver of recovery of an erroneous payment 
has been filed with the three-member Board, the Board shall not commence 
recovery of the erroneous payment by suspension

[[Page 520]]

or reduction of a monthly benefit payable by the Board until a decision 
with respect to such appeal seeking waiver has been made and notice 
thereof has been mailed to the claimant.
    (e) Submission of additional evidence. Upon final appeal to the 
Board, the appellant shall not have the right to submit additional 
evidence. However, the Board may grant a request to submit new evidence 
where new and material evidence is available that, despite due 
diligence, was not available before the decision of the hearings officer 
was issued. The Board may also obtain new evidence on its own motion. 
Upon admission of new evidence, the Board, at its discretion, may:
    (1) Vacate the decision of the hearings officer and remand the case 
to the Bureau of Hearings and Appeals for issuance of a new decision. 
The decision of the hearings officer on remand may be appealed to the 
Board in the manner described in paragraph (b) of this section; or
    (2) Return the case to the hearings officer for further 
consideration with direction to submit a recommended decision to the 
Board.
    (f) Decision of the Board. The decision of the Board shall be made 
upon the record of evidence developed by the hearings officer and any 
additional evidence admitted pursuant to paragraph (e) of this section. 
The appellant may submit additional argument in writing with the appeal 
to the Board. The appellant shall have no right to an oral presentation 
before the Board except where the Board so permits. Such presentation 
shall be limited in form, subject matter, length, and time as the Board 
may indicate to the appellant.
    (g) Issuance of decision. The Board shall make every effort to issue 
a decision within 90 days after the later of:
    (1) The date the final appeal is filed;
    (2) The date new or better evidence is obtained in accordance with 
Sec. 260.9(d) and the appellant has commented on it;
    (3) The date new or better evidence is obtained in accordance with 
Sec. 260.9(d) and after the close of the comment period;
    (4) The date further argument submitted in accordance with Sec. 
260.9(e) is received; or
    (5) The date the record is returned to the Board following referral 
back to the hearings officer.
    (h) Review of decisions rendered prior to appeal to Board. The Board 
may, on its own motion, review or cause to be reviewed any decision 
issued by a subordinate official or employee under this part.

(The information collection requirements contained in paragraph (b) were 
approved by the Office of Management and Budget under control number 
3220-0007)

[47 FR 36809, Aug. 24, 1982, as amended at 50 FR 19523, May 9, 1985; 52 
FR 11017, Apr. 6, 1987; 67 FR 77155, Dec. 17, 2002; 68 FR 6820, Feb. 11, 
2003]



Sec. 260.10  Determination of date of filing.

    (a) General rule. Except as otherwise provided in paragraph (b) of 
this section, for purposes of this part, a document or form is filed on 
the day it is received by an office of the Board or by an employee of 
the Board who is authorized to receive it at a place other than one of 
the Board's offices.
    (b) Other dates of filing. The Board will also accept as the date of 
filing the date a document or form is mailed to the Board by the United 
States mail, if using the date the Board receives it would result in the 
loss or lessening of rights. The date shown by a U.S. postmark will be 
used as the date of mailing. If the postmark is unreadable, or there is 
no postmark, the Board will consider other evidence of when the document 
or form was mailed to the Board.

[67 FR 77156, Dec. 17, 2002]



PART 261_ADMINISTRATIVE FINALITY--Table of Contents




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.

[[Page 521]]

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.

    Source: 62 FR 45713, Aug. 29, 1997, unless otherwise noted.



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

[[Page 522]]

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;
    (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

[[Page 523]]

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.

                           PART 262 [RESERVED]



PART 266_REPRESENTATIVE PAYMENT--Table of Contents




Sec.
266.1 Introduction.
266.2 Recognition by the Board of a person to act in behalf of another.
266.3 Information considered in determining whether to make 
          representative payments.
266.4 Information considered in selecting a representative payee.
266.5 Order of preference in selecting a representative payee.
266.6 Information to be submitted by a representative payee applicant; 
          face-to-face interview.
266.7 Accountability of a representative payee.
266.8 Advance notice of the determination to make representative 
          payment.
266.9 Responsibilities of a representative payee.
266.10 Use of benefit payments.
266.11 Conservation and investment of benefit payments.
266.12 Effect of matters or actions submitted or taken by legal 
          guardian, etc.
266.13 When a new representative payee will be selected.
266.14 When representative payment will be stopped.
266.15 Transfer of accumulated benefit payments.

    Authority: 45 U.S.C. 231k and 231f.

    Source: 59 FR 3992, Jan. 28, 1994, unless otherwise noted.



Sec. 266.1  Introduction.

    (a) Explanation of representative payment. This part explains the 
principles and procedures that the Board follows in determining whether 
to make representative payment and in selecting a representative payee. 
It also explains

[[Page 524]]

the responsibilities that a representative payee has concerning the use 
of the funds which he or she receives on behalf of an annuitant. A 
representative payee may be either a person or an organization selected 
by the Board to receive benefits on behalf of an annuitant. A 
representative payee will be selected if the Board believes that the 
interest of an annuitant will be served by representative payment rather 
than direct payment of benefits. Generally, the Board will appoint a 
representative payee if it determines that the annuitant is not able to 
manage or direct the management of benefit payments in his or her 
interest.
    (b) Statutory authority. Section 12 of the Railroad Retirement Act 
provides that every annuitant and claimant shall be conclusively 
presumed to have been competent until the date on which the Board 
receives a notice in writing that a legal guardian or other person 
legally vested with the care of the person or estate of an incompetent 
or a minor has been appointed: Provided, however, That despite receiving 
such notice, the Board may, if it finds the interests of such annuitant 
or claimant to be served thereby, recognize actions by, conduct 
transactions with, and make payments to such annuitant or claimant.
    (c) Policy used to determine whether to make representative payment. 
(1) In accordance with section 12 of the Railroad Retirement Act, the 
Board's policy is that every annuitant has the right to manage his or 
her own benefits. However, some annuitants due to mental or physical 
condition or due to their youth may be unable to do so. If the Board 
determines that the interests of an annuitant would be better served if 
benefit payments were certified to another person as representative 
payee, the Board will appoint a representative payee in accordance with 
the procedures set forth in this part. The Board may appoint a 
representative payee even if the annuitant is a legally competent 
individual. If the annuitant is a legally incompetent individual, the 
Board may appoint the legal guardian or some other person as a 
representative payee.
    (2) If payment is being made directly to an annuitant and a question 
arises concerning his or her ability to manage or direct the management 
of benefit payments, the Board may, if the annuitant is 18 years old or 
older and has not been adjudged legally incompetent, continue to pay the 
annuitant until the Board makes a determination about his or her ability 
to manage or direct the management of benefit payments and the selection 
of a representative payee.



Sec. 266.2  Recognition by the Board of a person to act in behalf of 
another.

    (a) Regardless of the receipt of written notice of the appointment 
of a guardian or other person legally vested with the care of the person 
or estate of an incompetent or a minor who is receiving or claiming 
benefits or to whom any right or privilege is extended under the law, 
the Board may, in its discretion, validly recognize actions by and 
conduct transactions with others acting on behalf of the individual 
found by the Board to be a minor or to be unable to manage his or her 
affairs, if the Board finds such actions or transactions to be in the 
best interest of such individual.
    (b) In the absence of a written notice of the appointment of a 
guardian or other person legally vested with the care of the person or 
estate of an incompetent or minor, the Board shall, except where special 
circumstances appear, recognize a person to act on behalf of an 
individual under the following circumstances:
    (1) When the individual has been adjudged mentally incompetent by a 
court having jurisdiction to do so;
    (2) When the individual has been committed to a mental institution 
by a court having jurisdiction to do so;
    (3) When the individual is an inmate of a mental institution;
    (4) When the individual is less than 16 years of age; or
    (5) When the individual is between 16 and 18 years of age and is in 
the care of another person and does not have the capacity to act on his 
or her own behalf.

[[Page 525]]



Sec. 266.3  Information considered in determining whether to make 
representative payments.

    In determining whether to make representative payment, the Board may 
consider the following information:
    (a) Evidence of legal guardianship. Evidence of the appointment of a 
legal guardian or other person legally vested with the care of the 
person or estate of an incompetent or a minor shall be a certified copy 
of the court's determination.
    (b) Medical evidence. The Board may use medical evidence, when such 
is available, to help determine whether an annuitant is capable of 
managing or directing the management of benefit payments. For example, a 
statement by a physician or other medical professional based upon his or 
her recent examination of the annuitant and his or her knowledge of the 
annuitant's present condition will be used in the Board's determination, 
if it includes information concerning the nature of the annuitant's 
illness, the annuitant's chances for recovery and the opinion of the 
physician or other medical professional as to whether the annuitant is 
able to manage or direct the management of benefit payments.
    (c) Other evidence. The Board may also consider statements of 
relatives, friends, and other people in a position to know and observe 
the annuitant, which contain information helpful to the Board in 
deciding whether the annuitant is able to manage or direct the 
management of benefit payments.



Sec. 266.4  Information considered in selecting a representative payee.

    In selecting a representative payee, the Board tries to select the 
person, agency, organization or institution that will best serve the 
interest of the annuitant. In making this selection, the Board may 
consider such factors as the following:
    (a) The relationship of the person to the annuitant, including the 
type of relationship, e.g., family or legal guardianship; degree of 
relationship, if the person is a family member; and the length of 
association, if a non-family member;
    (b) The amount of interest that the person shows in the annuitant, 
including the contributions the person makes to the welfare of the 
annuitant and the contacts and frequency of such contacts with the 
annuitant;
    (c) Any legal authority the person, agency, organization or 
institution has to act on behalf of the annuitant;
    (d) Whether the potential payee has custody of the annuitant;
    (e) Whether the potential payee is in a position to know of and look 
after the needs of the annuitant;
    (f) Verification of the social security account number, name, 
address, telephone number, place of employment, and main source of 
income if applicable, accepted as part of any person's application for 
designation as a representative payee, unless such person's 
identification has already been established to the satisfaction of the 
Board;
    (g) Whether an applicant for designation as a representative payee 
has ever been convicted of a felony or misdemeanor under the statutes 
administered by the Board or the Social Security Act, or convicted of a 
felony under any other Federal or State law; and
    (h) Whether the services of such person as representative payee have 
previously been terminated, suspended, or declined by the Board or the 
Social Security Administration for:
    (1) Misuse of the benefits of the annuitant for whom they were 
intended;
    (2) Failure to comply with any provision of or regulation under the 
Railroad Retirement Act or the Social Security Act; or
    (3) Failure to meet the requirements of this part.
    (i) Whether the potential payee is a creditor of the annuitant. A 
creditor who provides goods and services to the annuitant ordinarily may 
not serve as a representative payee unless such appointment poses no 
substantial conflict of interest and unless the creditor is:
    (1) A relative who resides with the annuitant;
    (2) A legal guardian or legal representative of the annuitant; or
    (3) A licensed or certified care facility (or owner, administrator 
or employee thereof) where there annuitant resides.

[[Page 526]]



Sec. 266.5  Order of preference in selecting a representative payee.

    As a guide in selecting a representative payee, categories of 
preferred payees have been established. These preferences are flexible. 
The primary concern of the Board is to select the payee who will best 
serve the annuitant's interest. The preferences are:
    (a) For annuitants 18 years old or older, the preference is:
    (1) A legal guardian, spouse, or other relative who has custody of 
the annuitant or who demonstrates strong concern for the personal 
welfare of the annuitant;
    (2) A friend who has custody of the annuitant or demonstrates strong 
concern for the personal welfare of the annuitant;
    (3) A public or nonprofit agency or institution having custody of 
the annuitant;
    (4) A private institution operated for profit and licensed under 
State law, which has custody of the annuitant; and
    (5) Persons other than those listed above who are qualified to carry 
out the responsibilities of a representative payee and who are able and 
willing to serve as a payee for an annuitant; e.g., members of community 
groups or organizations who volunteer to serve as representative payee 
for an annuitant.
    (b) For annuitants under age 18, the preference is:
    (1) A natural or adoptive parent who has custody of the annuitant, 
or a legal guardian;
    (2) A natural or adoptive parent who does not have custody of the 
annuitant, but is contributing toward the annuitant's support and is 
demonstrating strong concern for the annuitant's well-being;
    (3) A relative or stepparent who has custody of the annuitant;
    (4) A natural or adoptive parent who does not have custody of the 
annuitant and is not contributing toward his or her support but is 
demonstrating strong concern for the annuitant's well-being;
    (5) A relative who does not have custody of the annuitant but is 
contributing toward the annuitant's support and is demonstrating concern 
for the annuitant's well-being;
    (6) A relative or close friend who does not have custody of the 
annuitant but is demonstrating concern for the annuitant's well-being; 
and
    (7) An authorized social agency or custodial institution.



Sec. 266.6  Information to be submitted by a representative 
payee-applicant; face-to-face interview.

    Before the Board selects a representative payee, the Board may 
request the payee-applicant to provide information concerning the 
factors listed in Sec. 266.4 of this part. An employee of the Board may 
also conduct a face-to-face interview with the payee-applicant.

(Approved by the Office of Management and Budget under control number 
3220-0052)



Sec. 266.7  Accountability of a representative payee.

    (a) A representative payee is accountable for the use of benefits. 
The Board will require periodic written reports from representative 
payees. The Board may also, at the Board's option, verify how a 
representative payee used benefit payments. A representative payee must 
keep records of what was done with all benefit payments in order to make 
accounting reports. The Board may ask the following questions:
    (1) The amount of benefit payments on hand at the beginning of the 
accounting period;
    (2) How the benefit payments were used;
    (3) How much of the benefit payments were saved and how the savings 
were invested;
    (4) Where the annuitant lived during the accounting period;
    (5) The amount of the annuitant's income from other sources during 
the accounting period. The Board may ask for information about other 
funds to enable the Board to evaluate the use of benefit payments; and
    (6) Whether the representative payee has been convicted of a felony 
or misdemeanor offense under the statutes administered by the Board or 
by the Social Security Administration within the past 15 years or 
whether any such charges are pending.
    (b) An individual to whom payments are certified as representative 
payee on behalf of an annuitant shall submit a

[[Page 527]]

written report in such form and at such times as the Board may require, 
accounting for the payments certified to him or her on behalf of the 
annuitant. If, however, such payee is a court-appointed fiduciary and, 
as such, is required to make an annual accounting to the court, a true 
copy of each such account filed with the court may be submitted in lieu 
of the accounting form prescribed by the Board. If any representative 
payee fails to submit the required accounting within a reasonable period 
of time after it is requested, no further payments shall be made to him 
or her on behalf of the annuitant unless for good cause shown, the 
default of the representative payee is excused by the Board, and the 
required accounting is thereafter submitted.
    (c) At any time after the Board has selected a representative payee, 
the Board may ask such payee to submit information showing a continuing 
relationship to the annuitant and a continuing responsibility for the 
care of the annuitant. If the representative payee does not give the 
Board the requested information within a reasonable period of time, the 
Board may stop paying such payee unless the Board determines that the 
payee had a good reason for not complying with the Board's request, and 
the Board receives the information requested.

(Approved by the Office of Management and Budget under control numbers 
3220-0052 and 3220-0151)
    (d) Where, pursuant to paragraph (b) or (c) of this section, the 
Board suspends payments, such suspension shall not exceed a period of 30 
days; thereafter, the payments will be made to the annuitant except 
where the annuitant is an unemancipated minor under age 18 or where in 
the Board's judgment the interests of the annuitant would not be served 
by releasing payment to the annuitant.



Sec. 266.8  Advance notice of the determination to make representative 
payment.

    (a) As a general rule, whenever the Board intends to make 
representative payment and to name a representative payee, the Board 
will notify the annuitant or, in the case of an unemancipated minor 
under age 18, or an individual who is legally incompetent, the 
individual acting on his or her behalf of the Board's proposed actions. 
Such notice will tell the person that the Board plans to name a 
representative payee and who that payee will be. The notice will also 
ask the person to contact the Board within 15 days of the date of the 
notice if he or she objects to either proposed action. If he or she 
objects to either proposed action, the objecting party may--
    (1) Review the evidence upon which the proposed actions will be 
based; and
    (2) Submit any additional evidence regarding the proposed actions.
    (b) If the objecting party objects to the proposed actions, the 
Board will review its proposed determinations and consider any 
additional information provided. The Board will then issue a decision on 
whether to appoint a representative payee and who that payee will be. If 
the objecting party is dissatisfied with either determination, he or she 
may request a reconsideration under part 260 of this chapter.
    (c) If the objecting party does not file a timely objection to the 
proposed actions, the Board will issue a decision on whether to appoint 
a representative payee and who that payee will be. If the objecting 
party is dissatisfied with either determination, he or she may request a 
reconsideration under part 260 of this chapter.
    (d) A request for reconsideration or an appeal from a determination 
under this section under part 260 of this chapter shall not prevent the 
Board from making payments to a representative payee during the pendency 
of such reconsideration or appeal.
    (e) The Board's failure or refusal to select an individual as 
representative payee or the Board's termination of representative payee 
status with respect to an individual is not subject to a request for 
reconsideration or an appeal under part 260 of this chapter by such 
individual.



Sec. 266.9  Responsibilities of a representative payee.

    (a) A representative payee shall, subject to review by the Board and 
to such requirements as it may from time-to-time prescribe, apply the 
payments

[[Page 528]]

made to him or her on behalf of the annuitant only for the use and 
benefit of such annuitant, and in a manner and for purposes which are in 
the annuitant's best interests.
    (b) A representative payee shall notify the Board of any event that 
will affect the amount of benefits the annuitant receives or the right 
of the annuitant to receive benefits.
    (c) A representative payee shall notify the Board of any change in 
his or her circumstances that would affect performance of the payee 
responsibilities.



Sec. 266.10  Use of benefit payments.

    (a) Current maintenance. Payments made to an individual as 
representative payee on behalf of an annuitant shall be considered as 
having been applied for the use and benefit of the annuitant when they 
are used for the annuitant's current maintenance. Current maintenance 
includes costs incurred in obtaining food, shelter, clothing, medical 
care, and personal comfort items.

    Example: An aged annuitant is entitled to a monthly railroad 
retirement benefit of $800. His son, who is his representative payee, 
disburses his benefits in the following manner:
Rent and utilities..................................................$500
Medical...............................................................50
Food..................................................................80
Clothing(coat)........................................................90
Savings...............................................................60
Miscellaneous.........................................................20

    The above expenditures would represent proper disbursements on 
behalf of the annuitant.

    (b) Institutional care. If an annuitant is receiving care in a 
Federal, state, or private institution because of mental or physical 
incapacity, current maintenance includes the customary charges made by 
the institution in providing care and maintenance, as well as 
expenditures for those items which will aid in the annuitant's recovery 
or release from the institution or expenses for personal needs which 
will improve the annuitant's conditions while in the institution.
    (c) Support of legal dependents. If the current maintenance needs of 
the annuitant are met, the representative payee may use part of the 
payments for the support of the annuitant's legally dependent spouse, 
child, and/or parent.
    (d) Claims of creditors. Where a debt arose prior to the first month 
for which benefits are certified to a representative payee, the 
representative payee may satisfy such debt out of present benefit 
payments only if the current and reasonably foreseeable needs of the 
annuitant are met.

    Example: A retroactive railroad retirement annuity check in the 
amount of $2,100, representing benefits due for November 1989 through 
January 1990, was issued on behalf of the annuitant to the annuitant's 
daughter, who is the representative payee. The check was certified in 
February 1990. The nursing home, where the annuitant resides, is owed 
money for maintenance expenses the annuitant incurred prior to February 
1990.

    If the accrual is not required for the annuitant's current 
maintenance and the annuitant had no foreseeable needs which would 
require large disbursements, the expenditure of the accrual or part 
thereof for the past due maintenance charges would be consistent with 
the Board's guidelines.



Sec. 266.11  Conservation and investment of benefit payments.

    (a) General. If benefit payments made to a representative payee are 
not needed for the annuitant's current maintenance or reasonably 
foreseeable needs or the support of legal dependents or to pay creditors 
in accordance with Sec. 266.10, they shall be conserved or invested on 
behalf of the annuitant. Such funds must be invested in accordance with 
the rules applicable to investment of trust estates by trustees. Any 
investment must show clearly that the representative payee holds the 
property in trust for the annuitant.
    (b) Preferred investments. Preferred investments for excess funds 
are deposits in an interest or dividend paying account in a bank, trust 
company, credit union, or savings and loan association which is insured 
under either Federal or State law, direct obligations of the United 
States Government or obligations for which both principal and interest 
are guaranteed unconditionally by the United States Government. The 
account must be in a form which shows clearly that the representative 
payee has only a fiduciary, and not a personal, interest in the funds. 
If the payee is the legally appointed guardian

[[Page 529]]

or fiduciary of the annuitant, the account may be established to 
indicate this relationship. If the payee is not the legally appointed 
guardian or fiduciary, the accounts may be established as follows:
    (1) For U.S. Savings Bonds--

________________________________________________________________________
(Name of annuitant)
________________________________________________________________________
(Social Security Number), for whom
________________________________________________________________________
(Name of payee)

is representative payee for Railroad Retirement benefits;

    (2) For interest or dividend paying accounts--

________________________________________________________________________
(Name of annuitant) by
________________________________________________________________________
(Name of payee), representative payee.

    (c) Interest and dividend payments. The interest and dividends which 
result from an investment are the property of the annuitant and may not 
be considered to be the property of the representative payee.
    (d) Prohibition against commingling. The representative payee shall 
not commingle his or her personal funds with the representative 
payments. A representative payee may consolidate and maintain an 
annuitant's funds in an account with other annuitants if he or she 
maintains a separate, accurate and complete accounting of each 
annuitant's funds under his or her control.



Sec. 266.12  Effect of matters or actions submitted or taken by legal 
guardian, etc.

    All matters and actions in connection with an annuity submitted or 
taken by the guardian or other person legally vested with the care of 
the person or estate of an incompetent or a minor shall be considered by 
the Board in the same manner and with the same effect as though such 
matters or actions had been submitted or taken by the ward, if the ward 
had capacity to act in his or her own behalf; Provided, however, That 
the Board may, if it deems it necessary, require the guardian or other 
person legally vested with the care of the person or estate of an 
incompetent or a minor to submit a certified copy of an order from the 
court of appointment authorizing some particular action which the 
guardian or other person legally vested with the care of the person or 
estate desires to take in connection with the application.



Sec. 266.13  When a new representative payee will be selected.

    When the Board learns that the interests of the annuitant are not 
served by continuing payment to the present representative payee or that 
the present representative payee is no longer able to carry out the 
payee responsibilities, the Board will undertake to find a new 
representative payee. The Board will select a new representative payee 
if the Board finds a preferred payee or if the present payee--
    (a) Has not used the benefit payments on the annuitant's behalf in 
accordance with the guidelines in this part;
    (b) Has not carried out the other responsibilities described in this 
part;
    (c) Dies;
    (d) No longer wishes to be representative payee;
    (e) Is unable to manage the benefit payments; or
    (f) Fails to cooperate, within a reasonable time, in providing 
evidence, accounting, or other information which the Board requests.



Sec. 266.14  When representative payment will be stopped.

    If an annuitant receiving representative payment shows the Board 
that he or she is mentally and physically able to manage or direct the 
management of benefit payments, the Board will make direct payment to 
the annuitant. Information which the annuitant may give to the Board to 
support his or her request for direct payment include the following:
    (a) A physician's statement regarding the annuitant's condition, or 
a statement by a medical officer of the institution where the annuitant 
is or was confined, showing that the annuitant is able to manage or 
direct the management of his or her funds;
    (b) A certified copy of a court order restoring the annuitant's 
rights in a case where an annuitant was adjudged legally incompetent; or

[[Page 530]]

    (c) Other evidence which establishes the annuitant's ability to 
manage or direct the management of benefits.



Sec. 266.15  Transfer of accumulated benefit payments.

    A representative payee who has conserved or invested funds from 
railroad retirement payments made to him or her on behalf of an 
annuitant shall, upon direction of the Board, transfer any such funds 
(including interest or dividends earned from investment of such funds) 
to a successor representative payee appointed by the Board, or, at the 
option of the Board, shall transfer such funds, including interest, to 
the Board for payment to a successor payee or to the annuitant.



PART 295_PAYMENTS PURSUANT TO COURT DECREE OR COURT-APPROVED PROPERTY 
SETTLEMENT--Table of Contents




Sec.
295.1 Introduction.
295.2 Definitions.
295.3 Documentation and service.
295.4 Review of documentation.
295.5 Limitations.
295.6 Disclosure of information.
295.7 Miscellaneous.

    Authority: 45 U.S.C. 231f; 45 U.S.C. 231m.

    Source: 51 FR 12845, Apr. 16, 1986, unless otherwise noted.



Sec. 295.1  Introduction.

    (a) Purpose. This part implements section 419 of Pub. L. 98-76 (97 
Stat. 438), which amended section 14 of the Railroad Retirement Act to 
provide that, with respect to annuity amounts payable for months 
beginning with September 1983, the Board must comply with a court decree 
of divorce, annulment or legal separation, or with the terms of any 
court-approved property settlement incident to any such decree, which 
characterizes specified benefits as property subject to distribution. 
Garnishment of benefits for alimony or child support is dealt with in 
part 350 of this chapter.
    (b) Benefits subject to this part. Only the following benefits or 
portions of benefits under the Railroad Retirement Act are subject to 
this part:
    (1) Employee annuity net tier II benefit component as provided under 
section 3(b) of the Railroad Retirement Act;
    (2) Employee annuity vested dual benefit component as provided under 
section 3(h) of the Act;
    (3) Employee annuity net proportionate share of the annuity 
increases as provided under section 3(f) of the Act; and
    (4) Supplemental annuities as provided under section 2(b) of the 
Act.



Sec. 295.2  Definitions.

    As used in this part--
    Act means the Railroad Retirement Act.
    Court means any court of competent jurisdiction of any state, the 
District of Columbia, the Commonwealth of Puerto Rico, Guam, American 
Samoa, the Virgin Islands, the Northern Mariana Islands, and the Trust 
Territory of the Pacific Islands; any court of the United States (as 
defined in section 451 of title 28 of the United States Code) having 
competent jurisdiction; any Indian court as defined by section 1301 of 
title 25 of the United States Code; or any court of competent 
jurisdiction of a foreign country with which the United States has an 
agreement requiring the United States to honor any court order of such 
country.
    Court decree means a final decree of divorce, dissolution, 
annulment, or legal separation issued by a court (including a final 
decree or order modifying the terms of a previously issued decree of 
divorce, dissolution, annulment, or legal separation), which is issued 
in accordance with the laws of the jurisdiction of that court and which 
provides for the division of property.
    Division of property means any transfer of property or its value by 
an individual to his or her spouse or former spouse in compliance with 
any community property settlement, equitable distribution of property, 
or other distribution of property between spouses or former spouses, 
which is intended as a present and complete settlement of the property 
rights of the parties.
    Employee means an individual who is or was formerly an employee as 
defined by part 203 of this chapter.

[[Page 531]]

    Final decree means a decree from which no appeal may be taken or 
from which no appeal has been taken within the time allowed for taking 
such appeals under the laws applicable to such appeals, or a decree from 
which timely appeal has been taken and such appeal has been finally 
decided under the laws applicable to such appeals.
    Property settlement means an agreement between the parties to a suit 
for divorce, dissolution, annulment or legal separation in which they 
expressly agree to a division of their property rights, and which is 
incorporated in the final decree; is filed with the court in connection 
with a suit for divorce, dissolution, annulment or legal separation; or 
is otherwise presented to the court in a suit in accordance with the law 
of the jurisdiction. An agreement assigning or transferring property 
between spouses is not within the purview of this part unless it is 
subsequently approved by a court in connection with a suit for divorce, 
dissolution, annulment or legal separation.
    Spouse or former spouse means the husband or wife, or former husband 
or wife, respectively, of an employee who, on or before the date of a 
court order, was married to the employee.



Sec. 295.3  Documentation and service.

    (a) Court decree or property settlement. The Board will honor a 
court decree or a property settlement which meets the following 
criteria:
    (1) The court decree or property settlement must provide that the 
spouse or former spouse is awarded payments from railroad retirement 
annuities payable to the railroad employee.
    (2) The court decree or property settlement must specify an amount 
to be paid to the spouse or former spouse.
    (3) The court decree or property settlement must obligate the Board 
to make payments directly to the spouse or former spouse.
    (4) The court decree or property settlement must clearly identify 
both the employee and the spouse or former spouse to whom payments are 
to be made.
    (5) The court decree or property settlement submitted to the Board 
must be a recently certified copy of the document filed with the court. 
Where the award is made in an order modifying and earlier court decree, 
copies of both the original decree and the subsequent order must be 
furnished. In the case of a court-approved property settlement, both the 
settlement and any decree or order incorporating or approving the 
settlement must be provided.
    (b) Date of decree. While only benefits payable for months after 
August, 1983 are subject to this part, the date the decree is entered or 
the property settlement is approved may precede September 1, 1983. A 
subsequent modification of a decree which was entered or a property 
settlement which was approved prior to September 1, 1983 must be in 
accord which the law of the jurisdiction in which the original decree 
was entered or the property settlement was approved.
    (c) Supporting documentation. The spouse or former spouse shall 
submit such additional documentation as the Board shall require, 
including but not limited to:
    (1) Identifying information concerning the employee such as social 
security number, railroad retirement claim number, full name, date of 
birth, and current address.
    (2) Identifying information concerning the spouse or former spouse 
such as social security number, full name, and current address.
    (3) A statement that--
    (i) No condition of the law of the jurisdiction in which the decree 
was entered or the property settlement approved and no condition 
contained in the decree or agreement which requires termination of 
payment has occurred;
    (ii) If any such condition does occur, the spouse or former spouse 
will immediately notify the Board; and
    (iii) The spouse or former spouse agrees to repay any erroneous 
payment arising from occurrence of any such condition.
    (d) Delivery. Any court decree or property settlement must be 
delivered by certified or registered mail, return receipt requested, or 
by personal service, to the Deputy General Counsel of the Railroad 
Retirement Board, 844 Rush Street, Chicago, Illinois 60611. Where the 
decree or property settlement is delivered to any other office of

[[Page 532]]

the Board, it shall not be considered delivered until the date it is 
received by the Deputy General Counsel. Where the decree or property 
settlement was furnished to any office of the Board prior to September 
1, 1983, delivery is not accomplished until a copy is received by the 
Deputy General Counsel subsequent to August 30, 1983.

(Approved by the Office of Management and Budget under control number 
3220-0042)



Sec. 295.4  Review of documentation.

    (a) Regularity. The Deputy General Counsel or his or her designee 
shall review the court decree or property settlement to determine that 
it complies with both the law of the jurisdiction, and with Federal law 
and these regulations.
    (b) Amount. Ambiguities in the amount to be paid the spouse or 
former spouse shall be resolved in accord with expressed indications of 
the court's intent, except that:
    (1) Where the amount is expressed in terms of a dollar figure:
    (i) If the figure exceeds the total benefits which may be allocated 
under this part, the excess will be disregarded, provided that any 
future increase in the benefits subject to this part will be 
prospectively applied to the excess effective with the date of the 
benefit increase.
    (ii) If the figure is less than the total benefits which may be 
allocated under this part, only the amount specified will be paid.
    (2) Where the amount is expressed as a fraction, percentage, or 
ratio:
    (i) The amount specified shall be applied only against benefits 
subject to this part, irrespective of the wording of the decree or 
property settlement.
    (ii) When the amount is expressed in terms of a fraction or ratio 
referring to the length of railroad service, years shall be converted 
into the equivalent months. If the length of railroad service specified 
in the decreee or property settlement exceeds the number of creditable 
service months used by the Board to determine the employee's years of 
service for calculating an annuity, the actual number used by the Board 
shall bs substituted. If the decree understates the actual number of 
creditable railroad service months, the number of years or months set 
forth in the decree or property settlement will be used.
    (3) An amount may be expressed in any other fashion only to the 
extent to which it may be readily ascertained from records maintained by 
the Board in the regular course of administration of the Act.
    (c) Notification. The Deputy General Counsel or his or her designee 
shall make reasonable effort to notify the spouse or former spouse and 
the employee of a determination that the decree or property settlement 
does or does not qualify as a decree or property settlement which will 
be honored pursuant to this part. This notice will be mailed to the most 
recent address of each party or representative of each party as shown in 
the Board's records. A copy of the decree or property settlement will be 
provided to the employee with this notice. The notice must state:
    (1) The rationale for a determination that the decree or property 
settlement does not comply with this part; or
    (2) The dollar amount or proportion of benefits which will be paid 
to the spouse or former spouse.
    (d) Withholding after notification. (1) Where the Deputy General 
Counsel or his or her designee has notified the spouse or former spouse 
that a decree or property settlement will be honored under this part, 
but where the employee is not then entitled to any benefits subject to 
division under this part, the Associate Executive Director for 
Retirement Claims will notate the Board's records to reflect both the 
amount of benefits awarded to the spouse or former spouse pursuant to 
the decree or property settlement and his or her current address. Where 
the employee is currently entitled to benefits subject to this part, and 
the spouse or former spouse has furnished all additional documentation 
required, the Associate Executive Director for Retirement Claims will 
take action to withhold from the employee's monthly benefit the amount 
stated in the Deputy General Counsel's notice under paragraph (c) of 
this section that the Board will honor the decree or property 
settlement.

[[Page 533]]

    (2) Where the employee was not entitled to benefits subject to this 
part at the time of the notice by the Deputy General Counsel that the 
Board will honor the decree or property settlement, but the employee 
becomes so entitled at a later time, the Board will attempt to contact 
the spouse or former spouse at the most recent address shown in the 
Board's records. The notice will inform the spouse or former spouse that 
an annuity has been awarded, that the spouse or former spouse may, upon 
submission of all required documentation, receive a portion of the 
annuity, and that the spouse or former spouse should contact the Board 
within three months from the date of the notice. The Associate Executive 
Director for Retirement Claims will initiate withholding of the amount 
awarded to the spouse or former spouse from the employee's monthly 
benefit, and will continue to withhold this amount for three successive 
months; provided, that an initial annuity payment for a retroactive 
period shall count as one monthly benefit payment. If after the third 
month's payment has been withheld the Board has received no response 
from the spouse or former spouse, the amount withheld from the 
employee's benefit shall be paid to the employee, and the Board take no 
further action regarding the decree until the spouse or former spouse 
contacts the board.
    (3) Benefits withheld from the employee may not be paid to a spouse 
or former spouse until the spouse or former spouse has furnished all 
supporting documentation required pursuant to Sec. 295.3 of this part. 
The Board shall allow a reasonable time, not to exceed three months from 
the date of the initial response from the spouse or former spouse, for 
the submission of all required documentation. If the documentation is 
not furnished within the time allowed, payment of the amounts withheld 
shall be made to the employee.
    (4) Any payments made to the employee subsequent to the three-month 
notice period specified in paragraphs (d)(2) and (3) of this section, 
and prior to receipt of a response or required documentation from the 
spouse or former spouse, shall be considered properly paid to the 
employee and the board shall have no further liability to the spouse or 
former spouse with respect to such amounts.



Sec. 295.5  Limitations.

    (a) Employee benefit entitlement. Payments will be made to a spouse 
or former spouse under this part only if the employee has been awarded 
an annuity under the Railroad Retirement Act. Payments to a spouse or 
former spouse shall be made only for months and from such amounts with 
respect to which an annuity is payable to the employee, and shall be 
suspended or terminated for any month in which the annuity of the 
employee is suspended or terminated. No arrearage accrues to the spouse 
or former spouse with respect to any month for which the annuity of the 
employee is suspended or reduced as required under the Act.
    (b) Minimum amount. The amount of payment to a spouse or former 
spouse may not be less than one dollar per month.
    (c) Prospective payment. Payment to a spouse or former spouse may 
accrue no earlier than the later of the date of delivery, pursuant to 
Sec. 295.3 of this part, of a court decree or property settlement which 
will be honored under this part, or from October 1, 1983. The amount to 
be paid the spouse or former spouse under this part will not be 
increased to satisfy an arrearage due from the employee.
    (d) Payees. Payment of an amount awarded to a spouse or former 
spouse by a court decree or property settlement will be made only to the 
spouse or former spouse except where the Board determines that another 
person shall be recognized to act in behalf of the spouse or former 
spouse as provided by part 266 of this chapter, relating to 
incompetence. Payment will not be made to the heirs, legatees, creditors 
or assignees of a spouse or former spouse, except that where an amount 
is payable to a spouse or former spouse pursuant to this part, but is 
unpaid at the death of that spouse or former spouse, the unpaid amount 
may be paid in accordance with Sec. 234.1 of this chapter, pertaining 
to employee annuities unpaid at death.
    (e) Net amount of benefits. Notwithstanding the terms of the decree 
or

[[Page 534]]

property settlement, the amount of benefits payable to the employee 
which are subject to this part shall not include:
    (1) Amounts deducted to satisfy a debt due the United States, 
including any amount withheld to recover erroneous payments under the 
Railroad Retirement Act, Railroad Unemployment Insurance Act, or any 
other acts administered by the Board; and
    (2) Benefits which are waived pursuant to Sec. 243.6 of this 
chapter.
    (f) Termination. Payments to a spouse or former spouse terminate on 
the earlier of--
    (1) The date on which the employee annuity terminates;
    (2) The date required by the court decree or property settlement or 
the law of the jurisdiction in which the court decree or property 
settlement was entered; or
    (3) The last day of the month before the month in which the spouse 
or former spouse dies.
    (g) Priority. In the event that the Deputy General Counsel receives 
more than one decree or property settlement from competing parties, 
benefits shall be available to satisfy the decrees or property 
settlements on a first come, first served basis governed by the date of 
receipt by the Deputy General Counsel. Conflicting decrees or property 
settlements received on the same day shall be accorded priority based 
upon the earliest date upon which the decree or property settlement 
became final.

[51 FR 12845, Apr. 16, 1986, as amended at 53 FR 35807, Sept. 15, 1988; 
62 FR 67724, Dec. 30, 1997]



Sec. 295.6  Disclosure of information.

    (a) Immunity from process. The provision for the payment of benefits 
under this part pursuant to a court decree or property settlement shall 
not be construed to be a waiver of the sovereign immunity of the 
Railroad Retirement Board as an agency of the U.S. Government. The Board 
may not be joined in a suit for divorce, dissolution, annulment or legal 
separation, or otherwise subjected to the jurisdiction of any state 
court. Subpoenas, notices of joinder, interrogatories, orders for 
production of documents, and like state process issued in connection 
with a suit for divorce, dissolution, annulment or legal separation will 
be treated as requests for disclosure of information under this section.
    (b) Request for information. A response to request for information 
to be used in connection with a suit for divorce, dissolution, annulment 
or legal separation may be made by the Deputy General Counsel or his or 
her designee, by the Associate Executive Director for Retirement Claims, 
or by a contact representative of the Board's field service.
    (c) Information available. In the absence of signed authorization 
from the employee, a spouse or former spouse who is a party to a suit 
for divorce, dissolution, annulment or legal separation, or his or her 
legal representative, may be furnished the amount of benefits the 
employee is currently receiving. If the employee is not currently 
entitled to benefits, the Board may furnish the amount of any estimated 
benefit to which the employee would be entitled if he or she were of 
retirement age at the time of the request, as reflected by the records 
of the Board, to the extent it is possible for the Board to compute such 
amount. The Board shall not be required to furnish the present value of 
future benefits, the amount of benefits payable at a future date, or any 
other computations based on statistics or procedures not maintained by 
the Board in the normal course of administration of the Act.
    (d) Certification. A letter or statement prepared by a Board 
official in the regular course of duty from the official records of the 
Board, which refers to the authority of this section and bears his or 
her signature, shall be a sufficient response for purposes of 
discharging the responsibilities of the Board under this section. A 
certification in accordance with this section may be considered a public 
document for purposes of admissibility as evidence of present or 
potential benefits under the Act for use in a divorce, dissolution, 
annulment or legal separation proceeding.



Sec. 295.7  Miscellaneous.

    (a) Disbursement cycle. In honoring and complying with a court 
decree or property settlement, the Board shall

[[Page 535]]

not be required to disrupt its normal disbursement cycle, despite any 
special schedule of accrual or payment of amounts due the spouse or 
former spouse set forth in the decree or settlement. A decree or 
settlement received too late to be honored during the disbursement cycle 
in which it was received shall be honored with respect to the next 
payment due the employee.
    (b) Liability for payments. Neither the Board nor any of its 
employees shall be liable with respect to any payment made to any 
individual from moneys due from or payable by the Board pursuant to a 
court decree or property settlement regular on its face, if such payment 
is made in accordance with this part.
    (c) Liability for disclosures. No employee of the Board whose duties 
include responding to requirements contained in this part shall be 
subject under any law to any disciplinary action or civil or criminal 
liability or penalty for, or on account of, any disclosure of 
information made by such employee in connection with the performance of 
the employee's duties in making such response.
    (d) Applicable law. For purposes of a proceeding under this part, 
the Board will apply the law of the jurisdiction in which the court 
decree or property settlement was issued unless it comes to the 
attention of the Board that the state of issuance has no contact with 
the plaintiff or defendant in the action; in which case, the Board may, 
in its sole discretion, apply the law of any jurisdiction with 
significant interest in the matter.
    (e) Erroneous payments. If a spouse or former spouse receives a 
payment pursuant to this part from an employee's benefit, and the Board 
later determines that the employee was not entitled to all or part of 
those benefits for any month, the amount of the employee's benefits 
which was paid to the spouse or former spouse in excess of the amount 
which was actually payable shall be an erroneous payment to the spouse 
or former spouse within the meaning of section 10 of the Railroad 
Retirement Act.

[[Page 536]]



 SUBCHAPTER C_REGULATIONS UNDER THE RAILROAD UNEMPLOYMENT INSURANCE ACT





PART 300_DEFINITIONS--Table of Contents




    Authority: Sec. 12, 52 Stat. 1107, as amended; 45 U.S.C. 362. 
Interprets or applies sec. 1, 52 Stat. 1094, as amended; 45 U.S.C. 351.



Sec. 300.1  Words and phrases.

    For the purposes of the regulations in this part, except where the 
language or context indicates otherwise:
    (a) The term ``act'' means the Railroad Unemployment Insurance act.
    (b) The term ``employer'' means an employer as defined in the act 
and part 201 of this chapter.
    (c) The term ``Board'' means the Railroad Retirement Board.
    (d) The term ``person'' includes an individual, trust, estate, 
partnership, association, joint stock company, company, corporation, and 
institution.
    (e) The term ``United States'', when used in a geographical sense, 
means the States and the District of Columbia.
    (f) The term ``State'' means any of the States or the District of 
Columbia.
    (g) The term ``employment'' means service performed as an employee.
    (h) The term ``local lodges and divisions'' and the term ``local 
lodge or division'' as used in section 1(a) and 1(d), respectively, of 
the act, shall be construed to include any subordinate unit of a 
national railway labor organization defined as an ``employer'' under the 
act, which unit functions in the same manner as, or similar to ``local 
lodges'' as that term is ordinarily used, irrespective of the 
designation of such unit by its national organization.

[Board Order 40-368 and Board Order 40-385, 5 FR 2717, Aug. 1, 1940, as 
amended by Board Order 68-72, 33 FR 11114, Aug. 6, 1968]



PART 301_EMPLOYERS UNDER THE ACT--Table of Contents




Sec.
301.1 Statutory provisions.
301.4 Who are employers.

    Authority: 45 U.S.C. 362(1).



Sec. 301.1  Statutory provisions.

    (a) The term ``employer'' means any carrier (as defined in 
subsection (b) of this section), and any company which is directly or 
indirectly owned or controlled by one or more such carriers or under 
common control therewith, and which operates any equipment or facility 
or performs any service (except trucking service, casual service, and 
the casual operation of equipment or facilities) in connection with the 
transportation of passengers or property by railroad, or the receipt, 
delivery, elevation, transfer in transit, refrigeration or icing, 
storage, or handling of property transported by railroad, and any 
receiver, trustee, or other individual or body, judicial or otherwise, 
when in the possession of the property or operating all or any part of 
the business of any such employer: Provided, however, That the term 
``employer'' shall not include any street, interurban, or suburban 
electric railway, unless such railway is operating as a part of a 
general steam-railroad system of transportation, but shall not exclude 
any part of the general steam-railroad system of transportation now or 
hereafter operated by any other motive power. The Interstate Commerce 
Commission is hereby authorized and directed upon request of the Board, 
or upon complaint of any party interested, to determine after hearing 
whether any line operated by electric power falls within the terms of 
this proviso. The term ``employer'' shall also include railroad 
associations, traffic associations, tariff bureaus, demurrage bureaus, 
weighing and inspection bureaus, collection agencies, and other 
associations, bureaus, agencies, or organizations controlled and 
maintained wholly or principally by two or more employers as 
hereinbefore defined and engaged in the performance of services in 
connection with or incidental to railroad transportation; and railway 
labor organizations, national in scope, which have been or may be 
organized in accordance with the provisions of the Railway Labor Act, 
and their State and National legislative committees and their general 
committees and their insurance departments and their local lodges and 
divisions, established pursuant to the constitution and bylaws of such 
organizations.
    The term ``employer'' shall not include any company by reason of its 
being engaged in the mining of coal, the supplying of coal to an 
employer where delivery is not beyond the mine tipple, and the operation 
of equipment or facilities therefor, or in any of such activities. * * *
    (b) The term ``carrier'' means an express company, sleeping-car 
company, or carrier

[[Page 537]]

by railroad, subject to part I of the Interstate Commerce Act.

[Board Order 40-368, 5 FR 2718, Aug. 1, 1940, as amended by Board Order 
41-526, 7 FR 97, Jan. 6, 1942]



Sec. 301.4  Who are employers.

    The provisions of Sec. 201.1(k) and the provisions of Sec. Sec. 
202.2 through 202.15 of this chapter shall be applicable to the 
determination of who are employers under the Railroad Unemployment 
Insurance Act to the same extent and in the same manner as they are 
applicable to the determination of who are employers under the Railroad 
Retirement Act of 1937.

[Board Order 40-368, 5 FR 2718, Aug. 1, 1940]



PART 302_QUALIFIED EMPLOYEE--Table of Contents




Sec.
302.1 Introduction.
302.2 Definitions.
302.3 Qualifying conditions.
302.4 Nonqualifying earnings or payments.
302.5 Accelerated benefit year.
302.6 Publication requirements.
302.7 Establishing base year service and compensation.

    Authority: 45 U.S.C. 362(1).

    Source: 56 FR 6966, Feb. 21, 1991, unless otherwise noted.



Sec. 302.1  Introduction.

    This part sets forth the base year service and compensation required 
of an employee to qualify for benefits under the Railroad Unemployment 
Insurance Act with respect to a benefit year. Under the Act, only 
employees who satisfy the qualifying conditions of section 3 of the Act 
may be paid benefits. No provision is made for payment of dependents 
benefits for an employee's spouse or children. A qualified employee who 
claims benefits must demonstrate that he or she is eligible for benefits 
in accordance with the other provisions of the Act and this chapter. 
However, a qualified employee who is disqualified under any of the 
provisions of section 4 of the Act does not forfeit his or her status as 
a qualified employee.



Sec. 302.2  Definitions.

    Base year. The term ``base year'' means the completed calendar year 
immediately preceding the beginning of the benefit year.
    Benefit year. The term ``benefit year'' means the 12-month period 
beginning July 1 of any year and ending June 30 of the next year. If a 
registration period begins in June and ends in July, the benefit year 
ending date is deemed to be the last day of such registration period. If 
an employee is eligible for payment of extended benefits, the benefit 
year ending date for such employee will be June 30, or the last day of 
his or her extended benefit period, whichever date is later.
    Compensation. The term ``compensation'' means generally any form of 
earnings or money remuneration earned on the basis of railroad 
employment during any month, excluding any amount in excess of the 
monthly compensation base for that month and also excluding payments of 
the character described in Sec. 302.4 of this part.
    Monthly compensation base. The term ``monthly compensation base'' 
means the greater of $600, or the amount calculated using the following 
formula:
[GRAPHIC] [TIFF OMITTED] TC14NO91.108

    For the purpose of this formula, ``MCB'' is the dollar amount of the 
monthly compensation base, and ``A'' is the amount of the Tier I tax 
base under section 3231(e)(2) of the Internal Revenue Code for the 
calendar year for which the monthly compensation base is being computed. 
If the dollar amount computed under this formula is not a multiple of 
$5, it shall be rounded to the nearest multiple of $5. If the dollar 
amount computed is equidistant between two multiples of $5, it shall be 
rounded up the nearest multiple of $5.
    Registration period. With respect to unemployment benefits, the term 
``registration period'' has the meaning given in Sec. 325.1(c) of this 
chapter. With respect to sickness benefits, the term ``registration 
period'' has the meaning given in Sec. 335.1(d) of this chapter.

[56 FR 6966, Feb. 21, 1991; 56 FR 10302, Mar. 11, 1991]

[[Page 538]]



Sec. 302.3  Qualifying conditions.

    (a) Basic requirements. To qualify for benefits with respect to a 
benefit year, an employee:
    (1) Must have earned compensation in an amount equal to at least 2.5 
times the amount of the monthly compensation base during his or her base 
year; and
    (2) If such employee has earned no compensation prior to such base 
year, he or she must have earned compensation in at least five months 
during his or her base year.
    (b) Deemed service months disregarded. For purposes of paragraph (a) 
of this section, service months deemed under Sec. 210.3 of this chapter 
shall be disregarded.



Sec. 302.4  Nonqualifying earnings or payments.

    The following types of earnings or payments do not count as 
compensation for the purpose of determining whether an employee has 
satisfied the base year qualifying conditions:
    (a) Compensation earned as an employee representative, as defined in 
part 205 of this chapter, or as an employee of a local lodge or division 
of a railway labor organization;
    (b) Tips;
    (c) Payments under nongovernmental plans for unemployment, maternity 
or sickness insurance;
    (d) Personal injury settlements or judgments, unless a portion 
thereof represents pay for time lost;
    (e) Wages from employment that is subject to the Federal 
Unemployment Tax Act;
    (f) Earnings from self-employment or investments;
    (g) Pay for military service;
    (h) Remuneration for service which is performed by a nonresident 
alien individual for the period he or she is temporarily present in the 
United States as a nonimmigrant under subparagraph (F) or (J) of section 
101(a)(15) of the Immigration and Nationality Act, as amended, and which 
is performed to carry out the purpose specified in subparagraph (F) or 
(J), as the case may be; and
    (i) Any payment that is not subject to contributions under section 8 
of the Railroad Unemployment Insurance Act.

[56 FR 6966, Feb. 21, 1991; 56 FR 10302, Mar. 11, 1991]



Sec. 302.5  Accelerated benefit year.

    (a) Eligibility conditions. An employee who is not a qualified 
employee with respect to the benefit year in effect at the time of his 
or her application for benefits may be eligible for an ``accelerated'' 
benefit year if he or she meets all of the following conditions.
    (1) The employee has 10 or more years of service, as defined in part 
210 of this chapter, prior to the beginning of his or her current period 
of unemployment or sickness;
    (2) The employee has satisfied the qualifying conditions as defined 
in Sec. 302.3 of this part with respect to the next succeeding benefit 
year;
    (3) The employee's current period of unemployment or sickness 
includes at least 14 consecutive days of unemployment or 14 consecutive 
days of sickness; and
    (4)(i) If the applicant is claiming unemployment benefits, he or she 
did not voluntarily leave work without good cause or did not voluntarily 
retire, or
    (ii) If the applicant is claiming sickness benefits, he or she has 
not attained age 65 or has not voluntarily retired.
    (b) Beginning date of benefit year. An accelerated benefit year 
begins on the first day of the month during which the employee's period 
of 14 consecutive days of unemployment or 14 consecutive days of 
sickness begins. Thus, for example, if an eligible employee has 14 
consecutive days of unemployment from May 29-June 11, his or her benefit 
year beginning date is May 1, that is, he or she does not have to wait 
until July 1 to begin receiving benefits. If such employee also had a 
claim for the period May 15 to May 28, such claim may then be 
compensable or may serve as the waiting period even though the claim did 
not consist of 14 days of unemployment. His or her benefit year ends 
June 30 of the following year.
    (c) Effect of attaining age 65. If a benefit year begins early for 
the purpose of paying sickness benefits and the employee attains age 65 
before July 1 of

[[Page 539]]

the general benefit year, sickness benefits may not be paid for any day 
from the day on which the employee attained age 65 up to and including 
June 30, but unemployment benefits may be paid in this interim period if 
the employee is otherwise eligible. Sickness benefits may be paid for 
days of sickness beginning July 1 or later. If a benefit year begins 
early for the purpose of paying unemployment benefits, attainment of age 
65 will have no effect on the employee's rights to sickness benefits, 
other than extended sickness benefits, in the accelerated benefit year. 
An employee is deemed to attain age 65 on the day before his or her 
sixty-fifth birthday.



Sec. 302.6  Publication requirements.

    (a) Publication of base year compensation requirement. On or before 
December 1 of each year, the Railroad Retirement Board will compute the 
amount of base year compensation that an employee must have during the 
following calendar year in order to be a qualified employee on the basis 
of such compensation. Within 10 days of such computation, the Board will 
publish a notice in the Federal Register of the amount so computed and 
will notify each employer of that amount. Information as to such 
qualifying amount may also be obtained from any district or regional 
office of the Railroad Retirement Board or from the Bureau of 
Unemployment and Sickness Insurance.
    (b) Notices. The Board will provide employers with notices of their 
employees' rights to benefits under the Railroad Unemployment Insurance 
Act. The Board will arrange with employers to post such notices in such 
numbers and in such places as may be necessary to ensure that they will 
be seen by the greatest number of employees.



Sec. 302.7  Establishing base year service and compensation.

    (a) Employer reports. In determining whether an applicant for 
benefits is a qualified employee, the Board will rely initially upon 
reports of base year service and compensation provided by employers in 
accordance with part 209 of this chapter.
    (b) No employer report located. If the Board cannot locate the 
employer's report of base year service and compensation for an 
applicant, the applicant will be afforded an opportunity, by completing 
the form prescribed by the Board, to provide such other statement, 
information, evidence or documentation to establish his or her status as 
a qualified employee. An employee's claim for credit for service or 
compensation that is not shown in the Board's records of service and 
compensation shall be verified in accordance with Sec. Sec. 210.7 and 
211.14 of this chapter.
    (c) Employer fails to report. When an employer has failed or refuses 
to file a report under part 209 of this chapter, an employee may 
establish his or her base year service and compensation by submitting:
    (1) Statements, under oath or otherwise, signed by an official or 
duly authorized employee of a Federal or State governmental agency, 
based upon reports to the agency by the employer; or
    (2) Statements, under oath or otherwise, signed by an officer or a 
duly authorized employee of the employer, or if not so signed, on forms 
prepared by the employer.

(Approved by the Office of Management and Budget under control numbers 
3220-0025 and 3220-0070)



PART 319_PROCEDURE FOR DETERMINING LIABILITY FOR CONTRIBUTIONS OR 
REPAYMENTS OF BENEFITS--Table of Contents




Sec.
319.1 Statutory provisions.
319.2 Procedure for determining entitlement to benefits awarded where 
          employer status is denied, and for determining liability for 
          contributions.

    Authority: Sec. 12, 52 Stat. 1107, as amended; 45 U.S.C. 362.



Sec. 319.1  Statutory provisions.

    * * * In any case in which benefits are awarded to a claimant in 
whole or in part upon the basis of pay earned in the service of a person 
or company found by the Board to be an employer as defined in this Act 
but which denies that it is such an employer, such benefits awarded on 
such basis shall be

[[Page 540]]

paid to such claimant subject to a right of recovery of such benefits. 
The Board shall thereupon designate one of its officers or employees to 
receive evidence and to report to the Board on whether such benefits 
should be repaid. The Board may also designate one of its officers or 
employees to receive evidence and report to the Board whether or not any 
person or company is entitled to a refund of contributions or should be 
required to pay contributions under this Act, regardless of whether or 
not any claims for benefits will have been filed upon the basis of 
service in the employ of such person or company, and shall follow such 
procedure if contributions are assessed and payment is refused or 
payment is made and a refund claimed upon the basis that such person or 
company is or will not have been liable for such contributions. In any 
such case the Board or the person so designated shall, by publication or 
otherwise, notify all parties properly interested of their right to 
participate in the proceeding and, if a hearing is to be held, of the 
time and place of the hearing. At the request of any party properly 
interested the Board shall provide for a hearing, and may provide for a 
hearing on its own motion. The Board shall prescribe regulations 
governing the proceedings provided for in this paragraph and for 
decisions upon such proceedings.
    Final decision of the Board in the cases provided for in the 
preceding two paragraphs shall be communicated to the claimant and to 
the other interested parties within fifteen days after it is made. Any 
properly interested party notified, as hereinabove provided, of his 
right to participate in the proceedings may obtain a review of any such 
decision by which he claims to be aggrieved or the determination of any 
issue therein in the manner provided in subsection (f) of this section 
with respect to the review of the Board's decisions upon claims for 
benefits and subject to all provisions of law applicable to the review 
of such decisions. Subject only to such review, the decision of the 
Board upon all issues determined in such decision shall be final and 
conclusive for all purposes and shall conclusively establish all rights 
and obligations, arising under this Act, of every party notified as 
hereinabove provided of his right to participate in the proceedings.
    Any issue determinable pursuant to this subsection and subsection 
(f) of this section shall not be determined in any manner other than 
pursuant to this subsection and subsection (f). (Section 5(c), Railroad 
Unemployment Insurance Act.)
    In any proceeding other than a court proceeding, the rules of 
evidence prevailing in courts of law or equity shall not be controlling, 
but a full and complete record shall be kept of all proceedings and 
testimony, and the Board's final determination, together with its 
findings of fact and conclusions of law in connection therewith, shall 
be communicated to the parties within fifteen days after the date of 
such final determinations.

(Section 5(e), Railroad Unemployment Insurance Act.)

    Any claimant, or any railway labor organization organized in 
accordance with the provisions of the Railway Labor Act, of which 
claimant is a member, or any other party aggrieved by a final decision 
under subsection (c) of this section, may, only after all administrative 
remedies within the Board will have been availed of and exhausted, 
obtain a review of any final decision of the Board by filing a petition 
for review within ninety days after the mailing of notice of such 
decision to the claimant or other party, or within such further time as 
the Board may allow, in the United States court of appeals for the 
circuit in which the claimant or other party resides or will have had 
his principal place of business or principal executive office, or in the 
United States Court of Appeals for the Seventh Circuit or in the Court 
of Appeals for the District of Columbia. * * * (Section 5(f), Railroad 
Unemployment Insurance Act.)

[Board Order 58-142, 23 FR 9089, Nov. 22, 1958]



Sec. 319.2  Procedure for determining entitlement to benefits awarded 
where employer status is denied, and for determining liability for 
contributions.

    (a) The Board may designate one of its officers or employees as 
examiner to receive evidence and report to the Board (1) whether or not 
a claimant should repay benefits awarded in whole or in part upon the 
basis of pay earned in the service of a person or company found by the 
Board to be an employer as defined in the Railroad Unemployment 
Insurance Act, but which denies that it is such an employer, or (2) 
whether or not any person or company is entitled to a refund of 
contributions or should be required to pay contributions under the Act. 
Such procedure shall be followed if contributions are assessed and 
payment is refused or payment is made and a refund claimed upon the 
basis that such person or company is or will not have been liable for 
such contributions. The examiner shall have power to hold hearings, 
require and compel the attendance of witnesses, administer oaths, take 
testimony, and make all necessary investigations. At the request of any 
party properly interested, the Board shall

[[Page 541]]

provide for a hearing before such examiner, and may provide for a 
hearing on its own motion. The examiner shall, by publication or 
otherwise, notify all parties properly interested of their right to 
participate in the proceeding and if a hearing is to be held, of the 
time and place of the hearing.
    (b) All evidence and argument presented by any party, and all 
evidence developed by the examiner, shall be preserved and shall 
constitute a part of the record. All oral evidence presented at any 
hearing, and all oral argument, shall be reduced to writing. The record 
at any time shall be available for examination by any properly 
interested party or his representative.
    (c) Upon the completion of any proceeding, the examiner shall upon 
the basis of the entire record, render a report to the Board as soon as 
practicable, and within five days after the making thereof shall send a 
copy of the report to each party appearing in the proceeding by mailing 
such copy to him at the address stated in his appearance. Such report 
shall contain a statement of (1) the issue or issues raised, (2) the 
evidence submitted, (3) findings of fact, (4) conclusions of law, and 
(5) a recommended determination.
    (d) Any party to the proceeding may, within twenty days after the 
mailing to him of a copy of the examiner's report, file with the Board, 
and serve upon other parties by mailing to their addresses as stated in 
their appearances, such exceptions in writing as he desires to make to 
the examiner's findings of fact and conclusions of law. Each exception 
shall specifically designate the particular finding of fact or 
conclusion of law to which exception is taken, and shall set forth in 
detail the grounds of the exception. General exceptions and exceptions 
not specifically directed to particular findings of fact or conclusions 
of law will not be considered. Each party shall have ten days after the 
receipt of exceptions taken by other parties in which to file with the 
Board replies to the exceptions. The Board may, upon the application of 
any party and for cause shown, extend the time for filing and serving of 
exceptions or filing of replies thereto. The examiner's report shall be 
advisory but shall be presumed to be correct. Findings of fact to which 
no exceptions are taken will, subject only to the power of the Board to 
reject or modify, stand confirmed.
    (e) The Board will render its decision upon the record and upon the 
basis of the examiner's report and such exceptions and replies thereto 
as are made. Further argument will not be permitted except upon a 
showing by any party that he has arguments to present which for valid 
reasons he was unable to present at an earlier stage, and in cases in 
which the Board requests further elaboration of arguments. In such 
cases, the further argument shall be submitted orally or in writing, as 
the Board may indicate in each case, and shall be subject to such 
restrictions as to form, subject matter, length, and time as the Board 
may indicate. The decision of the Board will be communicated to all 
parties to the proceeding within fifteen days after it has been made by 
mailing a copy of the decision to each such party at the address 
furnished by him.
    (f) The decision of the Board, with respect to all issues determined 
therein, shall be final and conclusive for all purposes, and shall 
conclusively establish all rights and obligations, arising under any act 
administered by the Board, of every person notified of his right to 
participate in the proceeding.
    (g) Any properly interested party notified of his right to 
participate in the proceeding may, as provided in section 5(c) of the 
Railroad Unemployment Insurance Act, and in accordance with the 
provisions of section 5(f) of the Act, obtain judicial review of a final 
decision of the Board, under this section, by which he claims to be 
aggrieved, by filing a petition for review in the proper court within 
ninety days after the mailing to him of notice of such decision, or 
within such further time as the Board may allow. Such petition for 
review must be filed in the U.S. Court of Appeals for the circuit in 
which the party resides or will have had his principal place of business 
or principal executive office, or in the U.S. Court of Appeals for the 
Seventh Circuit or in the Court of Appeals for the District of Columbia.

[[Page 542]]

    (h) Insofar as applicable and not inconsistent with the preceding 
provisions of this section, the provisions of Sec. Sec. 250.7 to 250.16 
of this chapter shall be followed in any proceeding under this section.

[Board Order 58-142, 23 FR 9089, Nov. 22, 1958]



PART 320_INITIAL DETERMINATIONS UNDER THE RAILROAD UNEMPLOYMENT 
INSURANCE ACT AND REVIEWS OF AND APPEALS FROM SUCH DETERMINATIONS
--Table of Contents




Sec.
320.1 Introduction.
320.2 Definitions.
320.5 Initial determinations.
320.6 Adjudicating office.
320.8 Notice of initial determination.
320.9 Notice of erroneous benefit payment.
320.10 Reconsideration of initial determination.
320.11 Request for waiver of recovery.
320.12 Appeal to the Bureau of Hearings and Appeals.
320.18 Hearings officer.
320.19 Election to participate.
320.20 Powers of hearings officer.
320.22 Notice of hearing.
320.25 Hearing of appeal.
320.28 Record of evidence considered.
320.30 Decision or report of hearings officer.
320.32 Effect of decision of hearings officer.
320.35 Review of decision of hearings officer on motion of Board.
320.38 Appeal to Board from decision of hearings officer.
320.39 Execution and filing of appeal to Board from decision of hearings 
          officer.
320.40 Procedure before the Board on appeal from a decision of a 
          hearings officer.
320.41 Procedure before Board after submission of report by hearings 
          officer.
320.42 Decision of Board.
320.45 Judicial review.
320.48 Representatives of parties.
320.49 Determination of date of filing.

    Authority: 45 U.S.C. 355 and 362(1).

    Source: Board Order 58-142, 23 FR 9090, Nov. 22, 1958, unless 
otherwise noted.



Sec. 320.1  Introduction.

    This part explains which units of the Board are authorized to make 
initial determinations with respect to entitlement to benefits under the 
Railroad Unemployment Insurance Act and waiver of recovery of 
overpayments under that Act. This part explains how notice of such 
determinations is to be communicated to the claimant and to his or her 
base-year employer(s) and how these determinations may be appealed.

[56 FR 65679, Dec. 18, 1991]



Sec. 320.2  Definitions.

    As used in this part--
    Base-year employer means the railroad employer(s) for whom a 
claimant worked and earned compensation creditable under the Railroad 
Unemployment Insurance Act during the base year. The base year is the 
calendar year immediately preceding the benefit year for which a claim 
is being filed. A benefit year is generally the period July 1 through 
the following June 30.
    Party means the claimant, the base-year employer(s), or any person 
so designated under this part.

[56 FR 65679, Dec. 18, 1991]



Sec. 320.5  Initial determinations.

    An initial determination shall be made with respect to each claim 
for unemployment or sickness benefits by the appropriate adjudicating 
office as provided by Sec. 320.6 of this part. Prior to making an 
initial determination the Board shall provide the claimant's base-year 
employer(s) and most recent employer if different with notice that a 
claim has been filed and that the employer(s) has an opportunity to 
submit information which may be pertinent to the adjudication of the 
claim. The adjudicating office shall make its determination on the basis 
of the claimant's application and claim and any relevant information or 
evidence including any information received from the base-year 
employer(s). A determination allowing payment of an initial claim shall 
not establish a presumption that benefits for subsequent claims in the 
same period of unemployment or sickness are also payable. The Director 
of Policy and Systems shall issue instructions with respect to the 
adjudication of claims and initial determination on such claims. If it 
is found that only part of the benefits claimed may initially be paid, a 
partial payment shall be made prior to a final decision on the whole 
claim.

[56 FR 65679, Dec. 18, 1991, as amended at 77156, Dec. 17, 2002]

[[Page 543]]



Sec. 320.6  Adjudicating office.

    (a) The term ``adjudicating office'' means any subordinate office of 
the Board which is authorized to make initial determinations and 
reconsideration decisions with respect to claims for benefits. The 
following paragraphs state which offices of the Board are adjudicating 
offices and define their authority to make determinations or decisions.
    (b) Field offices. Field offices are authorized to make initial 
determinations on the following issues relating to eligibility for 
unemployment or sickness benefits, as the case may be:
    (1) Availability for work;
    (2) Voluntary leaving of work, with or without good cause;
    (3) Failure to accept work or apply for work or failure to report to 
an employment office;
    (4) Timely registration for unemployment benefits under Sec. 325.2 
of this chapter and timely filing of claims for sickness benefits under 
Sec. 335.4(c) of this chapter;
    (5) Receipt of remuneration for claimed days of unemployment or 
sickness, as the case may be;
    (6) Mileage or work restrictions and stand-by or lay-over rules;
    (7) Whether the claimant's unemployment is due to a strike.
    (8) Whether a claimant's earnings attributable to days in a period 
for which he or she has registered for unemployment benefits exceed the 
amount of the applicable monthly compensation base.
    (c) Regional offices. Board regional offices are authorized to make 
determinations on any of the issues listed in paragraph (b) of this 
section. In addition, regional offices are authorized to make initial 
determinations on the following issues:
    (1) Erroneous payment of benefits, including fraud;
    (2) Applicability of the disqualification in section 4(a-2)(iii) of 
the Railroad Unemployment Insurance Act if the claimant's unemployment 
results from a strike against a non-railroad employer by which he is 
employed;
    (3) Determination of the amount of the Board's claim for 
reimbursement from pay for time lost payments under section 2(f) of the 
Railroad Unemployment Insurance Act or damages for personal injury under 
section 12(o) of the Railroad Unemployment Insurance Act.
    (d) Director of Operations. The Director of Operations is authorized 
to make determinations on all issues of eligibility for unemployment and 
sickness benefits as set forth in paragraphs (b) and (c) of this 
section, and on any other issue not reserved to the Director of Policy 
and Systems by paragraph (e) of this section.
    (e) Director of Policy and Systems. The Director of Policy and 
Systems shall adjudicate:
    (1) The applicability of the disqualification in section 4(a-2)(iii) 
of the Railroad Unemployment Insurance Act if the claimant's 
unemployment results from a strike against a railroad employer by which 
he or she is employed; and
    (2) Whether a plan submitted by an employer or other person or 
company qualifies as a nongovernmental plan for unemployment or sickness 
insurance, within the meaning of part 323 of this chapter.
    (f) Debt Recovery Manager. The Debt Recovery Manager shall 
adjudicate:
    (1) All requests for waiver of recovery of an erroneous payment made 
under the Railroad Unemployment Insurance Act; and
    (2) Offers of compromise of debts arising out of the benefit 
provisions of the Railroad Unemployment Insurance Act.

[53 FR 2486, Jan. 28, 1988, as amended at 60 FR 28534, June 1, 1995; 67 
FR 77156, Dec. 17, 2002]



Sec. 320.8  Notice of initial determination.

    (a) Benefits payable. If benefits are payable for a claim, no 
special notice of the award will be issued to the claimant. A notice of 
the award will be sent to the base-year employer(s). The amount of 
benefits due will be certified to the United States Treasury Department 
for payment.
    (b) Benefits not payable. If an initial determination results in 
denial of a claim, either in whole or in part, the adjudicating office 
shall issue a notice of the denial within 15 days of the date that it 
makes its determination. The notice shall explain the basis for the 
denial of benefits and shall set forth

[[Page 544]]

what steps the claimant can take to contest the denial.
    (c) Communication of notice of denial. When the adjudicating office 
mails the denial notice to the claimant's address of record, it shall be 
considered that notice of the denial has been communicated to the 
claimant on the date of mailing such notice. If the adjudicating office 
has been notified that a claimant has an attorney or other 
representative helping him or her with the claim, a copy of the denial 
notice shall be sent to the attorney or such other representative.

[53 FR 2486, Jan. 28, 1988, as amended at 56 FR 65679, Dec. 18, 1991]



Sec. 320.9  Notice of erroneous benefit payment.

    (a) Content of notice. When an adjudicating office determines that 
benefits were paid erroneously, that office shall issue to the claimant 
a notice of the amount of the erroneous payment and the basis for the 
determination. The notice shall include a statement telling the claimant 
of his or her right to request reconsideration of the determination, of 
the provisions for waiver and of his or her right to request waiver.
    (b) Communication of notice of erroneous payment. When the 
adjudicating office mails the erroneous payment notice to the claimant's 
address of record, it shall be considered that notice of the erroneous 
payment has been communicated to the claimant on the date of mailing 
such notice. If the adjudicating office has been notified that a 
claimant has an attorney or other representative helping him or her with 
the claim, a copy of the erroneous payment notice shall be sent to the 
attorney or such other representative.

[53 FR 2486, Jan. 28, 1988]



Sec. 320.10  Reconsideration of initial determination.

    (a) Request. A claimant shall have the right to request 
reconsideration of an initial determination under Sec. 320.5 of this 
part which denies in whole or in part his or her claim for benefits. A 
claimant shall have the right to request reconsideration of a notice of 
overpayment under Sec. 320.9 of this part. The base-year employer(s) 
shall have the right to request reconsideration of an initial 
determination under Sec. 320.5 of this part which awards in whole or in 
part a claimant's claim for benefits. A reconsideration request shall be 
made in writing and addressed to the adjudicating office that issued the 
initial determination and must be received by the adjudicating office no 
later than 60 days from the date of the notice of the initial decision.
    (b) Review of evidence. Upon request, the party requesting 
reconsideration shall have an opportunity to review all evidence and 
documents that pertain to the initial determination. The Board shall 
made all reasonable efforts to protect the identity of the source of 
adverse evidence.
    (c) Notice of decision. The adjudicating office shall, as soon as 
possible, render a decision on the request for reconsideration. If a 
decision rendered by a district office, as the adjudicating office, 
sustains the initial determination, either in whole or in part, the 
decision shall be referred to the appropriate regional office for review 
prior to issuance. The party who requested reconsideration shall be 
notified, in writing, of the decision on reconsideration no later than 
15 days from the date of the decision or, where the regional office has 
conducted a review of the decision, within 7 days following the 
completion of the review. If the decision results in denial of benefits, 
the claimant shall be notified of the right to appeal as provided in 
Sec. 310.12 of this part. If the decision results in payment of 
benefits, the base-year employer(s) shall be notified of the right to 
appeal as provided in Sec. 310.12 of this part.
    (d) Right to further review of initial determination. The right to 
further review of a determination made under Sec. 310.5 or Sec. 320.6 
of this part shall be forfeited unless a written request for 
reconsideration is filed within the time period prescribed in this 
section or good cause is shown by the party requesting reconsideration 
for failing to file a timely request for reconsideration.
    (e) Timely request for reconsideration. In determining whether 
either the claimant or the base-year employer(s) has good cause for 
failure to file a timely request for reconsideration, the

[[Page 545]]

adjudicating office shall consider the circumstances which kept either 
the claimant or the base-year employer(s) from filing the request on 
time and whether any action by the Board misled either of them. Examples 
of circumstances where good cause may exist include, but are not limited 
to:
    (1) A serious illness which prevented the claimant from contacting 
the Board in person, in writing, or through a friend, relative or other 
person;
    (2) A death or serious illness in the claimant's immediate family 
which prevented him or her from filing.
    (3) The destruction of important and relevant records;
    (4) A failure to be notified of a decision;
    (5) The existence of an unusual or unavoidable circumstance which 
demonstrates that either the claimant or the base-year employer(s) would 
not have known of the need to file timely or which prevented either of 
them from filing in a timely manner; or
    (6) The claimant thought that his or her representative had 
requested reconsideration.

[56 FR 65679, Dec. 18, 1991, as amended at 67 FR 77156, Dec. 17, 2002]



Sec. 320.11  Request for waiver of recovery.

    (a) Time limitation. The claimant shall have 60 days from the date 
of the notification of the erroneous payment determination in which to 
file a request for waiver, except that where an erroneous payment is not 
subject to waiver in accordance with Sec. 340.10(e) of this chapter, 
waiver may not be requested and recovery will not be stayed. Such 
requests shall be made in writing and be filed by mail or in person at 
any Board office. The claimant shall, along with the request, submit any 
evidence and argument which he or she would like to present in support 
of his or her case. A request solely for reconsideration of an 
overpayment shall not be considered a request for waiver under this 
section but shall be treated as a request for reconsideration under 
Sec. 320.10 of this part.
    (b) Recovery action. Where a claimant has made a timely request for 
waiver of recovery, no action will be taken to recover the erroneous 
payment by setoff against current benefits prior to a decision on such 
request; provided however, That the Board may, prior to a decision, 
withhold the amount of the erroneous payment from benefit payments under 
any of the following circumstances:
    (1) The claimant admits he or she was at fault in causing the 
overpayment;
    (2) The claimant is found to have committed fraud;
    (3) The claimant authorizes recovery by setoff or agrees to 
repayment; or
    (4) The amount of erroneous payment is not subject to waiver or 
provided for in Sec. 340.10(e) of this chapter.
    (c) Review of evidence. Upon request, the claimant shall have an 
opportunity to review all evidence and documents that pertain to the 
erroneous payment determination.
    (d) Decision. The Debt Recovery Manager shall make a decision on the 
claimant's request for waiver of recovery and shall notify the claimant 
accordingly. The decision of the Manager shall include the basis of the 
decision, setting forth his or her reasons for the decision including 
the impact, if any, of any evidence submitted by the base-year or last 
employer. If the Manager decides that waiver of recovery is not 
appropriate, the adjudicating office shall wait 15 days from the date of 
the notification of the waiver decision before taking any action to 
recover the erroneous payment. If the Manager decides that recovery 
should be waived, any amount of the erroneous payment so waived but 
previously recovered by setoff shall be refunded to the claimant.
    (e) Appeal. If the Debt Recovery Manager decides that waiver of 
recovery is not appropriate, the claimant shall have the right to appeal 
such decision as provided under Sec. 320.12 of this part.
    (f) Requests made after 60 days. Nothing in this section shall be 
taken to mean that waiver of recovery will not be considered in those 
cases where the request for waiver is not filed within 60 days, but 
action to recover the erroneous payment will not be deferred if such 
request is not filed within 60 days, and any amount of the erroneous 
payment recovered prior to the date on which the request is filed shall 
not be

[[Page 546]]

subject to waiver under part 340 of this chapter. Further, it shall not 
be considered that a claimant prejudices his or her request for waiver 
by tendering all or a portion of an erroneous payment or by selecting a 
particular method of repaying the debt. However, no waiver consideration 
shall be given to a debt which is settled by compromise.
    (g) Evidence provided by base-year employer(s) and most recent 
employer, if different. In making a decision under paragraph (d) of this 
section, the Debt Recovery Manager shall consider all evidence of record 
including any evidence submitted by the claimant's base-year employer(s) 
and the most recent employer, if different. Where a claimant has 
requested waiver the Manager shall notify his or her base-year 
employer(s) and the most recent employer, if different, of the right to 
submit, within 30 days, any information which may be pertinent to the 
waiver decision.

[56 FR 65680, Dec. 18, 1991, as amended at 67 FR 77156, Dec. 17, 2002]



Sec. 320.12  Appeal to the Bureau of Hearings and Appeals.

    (a) Any party aggrieved by a decision under Sec. 320.10 of this 
part or a claimant aggrieved by a decision under Sec. 320.11 of this 
part may appeal such decision to the Bureau of Hearings and Appeals. 
Such an appeal shall be made by filing the form prescribed by the Board 
for such purpose. The appeal must be filed with the Bureau of Hearings 
and Appeals within 60 days from the date upon which notice of the 
decision on reconsideration or waiver of recovery was mailed to either a 
claimant or the base year employer(s). Any written request stating an 
intent to appeal which is received within the 60-day period will protect 
the claimant's or base-year employer's right to appeal, Provided that 
the claimant or base-year employer files the appeal form within the 
later of the 60-day period from the date of the reconsideration 
decision, or the 30-day period following the date of the Board's letter 
sending the appeal form to the claimant or base-year employer.
    (b) If no appeal is filed within the time limits specified in 
paragraph (a) of this section, the decision of the adjudicating office 
under Sec. Sec. 320.10 or 320.11 of this part shall be considered final 
and no further review of such decision shall be available unless the 
hearings officer finds that there was good cause for the failure to file 
a timely appeal as described in Sec. 320.10 of this part.
    (c) Where a timely appeal seeking waiver of recovery of an erroneous 
payment has been filed with the Bureau of Hearings and Appeals, the 
Board shall not commence recovery of the erroneous payment by suspension 
or reduction of a monthly benefit payable by the Board until a decision 
with respect to such appeal seeking waiver has been made and notice 
thereof has been mailed to the claimant.

[67 FR 77157, Dec. 17, 2002]



Sec. 320.18  Hearings officer.

    Within a reasonable time after a party has filed a properly executed 
appeal, the Director of Hearings and Appeals shall appoint a hearings 
officer to act in the appeal. Such hearings officer shall not have any 
interest in the parties or in the outcome of the proceeding, shall not 
have directly participated in the initial determination from which the 
appeal is made, and shall not have any other interest in the matter 
which might prevent a fair and impartial hearing. In any case in which 
employee status or creditability of compensation is an issue, the 
hearings officer shall receive evidence and report to the Board thereon 
with recommendations. In all other cases, the hearings officer shall 
consider and decide the appeal; in each such case where the hearings 
officer determines that an issue of fact exists, the parties shall have 
the right to a hearing.

[56 FR 65680, Dec. 18, 1991]



Sec. 320.19  Election to participate.

    (a) Claimant files an appeal. Where the claimant has filed an appeal 
under Sec. 320.12 of this part the hearings officer shall notify the 
claimant's base-year employer(s) that such an appeal has been filed and 
shall provide the base-year employer with a statement of issues on 
appeal. The hearings officer shall inform the base-year employer(s) that 
such employer(s) shall have a right to be present at any hearing which 
is to be held under this part and

[[Page 547]]

the right to submit evidence with respect to the issues on appeal. 
Within 30 days of the date of such notice a base-year employer shall 
provide the hearings officer with a statement in writing which 
summarizes the evidence which such employer intends to present with 
respect to the issues on appeal, which indicates whether the employer 
wishes to be present at any hearing which may be held, and which 
designates who will represent the employer with respect to the appeal. 
An employer who fails to respond in the time prescribed shall be barred 
from further participation in the appeal and shall forfeit any further 
right to review as provided for in this part.
    (b) Base-year employer files an appeal. Where a base-year employer 
files an appeal under Sec. 320.12 of this part, the hearings officer 
shall notify the claimant that such an appeal has been filed and shall 
provide the claimant with a statement of issues on appeal. The hearings 
officer shall inform the claimant that he or she or a duly authorized 
representative shall have a right to be present at any hearing which is 
to be held under this part and the right to submit evidence with respect 
to the issues on appeal. Within 30 days of the date of such notice the 
claimant shall file with the hearings officer an election to participate 
in the appeal. A claimant who fails to file an election in the time 
prescribed shall be barred from further participation in the appeal and 
shall forfeit any right of review as provided for in this part.

[56 FR 65680, Dec. 18, 1991]



Sec. 320.20  Powers of hearings officer.

    In the development of an appeal, the hearings officer shall have the 
power to hold hearings, require and compel the attendance of witnesses, 
administer oaths, take testimony, and make all necessary investigations.



Sec. 320.22  Notice of hearing.

    (a) Notification of parties. In any case in which an oral hearing is 
to be held, the hearings officer shall schedule a time and place for the 
conduct of the hearing. The hearings officer shall promptly notify the 
party or parties to the proceeding by mail as to said time and place for 
the hearing. The notice shall include a statement of the specific issues 
involved in the case. The hearings officer shall make every effort to 
hold the hearing within 150 days after the date the appeal is filed.
    (b) Notice of objection. A party to the proceeding may object to the 
time and place of the hearing, or as to the stated issues to be 
resolved, by filing a written notice of objection with the hearings 
officer. The notice of objection shall clearly set forth the matter 
objected to and the reasons for such objection, and, if the matter 
objected to is the time and place of the hearing, said notice shall 
further state that party's choice as to the time and place for the 
hearing. Said notice of objection shall be filed at the earliest 
practicable time, but in no event shall said notice be filed later than 
five business days prior to the scheduled date of the hearing.
    (c) Ruling on objection. The hearings officer shall rule on any 
objection timely filed by a party under this section and shall notify 
the party of his or her ruling thereon. The hearings officer may for 
good cause shown, or upon his or her own motion, reschedule the time 
and/or place of the hearing. The hearings officer also may limit or 
expand the issues to be resolved at the hearing.
    (d) Failure to appear or to file objection. If neither a party nor 
his or her representative appears at the time and place scheduled for 
the hearing, that party shall be deemed to have waived his or her right 
to an oral hearing unless said party either filed with the hearings 
officer a notice of objection showing good cause why the hearing should 
have been rescheduled, which notice was timely filed but not ruled upon, 
or, within 10 days following the date on which the hearing was 
scheduled, said party files with the hearings officer a motion to 
reschedule the hearing showing good cause why neither the party nor his 
or her representative appeared at the hearing and further showing good 
cause as to why said party failed to file at the prescribed time any 
notice of objection to the time and place of the hearing.

[[Page 548]]

    (e) Rescheduling the hearing. If the hearings officer finds either 
that a notice of objection was timely filed showing good cause to 
reschedule the hearing, or that the party has within 10 days following 
the date of the hearing filed a motion showing good cause for failure to 
appear and to file a notice of objection, the hearings officer shall 
reschedule the hearing. If the hearings officer finds that the hearing 
shall not be rescheduled, he or she shall so notify the party in 
writing.

[53 FR 2488, Jan. 28, 1988]



Sec. 320.25  Hearing of appeal.

    (a) Manner of conducting hearing. The hearing shall be informal, 
fair, and impartial, and shall be conducted in such manner as to 
ascertain the substantial rights of the parties. The hearing shall not 
be open to the public.
    (b) Evidence presented in support of appeal. (1) Any party, or his 
or her representative, shall be afforded full opportunity to present 
evidence upon any controversial question of fact, orally or in writing 
or by means of exhibits; to examine and cross-examine witnesses; and to 
present argument in support of the appeal.
    (2) The formal rules of evidence shall not apply; however, the 
hearings officer may exclude evidence which he or she finds is 
irrelevant or repetitious. Any evidence excluded by the hearings officer 
shall be described and that description made part of the record.
    (3) If, in the judgment of the hearings officer, evidence not 
offered is available and is relevant and material to the merits of the 
claim, the hearings officer may obtain such evidence upon his or her own 
initiative. If new evidence is obtained after an oral hearing, other 
than evidence submitted by a party or his representative, the hearings 
officer shall provide the parties or their representatives with a copy 
of such evidence. In such event, any party shall have 30 days to submit 
rebuttal evidence or argument or to request a supplemental hearing to 
confront and challenge such new evidence. Any party may move for an 
extension of time to submit rebuttal evidence or argument and the 
hearings officer may grant the motion upon a showing of good cause.
    (c) Where no oral hearing required. Where the hearings officer finds 
that no factual issues are presented by an appeal, and the only issues 
raised by the parties are issues concerning the application or 
interpretation of law, the parties or their representatives shall be 
afforded full opportunity to submit written argument in support of their 
position but no oral hearing shall be held.
    (d) Hearing by telephone. At the discretion of the hearings officer, 
any hearing required under this part may be conducted by telephone 
conference.

[Board Order 58-142, 23 FR 9090, Nov. 22, 1958, as amended at 56 FR 
65681, Dec. 18, 1991; 67 FR 77157, Dec. 17, 2002]



Sec. 320.28  Record of evidence considered.

    The hearings officer will make a record of the material evidence. 
The record will include the applications, written statements, reports, 
and other documents that were used in making the determination under 
review and any other additional evidence the appellant or any other 
party to the hearing presents in writing. If a hearing was held in the 
appeal, the tape recording of the hearing will be part of the record 
while the appeal is pending. The hearings officer's decision will be 
based on the record. The entire record at any time during the pendency 
of the appeal shall be available for examination by any party or by his 
or her duly authorized representative.

[67 FR 77157, Dec. 17, 2002]



Sec. 320.30  Decision or report of hearings officer.

    As soon as practicable after the completion of the record, the 
hearings officer shall render his decision, or submit his report to the 
Board, as may be appropriate in the case. The decision or report shall 
be based on the record and shall be in writing. Such decision shall 
contain a brief statement of (a) the issue or issues raised, (b) the 
evidence submitted, (c) findings of fact, (d) the decision made, and (e) 
the reasons therefor. Such report shall contain a statement of (1) the 
issue or issues raised, (2) the evidence submitted, (3) findings of 
fact, (4) conclusions of law, (5) recommendations as to the decision

[[Page 549]]

to be made by the Board, and (6) such discussion of the foregoing as the 
hearings officer may desire to present to the Board. Within 15 days 
after rendition of the decision or submission of the report, a copy of 
the decision or report shall be mailed to each party at the last address 
of record. In the case of a report, a copy of the transcript of the 
hearing, if any was held, shall also be mailed to each party.

[Board Order 66-84, 31 FR 10181, July 28, 1966, as amended at 56 FR 
65681, Dec. 18, 1991]



Sec. 320.32  Effect of decision of hearings officer.

    A decision of the hearings officer, subject to review as hereinafter 
provided, shall be binding upon any adjudicating office and upon all 
parties;
    (a) With respect to the initial determination involved, and
    (b) With respect to other initial determinations, irrespective of 
whether they have been appealed, which involved the same parties and 
which were based upon the same issue or issues determined in the 
decision of the hearings officer.

[56 FR 65681, Dec. 18, 1991]



Sec. 320.35  Review of decision of hearings officer on motion of Board.

    The Board may, on its own motion, review a decision of the hearings 
officer on the basis of the evidence previously submitted in the case, 
and may designate any employee of the Board to take additional evidence 
and to report his findings to the Board.



Sec. 320.38  Appeal to Board from decision of hearings officer.

    Any claimant aggrieved by a decision of the hearings officer and any 
base-year employer(s) whose employee was awarded benefits, who 
participated in the appeal before the hearings officer, may appeal to 
the Board for review of the decision.

[56 FR 65681, Dec. 18, 1991]



Sec. 320.39  Execution and filing of appeal to Board from decision of 
hearings officer.

    (a) An appeal to the Board from the decision of a hearings officer 
shall be filed on the form provided by the Board and shall be executed 
in accordance with the instructions on the form. Such appeal shall be 
filed within 60 days from the date upon which notice of the decision of 
the hearings officer was mailed to the parties. The right to further 
review of a decision of a hearings officer shall be forfeited unless 
formal final appeal is filed in the manner and within the time 
prescribed in this section. Any written request stating an intent to 
appeal which is received within the 60-day period will protect the 
claimant's right to appeal, Provided that the claimant files the appeal 
form within the later of the 60-day period following the date of the 
hearing officer's decision, or the 30-day period following the date of 
the letter sending the appeal form to the claimant. However, when a 
party fails to file an appeal before the Board within the time 
prescribed in this section, the Board may waive this requirement if 
along with the final appeal, the party in writing requests an extension 
of time. The request for an extension of time must give the reasons why 
the final appeal form was not filed within the time limit prescribed in 
this section. If in the judgment of the Board the reasons given 
establish that the party has good cause for not filing the final appeal 
form within the time limit prescribed, the Board will consider the 
appeal to have been filed in a timely manner. The Board will use the 
standards found in Sec. 320.10(e) of this part in determining if good 
cause exists.
    (b) Where a timely appeal seeking waiver of recovery of an erroneous 
payment has been filed with the three-member Board, the Board shall not 
commence recovery of the erroneous payment by suspension or reduction of 
a monthly benefit payable by the Board until a decision with respect to 
such appeal seeking waiver has been made and notice thereof has been 
mailed to the claimant.

[67 FR 77157, Dec. 17, 2002; 68 FR 6820, Feb. 11, 2003]



Sec. 320.40  Procedure before the Board on appeal from a decision of a 
hearings officer.

    Upon the filing of an appeal to the Board from a decision of a 
hearings officer, the Secretary to the Board shall

[[Page 550]]

notify all parties to the decision of the hearings officer that an 
appeal has been filed. The parties shall not have the right to submit 
additional evidence, except that:
    (a) The Board may permit the submission of additional evidence upon 
a showing by a party that he or she has additional evidence to present 
which, for valid reasons, he or she was unable to present at an earlier 
stage;
    (b) The Board may request the submission of additional evidence; and
    (c) The Board may designate any employee of the Board to take 
additional evidence and to report his or her findings to the Board. Any 
such additional evidence shall be submitted in such manner as the Board 
may indicate and shall be included in the record.
    (d) Any party may submit additional argument in writing with the 
appeal to the Board. No party shall have the right to an oral 
presentation before the Board except where the Board so permits. Such 
presentation may be limited in form, subject matter, length, and time as 
the Board may indicate to the parties.

[56 FR 65681, Dec. 18, 1991, as amended at 67 FR 77158, Dec. 17, 2002]



Sec. 320.41  Procedure before Board after submission of report by 
hearings officer.

    (a) After submission to the Board of a hearings officer's report, in 
an appeal involving employee status or the creditability of 
compensation, any party to the proceeding may, within twenty days after 
the mailing to him of a copy of the report, file with the Board and 
serve upon other parties by mailing to their last addresses of record 
such exceptions in writing as he desires to make to the hearings 
officer's findings of fact and conclusions of law. Each exception shall 
specifically designate the particular finding of fact or conclusion of 
law to which exception is taken, and shall set forth in detail the 
grounds of the exception. General exceptions and exceptions not 
specifically directed to particular findings of fact or conclusions of 
law will not be considered. Each party shall have ten days after the 
receipt of exceptions taken by other parties in which to file with the 
Board replies to the exceptions. The Board may, upon the application of 
any party and for cause shown, extend the time for filing and serving of 
exceptions or filing of replies thereto. The hearings officer's report 
shall be advisory but shall be presumed to be correct. Findings of fact 
to which no exceptions are taken will, subject only to the power of the 
Board to reject or modify, stand confirmed.
    (b) Further argument will not be permitted except upon a showing by 
any party that he has arguments to present which for valid reasons he 
was unable to present at an earlier stage, and in cases in which the 
Board requests further elaboration of arguments. In such cases, the 
further argument shall be submitted orally or in writing, as the Board 
may indicate in each case, and shall be subject to such restrictions as 
to form, subject matter, length, and time as the Board may indicate.



Sec. 320.42  Decision of Board.

    The decision of the Board, whether on an appeal to the Board from a 
decision of a hearings officer, or after submission of a report by a 
hearings officer, shall be made upon the basis of the record established 
in accordance with the foregoing sections. Notice of such decision, 
together with the Board's findings of fact and conclusions of law in 
connection therewith, shall, within 15 days from the date on which the 
decision is made, be mailed to the parties at the latest addresses 
furnished by them. Subject only to judicial review in accordance with 
Sec. 320.45, the decision of the Board shall be final and conclusive 
for all purposes:
    (a) With respect to the initial determination involved, and
    (b) With respect to other initial determinations, irrespective of 
whether they have been appealed, which involve the same parties and 
which were based on the same issue or issues determined in the decision 
of the Board. In a case in which there has been a hearings officer's 
report, in an appeal involving employee status or the creditability of 
compensation, the decision of the Board on all issues determined in such 
decision shall be final and conclusively establish all rights and 
obligations, arising under the Act, of every party notified as 
hereinabove provided of his

[[Page 551]]

or her right to participate in the proceedings.

[Board Order 66-84, 31 FR 10181, July 28, 1966, as amended at 56 FR 
65681, Dec. 18, 1991]



Sec. 320.45  Judicial review.

    Upon being notified of a decision of the Board made (a) upon review, 
on the Board's own motion, of a decision of a hearings officer, or (b) 
upon an appeal to the Board, an aggrieved party may obtain judicial 
review of such final decision, by filing a petition for review within 
ninety days after the date on which notice of such decision was mailed 
to him, or within such further time as the Board may allow, in the U.S. 
Court of Appeals for the circuit in which the party resides or will have 
had his principal place of business or principal executive office, or in 
the U.S. Court of Appeals for the Seventh Circuit or in the Court of 
Appeals for the District of Columbia.

[Board Order 58-142, 23 FR 9090, Nov. 22, 1958, as amended at 56 FR 
65682, Dec. 18, 1991]



Sec. 320.48  Representatives of parties.

    In the event a party to any proceeding within the Board, under the 
preceding regulations in this part, desires to be represented by another 
person, he shall file with the Board prior to the time of such 
representation a power of attorney signed by him and naming such other 
person as the person authorized to represent him: Provided, however, 
That without requiring such power of attorney the Board may recognize as 
the duly authorized representative of the claimant the person designated 
by the claimant's railway labor organization to act in behalf of members 
of that organization on such matters whenever such representative acts 
or appears for such claimant.



Sec. 320.49  Determination of date of filing.

    (a) General rule. Except as otherwise provided in paragraph (b) of 
this section, for purposes of this part, a document or form is filed on 
the day it is received by an office of the Board or by an employee of 
the Board who is authorized to receive it at a place other than one of 
the Board's offices.
    (b) Other dates of filing. The Board will also accept as the date of 
filing the date a document or form is mailed to the Board by the United 
States mail, if using the date the Board receives it would result in the 
loss or lessening of rights. The date shown by a U.S. postmark will be 
used as the date of mailing. If the postmark is unreadable, or there is 
no postmark, the Board will consider other evidence of when the document 
or form was mailed to the Board.
    (c) Use of electronic mail. By agreement between a base-year 
employer and the Board, any document required to be filed with the Board 
or any notice required to be sent to the employer may be transmitted by 
electronic mail.

[67 FR 77158, Dec. 17, 2002]



PART 321_ELECTRONIC FILING OF APPLICATIONS AND CLAIMS FOR BENEFITS 
UNDER THE RAILROAD UNEMPLOYMENT INSURANCE ACT--Table of Contents




Sec.
321.1 Filing applications electronically.
321.2 Filing claims for benefits electronically.

    Authority: 45 U.S.C. 355 and 362(l).

    Source: 69 FR 32260, June 9, 2004, unless otherwise noted.



Sec. 321.1  Filing applications electronically.

    (a) Electronic filing. An application for benefits under the 
Railroad Unemployment Insurance Act may be filed electronically through 
the Board's Internet Web site, http://www.rrb.gov, utilizing a User ID 
and a PIN/Password.
    (b) Adjudication of applications filed electronically. An 
application filed electronically shall be adjudicated in accordance with 
the procedures set forth in this part.
    (c) Date of filing. The date of filing for an application filed 
electronically shall be the date that the electronic filing of the 
application is accepted by the Board's electronic system. If an attempt 
to file an application through the Board's electronic system is 
unsuccessful and is rejected by that system,

[[Page 552]]

the claimant must submit another application. If the subsequent 
application, filed either electronically or on paper, is received by the 
Board within 30 days from the date of the notification that the initial 
filing attempt was rejected, the Board will establish the filing date of 
the subsequent application as the date the rejected application was 
attempted to be filed.



Sec. 321.2  Filing claims for benefits electronically.

    (a) Electronic filing. A claim for benefits under the Railroad 
Unemployment Insurance Act may be filed electronically through the 
Board's Internet Web site, http://www.rrb.gov, utilizing a User ID and a 
PIN/Password.
    (b) Adjudication of claims filed electronically. A claim for 
benefits under the Railroad Unemployment Insurance Act filed 
electronically shall be adjudicated in accordance with the procedures 
set forth in this part.
    (c) Date of filing. The date of filing for a claim for benefits 
under the Railroad Unemployment Insurance Act filed electronically shall 
be the date that the electronic filing of the claim is accepted by the 
Board's electronic system. If an attempt to file a claim for benefits 
under the Railroad Unemployment Insurance Act is unsuccessful and is 
rejected by the Board's electronic system, the claimant must submit 
another claim for benefits. If the subsequent claim for benefits, either 
filed electronically or on paper, is received by the Board within 30 
days from the date of the notification that the initial filing was 
rejected, the Board will establish the filing date of the subsequent 
claim as the date the rejected claim was attempted to be filed.



PART 322_REMUNERATION--Table of Contents




Sec.
322.1 Introduction.
322.2 General definition of remuneration.
322.3 Determining the days with respect to which remuneration is payable 
          or accrues.
322.4 Consideration of evidence.
322.5 Payments under vacation agreements.
322.6 Pay for time lost.
322.7 Dismissal, coordination, and separation allowances.
322.8 Miscellaneous income.
322.9 Subsidiary remuneration.

    Authority: 45 U.S.C. 362(l).

    Source: Board Order 59-73, 24 FR 2487, Mar. 31, 1959, unless 
otherwise noted.



Sec. 322.1  Introduction.

    The Railroad Unemployment Insurance Act provides benefits for a 
qualified employee's days of unemployment or days of sickness, as 
defined in section 1(k) of the Act. Under that section, no day can be a 
day of unemployment or a day of sickness for any employee if 
``remuneration'' is payable or accrues to the employee for such day. In 
computing the amount of benefits payable to an employee for days of 
unemployment or days of sickness in any registration period, or in 
determining whether the employee has satisfied the waiting period 
requirement, the Board will not count any day with respect to which 
remuneration is payable or accrues to the employee. Section 322.2 
defines the term ``remuneration'' and explains what types of payments to 
employees constitute remuneration.

[65 FR 14459, Mar. 17, 2000]



Sec. 322.2  General definition of remuneration.

    (a) Remuneration. (1) Remuneration includes pay for services for 
hire, pay for time lost as defined in Sec. 322.6, and other earned 
income payable or accruing with respect to any day. Income is ``earned'' 
if it is payable or accrues in consideration of services and if such 
services were in turn rendered in consideration of the income payable or 
accruing.
    (2) Remuneration includes income in the form of a commodity, 
service, or privilege if, before the performance of the service for 
which it is payment, the parties have agreed upon the value of such 
commodity, service, or privilege, and that such part of the amount 
agreed upon to be paid may be paid in the form of such commodity, 
service, or privilege.
    (3) Remuneration for a working day that includes a part of two 
consecutive calendar days is deemed to have been earned on the first of 
such two days.
    (b) Subsidiary remuneration. For the purpose of this part, 
remuneration does not include subsidiary remuneration,

[[Page 553]]

as defined in Sec. 322.9. Subsidiary remuneration for any day does not 
prevent such day from being a day of unemployment or a day of sickness, 
except as explained in Sec. 322.9.
    (c) Supplemental unemployment or sickness benefits. The term 
remuneration does not include money payments received by an employee 
pursuant to any nongovernmental plan for unemployment or sickness 
insurance, as defined in part 323 of this chapter. Employer payments of 
sick pay to an employee are remuneration, except when payment is made 
pursuant to a nongovernmental plan for sickness insurance.

[65 FR 14459, Mar. 17, 2000]



Sec. 322.3  Determining the days with respect to which remuneration 
is payable or accrues.

    (a) Payable or accrues. In determining whether remuneration is 
``payable'' or ``accrues'' to an employee with respect to a claimed day 
or days, consideration shall be given to such factors as
    (1) The intention of the parties with respect to the remuneration as 
indicated in employment contracts, in any expressed or implied 
agreements between the parties, and by the actions of the parties;
    (2) Any evidence, such as vouchers or agreement of the parties, 
relating the remuneration to a particular period of time or indicating 
that the remuneration accrued or became payable without reference to any 
particular period of time;
    (3) The measure by which the amount of remuneration was determined;
    (4) Whether the amount of the remuneration is proportionate to the 
length of time needed to render the service for which it is payment;
    (5) Whether the service for which the remuneration accrues is 
required to be rendered on any particular day or particular days; and
    (6) Whether a specified amount of the remuneration is contingent 
upon a result accomplished on a particular day or particular days.
    (b) Layover days. Remuneration shall not be regarded as payable or 
accruing to an employee with respect to his or her ``layover'' days 
between regular assignments in train and engine service solely because 
they are termed ``layover'' days. But no such ``layover'' day may be 
considered as a day of unemployment or sickness. See Sec. 332.6 of this 
chapter.
    (c) Guaranteed earnings. A payment under a plan which guarantees an 
amount of earnings or mileage in a specified period is remuneration with 
respect to each day in the specified period.
    (d) Equivalent of full-time work. An employee who works fewer than 
five days each week under a compressed work schedule that provides the 
equivalent of full-time employment does not earn remuneration with 
respect to his or her additional rest days resulting from such work 
schedule, but such employee will not be considered to be available for 
work on such rest days. See Sec. 327.10(d) of this chapter.

[Board Order 59-73, 24 FR 2487, Mar. 31, 1959, as amended at 65 FR 
14460, Mar. 17, 2000]



Sec. 322.4  Consideration of evidence.

    (a) Initial proof. A claimant's certification that he or she did not 
work on any day claimed and did not receive income such as vacation pay 
or pay for time lost for any such day shall constitute sufficient 
evidence for an initial finding that no remuneration is payable or has 
accrued to him or her with respect to such day, unless a base year 
employer reports that he or she worked on days claimed or received 
payments that constitute remuneration as defined in this part, or unless 
there is other conflicting evidence.
    (b) Investigation. When there is a question as to whether or not 
remuneration is payable or has accrued to a claimant with respect to a 
claimed day or days, investigation shall be made with a view to 
obtaining information sufficient for a finding.

(Approved by the Office of Management and Budget under control number 
3220-0049)

[Board Order 59-73, 24, 2487, Mar. 31, 1959, as amended at 52 FR 11017, 
Apr. 6, 1987; 65 FR 14460, Mar. 17, 2000]



Sec. 322.5  Payments under vacation agreements.

    (a) General. In ascertaining the accrual of remuneration under a 
vacation agreement, consideration shall be given to the applicable 
agreements and

[[Page 554]]

practices, the interpretations of such agreements and practices 
developed by the parties, and the actions of the parties pursuant 
thereto. When there is information that an employee has received or is 
to receive payment under a vacation agreement, such payment shall, in 
the absence of evidence to the contrary, be considered to be 
remuneration with respect to the days to which the payment is assigned.
    (b) Vacation pay. If an employee takes a vacation in accordance with 
a vacation agreement, the payment for such vacation shall constitute 
remuneration with respect to the days in the vacation period for which 
the payment is made. An employee shall be regarded as taking a vacation 
when, in accordance with the applicable agreements and practices (1) he 
is absent from work during a scheduled or assigned vacation period; (2) 
he is required to take his vacation with pay while he is on furlough; or 
(3) he chooses to take his vacation with pay while he is unemployed or 
absent from work due to illness or other personal circumstances.
    (c) Pay in lieu of vacation. If a payment in lieu of vacation is 
made to an employee under a vacation agreement such payment shall not 
constitute remuneration with respect to any particular day or days. A 
payment under a vacation agreement shall be regarded as in lieu of 
vacation if:
    (1) The payment is made at the end of the vacation year to an 
employee who did not take his vacation during such year; or
    (2) The payment is made after the employee's death, or after he 
ceased service for the purpose of receiving an annuity, and the payment 
is credited to the employee's last day of service; or
    (3) It is otherwise established that the parties intended the 
payment to be in lieu of vacation, without reference to any particular 
period.

[Board Order 59-73, 24, 2487, Mar. 31, 1959, as amended at 65 FR 14460, 
Mar. 17, 2000]



Sec. 322.6  Pay for time lost.

    (a) Definition. The term ``pay for time lost'' means any payment 
made to an employee with respect to an identifiable period of time 
during which the employee was absent from the active service of the 
person or company making the payment, including absence on account of 
personal injury. The entire amount paid to an employee who was absent on 
account of personal injury is pay for time lost if such amount includes 
pay for time lost, unless at the time of payment the parties, by 
agreement, specify a different amount as the amount of the pay for time 
lost and the period of time covered by such pay. The amount allocated to 
time lost is remuneration for every day in the period of time lost. The 
amount of a payment for personal injury that is apportioned to factors 
other than time lost is, nevertheless, a portion of ``damages'' for the 
purposes of part 341 of this chapter.
    (b) Employment relationship required. Pay for time lost shall not be 
deemed to have been earned on any day after the day of the employee's 
resignation or other termination of his employment relationship.
    (c) Initial evidence. A report that an employee has received or is 
to receive pay for time lost shall, in the absence of evidence to the 
contrary, be considered sufficient for a finding that remuneration is 
payable with respect to each day in the period to which the pay is 
assigned.

[Board Order 59-73, 24, 2487, Mar. 31, 1959, as amended at 65 FR 14460, 
Mar. 17, 2000]



Sec. 322.7  Dismissal, coordination, and separation allowances.

    (a) Coordination or dismissal allowance. Coordination or dismissal 
allowances are payments made to an employee who has been furloughed for 
a specified period of time during which he or she continues in an 
employment relationship and remains subject to call. Such pay is 
remuneration with respect to each day in the month or other period for 
which it is payable. The employer shall be held liable to the Board for 
any benefits paid to the employee and found recoverable under section 
2(f) of the Railroad Unemployment Insurance Act by reason of the payment 
of any such allowances or other pay for the same days for which the 
Board paid benefits.
    (b) Separation allowance. A separation allowance or severance 
payment made

[[Page 555]]

to an employee who voluntarily or involuntarily terminates his or her 
employment relationship is not remuneration with respect to any day 
after the employment relationship is severed. An employee who is paid a 
separation allowance, whether in a lump sum or in installments, is 
disqualified by section 4(a-1)(iii) of the Railroad Unemployment 
Insurance Act from receiving unemployment or sickness benefits for the 
period of time approximating the length of time it would have taken the 
employee to earn, at his or her ``straight'' time rate of pay, the 
amount of the separation allowance if he or she had continued working in 
the job from which he or she separated.

[65 FR 14460, Mar. 17, 2000]



Sec. 322.8  Miscellaneous income.

    (a) Income from self-employment. In determining whether income from 
self-employment is remuneration with respect to a particular day or 
particular days, consideration shall be given to whether, and to what 
extent, (1) such income can be related to services performed on the day 
or days and (2) the expenses of the self-employment can be attributed to 
the day or days. Income from services performed by an individual on a 
farm which he owns or rents, or in his own mercantile establishment, 
ordinarily is not remuneration with respect to any day.
    (b) Income from investment. Income in the form of interest, 
dividends, and other returns on invested capital which is not coupled 
with the rendition of personal services shall not be regarded as 
remuneration.
    (c) Commissions on sales. Commissions on sales shall be regarded as 
remuneration with respect to the day or days on which sales are made.
    (d) Payments for service as a public official. In determining 
whether income for service as a public official is remuneration and, if 
so, the particular day or days with respect to which such remuneration 
is payable or accrues, consideration shall be given to such factors as 
(1) the amount of the income; (2) the terms and conditions of payment; 
(3) the character and extent of the services rendered; (4) the 
importance, prestige, and responsibilities attached to the position; (5) 
the day or days on which services, or readiness to perform services, are 
required; and (6) the provisions of the applicable statutes.
    (e) Payments to local lodge officials. A payment by a local lodge of 
a labor organization to an employee for services as a local lodge 
official shall be regarded as subsidiary remuneration if such payment 
does not exceed an average of $15 a day for the period with respect to 
which it is payable or accrues, unless there is information that the 
work from which the payment is derived does not require substantially 
less than full time as determined by generally prevailing standards, or 
is not susceptible of performance at such times and under such 
circumstances as not to be inconsistent with the holding of normal full-
time employment in another occupation.
    (f) Public relief payments. Public relief payments made in 
consideration of need shall not be regarded as remuneration.

[Board Order 59-73, 24, 2487, Mar. 31, 1959, as amended at 65 FR 14460, 
Mar. 17, 2000]



Sec. 322.9  Subsidiary remuneration.

    (a) Definition.The term ``subsidiary remuneration'' means 
remuneration not in excess of an average of $15 per day for the period 
with respect to which it is payable or accrues, if
    (1) The work from which the remuneration derives requires 
substantially less than full time as determined by generally prevailing 
standards; and
    (2) The work is susceptible of performance at such times and under 
such circumstances as not to be inconsistent with the holding of normal 
full-time employment in another occupation.
    (b) Exception. If a claimant's remuneration is ``compensation'' as 
defined in part 302 of this chapter, such remuneration is not subsidiary 
unless the claimant had base year compensation from a different position 
or occupation of not less than two and one-half times the monthly 
compensation base for months in the base year in which he or she 
received the remuneration. Compensation in excess of an average of $15 
per day is remuneration for the days for which it is payable or accrues.
    (c) Period for which remuneration is payable or accrues. The 
``period'' of time

[[Page 556]]

used in determining whether remuneration averages more than $15 per day 
depends on the terms and conditions of the employment and the rate of 
payment for the work. If the claimant is paid a monthly salary, the 
``month'' is the period with respect to which the pay must average not 
more than $15 per day. The average is the monthly salary divided by 30. 
If the claimant is paid a weekly salary, the amount of the salary is 
divided by seven. If the claimant is paid by the hour or the day, the 
``period'' is the day. Where payment is made by the hour or the day, the 
pay is not added up and then averaged out over the week or the month. 
For example, earnings of $20 on one day and $10 on another day do not 
average out to $15 per day so as to permit both days to be considered as 
days of unemployment or days of sickness.
    (d) Substantially less than full time. The phrase ``substantially 
less than full time'' means employment of not more than four hours per 
day.
    (e) Compatibility with full time employment. Work is considered to 
be susceptible of performance at such times and under such circumstances 
as not to be inconsistent with the holding of normal full-time 
employment in another position or occupation if it is a form of 
secondary employment that a claimant has done or could do at his or her 
own convenience while performing the duties of his or her railroad job.
    (f) Determinations. The Board shall make a determination whether 
remuneration is subsidiary by applying the standards in this section to 
the facts of each case. Earnings that average more than $15 per day are 
not subsidiary remuneration under any circumstances. Also, earnings of 
any amount that are included in a claimant's qualifying base year 
compensation are not subsidiary remuneration. Even if earnings do not 
exceed an average of $15 per day, they may still not be subsidiary 
remuneration if the claimant worked more than four hours per day or if 
the work had to be performed at such times and under such circumstances 
as to be inconsistent with the holding of normal full-time work in his 
or her regular railroad work. If the evidence does not establish that 
the earnings are subsidiary remuneration, the question whether they are 
remuneration for particular days will then be considered.
    (g) Examples. The following examples illustrate this section.
    (1) A claimant receives a salary of $350 per month for serving as 
secretary-treasurer of the local lodge of his union. He performs a 
variety of duties at his own convenience while holding down a full-time 
railroad job in his craft. The average payment per day is not more than 
$15 and is, therefore, subsidiary remuneration.
    (2) A claimant worked three hours per day, at $5 per hour, in the 
family insurance business. He was marked up for work as an extra board 
trainman and worked whenever he was called. When called, he skipped work 
in the family insurance business. His insurance earnings of $15 per day 
were subsidiary remuneration.
    (3) While unemployed from her railroad job, a claimant took a job as 
a school bus driver. She worked from 7 a.m. to 9 a.m., and 2:30 p.m. to 
5:30 p.m. Her regular railroad job was a daytime job from 8 a.m. to 4:30 
p.m. Her pay as a school bus driver was not subsidiary remuneration 
because the job was not compatible with the holding of full time work in 
her regular railroad occupation.

[65 FR 14460, Mar. 17, 2000]



PART 323_NONGOVERNMENTAL PLANS FOR UNEMPLOYMENT OR SICKNESS INSURANCE
--Table of Contents




Sec.
323.1 Introduction.
323.2 Definition of nongovernmental plan for unemployment or sickness 
          insurance.
323.3 Standards for Board approval of a nongovernmental plan.
323.4 Guidelines for content of a nongovernmental plan.
323.5 Submitting proposed plan for Board approval.
323.6 Treatment of benefit payments under a nongovernmental plan for 
          purposes of contributions.
323.7 Effective date.

    Authority: 45 U.S.C. 362(1).

    Source: 56 FR 26328, June 7, 1991, unless otherwise noted.

[[Page 557]]



Sec. 323.1  Introduction.

    (a) This part defines the phrase nongovernmental plan for 
unemployment or sickness insurance and sets forth the procedure by which 
an employer may obtain a determination by the Railroad Retirement Board 
as to whether a particular plan that such employer maintains for its 
employees qualifies as a nongovernmental plan. In general, any payment 
by an employer to an employee for services rendered as an employee will 
be considered to be remuneration within the meaning of section 1(j) of 
the Railroad Unemployment Insurance Act and part 322 of this chapter. 
This includes employer payments that relate to an employee's loss of 
earnings during a period of time when the employee is unemployed or 
sick, including sickness resulting from injury. The exception is when an 
employer pays an employee a benefit pursuant to the provisions of a 
nongovernmental plan for unemployment or sickness insurance established 
by an employer for the benefit of its employees. Benefit payments under 
such plans are not remuneration and do not affect an employee's 
eligibility for unemployment or sickness benefits under the Railroad 
Unemployment Insurance Act.
    (b) This part does not have any general applicability to private 
insurance contracts under which an insurance company, pursuant to a 
policy of insurance maintained by or for an employee, pays medical or 
hospital expenses or other cash benefits to or in behalf of an employee. 
Nor does this part apply to any private plan for relief of unemployment 
established by a party other than an employer such as, for example, a 
plan established by a labor union under which it undertakes to pay 
benefits to striking members of the union out of a strike insurance 
fund. Insurance policy benefits and strike unemployment benefits, 
although paid under plans that are nongovernmental in nature, are not 
considered remuneration for services under the general definition of 
remuneration. See part 322 of this chapter.



Sec. 323.2  Definition of nongovernmental plan for unemployment or 
sickness insurance.

    A nongovernmental plan for unemployment or sickness insurance is a 
benefit plan, program or policy that is in the nature of insurance and 
is designed and established by an employer for the purpose of 
supplementing the benefits that an employee of such employer may receive 
under the Railroad Unemployment Insurance Act during a period of 
unemployment or sickness. A nongovernmental plan may be established by 
labor-management agreement or by unilateral employer action. Payments 
under such plans are referred to as supplemental unemployment benefits 
(SUB pay) or supplemental sickness benefits, rather than as wages, 
salary or pay for time lost, because their inherent nature is to 
supplement benefit payments under the Railroad Unemployment Insurance 
Act rather than to replace or duplicate such payments.



Sec. 323.3  Standards for Board approval of a nongovernmental plan.

    An unemployment or sickness benefit plan qualifies as a 
nongovernmental plan if it conforms to the following standards:
    (a) The plan is in writing and has been published or otherwise 
communicated to covered employees prior to the inception of the plan;
    (b) Benefits under the plan are payable only to employees who are 
involuntarily laid off or separated from the service of the employer or 
who are absent from work on account of illness or injury;
    (c) Payment of benefits under the plan is conditioned upon a covered 
employee's meeting the eligibility conditions governing payment of 
benefits under the Railroad Unemployment Insurance Act. However, a plan 
will not be disqualified merely because it:
    (1) Provides benefits during any waiting period required under the 
Railroad Unemployment Insurance Act, or
    (2) Provides benefits after an employee has exhausted rights to 
benefits under the Railroad Unemployment Insurance Act, or
    (3) Provides benefits during a period when the employee is not a 
``qualified

[[Page 558]]

employee'', within the meaning of part 302 of this chapter;
    (d) Payment of benefits under the plan is coordinated with benefit 
payments to which the employee may be entitled under the Railroad 
Unemployment Insurance Act. In general, plan benefit payments will be 
considered coordinated with Railroad Unemployment Insurance Act benefit 
payments when computation of the plan benefits takes Railroad 
Unemployment Insurance Act benefit entitlement into consideration in 
such a way as to make it clear that the plan is supplementing Railroad 
Unemployment Insurance Act benefit payments for days of unemployment or 
days of sickness. For example, a plan that provides for payment of a 
specified daily benefit amount is considered coordinated with Railroad 
Unemployment Insurance Act benefit payments if the plan provides that 
the daily benefit amount otherwise payable to the employee is reduced by 
the amount of benefits that the employee received or could receive under 
the Railroad Unemployment Insurance Act for the same day if the employee 
had met all the eligibility criteria for such benefit. Similarly, there 
is acceptable coordination if the plan simply provides for payment of an 
amount as an ``add-on'' benefit to the amount of Railroad Unemployment 
Insurance Act benefits paid or payable. On the other hand, a plan that 
allows payment so as to compensate an employee for railroad or non-
railroad earnings that are lower in amount than what the employee would 
get under the plan if he or she were not employed is not considered 
coordinated with benefit payments under the Railroad Unemployment 
Insurance Act because an employer payment made under such circumstances 
supplements earnings rather than benefit payments under the Railroad 
Unemployment Insurance Act. No Railroad Unemployment Insurance Act 
benefits are payable to an employee who is earning remuneration from 
railroad or non-railroad employment. Employer payments that make up for 
low earnings are pay for time lost and therefore are compensation and 
remuneration;
    (e) The plan confers upon covered employees an enforceable right to 
the benefits under the plan. The plan may not commit to management 
discretion any decision as to whether such employee will actually be 
paid the benefits to which he is entitled under the plan or the amount 
to be paid;
    (f) The plan may not provide benefits to a covered employee in an 
amount that, when added to his or her Railroad Unemployment Insurance 
Act benefits, is greater than the wages of salary that would have been 
paid if the employee were employed; and
    (g) The plan incorporates the features set forth in Sec. 323.4 of 
this part and has been approved by the Board's Director of Unemployment 
and Sickness Insurance as a nongovernmental plan for unemployment or 
sickness insurance.



Sec. 323.4  Guidelines for content of a nongovernmental plan.

    At a minimum, a nongovernmental plan for unemployment or sickness 
insurance should contain the following features:
    (a) The title of the plan (e.g., Supplemental Unemployment Benefit 
Plan or Supplemental Sickness Benefit Plan);
    (b) A statement of purpose, such as the following:

    There is hereby established a nongovernmental plan for (unemployment 
insurance) (sickness insurance) [specify which one] within the meaning 
of section 1(j) of the Railroad Unemployment Insurance Act. The purpose 
of this plan is to supplement the benefits that an eligible employee may 
receive under that Act and not to replace or duplicate such benefits. 
Payments under this plan are designed as one of the benefits of 
employment with [name of employer] and are not intended as pay for time 
lost or any other form of remuneration for services rendered as an 
employee;

    (c) A statement as to which class or craft of employees, or other 
specified group of employees, is covered by the plan;
    (d) The criteria governing a particular covered employee's 
eligibility for supplemental benefits under the plan;
    (e) The dollar amount of supplemental benefits payable on a periodic 
basis to an eligible employee, the duration of supplemental benefits, 
how such benefits will be computed, and the conditions under which an 
employee will

[[Page 559]]

be disqualified or benefit payments reduced or terminated; and
    (f) The identity of the plan administrator and the procedure by 
which a covered employee may claim supplemental benefits under the plan, 
including forms to be filed (if any), how to file, the time limit for 
filing, and how an employee may appeal from a denial of supplemental 
benefits.



Sec. 323.5  Submitting proposed plan for Board approval.

    An employer shall submit each proposed plan, or a proposed revision 
to an existing plan, to the Director of Unemployment and Sickness 
Insurance, Railroad Retirement Board, 844 Rush Street, Chicago, Illinois 
60611. The Director shall determine whether the plan or revision 
conforms to this part. Approval shall be effective as of the effective 
date of the plan. If not approved, the Director will advise the employer 
in which particular respects the proposed plan or revision does not 
conform to this part.



Sec. 323.6  Treatment of benefit payments under a nongovernmental plan 
for purposes of contributions.

    Benefit payments under nongovernmental plans approved by the Board 
under this part are not compensation as defined in section 1(i) of the 
Railroad Unemployment Insurance Act, and therefore they are not subject 
to contribution under part 345 of this chapter.



Sec. 323.7  Effective date.

    (a) This part shall not apply to a plan approved by the Director of 
Unemployment and Sickness Insurance prior to the effective date of this 
part. However, it shall apply to any proposed revision to such plan.
    (b) Any plan in effect on the effective date of this part that has 
not been approved by the Director of Unemployment and Sickness Insurance 
shall be considered a proposed plan for purposes of Sec. 323.5.



PART 325_REGISTRATION FOR RAILROAD UNEMPLOYMENT BENEFITS--Table of 
Contents




Sec.
325.1 General.
325.2 Procedure for registering for unemployment benefits.
325.3 Application for unemployment benefits and employment service.
325.4 Claim for unemployment benefits.
325.5 Death of employee.
325.6 Verification procedures.

    Authority: 45 U.S.C. 362(i) and 362(l).

    Source: 54 FR 24551, June 8, 1989, unless otherwise noted.



Sec. 325.1  General.

    (a) Day of unemployment. A ``day of unemployment'' is a calendar day 
on which an employee, although ready and willing to work, is unemployed, 
and on which no remuneration is payable and for which the employee has 
registered, as required by this part. The amount of compensable days of 
unemployment shall be computed in accordance with this section.
    (b) Registration period. Except for registration periods in extended 
unemployment benefit periods, a ``registration period'' means a period 
of 14 consecutive days beginning with the first day for which an 
employee registers following:
    (1) His or her last day of work, or
    (2) The last day of the employee's last preceding registration 
period, and with respect to which the employee properly files a claim 
for benefits on such form and in such manner as the Board prescribes.
    (c) General waiting period. Benefits are payable to any qualified 
employee for each day of unemployment in excess of seven during his or 
her first registration period in a period of continuing unemployment if 
such period of continuing unemployment is his or her initial period of 
continuing unemployment beginning in the benefit year, and then for each 
day of unemployment in excess of four during any subsequent registration 
period within the same period of continuing unemployment. A strike 
waiting period, described in paragraph (d) of this section, will satisfy 
a general waiting period with respect to a benefit year.

[[Page 560]]

    (d) Strike waiting period. If a qualified employee has a period of 
continuing unemployment that includes days of unemployment due to a 
stoppage of work because of a strike in the establishment, premises, or 
enterprise at which he or she was last employed, no benefits are payable 
for his or her first 14 days of unemployment due to such stoppage of 
work. For subsequent days of unemployment due to the same stoppage of 
work, benefits are payable for days of unemployment in excess of four in 
each subsequent registration period within the period of continuing 
unemployment. If such period of continuing unemployment ends because the 
employee has exhausted his or her benefits as provided for under part 
336 of this chapter, but the stoppage of work continues, benefits are 
payable for days of unemployment in excess of seven in the employee's 
first registration period in a new period of continuing unemployment 
based upon the same stoppage of work and for days of unemployment in 
excess of four in subsequent registration periods in the same period of 
continuing unemployment.
    (e) Period of continuing unemployment. A ``period of continuing 
unemployment'' means a single registration period that includes more 
than four days of unemployment or a series of consecutive periods each 
of which includes more than four days of unemployment, or a series of 
successive registration periods, each of which includes more than four 
days of unemployment, if each succeeding registration period begins 
within 15 days after the last day of the immediately preceding 
registration period. An employee's period of continuing unemployment 
ends on the last day of a benefit year in which he or she exhausts 
rights to unemployment benefits as provided for in part 336 of this 
chapter.
    (f) Computation of compensable days--(1) Example 1. An employee has 
an initial period of continuing unemployment from June 14 through July 
25 and is unemployed on all days in that period. The employee's first 
registration period covers June 14 to June 27, and his subsequent 
registration periods cover June 28 to July 11 and July 12 to July 25. 
Under paragraph (c) of this section, a one-week waiting period applies 
to his first registration period and the employee is therefore paid 
benefits for days of unemployment in excess of seven in that period. The 
employee is then paid benefits for days of unemployment in excess of 
four in each of the two ensuing registration periods. [Note: if this 
employee's period of continuing unemployment had been the result of a 
strike in the establishment, premises, or enterprise at which the 
employee was last employed, then under paragraph (d) of this section, no 
benefits would be payable for the period June 14 to June 27, and 
benefits would then be payable for days of unemployment in excess of 
four in each of the ensuing registration periods.]
    (2) Example 2. Same facts as in example 1, but the employee is 
unemployed again beginning August 18. Since August 18 is more than 15 
days after July 25, the end of his last registration period, the 
employee begins a new period of continuing unemployment. The employee's 
first registration period in the new period of continuing unemployment 
covers August 18 to August 31. The employee is paid benefits for days of 
unemployment in excess of seven in that registration period because that 
period is the employee's first registration period in a new period of 
continuing unemployment commencing in the benefit year beginning July 1, 
and he or she did not previously have a waiting period in any 
registration period earlier in that benefit year. The employee's next 
registration period covers September 1 to September 14, and the employee 
returned to work on September 12. In that registration period, the 
employee has 11 days of unemployment and is therefore paid benefits for 
days of unemployment in excess of four.
    (3) Example 3. Same facts as in examples 1 and 2, but the employee 
then has a new period of continuing unemployment beginning November 1 in 
the same benefit year. November 1 to November 14 is the employee's first 
registration period in that period of continuing unemployment. The 
employee is paid benefits for days of unemployment in excess of four in 
that registration period and for days of unemployment in excess of four 
in any subsequent registration period in the same

[[Page 561]]

benefit year because earlier in the benefit year the employee had a 
registration period, August 18 to August 31, in which he or she 
satisfied the waiting period.
    (g) Remuneration exceeds base year compensation. (1) No benefits are 
payable to any otherwise eligible employee for any day of unemployment 
in a registration period where the total amount of remuneration, as 
defined in part 322 of this chapter, payable to the employee during a 
registration period exceeds the amount of the base year monthly 
compensation base. For this purpose an employee is considered to have 
received the amount he would have earned except for the fact that he 
declined suitable work available to him or her during the registration 
period.
    (2) Days of unemployment which are not compensable by virtue of 
paragraph (g)(1) of this section shall nevertheless be counted as days 
of unemployment for purposes of determining whether the general waiting 
period, as described in paragraph (c) of this section, has been 
satisfied, and for purposes of determining a period of continuing 
unemployment.
    (h) Pay for time lost. An employee may claim unemployment benefits 
in accordance with this part even though he or she is also pursuing a 
claim for pay for time lost or other remuneration. If such pay is 
awarded to the employee with respect to any day for which the Board has 
paid him or her unemployment benefits, the Board will recover the amount 
of unemployment benefits that was paid for any day or days for which he 
or she was awarded pay for time lost. See part 322 of this chapter. It 
is the employee's responsibility to tell the Board that he or she has 
filed or intends to file a claim for time lost.

[54 FR 24551, June 8, 1989, as amended at 65 FR 19647, Apr. 12, 2000]



Sec. 325.2  Procedure for registering for unemployment benefits.

    (a) Registering as unemployed. To claim unemployment benefits for 
any day, an employee must register as unemployed by doing the following:
    (1) Apply for unemployment benefits and employment service in 
accordance with Sec. 325.3;
    (2) File a claim in accordance with Sec. 325.4; and
    (3) Provide any other information that the Board needs to properly 
adjudicate his or her right to unemployment benefits.
    (b) No benefits payable without registration. No unemployment 
benefits shall be paid to any otherwise qualified employee with respect 
to any day claimed as a day of unemployment, and no waiting period 
credit shall be allowed, until such time as the employee has complied 
with the requirements of paragraph (a) of this section.
    (c) When a registration period may begin. When registering for 
unemployment benefits, an employee may claim benefits for any calendar 
day on which he or she is unemployed and believes himself or herself to 
be eligible for benefits. A registration period may begin as early as 
the first calendar day on which an employee is unemployed following his 
or her last day of work even though such first calendar day would have 
been a rest day if the employee had not become unemployed. However, a 
registration period may not begin with any calendar day with respect to 
which an employee has received or will receive remuneration.

    Example 1. An employee whose rest days are Saturday and Sunday is 
laid off on Friday, September 2, after working his regular shift on that 
day. His first 14-day registration period could start as early as 
Saturday, September 3. A registration period starting on September 3 
would end on September 16. If he continues to be unemployed, his next 
registration period could begin September 17 and end September 30, and 
so forth.
    Example 2. An employee whose rest days are Saturday and Sunday is 
laid off on Friday, September 2, but he decides to take two weeks' 
vacation pay covering days through Friday, September 16. Because he will 
have received remuneration for days through September 16, his claim for 
unemployment benefits could begin on Saturday, September 17, if he 
continues to be unemployed after his vacation ends.
    Example 3. An employee whose rest days are Saturday and Sunday is 
laid off on Monday, September 5, after working his regular shift on that 
day. His first 14-day registration period could begin on Tuesday, 
September 6, the first day on which he was unemployed following his last 
day of work.

(Approved by the Office of Management and Budget under control number 
3220-0166)

[[Page 562]]



Sec. 325.3  Application for unemployment benefits and employment service.

    (a) Requirement. An unemployed employee who wishes to claim 
unemployment benefits shall apply for such benefits by completing the 
form prescribed by the Board for that purpose. Such form shall also 
constitute an application for employment service. An application will be 
required at the beginning of each period of unemployment in a benefit 
year unless:
    (1) The employee filed an application for an initial period of 
unemployment in a benefit year and has a subsequent period of 
unemployment within the same benefit year; or
    (2) The employee had filed an application for benefits for a period 
of unemployment that began in the preceding benefit year and the period 
of unemployment continued into the next ensuing benefit year.

In either of these circumstances, the initial application will be 
treated as an application for days in the subsequent period of 
unemployment or as an application for days in the next ensuing benefit 
year, as the case may be.
    (b) Purpose of application. An application for unemployment benefits 
and employment service is a document that serves three purposes. First, 
it identifies an employee who has become unemployed and wishes to begin 
receiving unemployment benefits. Second, it assists the Board in 
determining whether the applicant is a qualified employee and if so, 
whether any of the information reported on the application affects his 
or her eligibility for payment of benefits. Third, it assists the Board 
in placing the employee in any suitable employment that may be 
available.
    (c) Time for filing application. An employee may deliver or mail his 
or her application to any Board office, but such application must be 
received at a Board office within 30 calendar days of the first day that 
the employee intends to claim as a day of unemployment. For example, if 
an employee becomes unemployed on October 31 and intends to claim 
unemployment benefits for days starting November 1, the application must 
reach a Board office no later than November 30. If the application is 
received December 1, the employee may not be paid unemployment benefits 
for November 1 as such day would not be considered as a ``day of 
unemployment''. If an employee returns to work and then becomes 
unemployed again within the same benefit year, he or she is not required 
to file a new application for benefits and employment service but need 
only contact the nearest Board office to obtain a claim form and file 
such form as described in Sec. 325.4.
    (d) Extension of time for filing. Notwithstanding paragraph (c) of 
this section, the Board will consider an application for unemployment 
benefits as timely filed if:
    (1) The employee can show that he or she made a reasonable effort to 
file the form on time but was prevented from doing so by circumstances 
beyond his or her control; provided, however, that lack of diligence, 
forgetfulness or lack of knowledge of the time limit for applying shall 
not be considered to be a circumstance beyond the employee's control; 
and
    (2) The employee files an application within one year of the day or 
days that he or she claims as a day or days of unemployment.



Sec. 325.4  Claim for unemployment benefits.

    (a) Requirement. After an unemployed employee has applied for 
unemployment benefits in accordance with Sec. 325.3, he or she shall 
claim a day as a day of unemployment by registering with respect to such 
day. Registration shall be made on the claim form provided by the Board 
to the employee.
    (b) Claim. A claim for unemployment benefits shall cover a period of 
14 consecutive calendar days. Each such 14-day period shall be a 
registration period. An employee shall provide the information called 
for by the claim form and shall file his or her claim in accordance with 
paragraph (c) of this section.
    (c) Time for filing. A claim for unemployment benefits shall be 
filed at any Board office no later than 15 calendar days after the last 
day of the claim period, as defined in paragraph (b) of this section, or 
15 calendar days after the date on which the claim form was mailed to 
the employee, whichever is later. In determining whether the time

[[Page 563]]

for filing the claim may be extended, the standards set forth in Sec. 
325.3(d) shall be applied. None of the days included in a claim that is 
not timely filed shall be considered a day of unemployment.
    (d) Claim for new period of unemployment. An employee who has 
complied with the application requirement under Sec. 325.3 with respect 
to a period of unemployment in a benefit year, and who again becomes 
unemployed in the same benefit year, need not file a new application but 
may initiate a claim for benefits for days in such subsequent period by 
calling or visiting the nearest district office of the Board to request 
a claim form. Such request shall be made no later than 30 calendar days 
after the first day for which the employee wishes to claim benefits. 
Upon receipt of a request under this paragraph, the district office 
shall provide the employee with a claim form which shall show the 
beginning and ending dates of the registration period covered by the 
claim form, with the first day shown on the claim form being no earlier 
than the 30th day before the date on which the employee requested the 
claim form, unless the delay may be excused by applying the standards 
set forth in Sec. 325.3(d).
    (e) Delayed claims. If an employee makes an initial application and 
claim for benefits in accordance with this part but does not continue to 
file ongoing claims because he or she receives an initial determination 
denying his or her application or claim for benefits and if, upon 
review, the denial is reversed by an appeals referee or other authorized 
reviewing official, the employee shall have 30 days from the date of the 
notice of the reversal in which to file a claim or claims for benefits 
for the days that he or she would have claimed as days of unemployment 
but for the initial determination denying benefits. The appeals referee 
or other reviewing official, as appropriate, shall notify the employee 
of the 30-day time limit imposed by this paragraph. An employee whose 
claim for benefits has been denied may continue to claim any additional 
day or days for which he or she believes that he or she is eligible for 
benefits.
    (f) Claim required for waiting period. The requirement to file a 
claim for unemployment benefits includes a requirement to file a claim 
for the non-compensable waiting period described in Sec. 325.1(d), 
except that the Director of Unemployment and Sickness Insurance may 
waive such requirement in connection with unemployment resulting from a 
work stoppage or other labor dispute.
    (g) Withdrawal of claim. An employee may withdraw his or her claim 
for unemployment benefits by submitting a written statement to that 
effect and by repaying any benefits paid on the claim, unless the 
employee's claim was intentionally false or fraudulent.

[54 FR 24551, June 8, 1989, as amended at 58 FR 45841, Aug. 31, 1993]



Sec. 325.5  Death of employee.

    If an employee dies before filing one or more of the required forms, 
the form or forms may be filed by or in behalf of the person or persons 
to whom benefits would be payable pursuant to section 2(g) of the Act. 
Such form or forms shall be filed within the time prescribed in Sec. 
325.3. Under these circumstances, the word ``employee'', as used in this 
part, shall include the individual or individuals by or in behalf of 
whom the form is filed.



Sec. 325.6  Verification procedures.

    The Board's procedures for adjudicating and processing applications 
and claims for unemployment benefits filed pursuant to this part will 
include both pre-payment and post-payment procedures for verifying the 
validity of such applications and claims. Such procedures shall be 
designed with a view to obtaining substantial evidence as to the days of 
unemployment of the employees who register in accordance with this part. 
The verification procedures shall include, but are not limited to:
    (a) Pre-payment contacts with railroad employers, utilizing data 
processing techniques to the extent feasible so as not to delay unduly 
the payment of valid claims; and
    (b) Computer matching programs with state agencies or other entities 
that may have relevant data concerning non-railroad employment and

[[Page 564]]

benefit payments under state unemployment compensation laws.



PART 327_AVAILABLE FOR WORK--Table of Contents




Sec.
327.1 Introduction.
327.5 Meaning of ``available for work''.
327.10 Consideration of availability.
327.15 Reasonable efforts to obtain work.

    Authority: 45 U.S.C. 362(i), 362(l).



Sec. 327.1  Introduction.

    The Railroad Unemployment Insurance Act provides for the payment of 
unemployment benefits to qualified railroad employees for days of 
unemployment. Under section 1(k) of the Act, an unemployed employee must 
be ``available for work'' as a condition of eligibility for unemployment 
benefits for any day claimed as a day of unemployment. This part defines 
the phrase ``available for work'' and explains how the Board will apply 
that phrase to claims for unemployment benefits.

[55 FR 1811, Jan. 19, 1990]



Sec. 327.5  Meaning of ``available for work''.

    (a) General definition. A claimant for unemployment benefits is 
available for work if he is willing and ready to work.
    (b) Willing to work. A claimant is willing to work if he is willing 
to accept and perform for hire such work as is reasonably appropriate to 
his circumstances in view of factors such as:
    (1) The current practices recognized by management and labor with 
respect to such work;
    (2) The degree of risk involved to the claimant's health, safety, 
and morals;
    (3) His physical fitness and prior training;
    (4) His experience and prior earnings;
    (5) His length of unemployment and prospects for obtaining work; and
    (6) The distance of the work from his residence and from his most 
recent work.
    (c) Ready to work. A claimant is ready to work if he:
    (1) Is in a position to receive notice of work which he is willing 
to accept and perform, and
    (2) Is prepared to be present with the customary equipment at the 
location of such work within the time usually allotted.

[Board Order 53-296, 18 FR 8157, Dec. 12, 1953]



Sec. 327.10  Consideration of availability.

    (a) Initial proof. A claimant who registers for unemployment 
benefits in accordance with the provisions of part 325 of this chapter 
shall, absent any evidence to the contrary, initially be considered 
available for work. Evidence that a claimant may not be available for 
work shall include any evidence provided by the claimant's base year 
employer(s) pursuant to section 5(b) of the Railroad Unemployment 
Insurance Act.
    (b) Information indicating unavailability. If the office of the 
Board which is adjudicating a claimant's claims for benefits receives 
information indicating that the claimant may not be available for work, 
he shall be required to submit evidence of his availability for work, 
and no benefits shall thereafter be paid with respect to any day in the 
period of the claimant's unemployment unless sufficient evidence of the 
claimant's availability for work on such day is presented.
    (c) Employee who has retired voluntarily. An employee who has 
retired voluntarily shall be presumed not to be eligible for 
unemployment benefits. An employee shall be regarded as having retired 
voluntarily if his not being in the active service of his employer is 
due to an agreement between his labor organization and his employer 
requiring retirement upon attaining a certain age.
    (d) Equivalent of full-time work. (1) A claimant who is continuously 
employed from week to week under a work schedule that provides the 
equivalent of full-time employment shall not be considered available for 
work with respect to any rest day or other non-work day within a 14-day 
registration period.
    (2) The application of paragraph (d) may be illustrated by the 
following examples:

    Example (1): A claimant's regular work schedule requires him or her 
to work five nine-hour days one week followed by three nine-hour days 
and one eight-hour day in the next week. The claimant has five non-work

[[Page 565]]

days within this two-week period. The claimant is not considered 
available for work on those non-work days.
    Example (2): On Monday an employee who has been working a shift 
which has Saturdays and Sundays off changes to a shift which normally 
has Wednesdays and Thursdays off. As a consequence, the employee has six 
non-work days within a 14-day period. The employee is not considered 
available for work with respect to any of the six non-work days.
    Example (3): An employee regularly receives remuneration for 40 
hours per week by working 10 hours on each of four days per week, thus 
giving him or her six rest days in a 14-day period. The employee will 
not be considered available for work on the rest days.

    (e) Attendance in school or training course. (1) A claimant who has 
voluntarily left work to enroll as a student in an educational 
institution shall be presumed not to be available for work. For the 
purpose of this provision, leaving work is considered voluntary when the 
claimant on his or her own initiative left work that he or she could 
have continued to perform but for the claimant's decision to attend 
school. In all other cases, this presumption shall not apply, but 
eligibility shall instead be determined on the basis of the facts of 
each case. In each such case, the claimant shall be given an opportunity 
to establish that he or she remains ready and willing to engage in full-
time employment for hire, notwithstanding his or her school attendance. 
If a claimant is enrolled in a vocational training program at a trade or 
technical school, he or she shall be considered available for work if 
his or her current prospects for work are poor and the vocational 
training can reasonably be expected to increase his or her prospects for 
obtaining new employment.
    (2) Examples. The application of paragraph (e) may be illustrated by 
the following examples:

    Example (1): An individual is laid off by his or her railroad 
employer. Instead of looking for other employment, the individual 
decides to enter college in order to become a teacher. He or she is 
enrolled as a full-time day student. The individual is not available for 
work.
    Example (2): An employee is furloughed by his or her railroad 
employer and will not likely be able to return to railroad work. After 
making a reasonable effort to obtain work and finding none, the 
individual enrolls in a six-month course of training, which upon 
completion would permit him or her to obtain an entry level job in the 
data processing industry. The individual is considered available for 
work while training for the data processing job.

    (f) Failure to work in anticipation of maximum mileage. (1) An 
employee in train and engine service who voluntarily lays off work in 
anticipation of reaching the maximum mileage or earnings permitted under 
an agreement with his or her employer shall not be considered available 
for work.
    (2) Example. Halfway through the month an engineer has worked in 
train service covering 2,000 miles. By agreement with his or her 
employer he or she may not operate a train in excess of 3,000 miles per 
month. In order to allow engineers with less seniority to perform 
service, the engineer lays off work for five days. The engineer is not 
considered available for work on those days.
    (g) Confinement. A claimant who is confined in a penal institution 
or is in the custody of a Federal, State or local governmental unit or 
official thereof shall not be considered available for work. An 
individual shall not be considered in the custody of a governmental unit 
or official thereof if he or she has been released on bail and is 
awaiting trial or he or she has been placed on probation or parole. 
However, an individual who has been released from custody by a 
governmental unit or official thereof under a program that permits leave 
from custody of a short duration, after which he or she must return to 
custody, shall not be considered available for work on those days on 
which he or she is on furlough from confinement.
    (h) Missed turns in pool service. A train and engine service 
employee assigned to pool service shall not be considered as ready to 
work, within the meaning of Sec. 327.5(c) of this part, with respect to 
any day on which such employee would have worked if he or she had not 
missed his or her turn in pool service employment.

[Board Order 53-296, 18 FR 8157, Dec. 12, 1953, as amended by Board 
Order 55-30, 20 FR 1015, Feb. 17, 1955; 55 FR 1811, Jan. 19, 1990]

[[Page 566]]



Sec. 327.15  Reasonable efforts to obtain work.

    (a) Requirement. A claimant may be required at any time to show, as 
evidence of willingness to work, that he is making reasonable efforts to 
obtain work which he professes to be willing to accept and perform, 
unless he has good prospects of obtaining such work or his circumstances 
are such that any efforts to obtain work other than by making 
application for employment service pursuant to Sec. 325.3 of this 
chapter would be fruitless to the claimant.
    (b) Failure to comply with requirement. When the office of the Board 
which is adjudicating claims for benefits has information that the 
claimant has failed to comply with the requirements set forth in 
paragraph (a) of this section, no benefits shall be paid with respect to 
any days in the period of the claimant's unemployment unless sufficient 
evidence of the claimant's availability for work on such days is 
presented.
    (c) ``What constitutes reasonable efforts.'' A claimant shall be 
considered as making reasonable efforts to obtain work when he takes 
such steps toward obtaining work as are appropriate to his 
circumstances. In determining what steps are appropriate to a claimant's 
circumstances, consideration shall be given to actions such as:
    (1) Registering with a union hiring or placement facility;
    (2) Applying for employment with former employers;
    (3) Making application with employers including individuals and 
companies not covered by the act, who may reasonably be expected to have 
openings in work suitable for him;
    (4) Responding to appropriate ``want ads'' for work which appears 
suitable for him;
    (5) Actively prosecuting his claim for reinstatement in his former 
work;
    (6) Any other action reasonably directed toward obtaining work.

[Board Order 53-296, 18 FR 8157, Dec. 12, 1953, as amended at 55 FR 
1812, Jan. 19, 1990]



PART 330_DETERMINATION OF DAILY BENEFIT RATES--Table of Contents




Sec.
330.1 Introduction.
330.2 Computation of daily benefit rate.
330.3 Daily rate of compensation.
330.4 Last railroad employment in the base year.
330.5 Procedure for obtaining and using information about daily rate of 
          compensation.

    Authority: 45 U.S.C. 362(1).

    Source: 56 FR 28702, June 24, 1991, unless otherwise noted.



Sec. 330.1  Introduction.

    The Railroad Unemployment Insurance Act provides for the payment of 
benefits, at a specified daily benefit rate, to any qualified employee 
for his or her days of unemployment or days of sickness, subject to a 
maximum amount per day. The ``daily benefit rate'' for an employee is 
the amount of benefits that he or she may receive for each compensable 
day of unemployment or sickness in any registration period in a period 
of continuing unemployment or sickness.

[65 FR 19648, Apr. 12, 2000]



Sec. 330.2  Computation of daily benefit rate.

    (a) Basic formula. A qualified employee's daily benefit rate for a 
given benefit year, as defined in part 302 of this chapter, is an amount 
equal to 60 percent of the employee's daily rate of compensation for his 
or her last railroad employment in the applicable base year, but such 
rate will not exceed the maximum amount set forth in paragraph (b) of 
this section nor will it be less than $12.70 per day.
    (b) Maximum daily benefit rate. The maximum daily benefit rate is 
the product of the monthly compensation base, as computed under part 302 
of this chapter, for the base year immediately preceding the beginning 
of the benefit year, multiplied by five percent. If the maximum daily 
benefit rate so computed is not a multiple of $1.00, the Board will 
round it down to the nearest multiple of $1.00.
    (c) When increase effective. Whenever the annual application of the 
formula in paragraph (b) of this section triggers an increase in the 
maximum daily benefit rate, such increase will apply to days of 
unemployment or days of sickness in registration periods beginning

[[Page 567]]

after June 30 of the calendar year immediately following the base year 
referred to in paragraph (b) of this section.
    (d) Notice. Whenever the annual application of the formula in 
paragraph (b) of this section triggers an increase in the maximum daily 
benefit rate, or if the annual application of the formula does not 
trigger an increase, the Board will publish a notice in the Federal 
Register explaining how it computed the maximum daily benefit rate for 
the year. The Board will also notify each employer of the maximum amount 
of the daily benefit rate. The Board will make the computation as soon 
as it has computed the amount of the monthly compensation base under 
part 302 of this chapter and will publish notice as soon as possible 
thereafter, but in no event later than June 1 of each year. Information 
as to the current amount of the maximum daily benefit rate will also be 
available in any Board district or regional office.
    (e) Sources of information. In determining an employee's daily rate 
of compensation for the purpose of computing his or her daily benefit 
rate, the Board will rely on information furnished by the employee and 
his or her last employer in the base year. An employee's earnings from 
employment not covered by the Railroad Unemployment Insurance Act are 
not considered in computing his or her daily benefit rate.

[56 FR 28702, June 24, 1991, as amended at 65 FR 19648, Apr. 12, 2000]



Sec. 330.3  Daily rate of compensation.

    (a) Definition. An employee's daily rate of compensation is his or 
her straight-time rate of pay, including any cost-of-living allowance 
provided in any applicable working agreement. It does not include any 
overtime pay, penalty payment, or other special allowance except as 
hereinafter provided. An employer's or employee's report of the daily 
rate of compensation shall, in the absence of information to the 
contrary, and subject to the considerations set forth in this section 
and Sec. Sec. 330.4 and 330.5, be considered to show the daily rate of 
compensation of the employee by or for whom the report has been 
furnished. Where a rate other than a daily rate is reported, the Board 
will convert it to a daily rate.
    (b) Hourly, weekly or monthly rate. An hourly rate shall be 
converted to a daily rate by multiplying such hourly rate by the number 
of hours constituting a working day for the employee's occupation or 
class of service. A weekly or monthly rate shall be converted to a daily 
rate by dividing such rate by the number of working days constituting 
the work week or work month, as the case may be, for the employee's 
occupation or class of service.
    (c) Mileage rate. When a collective bargaining agreement provides 
for payment of compensation on a mileage basis, the employee's daily 
rate of compensation is his or her rate of pay for the number of miles 
constituting a basic day, including any allowance, as prescribed by the 
agreement, that is added to his or her basic rate of pay for the number 
of miles constituting a basic day.
    (d) Piece rate or tonnage rate. Where a piece rate or tonnage rate 
is reported, the daily rate of compensation shall be determined by 
computing the employee's average earnings per day for the days on which 
he or she worked substantially full time (excluding any overtime pay or 
penalty rates) at such piece rate or tonnage rate during the last two 
pay periods in which he or she engaged in such work in the base year.
    (e) Commissions or percentage of sales. Where the compensation 
reported consists of or includes commissions or percentages of sales, 
the daily rate of such commissions or percentage of sales shall be 
determined by computing the employee's average net commissions or 
percentage earnings (excluding any amounts he or she received to 
compensate him or her for expenses) per day for the days in the last two 
pay periods in which he or she worked on a commission or percentage 
basis in the base year.
    (f) International service. In the case of an employee who, on his 
last day of employment in the base year, worked partly outside the 
United States and partly in the United States for an employer not 
conducting the principal part of its business in the United States, the 
employee's daily rate of compensation shall be determined in

[[Page 568]]

the same manner as it would if all his service on that day had been 
rendered in the United States.



Sec. 330.4  Last railroad employment in the base year.

    The phrase ``last railroad employment in the applicable base year,'' 
as used in Sec. 330.2(a) of this part, means generally the employee's 
last ``service performed as an employee,'' within the meaning of section 
1(g) of the Railroad Unemployment Insurance Act. If an employee did not 
actually perform any service as an employee in the applicable base year 
(the calendar year preceding a benefit year) but did receive qualifying 
compensation such as vacation pay or pay for time lost for days in such 
base year, the Board will consider that his or her last railroad 
employment in the base year was the employment on which the qualifying 
compensation was based. The daily rate of such compensation shall be 
deemed to be the employee's daily rate of compensation for purposes of 
this part. If an employee's last railroad employment in the base year 
was casual or temporary work and was performed while on furlough from 
other base year railroad employment, the Board will disregard the daily 
rate of compensation paid for the casual or temporary work if such rate 
of compensation produces a daily benefit rate lower than the daily 
benefit rate based on the daily rate of compensation for the employment 
from which the employee was furloughed.



Sec. 330.5  Procedure for obtaining and using information about daily 
rate of compensation.

    (a) Information furnished by employers. Every employer, as defined 
in part 301 of this chapter, shall furnish information to the Board with 
respect to the daily rate of compensation of each employee for his or 
her last employment in the applicable base year. The employer shall make 
such report when it files its annual report of compensation in 
accordance with part 209 of this chapter and shall use the form 
prescribed by the Board for that purpose. If an employee's last daily 
rate of compensation in the base year is $99.99 or more, the employer 
may report such rate as $99.99 instead of the employee's actual last 
daily rate of compensation. In the absence of evidence to the contrary 
or a challenge by the employee, the daily rate of compensation provided 
by an employer under this section shall be used to compute a qualified 
employee's daily benefit rate. If an employer fails to report the last 
daily rate of compensation for a qualified employee who has applied for 
benefits or if an employee challenges the daily rate reported by an 
employer, the procedure in paragraphs (b) and (c) of this section will 
apply.
    (b) Information furnished by employee. The Board will afford an 
employee an opportunity to establish his or her last daily rate of 
compensation if the base year employer did not report a rate for the 
employee on its annual report of compensation or if the employee 
challenges the accuracy of the rate reported by the employer. Unless 
deemed unreasonable, a daily rate of compensation reported by an 
employee under this paragraph will be used provisionally to compute his 
or her daily benefit rate, but such rate will be verified in accordance 
with paragraph (c) of this section. In any case in which the employee's 
report is deemed unreasonable and no employer report has been provided, 
the employee's report shall be disregarded, and the Board will seek to 
verify the employee's last daily pay rate in accordance with paragraph 
(c) of this section. Pending receipt of such verification, the 
employee's daily benefit rate shall be set at $12.70. When an unverified 
and uncorrected pay rate has been verified or corrected, appropriate 
redetermination of the daily benefit rate shall be made, and such 
redetermined benefit rate shall be applied to all the employee's days of 
unemployment or sickness in the benefit year.
    (c) Employer verification. Whenever an employee has established a 
daily rate of compensation under paragraph (b) of this section, the 
Board will request the employee's base year employer to verify such rate 
within 30 days. If such verification is not received within 30 days, the 
employee's daily rate of compensation may be based upon other evidence 
gathered by the Board if such

[[Page 569]]

evidence is reasonable in light of compensation rates reported for other 
employees of the base year employer in the same occupation or class of 
service as the employer or in light of previous compensation rates 
reported by the base year employer for its employees. A daily benefit 
rate established under this paragraph may not exceed the maximum daily 
benefit rate established under this part.
    (d) Protest. An employee who is dissatisfied with the daily benefit 
rate computed under this part may contest such computation in accordance 
with part 320 of this chapter.

(Approved by the Office of Management and Budget under control numbers 
3220-0007, 3220-0008 and 3220-0097)



PART 332_MILEAGE OR WORK RESTRICTIONS AND STAND-BY OR LAY-OVER RULES
--Table of Contents




Sec.
332.1 Statutory provisions.
332.2 General considerations.
332.3 Mileage and work restrictions.
332.4 Restrictions in extra service.
332.5 Equivalent of full-time work.
332.6 Standing by for and laying over between regularly assigned trips 
          or tours of duty.
332.7 Consideration of evidence.

    Authority: 45 U.S.C. 362(l).

    Source: Board Order 59-95, 24 FR 3372, Apr. 30, 1959, unless 
otherwise noted.



Sec. 332.1  Statutory provisions.

    * * * (1) a day of unemployment with respect to any employee, means 
a calendar day on which he is able to work and is available for work and 
with respect to which * * * no remuneration is payable or accrues to him 
* * * and (2) a ``day of sickness'', with respect to any employee, means 
a calendar day on which because of any physical, mental, psychological, 
or nervous injury, illness, sickness, or disease he is not able to work, 
or, with respect to a female employee, a calendar day on which, because 
of pregnancy, miscarriage, or the birth of a child, (i) she is unable to 
work or (ii) working would be injurious to her health, and with respect 
to which * * * no remuneration is payable or accrues to him * * * 
Provided, further, That any calendar day on which no remuneration is 
payable to or accrues to an employee solely because of the application 
to him of mileage or work restrictions agreed upon in schedule 
agreements between employers and employees or solely because he is 
standing by for or laying over between regularly assigned trips or tours 
of duty shall not be considered either a day of unemployment or a day of 
sickness. (Section 1(k), Railroad Unemployment Insurance Act)

[Board Order 68-72, 33 FR 11115, Aug. 6, 1968]



Sec. 332.2  General considerations.

    (a) Classes of service covered. Conditions under which remuneration 
with respect to a day may not be payable to or accrue to an employee 
solely because of the application to him of a mileage or work 
restriction exist in train-and-engine service, yard service, dining-car 
service, sleeping-car service, and other Pullman-car service, and 
similar service, and express service on trains. In the determination of 
a claim for benefits of an employee in any other service, the employee's 
lack of remuneration with respect to any claimed day shall be presumed 
not to be due solely to the application of a mileage or work 
restriction. Conditions under which remuneration with respect to a day 
may not be payable to or accrue to an employee solely because he is 
standing by for or laying over between regularly assigned trips or tours 
of duty exist in train-and-engine service, dining-car service, sleeping-
car service, and other Pullman-car service, and similar service, and 
express service on trains. In the determination of a claim for benefits 
of an employee in any other service, the employee's lack of remuneration 
with respect to any claimed day shall be presumed not to be due solely 
to his standing by for or laying over between regularly assigned trips 
or tours of duty.
    (b) Sickness claims. An employee who, in connection with a claim to 
a day as a day of sickness, is held to be not able to work because of 
any physical, mental, psychological, or nervous injury, illness, 
sickness, or disease shall not be considered to lack remuneration with 
respect to such day solely because of the application to him of mileage 
or work restrictions or solely because he is standing by for or laying 
over between regularly assigned trips or tours of duty. Nor shall a 
female employee be considered to lack remuneration with respect to a day 
solely because of the application to her of mileage or work

[[Page 570]]

restrictions or solely because she is standing by for or laying over 
between regularly assigned trips or tours of duty if the day is one on 
which, because of pregnancy, miscarriage, or the birth of a child, (1) 
she is unable to work or (2) working would be injurious to her health.

[Board Order 59-95, 24 FR 3372, Apr. 30, 1959, as amended at 26 FR 8593, 
Sept. 14, 1961; Board Order 68-72, 33 FR 11115, Aug. 6, 1968]



Sec. 332.3  Mileage and work restrictions.

    Subject to the provisions of Sec. 332.2(b), a day shall not be 
considered as a day of unemployment or as a day of sickness with respect 
to an employee if no remuneration is payable or accrues to him solely 
because of the application to him of a mileage or work restriction 
agreed upon in a written agreement between his employer and employees of 
his employer, or authorized pursuant to such written agreement. 
Provisions of agreements setting overtime or other premium rates of pay 
shall not be regarded as work restrictions. Mileage or work restrictions 
shall be considered as applicable to an employee with respect to any day 
on which he is out of service because of having reached or exceeded the 
maximum mileage, earnings, or hours of work prescribed in such an 
agreement, or authorized pursuant to such an agreement. Performance of 
other work by an employee while he is out of service because of having 
reached or exceeded the maximum mileage, earnings, or hours of work 
shall not serve to make the mileage or work restriction inapplicable to 
him.



Sec. 332.4  Restrictions in extra service.

    Mileage or work restrictions shall be considered to exist in 
rotating extra board, pool, or chain gang service when there is in 
effect an arrangement between the employer and its employees for 
increasing or decreasing the number of employees in such service 
according to the amount of work available. When the arrangement is such 
that an employee in extra board, pool, or chain gang service gets the 
equivalent of full-time work, his lack of remuneration on any non-work 
day shall, subject to the provisions of Sec. 332.2(b), be considered as 
due solely to the application to him of a mileage or work restriction.



Sec. 332.5  Equivalent of full-time work.

    An employee who has the equivalent of full-time work with respect to 
service on days within a registration period is not eligible for 
unemployment benefits for any non-work days within such registration 
period. In determining whether an employee has the equivalent of full-
time work, the Board will consider the provisions of labor-management 
agreements that prescribe the number of miles or hours of credit 
constituting a basic work day, week, or month in the employee's 
occupation or service. The Board will consider that an employee had the 
equivalent of full-time work if the number of miles or hours credited to 
the employee for service in the registration period is at least 10 times 
the number of miles or hours constituting a basic day in the employee's 
occupation or service. For this purpose, any miles or hours of credit 
not earned because the employee missed his or her turn and any penalty 
miles assessed to the employee shall be added to the miles or hours of 
credit actually earned on the basis of service on days within the 
registration period.

[55 FR 1813, Jan. 19, 1990]



Sec. 332.6  Standing by for and laying over between regularly assigned 
trips or tours of duty.

    Subject to the provisions of Sec. 332.2(b), a day shall not be 
considered as a day of unemployment or as a day of sickness with respect 
to an employee if no remuneration is payable or accrues to him solely 
because he is standing by for or laying over between regularly assigned 
trips or tours of duty. Only employees who hold regular assignments may 
be regarded as standing by for or laying over between regularly assigned 
trips or tours of duty. In determining whether an employee has a regular 
assignment, consideration shall be given to whether the trips or tours 
of duty have definite starting times; whether there are a definite 
number of trips or tours of duty, either periodically or for the whole 
duration of the assignment; and whether there is a definite route of 
each trip or definite duration of each

[[Page 571]]

tour of duty. An employee who is separated from a regular assignment 
shall not be regarded as standing by for or laying over between 
regularly assigned trips or tours of duty. An employee shall be deemed 
separated from a regular assignment when he is suspended or discharged 
from service or displaced by a senior employee or held out of service 
for investigation or discipline, or when his regular assignment is 
abolished or discontinued.



Sec. 332.7  Consideration of evidence.

    An employee shall be requested to furnish such information as to any 
mileage or work restrictions or as to lay-over or stand-by status as may 
be necessary for the determination of his claim. An employee's statement 
in connection with his claim that he was not out of service because of a 
lay-over or stand-by rule or because of a mileage or work restriction 
shall, in the absence of evidence to the contrary, be accepted as 
sufficient for a finding on that point. An employee's report of the 
number of miles or hours' credit earned in rotating extra board, pool, 
or chain gang service shall, in the absence of evidence to the contrary, 
be accepted as correct for purposes of determining whether he had the 
equivalent of full-time work during the period covered by his claim. 
When it appears clear that an employee in rotating extra board, pool, or 
chain gang service who fails to report the number of miles or hours' 
credit earned on days in the period covered by his claim form was not 
employed on enough days to have had the equivalent of full-time work in 
the period, no additional information as to mileage or work restrictions 
shall be deemed necessary for the determination of his claim.



PART 335_SICKNESS BENEFITS--Table of Contents




Sec.
335.1 General.
335.2 Manner of claiming sickness benefits.
335.3 Execution of statement of sickness and supplemental doctor's 
          statement.
335.4 Filing statement of sickness and claim for sickness benefits.
335.5 Death of employee.
335.6 Payment of sickness benefits.

    Authority: 45 U.S.C. 362(i) and 362(l).

    Source: 54 FR 43057, Oct. 20, 1989, unless otherwise noted.



Sec. 335.1  General.

    (a) Statutory basis. The Railroad Unemployment Insurance Act 
provides for the payment of sickness benefits to a qualified railroad 
employee for days of sickness within a period of continuing sickness. To 
establish basic eligibility for sickness benefits, a qualified employee 
must have at least four consecutive days of sickness with respect to 
each period of continuing sickness. The terms ``day of sickness'' and 
``period of continuing sickness'' as used in this part, are defined in 
sections 1(k) and 2(a) of the Act, respectively, and paragraphs (b) and 
(c) of this section. As evidence of days of sickness based upon illness 
or injury or upon pregnancy, miscarriage or childbirth, section 1(k) 
requires an employee to file a statement of sickness. Other information 
that is required to identify an employee's days of sickness is obtained 
by means of an application for sickness benefits at the beginning of 
each period of continuing sickness and by means of a claim for sickness 
benefits which is filed for each registration period within a period of 
continuing sickness. The term ``registration period'', generally refers 
to a period of 14 consecutive days and is defined in paragraph (d) of 
this section.
    (b) Day of sickness. The term ``day of sickness'' means, in general, 
any calendar day, including days that would normally be rest days, on 
which an employee is not able to work because of any physical or mental 
illness or injury. With respect to a female employee, a ``day of 
sickness'' also includes any calendar day on which she is not able to 
work, or working would be injurious to her health, because of pregnancy, 
miscarriage or childbirth.
    (c) Period of continuing sickness. (1) The term ``period of 
continuing sickness'' refers to a period of time when an employee is not 
able to work on account of illness, injury, sickness or disease, 
including inability caused by pregnancy, miscarriage or childbirth. An 
employee has a period of continuing sickness under either of these 
circumstances:

[[Page 572]]

    (i) He or she has any number of ``consecutive'' days of sickness 
based on one or more infirmities; or
    (ii) He or she has any number of ``successive'' days of sickness 
based on a single infirmity and there is no interruption of more than 90 
``consecutive'' days which are not days of sickness.
    (2) Days of sickness are ``consecutive'' when they occur one after 
another continuously and without interruption by any day that is not a 
day of sickness. Days of sickness are ``successive'' when one or more 
days of sickness follow any day of sickness with an interval of one or 
more days that are not days of sickness.

    Example: An employee is sick for 11 ``consecutive'' days from 
October 1 through October 11, meaning that each day in the period 
October 1 through October 11 is a day of sickness and there is no day in 
that period that is not a day of sickness. If the employee also had days 
of sickness on October 16, 17, 18, 21 and 22, those five days are 
considered ``successive'' days of sickness.

    (3) A period of continuing sickness with respect to any employee 
begins with the first day of a number of consecutive days of sickness or 
with the first day of a number of successive days of sickness 
attributable to a single cause with no interval of more than 90 days 
that are not days of sickness. In the example given in paragraph (c)(2) 
of this section, October 1 begins a period of continuing sickness. The 
days October 16, 17, 18, 21, and 22 are in the period of continuing 
sickness beginning October 1, and benefits are payable for them, 
provided that the employee's inability to work on those five days is due 
to one or more of the same infirmities that caused the employee to be 
unable to work on the days from October 1 through October 11. Otherwise, 
October 16 begins another period of continuing sickness.
    (4) A period of continuing sickness ends when either of these 
circumstances occurs:
    (i) 91 consecutive days have elapsed none of which is a day of 
sickness resulting from the infirmity that was the basis for the 
preceding days of sickness; or
    (ii) One or more days that are not days of sickness have elapsed and 
a statement of sickness is filed with respect to a day of sickness based 
on an infirmity other than any infirmity causing inability on the 
preceding days of sickness. The end of a benefit year, generally the 12-
month period beginning July 1 of any year and ending June 30 of the next 
year (see 45 U.S.C. 351(m)), does not end a period of continuing 
sickness. In the example in paragraph (c)(2) of this section, if the 
inability to work on October 16 was not due to an infirmity or 
infirmities that caused the inability to work on October 11, then a 
period of continuing sickness ends on October 11. A new application and 
statement of sickness would be required in order for the employee to be 
paid sickness benefits for days beginning October 16. See Sec. 335.2 of 
this part.
    (5) A period of continuing sickness can be interrupted, provided 
that:
    (i) The interruption is for not more than 90 consecutive days; and
    (ii) The days of sickness after the interruption are due to one or 
more of the same causes as the days of sickness before the interruption. 
A period of continuing sickness can be interrupted any number of times 
so long as each interruption is not more than 90 days and the days of 
sickness are all due to the same cause. If a period of continuing 
sickness is caused by more than one infirmity, any one of the 
infirmities can be considered as the single continuing cause that will 
permit the interruption of the period of continuing sickness for not 
more than 90 days without ending it.
    (d) Registration period. The term ``registration period'' means, 
with respect to any employee, the period which begins with the first day 
with respect to which a statement of sickness for a period of continuing 
sickness is filed in his or her behalf in accordance with this part, or 
the first such day after the end of a registration period which will 
have begun with a day with respect to which a statement of sickness for 
a period of continuing sickness was filed in his or her behalf, and ends 
with whichever is the earlier of:
    (1) The thirteenth day thereafter; or
    (2) The day immediately preceding the day with respect to which a 
statement of sickness for a new period of continuing sickness is filed 
in his or

[[Page 573]]

her behalf. However, each of the successive 14-day periods in an 
extended sickness benefit period shall constitute a registration period.
    (e) Liability for infirmity. When sickness benefits are paid to an 
employee on the basis of an infirmity for which he or she recovers a 
personal injury settlement or judgment, the Board shall receive 
reimbursement for the sickness benefits in accordance with part 341 of 
this chapter.



Sec. 335.2  Manner of claiming sickness benefits.

    (a) Forms required for claiming benefits. To claim sickness benefits 
for a period of inability to work due to an illness or injury, or in the 
case of a female employee, pregnancy, miscarriage, or childbirth, an 
employee must file the following forms:
    (1) An application for sickness benefits at the beginning of each 
period of continuing sickness;
    (2) A statement of sickness to accompany the employee's application;
    (3) A claim for sickness benefits for each 14-day registration 
period during the employee's period of continuing sickness; and
    (4) A supplemental doctor's statement, if the adjudicating office 
requests additional proof of the employee's inability to work.
    (b) Mailing or delivering the forms. The forms required by paragraph 
(a) of this section may be mailed or delivered to any Board office. If 
the Board is satisfied that the employee is too sick or injured to 
execute the required forms, the Board may accept forms executed by 
someone in the employee's behalf. Instructions for completing and filing 
the forms are printed on the forms themselves.

(Approved by the Office of Management and Budget under control numbers 
3220-0034, 3220-0039 and 3220-0045)



Sec. 335.3  Execution of statement of sickness and supplemental 
doctor's statement.

    (a) Who may execute. A statement of sickness and any required 
supplemental doctor's statement shall be executed by any of the 
following individuals:
    (1) A licensed medical doctor;
    (2) A licensed dentist if the infirmity relates to the teeth or 
gums;
    (3) A licensed podiatrist or chiropodist if the infirmity relates to 
the feet or toes;
    (4) A licensed chiropractor;
    (5) A clinical psychologist;
    (6) A certified nurse mid-wife;
    (7) The superintendent or other supervisory official of a hospital, 
clinic, or group health association, or similar organization, in which 
all examinations and treatment are conducted under the supervision of 
licensed medical doctors or under the supervision of licensed 
chiropractors, and in which medical records are maintained for each 
patient;
    (8) A physician assistant-certified (PAC);
    (9) An accredited Christian Science Practitioner;
    (10) A substance-abuse professional as defined in 49 CFR part 40.3, 
if the infirmity involves alcohol or controlled substances-related 
disorders; or
    (11) A nurse practitioner.
    (b) Use of Board form or other form. The statement of sickness and 
supplemental doctor's statement referred to in paragraph (a) of this 
section shall be completed on the forms prescribed by the Board, except 
that other standardized medical forms may be substituted if they provide 
the same information as that called for by the Board's forms.

[54 FR 43057, Oct. 20, 1989, as amended at 60 FR 40073, Aug. 7, 1995; 62 
FR 44408, Aug. 21, 1997; 65 FR 66499, Nov. 6, 2000]



Sec. 335.4  Filing statement of sickness and claim for sickness benefits.

    (a) General requirement. Except as provided in paragraph (e) of this 
section, statements of sickness and claims for sickness benefits must be 
filed within the time limits specified by this section. Failure to 
comply with the time restrictions on filing claims will result in a 
denial of benefits for days for which timely statements and claims are 
not filed, as such days would not be considered days of sickness.
    (b) Statement of sickness. An employee shall file a statement of 
sickness within ten calendar days of the first day that he or she wishes 
to claim as a day

[[Page 574]]

of sickness. For example, if an employee wishes to claim sickness 
benefits for days starting November 1, the statement of sickness should 
reach the Board no later than November 10. If the statement of sickness 
is received November 11, the employee cannot be paid sickness benefits 
for November 1. Such day would not be considered as a ``day of 
sickness'', unless the form may be considered as timely filed under 
paragraph (d)(3), (4) or (5) of this section.
    (c) Claim for sickness benefits. An employee shall file a claim for 
sickness benefits within 30 days after the ending date shown on the 
claim form, or within 30 days after the date on which the Board mails 
the claim form to the employee, whichever date is later. Failure to 
comply with this provision shall bar the payment of sickness benefits 
with respect to any day included within the calendar period covered by 
the claim form.

    Example: If a form for claiming sickness benefits is mailed to an 
employee on July 13, for the period from July 1 to July 14, the employee 
must file the claim within 30 days after July 14 [on or before August 
13], to be paid benefits for the period July 1 to July 14. If the claim 
form was not mailed to the employee until July 16, the claim must be 
filed within 30 days after July 16 [on or before August 15].

    (d) When form considered timely filed. The Board will consider a 
statement of sickness or a claim for sickness benefits as timely filed 
if:
    (1) The statement or form was received in a Board office within the 
prescribed time; or
    (2) The statement or form was mailed to a Board office in accordance 
with instructions printed on the form and was received at such office; 
or
    (3) The employee made a reasonable effort to file the statement of 
sickness or claim form within the prescribed time but was prevented from 
doing so by circumstances beyond his or her control, and such statement 
or claim was received at a Board office within a reasonable time 
following the removal of the circumstances that prevented the employee 
from filing the form. The phrase ``circumstances beyond his or her 
control'' shall not include an employee's forgetfulness or lack of 
knowledge of the sickness benefit program or the time limit for filing 
for sickness benefits or any other lack of diligence by the employee. 
For the purposes of this provision, if a statement of sickness is not 
received within the prescribed time but is received within 30 days of 
the first day that an employee intends to claim as a day of sickness, 
the Board will consider that the employee made a reasonable effort to 
file the statement within the prescribed time, unless it is clear on the 
basis of affirmative evidence that the delay was not the result of 
circumstances beyond the employee's control; or
    (4) The employee mistakenly registered for unemployment benefits 
when he or she should have applied for sickness benefits for the day or 
days claimed and the appropriate statement of sickness was then received 
at an office of the Board within a reasonable time after unemployment 
benefits were denied; or
    (5) Notwithstanding the foregoing, any claim that is not filed 
within two years of the day or days claimed shall not be considered as 
timely filed, and such day or days shall not be considered as days of 
sickness.
    (e) Days for which no statement of sickness deemed filed. A 
statement of sickness shall not be deemed to be filed with respect to 
any day in a benefit year in which the employee is not a qualified 
employee as defined in section 3 of the Railroad Unemployment Insurance 
Act or has exhausted his or her rights to sickness benefits under the 
Act. See part 336 of this chapter.

[54 FR 43057, Oct. 20, 1989, as amended at 57 FR 807, Jan. 9, 1992; 60 
FR 40073, Aug. 7, 1995]



Sec. 335.5  Death of employee.

    If an employee dies before filing one or more of the required forms, 
the form or forms may be filed by or in behalf of the person or persons 
to whom benefits would be payable pursuant to section 2(g) of the 
Railroad Unemployment Insurance Act. Such form or forms shall be filed 
within the time prescribed in Sec. 335.4 of this part. Under these 
circumstances, the word ``employee'' as used in Sec. 335.4(b) of this 
part and as used in Sec. 335.4(d)(3) of this part shall include the 
individual or individuals by or in behalf of whom the form is filed. The 
order of distribution for benefits

[[Page 575]]

due but unpaid as of the date of an employee's death is the same as the 
order of distribution for annuities unpaid at death under the Railroad 
Retirement Act and may be found at Sec. 234.31 of this title.



Sec. 335.6  Payment of sickness benefits.

    (a) General rule. Except as provided in this section, benefits are 
payable to any qualified employee for each day of sickness after the 
fourth consecutive day of sickness in a period of continuing sickness, 
as defined in Sec. 335.1(c), but excluding four days of sickness in any 
registration period in such period of continuing sickness.
    (b) Waiting period. Benefits are payable to any qualified employee 
for each day of sickness in excess of seven during his or her first 
registration period in a period of continuing sickness if such period of 
continuing sickness is his or her initial period of continuing sickness 
beginning in the benefit year. For this purpose, the first registration 
period in a period of continuing sickness is the registration period 
that first begins with four consecutive days of sickness and includes 
more than four days of sickness. For the purpose of computing benefits 
under this section, a period of continuing sickness ends on the last day 
of a benefit year in which the employee exhausts rights to sickness 
benefits as provided for under part 336 of this chapter.
    (c) Computation of compensable days--(1) Example 1. An employee has 
an initial period of continuing sickness from June 14 through July 25, 
and all days in that period are days of sickness. The employee's first 
registration period covers June 14 to June 27, and his or her subsequent 
registration period covers June 28 to July 11, and July 12 to July 25. 
In the one-week waiting period the employee is paid benefits for days of 
sickness in excess of seven. In each of the two ensuing registration 
periods the employee is paid benefits for days of sickness in excess of 
four.
    (2) Example 2. Same facts as in Example 1, but the employee later 
has a new period of continuing sickness based upon a different illness 
or impairment beginning September 17. The employee's first registration 
period in his or her new period of continuing sickness covers September 
17 to September 30. The employee is paid benefits for days of sickness 
in excess of seven in that 14-day period because that period is his or 
her first registration period in a new period of continuing sickness 
commencing in the benefit year beginning July 1, and he or she did not 
previously have a waiting period in any registration period earlier in 
the benefit year.
    (3) Example 3. Same facts as in examples 1 and 2, but the employee 
then has a new period of continuing sickness beginning January 1 in the 
same benefit year. January 1 to January 14 is the employee's first 
registration period in that period of continuing sickness. The employee 
is paid benefits for days of sickness in excess of four in that 
registration period because earlier in the benefit year he or she had a 
registration period, September 17 to September 30, in which he or she 
satisfied the initial seven-day waiting period.
    (d) Amount payable. The gross amount of sickness benefits for any 
registration period in a period of continuing sickness shall be computed 
by multiplying the number of compensable days of sickness in such 
registration period by the employee's daily benefit rate, as computed 
under part 330 of this chapter.

[65 FR 19649, Apr. 12, 2000]



PART 336_DURATION OF NORMAL AND EXTENDED BENEFITS--Table of Contents




                        Subpart A_Normal Benefits

Sec.
336.1 Introduction.
336.2 Duration of normal unemployment benefits.
336.3 Duration of normal sickness benefits.
336.4 Base year compensation.
336.5 Notice to employee.

                       Subpart B_Extended Benefits

336.10 Eligibility.
336.11 Exhaustion of rights to normal unemployment benefits.
336.12 Exhaustion of rights to normal sickness benefits.
336.13 Years of service requirement.
336.14 Extended benefit period.
336.15 How to claim extended benefits.
336.16 Notice to employee.

    Authority: 45 U.S.C. 362(l).

[[Page 576]]


    Source: 59 FR 3996, Jan. 28, 1994, unless otherwise noted.



                        Subpart A_Normal Benefits



Sec. 336.1  Introduction.

    (a) General. This subpart explains how long a qualified employee may 
receive normal unemployment or sickness benefits under the Railroad 
Unemployment Insurance Act during a benefit year. Under section 2(c) of 
that Act, normal unemployment benefits are payable for up to 130 days of 
unemployment within a benefit year, or in an amount equal to the amount 
of the employee's ``base year compensation'', whichever is less. A 
similar limitation applies to the payment of sickness benefits. An 
employee who exhausts his or her normal unemployment or sickness 
benefits may be eligible for payment of extended unemployment or 
extended sickness benefits under the conditions set forth in subpart B 
of this part.
    (b) Definitions. The terms ``benefit year'', ``base year'', and 
``compensation'' are defined in part 302 of this chapter. The term 
``registration period'' is defined in parts 325 and 335 of this chapter. 
For the purposes of this subpart, and as explained in Sec. 336.4 of 
this part, an employee's ``base year compensation'' may include 
compensation in excess of the monthly compensation base (as defined in 
part 302 of this chapter) even though such excess may not be counted for 
the purpose of determining whether such employee is a ``qualified 
employee'' within the meaning of part 302.
    (c) Recovery of benefits. When unemployment or sickness benefits are 
recovered by the Board for one or more days, the Board will disregard 
those days in determining whether the employee has exhausted normal 
unemployment or sickness benefits with respect to the applicable benefit 
year.



Sec. 336.2  Duration of normal unemployment benefits.

    (a) 130 compensable day limitation. A qualified employee who has 
satisfied the waiting period for a benefit year may receive benefits for 
a maximum of 130 days of unemployment within such benefit year, subject 
to the limitation on payment explained in paragraph (b) of this section. 
In any registration period beginning after the end of the waiting period 
and before the beginning of the next ensuing benefit year, benefits are 
payable for days of unemployment in excess of four, but the aggregate 
number of compensable days may not exceed 130 for the benefit year. An 
employee who is unemployed on all days during a registration period 
could have a maximum of 10 compensable days of unemployment in such 
registration period. The amount of benefits for each compensable day of 
unemployment is the amount of the daily benefit rate computed for such 
employee pursuant to part 330 of this chapter.
    (b) Base year compensation limit. Notwithstanding the provisions of 
paragraph (a) of this section, the Board will not pay unemployment 
benefits to a qualified employee, with respect to his or her days of 
unemployment within a benefit year, in an amount greater than the amount 
of his or her base year compensation, as computed under Sec. 336.4 of 
this part.
    (c) Unemployment due to a strike. The limitations set forth in 
paragraphs (a) and (b) of this section also apply to an employee whose 
unemployment is due to a stoppage of work because of a strike in the 
establishment, premises, or enterprise at which he was last employed. 
But no unemployment benefits are payable for the employee's first 14 
days of unemployment due to such stoppage of work.



Sec. 336.3  Duration of normal sickness benefits.

    The duration of normal sickness benefits is the same as the duration 
of normal unemployment benefits, as set forth in Sec. 336.2 of this 
part. A qualified employee who has satisfied the benefit year waiting 
period and is otherwise eligible for sickness benefits may receive 
benefits for a maximum of 130 days of sickness within a benefit year, 
but the amount paid as sickness benefits may not exceed the amount of 
the employee's base year compensation, as computed under Sec. 336.4 of 
this part.

[[Page 577]]



Sec. 336.4  Base year compensation.

    (a) Formula. For the purposes of this part, an employee's base year 
compensation includes any compensation in excess of the monthly 
compensation base (as defined in part 302 of this chapter) for any month 
in the applicable base year but shall not include any amount that 
exceeds the value of ``X'' in the following formula: X = $775(A/$600). 
In this formula, ``A'' is the dollar amount of the monthly compensation 
base with respect to months in such base year. For example, if an 
employee had railroad earnings of $1,500 per month in each of three 
months in base year 1990, the employee's base year compensation for 
purposes of part 302 of this chapter would be $2,235 (three times the 
monthly compensation base of $745 per month for months in 1990). But the 
employee's base year compensation for purposes of computing maximum 
normal unemployment (or sickness) benefits under this subpart would be 
$2,886 (three times $962), and his or her normal unemployment (or 
sickness) benefits would not be considered exhausted until he or she is 
paid unemployment (or sickness) benefits in an amount equal to $2,886. 
In this example, $962 is the amount computed as the value of ``X'' in 
the above formula when ``A'' is equal to $745.
    (b) Employer's duty to report. The base year employer(s) of an 
employee shall provide information as to the amount of an employee's 
monthly compensation in excess of the monthly compensation base, as 
defined in part 302 of this chapter, unless the amount of the employee's 
compensation at the monthly compensation base limit, as already reported 
to the Board, is equal to or greater than an amount equal to 130 times 
the daily benefit rate applicable to the employee's days of unemployment 
or days of sickness.

(Approved by the Office of Management and Budget under control number 
3220-0070)



Sec. 336.5  Notice to employee.

    The Board will notify an employee when it appears that his or her 
right to normal unemployment or normal sickness benefits will be 
exhausted. Such notice will include information about the availability 
of extended benefits under subpart B of this part if the employee has 
completed 10 years of railroad service and the availability of normal 
benefits for the next ensuing benefit year if the employee is not 
eligible for extended benefits.



                       Subpart B_Extended Benefits



Sec. 336.10  Eligibility.

    (a) Except as provided in paragraph (b) of this section, an employee 
may receive extended unemployment or extended sickness benefits under 
this part if he or she:
    (1) Has exhausted normal unemployment or normal sickness benefits 
(as the case may be) under subpart A of this part;
    (2) Has completed 10 years of railroad service, as set forth in 
Sec. 336.13 of this part; and
    (3) Continues to have days of unemployment or days of sickness, as 
the case may be.
    (b) An employee is not eligible for extended sickness benefits if he 
or she has voluntarily retired or has attained age 65. In the case of 
claims for unemployment benefits, an employee is not eligible for 
extended unemployment benefits if he or she has voluntarily left work 
without good cause or has voluntarily retired.



Sec. 336.11  Exhaustion of rights to normal unemployment benefits.

    For the purposes of this part, the Board considers that an employee 
has exhausted his or her current rights to normal benefits for days of 
unemployment if:
    (a) The employee received unemployment benefits for 130 days of 
unemployment in the benefit year; or
    (b) The employee received unemployment benefits in the benefit year 
equal to the amount of his or her base year compensation; or
    (c) At the end of a normal benefit year during which the employee 
was qualified for benefits, he or she received less than the maximum 
unemployment benefits for the benefit year and he or she is not 
qualified for benefits in the next succeeding benefit year.

[[Page 578]]



Sec. 336.12  Exhaustion of rights to normal sickness benefits.

    For the purposes of this part, the Board considers that an employee 
has exhausted his or her current rights to normal benefits for days of 
sickness if:
    (a) The employee received sickness benefits for 130 days of sickness 
in the benefit year; or
    (b) The employee received sickness benefits in the benefit year 
equal to the amount of his or her base year compensation; or
    (c) At the end of the normal benefit year during which the employee 
was qualified for benefits, he or she received less than the maximum 
sickness benefits for the benefit year and he or she is not qualified 
for benefits in the next succeeding benefit year.



Sec. 336.13  Years of service requirement.

    (a) Eligibility. For the purposes of this part, an employee is not 
eligible for extended unemployment or sickness benefits if he or she 
does not have at least 10 years of railroad service. An employee who has 
120 service months, as defined in part 210 of this chapter, whether or 
not consecutive, is considered to have 10 years of railroad service.
    (b) Initial determination. The Board will determine whether an 
employee has 10 years of railroad service on the basis of reports filed 
by employers pursuant to part 209 of this chapter. The number of years 
of service shown in the Board's records will be accepted as correct for 
the purposes of this part, unless the employee claims credit for more 
service than that shown in the Board's records and such additional 
service is verified, subject to part 211 of this chapter.
    (c) Effective date. An employee acquires ten years of railroad 
service as of the first day with respect to which creditable 
compensation is attributable in his 120th month of service.

[65 FR 19649, Apr. 12, 2000]



Sec. 336.14  Extended benefit period.

    (a) Defined. An extended benefit period consists of seven 
consecutive 14-day registration periods.
    (b) Beginning date. In the case of unemployment benefits, an 
extended benefit period begins with the first day of unemployment after 
the day on which the employee exhausts his or her rights to normal 
unemployment benefits. In the case of sickness benefits, the beginning 
date is the first day of sickness after the employee exhausts normal 
sickness benefits. Such first day of unemployment or first day of 
sickness must be within the same benefit year with respect to which the 
employee exhausted normal unemployment or normal sickness benefits, as 
the case may be. However, no extended benefit period may begin on any 
day of unemployment or sickness prior to the date on which the employee 
acquired 10 years of railroad service.
    (c) Ending date. An employee's extended benefit period ends on the 
97th day after it began. If an employee attains age 65 during an 
extended sickness benefit period, such extended benefit period will 
terminate on the day next preceding the date on which the employee 
attains age 65, except that it may continue for the purpose of paying 
benefits for his or her days of unemployment, if any, during such 
extended period. If an extended sickness benefit period terminates 
because the employee has attained age 65, and if at that point the 
employee has rights to normal sickness benefits, the employee will be 
paid normal sickness benefits if he or she is otherwise entitled to 
payment thereof.
    (d) Maximum number of compensable days. Extended benefits may be 
paid for a maximum of 65 days of unemployment (or 65 days of sickness, 
as the case may be) within an employee's extended benefit period.

[59 FR 3996, Jan. 28, 1994, as amended at 65 FR 19649, Apr. 12, 2000]



Sec. 336.15  How to claim extended benefits.

    An employee who has 10 or more years of railroad service who 
exhausts his or her rights to normal unemployment or normal sickness 
benefits and who wishes to claim extended unemployment or extended 
sickness benefits may do so by claiming benefits on the forms provided 
by the Board pursuant to parts 325 or 335 of this chapter. The claim 
forms provided for this purpose are the same as those provided for

[[Page 579]]

claiming normal benefits. No special application for extended benefits 
is required, and no waiting period applies to the payment of extended 
benefits.



Sec. 336.16  Notice to employee.

    Upon determining that an employee is eligible for a period of 
extended unemployment or sickness benefits, the Board will notify the 
employee of the beginning and ending dates of such extended benefit 
period.

                           PART 337 [RESERVED]



PART 340_RECOVERY OF BENEFITS--Table of Contents




Sec.
340.1 Statutory provisions.
340.2 Amount recoverable.
340.3 When amounts recoverable to be recovered.
340.4 Methods of recovery of amounts recoverable.
340.5 Recovery by cash payment.
340.6 Recovery by setoff.
340.7 Deduction in computation of death benefit.
340.8 Recovery by adjustment in connection with subsequent payments 
          under the Railroad Retirement Act.
340.9 Effect of adjustment in connection with the subsequent payments.
340.10 Waiver of recovery of erroneous payments.
340.11 Waiver of methods of recovery.
340.12 Waiver not a matter of right.
340.13 Compromise of amounts recoverable.
340.14 Factors due to be considered in a compromise.
340.15 Suspension or termination of collection action.
340.16 Debt collection.

    Authority: 45 U.S.C. 362(l).

    Source: Board Order 27-22, 32 FR 3341, Feb. 28, 1967, unless 
otherwise noted.



Sec. 340.1  Statutory provisions.

    (a) Section 2(d) of the Railroad Unemployment Insurance Act provides 
that:
    If the Board finds that at any time more than the correct amount of 
benefits has been paid to any individual under this Act or a payment has 
been made to an individual not entitled thereto (including payments made 
prior to July 1, 1940) recovery by adjustments in subsequent payments to 
which such individual is entitled under this Act or any other Act 
administered by the Board may, except as otherwise provided in this 
subsection, be made under regulations prescribed by the Board. If such 
individual dies before recovery is completed, recovery may be made by 
setoff or adjustments, under regulations prescribed by the Board, in 
subsequent payments due, under this Act or any other Act administered by 
the Board to the estate, designee, next of kin, legal representative, or 
surviving spouse of such individual, with respect to the employment of 
such individual.
    Adjustments under this subsection may be made either by deductions 
from subsequent payments or, with respect to payments which are to be 
made during a lifetime or lifetimes, by subtracting the total amount of 
benefits paid in excess of the proper amount from the actuarial value, 
as determined by the Board, of such payments to be made during a 
lifetime or lifetimes and recertifying such payments on the basis of the 
reduced actuarial value. In the latter case recovery shall be deemed to 
have been completed upon such recertification.
    There shall be no recovery in any case in which more than the 
correct amount of benefits has been paid to an individual or payment has 
been made to an individual not entitled thereto (including payments made 
prior to July 1, 1940) who, in the judgment of the Board, is without 
fault when, in the judgment of the Board, recovery would be contrary to 
the purpose of this Act or would be against equity or good conscience.
    No certifying or disbursing officer shall be held liable for any 
amount certified or paid by him in good faith to any person where the 
recovery of such amount is waived under the third paragraph of this 
subsection or has been begun but cannot be completed under the first 
paragraph of this subsection.

    (b) Section 2(f) of the Act provides, in part, that:

    If (i) benefits are paid to any employee with respect to 
unemployment or sickness in any registration period, and it is later 
determined that remuneration is payable to such employee with respect to 
any period which includes days in such registration period which had 
been determined to be days of unemployment or sickness, and (ii) the 
person or company from which such remuneration is payable has, before 
payment thereof, notice of the payment of benefits upon the basis of 
days of unemployment or sickness included in such period, the 
remuneration so payable shall not be reduced by reason of such benefits 
but the remuneration so payable, to the extent to which benefits were 
paid upon the basis of days which had been determined to be days of 
unemployment or sickness and which are included in the period for which 
such remuneration is payable, shall be held to be a special fund in 
trust for the Board. * * *


[[Page 580]]


    (c) Section 4(a-1) of the Act provides, in part, that:

    There shall not be considered as a day of unemployment or as a day 
of sickness, with respect to any employee-- * * *
    (ii) Any day in any period with respect to which the Board finds 
that he is receiving or will have received annuity payments or pensions 
under the Railroad Retirement Act of 1935 or the Railroad Retirement Act 
of 1937, or insurance benefits under title II of the Social Security 
Act, or unemployment, maternity, or sickness benefits under an 
unemployment, maternity, or sickness compensation law other than this 
Act, or any other social insurance payments under any law: Provided, 
That if an employee receives or is held entitled to receive any such 
payments, other than unemployment, maternity, or sickness payments, with 
respect to any period which include days of unemployment or sickness in 
a registration period, after benefits under this Act for such 
registration period will have been paid, the amount by which such 
benefits under this Act will have been increased by including such days 
as days of unemployment or as days of sickness shall be recoverable by 
the Board: Provided further, That, if that part of any such payment or 
payments, other than unemployment, maternity, or sickness payments, 
which is apportionable to such days of unemployment or days of sickness 
is less in amount than the benefits under this Act which, but for this 
paragraph, would be payable and not recoverable with respect to such 
days of unemployment or days of sickness, the preceding provisions of 
this paragraph shall not apply but such benefits under this Act for such 
days of unemployment or days of sickness shall be diminished or 
recoverable in the amount of such part of such other payment or 
payments;

    (d) Section 12(o) of the Act provides that:

    Benefits payable to an employee with respect to days of sickness 
shall be payable regardless of the liability of any person to pay 
damages for such infirmity. The Board shall be entitled to reimbursement 
from any sum or damages paid or payable to such employee or other person 
through suit, compromise, settlement, judgment, or otherwise on account 
of any liability (other than a liability under a health, sickness, 
accident, or similar insurance policy) based upon such infirmity, to the 
extent that it will have paid or will pay benefits for days of sickness 
resulting from such infirmity. Upon notice to the person against whom 
such right or claim exists or is asserted, the Board shall have a lien 
upon such right or claim, any judgment obtained thereunder, and any sum 
or damages paid under such right or claim, to the extent of the amount 
to which the Board is entitled by way of reimbursement.

    (e) Section 3, Pub. L. 89-508, 80 Stat. 308, provides that:

    (a) The head of an agency or his designee, pursuant to regulations 
prescribed by him and in conformity with such standards as may be 
promulgated jointly by the Attorney General and the Comptroller General, 
shall attempt collection of all claims of the United States for money or 
property arising out of the activities of, or referred to, his agency.
    (b) With respect to such claims of the United States that have not 
been referred to another agency, including the General Accounting 
Office, for further collection action and that do not exceed $20,000, 
exclusive of interest, the head of an agency or his designee, pursuant 
to regulations prescribed by him and in conformity with such standards 
as may be promulgated jointly by the Attorney General and the 
Comptroller General, may (1) compromise any such claim, or (2) cause 
collection action on any such claim to be terminated or suspended where 
it appears that no person liable on the claim has the present or 
prospective financial ability to pay any significant sum thereon or that 
the cost of collecting the claim is likely to exceed the amount of 
recovery. The Comptroller General or his designee shall have the 
foregoing authority with respect to claims referred to the General 
Accounting Office by another agency for further collection action. The 
head of an agency or his designee shall not exercise the foregoing 
authority with respect to a claim as to which there is an indication of 
fraud, the presentation of a false claim, or misrepresentation on the 
part of the debtor or any other party having an interest in the claim, 
or a claim based in whole or in part on conduct in violation of the 
antitrust laws; nor shall the head of an agency, other than the 
Comptroller General of the United States, have authority to compromise a 
claim that arises from an exception made by the General Accounting 
Office in the account of an accountable officer.
    (c) A compromise effected pursuant to authority conferred by 
subsection (b) of this section shall be final and conclusive on the 
debtor and on all officials, agencies, and courts of the United States, 
except if procured by fraud, misrepresentation, the presentation of a 
false claim, or mutual mistake of fact. No accountable officer shall be 
liable for any amount paid or for the value of property lost, damaged, 
or destroyed, where the recovery of such amount or value may not be had 
because of a compromise with a person primarily responsible under 
subsection (b).

[[Page 581]]



Sec. 340.2  Amount recoverable.

    For purposes of this part, an ``amount recoverable'' is an amount of 
unemployment, sickness, or maternity benefits paid under the Railroad 
Unemployment Insurance Act which is:
    (a) Determined to have been paid erroneously;
    (b) Recoverable under section 2(f) of the Act because remuneration 
is found to be payable with respect to a period which includes days 
which had been determined to be days of unemployment or sickness;
    (c) Recoverable under section 4(a-1)(ii) of the Act because of the 
employee's having received or been held entitled to receive annuity 
payments under the Railroad Retirement Act, insurance benefits under 
title II of the Social Security Act, unemployment, sickness or maternity 
benefits under any law other than the Railroad Unemployment Insurance 
Act, or any other social insurance payments under any law; or
    (d) Recoverable under section 12(o) of the Act by virtue of the 
Board's right to reimbursement from any sum or damages payable through 
suit, compromise, settlement, judgment, or otherwise on account of 
liability based upon an infirmity, to the extent that it will have paid 
or will pay benefits for days of sickness resulting from that infirmity.



Sec. 340.3  When amounts recoverable to be recovered.

    Amounts recoverable shall be recovered in all cases except those in 
which recovery is waived under Sec. 340.10 or a compromise is approved 
under Sec. 340.13.



Sec. 340.4  Methods of recovery of amounts recoverable.

    An amount recoverable may be recovered by any one or a combination 
of the methods described in Sec. Sec. 340.5, 340.6, 340.7, and 340.8.



Sec. 340.5  Recovery by cash payment.

    The Board shall have the right to require that amounts recoverable 
be immediately and fully repaid in cash and any debtor shall have the 
absolute right to repay such amount recoverable in this manner. However 
if the debtor is financially unable to pay the indebtedness in a lump 
sum, payment may be accepted in regular installments. The amount and 
frequency of such installment payments should bear a reasonable relation 
to the size of the debt and the debtor's ability to pay. Whenever 
possible installment payments should be sufficient in amounts and 
frequency to liquidate the debt in not more than three years.



Sec. 340.6  Recovery by setoff.

    An amount recoverable may be recovered by setoff against any 
subsequent payments to which the individual from whom the amount is 
recoverable is entitled under the Railroad Unemployment Insurance Act, 
the Railroad Retirement Act, or any other Act administered by the Board, 
or, in the case of that individual's death, from any payments due under 
those Acts to his or her estate, designee, next of kin, legal 
representative, or surviving spouse. In any case in which full recovery 
is not effected by setoff, the balance due may be recovered by one or 
more of the other methods described in this part. If the individual dies 
before recovery is completed, such recovery shall be made from his 
estate or heirs.

[53 FR 2489, Jan. 28, 1988]



Sec. 340.7  Deduction in computation of death benefit.

    In computing the residual lump sum provided for in part 234, subpart 
D, of this chapter, the Board shall include in the benefits to be 
deducted from the gross residual all amounts recoverable under this 
part, but not recovered, including amounts where recovery was waived, 
that were paid to the individual or paid to others as benefits accrued 
to the individual but not paid at death.

[57 FR 1379, Jan. 14, 1992]



Sec. 340.8  Recovery by adjustment in connection with subsequent 
payments under the Railroad Retirement Act.

    Recovery under this part may be made by permanently reducing the 
amount of any annuity payable to the overpaid individual (or an 
individual receiving an annuity based upon the same compensation record 
as that of the overpaid individual) under the

[[Page 582]]

Railroad Retirement Act. This method of recovery is called an actuarial 
adjustment of the annuity. The Board cannot require any individual to 
take an actuarial adjustment in order to recover an overpayment nor is 
an actuarial adjustment available as a matter of right. An actuarial 
adjustment does not become effective until the overpaid individual 
negotiates the first annuity check which reflects the annuity rate after 
actuarial adjustment.

    Example: An individual agrees to recovery of a $5,000 overpayment 
made to him by actuarial adjustment to an annuity awarded him under the 
Railroad Retirement Act. However, he dies before negotiating the first 
annuity check reflecting his actuarially reduced rate. The $5,000 is not 
considered recovered.

[57 FR 1379, Jan. 14, 1992]



Sec. 340.9  Effect of adjustment in connection with subsequent payments.

    Adjustment by the method described in Sec. 340.8 shall constitute 
recovery of the amount recoverable.



Sec. 340.10  Waiver of recovery of erroneous payments.

    (a) When waiver of recovery may be applied. Section 2(d) of the Act 
provides that there shall be no recovery in any case where more than the 
correct amount of benefits has been paid to an individual or where 
payment has been made to an individual not entitled to benefits if, in 
the judgment of the Board:
    (1) The individual is without fault; and
    (2) Recovery would be contrary to the purpose of the Act or would be 
against equity or good conscience.
    (b) Fault. (1) Fault means a defect of judgment or conduct arising 
from inattention or bad faith. Judgment or conduct is defective when it 
deviates from a prudent standard of care taken to comply wih the 
entitlement provisions of the Act. Conduct includes both action and 
inaction. Unlike fraud, fault does not require a deliberate intent to 
deceive.
    (2) Whether an individual is at fault in causing erroneous payments 
generally depends on all circumstances surrounding the erroneous 
payments. Among the factors the Board will consider are: the ability of 
the overpaid individual to understand the reporting requirements of the 
Act or to realize that he or she is being overpaid (e.g., age, 
comprehension, memory, physical and mental condition); the particular 
cause of benefit non-entitlement; and the number of claims on which the 
individual made erroneous statements.
    (3) Circumstances in which the Board will find an individual at 
fault include but are not limited to:
    (i) Failure to furnish information which the individual knew or 
should have known was material;
    (ii) An incorrect statement made by the individual which he or she 
knew or should have known was incorrect (including furnishing an opinion 
or conclusion when asked for facts);
    (iii) Failure to return a payment which the individual knew or 
should have known was incorrect.
    (c) When recovery defeats the purpose of the Railroad Unemployment 
Insurance Act. (1) The purpose of the Railroad Unemployment Insurance 
Act is to furnish some replacement for an individual's railroad earnings 
lost because of days of sickness or unemployment. The purpose of the Act 
is defeated when an erroneous payment is recovered from income and 
resources which the individual requires to meet ordinary and necessary 
living expenses. If either income or resources are sufficient to meet 
expenses, the purpose of the Act is not defeated by recovery of an 
erroneous payment.
    (2) For purposes of this section, income includes any funds which 
may reasonably be considered available for the individual's use, 
regardless of source. Income to the individual's spouse or dependents is 
available if the spouse or dependent lived with the individual at the 
time waiver is considered. Types of income include, but are not limited 
to:
    (i) Government benefits such as Black Lung, Social Security, 
Workers' Compensation, and Unemployment Compensation benefits;
    (ii) Wages and self-employment income;
    (iii) Regular payments such as rent or pensions; and
    (iv) Investment income.

[[Page 583]]

    (3) For purposes of this section, resources include, but are not 
limited to, liquid assets such as cash on hand, the value of stocks, 
bonds, savings accounts, mutual funds, any accrual benefit payable by 
the United States of America or any other source.
    (4) Whether an individual has sufficient income and resources to 
meet ordinary and necessary living expenses depends not only on the 
amount of his or her income and resources, but also on whether the 
expenses are ``ordinary and necessary.'' While the level of expenses 
which is ``ordinary and necessary'' may vary between individuals, it 
must be held at a level reasonable for an individual who is temporarily 
unemployed or incapacitated due to sickness. The Board will consider the 
discretionary nature of an expense in determining whether it is 
reasonable. Ordinary and necessary living expenses include:
    (i) Fixed living expenses, such as food and clothing, rent, mortgage 
payments, utilities, maintenance, insurance (e.g., life, accident, and 
health insurance), taxes, installment payments, etc.;
    (ii) Medical, hospitalization, and other similar expenses;
    (iii) Expenses for the support of others for whom the individual is 
legally responsible; and
    (iv) Miscellaneous expenses (e.g., newspapers, haircuts).
    (5) Where recovery of the full amount of an erroneous payment would 
be made from income and resources required to meet ordinary and 
necessary living expenses, but recovery of a lesser amount would leave 
income or resources sufficient to meet expenses, recovery of the lesser 
amount does not defeat the purpose of the Act.
    (d) When recovery is against equity or good conscience. Recovery is 
considered to be against equity or good conscience when a person, in 
reliance on such payments or on notice that such payment would be made, 
relinquished a valuable right or changed his or her position for the 
worse.
    (e) Recoveries not subject to waiver. (1) Where an amount is 
recoverable pursuant to section 2(f) of the Act from remuneration 
payable to an employee by a person or company, or where a lien for 
reimbursement of sickness benefits has arisen pursuant to section 12(o) 
of the Act, and in either case recovery is sought from a person other 
than the employee, no right to waiver of recovery exists.
    (2) Where the amount recoverable is equal to or less than 10 times 
the current maximum daily benefit rate under the Railroad Unemployment 
Insurance Act it shall not be considered contrary to the purpose of the 
Act or against equity or good conscience to recover such payment. 
Consequently, the amount recoverable is not subject to waiver under this 
part.
    (3) Where the amount recoverable is the result of an overpayment of 
benefits payable under the Railroad Unemployment Insurance Act due to 
entitlement to annuities under the Railroad Retirement Act for the same 
days for which benefits were payable, and recovery of such overpayment 
may be made by offset against an accrual of the annuities, it shall not 
be considered contrary to the purpose of the Act or against equity or 
good conscience to recover the erroneous payment by offset against such 
accrual. Consequently, the amount recoverable is not subject to waiver 
under this part.
    (4) Where there exists accumulated Federal benefits payable by any 
executive agency of the United States, any amount recoverable which is 
equal to or less than the accumulated Federal benefits is not subject to 
waiver. Any amount recoverable which is greater than the identified 
accumulated Federal benefits may be considered for waiver in accordance 
with the provisions of this part and part 320 of this chapter.

[53 FR 2489, Jan. 28, 1988, as amended at 57 FR 1379, Jan. 14, 1992]



Sec. 340.11  Waiver of methods of recovery.

    The Board may waive any right to recover all or any part of an 
amount recoverable by any one or more methods without waiving the right 
to recover by some other method or methods if, in the judgment of the 
Board, the individual is without fault and if, in the judgment of the 
Board, recovery by the methods waived would be against equity and good 
conscience and recovery

[[Page 584]]

by such other methods would not be against equity and good conscience.



Sec. 340.12  Waiver not a matter of right.

    A waiver under Sec. 340.10 or Sec. 340.11 is not a matter of 
right, but is at all times within the judgment of the Board.



Sec. 340.13  Compromise of amounts recoverable.

    The Board or its designee may compromise an amount recoverable, 
provided such amount does not exceed $100,000, excluding interest, or 
such higher amount as the Attorney General may from time to time 
prescribe. Compromise of an amount recoverable may not be considered in 
any case in which there is an indication of fraud, the presentation of a 
false claim or misrepresentation on the part of the debtor or his 
representative. Compromise is at all times within the discretionary 
authority of the Board or its designee.

[Board Order 27-22, 32 FR 3341, Feb. 28, 1967, as amended at 62 FR 
41271, Aug. 1, 1997]



Sec. 340.14  Factors due to be considered in a compromise.

    The following indicate the character of reasons which will be 
considered in approving a compromise:
    (a) The debtor's ability to repay the full amount within a 
reasonable time;
    (b) The debtor's refusal to pay the claim in full and the Board's 
inability to effect collection in full within a reasonable time by other 
collection methods;
    (c) Doubt concerning the Board's ability to prove its case in court 
for the full amount because of a bona fide dispute as to the facts or 
because of the legal issues involved;
    (d) The cost of collecting the amount recoverable does not justify 
the enforced collection of the full amount.



Sec. 340.15  Suspension or termination of collection action.

    Collection action on a Board claim may be suspended or terminated 
under the following conditions:
    (a) Collection action on a Board claim may be suspended temporarily 
when the debtor cannot be located and there is reason to believe future 
collection action may be productive or collection may be effected by 
offset in the near future.
    (b) Collection action may be terminated when:
    (1) The debtor is unable to make any substantial payment;
    (2) The debtor cannot be located and offset is too remote to justify 
retention of the claim;
    (3) The cost of collection action will exceed the amount 
recoverable;
    (4) The claim is legally without merit or cannot be substantiated by 
the evidence.



Sec. 340.16  Debt collection.

    (a) The Associate Executive Director for Unemployment and Sickness 
Insurance shall take steps to collect all delinquent debts due the Board 
under the benefit provisions of the Act, except those that have been 
classed as uncollectible. Such steps shall commence not later than July 
1, 1985 and shall include notice to each debtor of the time limit for 
paying the debt and the consequences of failure to pay on time.
    (b) It shall be the duty of every employer or other person paying 
remuneration for time lost or any sum or damages for personal injury to 
remit the amount of reimbursement due the Board, if any, within 30 days 
of the date of the payment of remuneration or damages to an employee. 
Failure to remit the amount due within 30 days shall subject the 
employer or other person to interest and penalties, in addition to the 
principal amount due the Board.

[50 FR 36872, Sept. 10, 1985]



PART 341_STATUTORY LIEN WHERE SICKNESS BENEFITS PAID--Table of Contents




Sec.
341.1 Lien.
341.2 Sum or damages paid or payable.
341.3 Notice of lien.
341.4 Information required to be furnished by the employee.
341.5 Amount of reimbursement.
341.6 Report of settlement or judgment.
341.7 Liability on Board's claim.
341.8 Termination of sickness benefits due to a settlement.
341.9 Board as a party; attorney's fee.


[[Page 585]]


    Authority: Sec. 323, Pub. L. 79-572, 60 Stat. 740, 741; 45 U.S.C. 
362(o).

    Source: 49 FR 570, Jan. 5, 1984, unless otherwise noted.



Sec. 341.1  Lien.

    After notice in accordance with this part, the Board shall have a 
lien upon any sum or damages paid or payable to an employee based upon 
an infirmity for which the employee received sickness benefits.



Sec. 341.2  Sum or damages paid or payable.

    (a) The term ``sum or damages paid or payable'' means the amount of 
money that an employee recovers because of any claim of liability based 
upon his or her injury or illness.
    (b) The term ``sum or damages paid or payable'' does not include:
    (1) An amount specified in a settlement or award as payment for any 
loss of property, or the amount of a settlement or award specifically 
apportioned as pay for lost time.
    (2) An amount paid as a result of a lawsuit based on wrongful death.
    (3) Workers' compensation payments.
    (4) ``No-Fault'' personal-injury protection benefits or any other 
benefits paid under a health, sickness, accident or similar insurance 
policy carried by an employee.
    (5) Payments made to an employee under the terms of his or her 
insurance policy providing for payment of all amounts that the employee 
is legally entitled to recover for bodily injury from the owner or 
operator of an uninsured motor vehicle.



Sec. 341.3  Notice of lien.

    (a) Notice to alleged tortfeasor. The Board shall mail a ``Notice of 
Lien'' to each person or company identified as liable or potentially 
liable for causing the employee's infirmity. The ``Notice of Lien'' will 
notify the person or company of the Board's right to reimbursement. The 
notice shall include:
    (1) The employee's name, address and social security number;
    (2) The date and place of the accident; and
    (3) The employee's occupation, if injured on duty.
    (b) Notice to employee. A notice regarding repayment of sickness 
benefits shall be sent to an employee who names a party other than a 
railroad as the alleged tortfeasor.
    (c) Notice of amount of lien. The amount of the Board's lien shall 
be reported, upon request, to a railroad or other person or company that 
may be liable for paying damages, or to the employee, or to an attorney 
representing any of those parties. The amount of the lien shall be 
reported whether or not the terms of a settlement have been agreed upon. 
When requested, a list showing the sickness benefits paid for each claim 
period may be furnished.



Sec. 341.4  Information required to be furnished by the employee.

    (a) When applying for sickness benefits, an employee shall report 
the name and address of the person or company, if any, who is alleged to 
have caused his or her infirmity. The employee shall also provide 
whatever other details are reasonably needed so that the Board may 
establish its lien.
    (b) The employee shall, upon request, tell the Board whether and 
from whom he or she has collected any damages for the infirmity.

(Approved by the Office of Management and Budget under control number 
3220-0036)

[49 FR 570, Jan. 5, 1984, as amended at 52 FR 11018, Apr. 6, 1987]



Sec. 341.5  Amount of reimbursement.

    (a) The Board shall receive as reimbursement the lesser of:
    (1) The amount of sickness benefits paid to the employee for the 
infirmity for which he or she recovers any sum or damages; or
    (2) The net amount of the sum or damages paid to the employee for 
the infirmity, after substracting the amount of the expenses listed in 
paragraph (b) of this section.
    (b) The expenses that may be subtracted from the amount of damages 
recovered are:
    (1) The medical and hospital expenses that the employee incurred 
because of his or her injury. These expenses are deductible even if they 
are paid under an insurance policy covering the employee or are covered 
by his or her

[[Page 586]]

membership in a medical or hospital plan or association. But such 
expenses are not deductible if they are not covered by insurance or by 
membership in a medical or hospital plan or association and are 
consequently paid by a railroad or other person directly to the doctor, 
clinic or hospital that provided the medical care or services.
    (2) The cost of litigation. This includes both the amount of the fee 
to which the attorney and the employee have agreed and the other 
expenses that the employee incurred in the conduct of the litigation 
itself.



Sec. 341.6  Report of settlement or judgment.

    (a) When a person or company makes a settlement or must satisfy a 
final judgment based on an injury for which the employee received 
sickness benefits, the person or company shall notify the Board of the 
settlement or judgment. That notice shall be in writing and submitted 
within five days of the settlement or final judgment. That notification 
shall contain:
    (1) The amount of the settlement or final judgment;
    (2) The date of the settlement or final judgment; and
    (3) The amount withheld from the settlement or final judgment to 
satisfy the Board's lien.
    (b) Payment of the amount due the Board shall be delivered to the 
Board within 30 days after the date of the settlement agreement or the 
entry of final judgment.
    (c) If the damages payable are to be paid directly to the court to 
satisfy a final judgment, thus making it impossible for the person or 
company to remit the amount of reimbursement due the Board, the person 
or company shall immediately notify the Board of the situation.



Sec. 341.7  Liability on Board's claim.

    (a) A person or company paying any sum or damages to an employee who 
has received sickness benefits from the Board shall, upon receipt of 
notice as provided in Sec. 341.3(a), be liable to the Board for the 
amount of reimbursement computed under Sec. 341.5. This liability may 
be relieved by either:
    (1) Withholding the amount reimbursable to the Board from the sum or 
damages payable to the employee, and subsequently paying that amount to 
the Board; or
    (2) Including the U.S. Railroad Retirement Board as a payee on the 
check or draft along with the employee and any others who have an 
interest in the damages.
    (b) If the person or company paying the damages does not protect the 
Board's lien or attempts to protect the Board's lien in some manner 
other than those described in paragraph (a) of this section, that person 
or company shall remain liable to the Board until the Board is 
reimbursed in full.



Sec. 341.8  Termination of sickness benefits due to a settlement.

    (a) Sickness benefits payable to an eligible employee shall be paid 
without regard to whether any person or company may be liable for 
causing the employee's infirmity. However, the Board will terminate the 
payment of sickness benefits upon receipt of an oral or written report 
that a settlement or final judgment for the infirmity has been made.
    (b) A report of settlement shall be made to the Division of Claims 
Operations, Bureau of Unemployment and Sickness Insurance, and shall 
include the information required in Sec. 341.6. Where the report is an 
oral report, and the informant is neither the employee nor his or her 
representative, the informant shall be told that written confirmation 
containing the information called for by Sec. 341.6 must be submitted 
to the Board within five days from the date of the oral report.
    (c) If, in the case of an oral report, the written confirmation as 
described in paragraph (b) of this section is not received within five 
days, the Division of Claims Operations shall take steps within five 
additional working days to verify whether there has been a settlement or 
final judgment. If there has been no settlement or final judgment, the 
payment of sickness benefits shall be reinstated.
    (d) Within five days of the notification of a settlement or final 
judgment, the Board shall inform the employee of the report of the 
settlement or final

[[Page 587]]

judgment. The notice to the employee shall state how the employee may 
inform the Board that there has not been a settlement or final judgment. 
If the employee states that there has not been a settlement or final 
judgment, the adjudicating office shall, within 10 days after the 
receipt of such a statement, make a determination as to the employee's 
rights to future sickness benefits and shall notify him or her 
accordingly.
    (e) An employee shall have the right to appeal from the 
determination of the amount of sickness benefits recoverable from the 
settlement or judgment.

An employee shall also have the right to appeal the termination of his 
or her sickness benefits after the report of a settlement or final 
judgment made in accordance with the procedures provided in paragraphs 
(b), (c) and (d) of this section. Such appeals shall be filed and 
processed in accordance with part 320 of these regulations.



Sec. 341.9  Board as a party; attorney's fee.

    (a) The Board shall not participate in the prosecution of a 
personal-injury claim of an employee eligible for sickness benefits and 
shall neither encourage nor discourage such employee with respect to the 
pursuit of a claim for damages.
    (b) The Board shall not be a party in any action for damages brought 
by an employee claiming sickness benefits under the Railroad 
Unemployment Insurance Act. The Board's right of reimbursement under 
section 12(o) of the Railroad Unemployment Insurance Act shall not be 
construed as giving the Board a right of subrogation or other cause of 
action for damages against an alleged tortfeasor. The Board shall 
intervene in such an action only when it is apparent that intervention 
may be required to protect its right of reimbursement.
    (c) The Board shall not be liable for the payment of any attorney's 
fee or other expenses incurred in connection with such a claim for 
damages.

                           PART 344 [RESERVED]



PART 345_EMPLOYERS' CONTRIBUTIONS AND CONTRIBUTION REPORTS--Table of 
Contents




              Subpart A_General Provisions and Definitions

Sec.
345.101 Requirement for contribution.
345.102 Multiple employer limitation.
345.103 Rate of contribution.
345.104 Employees and employee representatives not liable.
345.105 Definitions.

            Subpart B_Reporting and Collecting Contributions

345.110 Reports of compensation of employees.
345.111 Contribution reports.
345.112 Final contribution reports.
345.113 Execution of contribution reports.
345.114 Prescribed forms for contribution reports.
345.115 Place and time for filing contribution reports.
345.116 Payment of contributions.
345.117 When fractional part of cent may be disregarded.
345.118 Adjustments.
345.119 Refunds.
345.120 Assessment and collection of contributions or underpayments of 
          contributions.
345.121 Jeopardy assessment.
345.122 Interest.
345.123 Penalty for delinquent or false contribution reports.
345.124 Right to appeal the amount of a contribution, interest, or 
          penalty.
345.125 Records.
345.126 Liens.

                  Subpart C_Individual Employer Records

345.201 Individual employer record defined.
345.202 Consolidated employer records.
345.203 Merger or combination of employers.
345.204 Sale or transfer of assets.
345.205 Reincorporation.
345.206 Abandonment.
345.207 Defunct employer.
345.208 System records.

                      Subpart D_Contribution Rates

345.301 Introduction.
345.302 Definition of terms and phrases used in experience-rating.
345.303 Computation of rate.
345.304 New-employer contribution rates.
345.305 Notification and proclamations.
345.306 Availability of information.
345.307 Rate protest.

[[Page 588]]

                       Subpart E_Benefit Charging

345.401 General rule.
345.402 Strikes or work stoppages.
345.403 Multiple base year employers.
345.404 Adjustments.
345.405 Notices to base year employers.
345.406 Defunct employer.

    Authority: 45 U.S.C. 362(l).

    Source: 61 FR 20072, May 3, 1996, unless otherwise noted.



              Subpart A_General Provisions and Definitions



Sec. 345.101  Requirement for contribution.

    Every employer, as defined in part 301 of this chapter, shall pay to 
the Railroad Retirement Board a contribution with respect to the 
compensation paid to an employee in any calendar month for service by 
such employee (except for service to a local lodge or division of a 
railway labor organization). For the purposes of this part, the term 
``compensation'' is defined in part 302 of this chapter. The 
compensation subject to contribution is the gross amount of compensation 
paid to an employee for service in any month, not to exceed the amount 
of the monthly compensation base (MCB), as defined in part 302 of this 
chapter. The amount of contribution payable by each employer is to be 
computed and paid pursuant to the provisions of this part.



Sec. 345.102  Multiple employer limitation.

    (a) The contributions required by this part shall not apply to any 
amount of the aggregate compensation paid to such employee by all such 
employers in such calendar month which is in excess of the MCB; and
    (b) Each employer (other than a subordinate unit of a national-
railway-labor-organization employer) shall be liable for that portion of 
the contribution with respect to such compensation paid by all such 
employers which the compensation paid by the employer to such employee 
bears to the total compensation paid in such month by all such employers 
to such employee.
    (c) In the event that the compensation paid by such employers to the 
employee in such month is less than the MCB, each subordinate unit of a 
national-railway-labor-organization employer shall be liable for such 
portion of any additional contribution as the compensation paid by such 
employer to such employee in such month bears to the total compensation 
paid by all national-railway-labor-organization employers to such 
employee in such month.



Sec. 345.103  Rate of contribution.

    (a) Each employer will have an experience-rated rate of contribution 
computed by the Board under the provisions of section 8(a)(1)(C) of the 
Railroad Unemployment Insurance Act. See subpart D of this part.
    (b) Notwithstanding paragraph (a) of this section the rate of 
contribution applicable to an employer that first becomes subject to 
this part after December 31, 1989, will be computed by the Board in 
accordance with section 8(a)(1)(D) of the Railroad Unemployment 
Insurance Act. See subpart D of this part.



Sec. 345.104  Employees and employee representatives not liable.

    The amount of contributions for which an employer is liable under 
this part shall not be deducted from an employee's compensation, and the 
Board will not recognize any agreement under which an employee assumes 
liability for such contributions. Employee representatives under part 
205 of this chapter are not employees for purposes of the Railroad 
Unemployment Insurance Act and are not liable for payment of 
contributions under this part.



Sec. 345.105  Definitions.

    (a) Chief Financial Officer. References in this part to the Board's 
Chief Financial Officer mean the Chief Financial Officer, Railroad 
Retirement Board, 844 North Rush Street, Chicago, Illinois 60611. The 
Chief Financial Officer shall be responsible for assessing, collecting, 
and depositing contributions due from employers under this part.
    (b) Monthly compensation base. For the purposes of this part, the 
monthly compensation base (MCB) is the maximum monthly amount of 
compensation per employee that is subject to contribution pursuant to 
this part. On or before December 1 of each year, the

[[Page 589]]

Board will compute the amount of the MCB in accordance with section 1(i) 
of the Railroad Unemployment Insurance Act and part 302 of this chapter, 
and will publish notice of the amount so computed in the Federal 
Register within 10 days after such computation has been made. 
Information as to the amount of the MCB should be requested from the 
Board's Chief Financial Officer.
    (c) Month defined. (1) For the purposes of this part, if the date 
prescribed for filing a report or paying a contribution is the last day 
of a calendar month, each succeeding calendar month or fraction thereof 
during which the failure to file or pay the contribution continues shall 
constitute a month.
    (2) If the date prescribed for filing the report or paying the 
contribution is a date other than the last day of a calendar month, the 
period that terminates with the date numerically corresponding thereto 
in the succeeding calendar month and each such successive period shall 
constitute a month. If, in the month of February, there is no date 
corresponding to the date prescribed for filing the report or paying, 
the period from such date in January through the last day of February 
shall constitute a month. Thus, if a report is due on January 30, the 
first month shall end on February 28 (or 29 if a leap year), and the 
succeeding months shall end on March 30, April 30, etc.
    (3) If a report is not timely filed or a contribution is not timely 
paid, the fact that the date prescribed for filing the report or paying 
the contribution, or the corresponding date in any succeeding calendar 
month, falls on a Saturday, Sunday, or a legal holiday is immaterial in 
determining the number of months.
    (d) Reference to forms. Any reference in this part to any prescribed 
reporting or other form of the Board includes a reference to any other 
form of the Board prescribed in substitution for such prescribed form.
    (e) Showing reasonable cause. For purposes of this part if an 
employer exercised ordinary business care and prudence and was 
nevertheless unable to file the return within the prescribed time, then 
the delay is due to reasonable cause. A failure to pay any amount due 
under this part within the prescribed time will be considered to be due 
to reasonable cause to the extent that the employer has made a 
satisfactory showing that he exercised ordinary business care and 
prudence in providing for payment but nevertheless was unable to pay on 
time.



            Subpart B_Reporting and Collecting Contributions



Sec. 345.110  Reports of compensation of employees.

    The provisions of part 209 of this chapter shall be applicable to 
the reporting of compensation under the Railroad Unemployment Insurance 
Act to the same extent and in the same manner as they are applicable to 
the reporting of compensation under the Railroad Retirement Act.



Sec. 345.111  Contribution reports.

    (a) General. (1) Except as provided in paragraph (a)(2) of this 
section, every employer shall, for each calendar quarter of each year, 
prepare a contribution report, in duplicate, on Form DC-1. If the Form 
DC-1 is filed electronically, no duplicate submission is required.
    (2) Contribution reports of employers who are required by State law 
to pay compensation on a weekly basis shall include with respect to such 
compensation all payroll weeks in which all or the major part of the 
compensation falls within the period for which the reports are required.
    (b) Compensation to be reported on Form DC-1. Employers shall enter 
on the employer's quarterly contribution report, prior to any additions 
or subtractions, the amount of creditable compensation appearing on 
payrolls or other disbursement documents for the corresponding quarter 
as the amount of creditable compensation from which the contribution 
payable for that quarter is to be computed.

(Approved by the Office of Management and Budget under control number 
3220-0012)

[67 FR 13567, Mar. 25, 2002]



Sec. 345.112  Final contribution reports.

    Upon termination of employer status, as determined under part 301 of

[[Page 590]]

this chapter, the last contribution report of the employer shall be so 
indicated by checking the box on the Form DC-1 entitled ``Final 
Report''. Such contribution report shall be filed with the Board on or 
before the sixtieth day after the final date for which there is payable 
compensation with respect to which contribution is required. The period 
covered by each such contribution report shall be plainly written 
thereon, indicating the final date for which compensation is payable. 
There shall be executed as part of each such final contribution report a 
statement giving the address at which compensation records will be kept 
and the name of the person keeping the records.

(Approved by the Office of Management and Budget under control number 
3220-0012)



Sec. 345.113  Execution of contribution reports.

    (a) Each contribution report on Form DC-1 shall be signed by hand 
by:
    (1) The individual, if the employer is an individual;
    (2) The president, vice president, or other duly authorized officer, 
if the employer is a corporation; or
    (3) A responsible and duly authorized member or officer having 
knowledge of its affairs if the employer is a partnership or other 
unincorporated organization.
    (b) The Form DC-1 may be filed electronically through the Board's 
authorized agent. If filed electronically, no further authentication is 
required.

[67 FR 13567, Mar. 25, 2002]



Sec. 345.114  Prescribed forms for contribution reports.

    Each employer's contribution report, together with any prescribed 
copies and supporting data, shall be filled out in accordance with the 
instructions and regulations applicable thereto. The prescribed forms 
may be obtained from or accessed by contacting the Board. An employer 
will not be excused from making a contribution report for the reason 
that no form has been furnished to such employer. Application should be 
made to the Board for the prescribed forms in ample time to have the 
contribution report prepared, verified, and filed with the Board on or 
before the due date. Contribution reports that have not been so prepared 
will not be accepted and shall not be considered filed for purposes of 
Sec. 345.115 of this part. In case the prescribed form has not been 
obtained, a statement made by the employer disclosing the period covered 
and the amount of compensation with respect to which the contribution is 
required may be accepted as a tentative contribution report if 
accompanied by the amount of contribution due. If filed within the 
prescribed time, the statements so made will relieve the employer from 
liability for any penalty imposed under this part for the delinquent 
filing of the contribution report provided that the failure to file a 
contribution report on the prescribed form was due to reasonable cause 
and not due to willful neglect, and provided further, that within 30 
days after receipt of the tentative report, such tentative report is 
supplemented by a contribution report made on the proper form.

(Approved by the Office of Management and Budget under control number 
3220-0012)

[67 FR 13568, Mar. 25, 2002]



Sec. 345.115  Place and time for filing contribution reports.

    Each employer shall file its contribution report with the Chief 
Financial Officer, Railroad Retirement Board, 844 North Rush Street, 
Chicago, Illinois, 60611-2092, or the Chief Financial Officer's 
designee. The employer's contribution report for each quarterly period 
shall be filed on or before the last day of the calendar month following 
the period for which it is made. If such last day falls on Saturday, 
Sunday, or a national legal holiday, the report may be filed on the next 
following business day. If mailed, reports must be postmarked on or 
before the date on which the report is required to be filed.

[67 FR 13568, Mar. 25, 2002]



Sec. 345.116  Payment of contributions.

    (a) The contribution required to be reported on an employer's 
contribution report is due and payable to the Board without assessment 
or notice, at the time fixed for filing the contribution report as 
provided for in Sec. 345.115 of this part.

[[Page 591]]

    (b) An employer shall deposit the contributions required under this 
part in accord with instructions issued by the Railroad Retirement 
Board. At the direction of the Board, the Secretary of the Treasury 
shall credit such contributions to the Railroad Unemployment Insurance 
Account in accord with section 10 of the Railroad Unemployment Insurance 
Act and to the Railroad Unemployment Insurance Administration Fund in 
accord with section 11 of the Railroad Unemployment Insurance Act.



Sec. 345.117  When fractional part of cent may be disregarded.

    In the payment of employers' contributions to the Board a fractional 
part of a cent shall be disregarded unless it amounts to one-half cent 
or more, in which case it shall be increased to one cent.



Sec. 345.118  Adjustments.

    (a) In general. If more or less than the correct amount of an 
employer's contribution is paid with respect to any compensation, proper 
adjustments with respect to the contributions shall be made, without 
interest, in subsequent contribution payments by the same employer, as 
provided for in this section.
    (b) Compensation adjustment. A compensation adjustment is the amount 
of any adjustment reported by an employer on Form BA-4. See part 209 of 
this chapter.
    (c) Adjustment of contributions. (1) All adjustments of 
contributions based on compensation adjustments shall be accounted for 
by the employer on the contribution report for the same quarter in which 
the Form BA-4 reflecting the compensation adjustments is filed with the 
Board.
    (2) If less than the correct amount of contributions is paid for any 
previous calendar quarter or calendar year because of an error that does 
not constitute a compensation adjustment as defined in paragraph (b) of 
this section, the employer shall adjust the error by--
    (i) Reporting the additional contribution on the next report filed 
after discovery of the error; and
    (ii) Paying the amount thereof to the Board at the time such report 
is filed.
    (3) If more than the correct amount of contributions is paid for any 
previous calendar quarter or calendar year because of an error that does 
not constitute a compensation adjustment as defined in paragraph (b) of 
this section, the employer shall adjust the error by applying the excess 
payment as a credit against the contribution due on the next report 
filed after discovery of the error. However, if the overpayment cannot 
be adjusted because the employer is no longer required to file a report 
or because the overpayment to be adjusted exceeds the amount of 
contribution due on the employer's next report, the employer may file 
for a refund of the amount which cannot be adjusted as provided for in 
this section. If the overpayment is the result of an incorrect 
contribution rate as determined by the Board, the employer may file for 
a refund of the amount of overpayment or may take an adjustment as 
provided for in this section.
    (d) Limitations on adjustments. No overpayment shall be adjusted 
under this section after the expiration of three years from the time the 
contribution report was required to be filed, or two years from the time 
the contribution was paid, whichever of such periods expires the later, 
or if no contribution report was filed, two years from the time the 
contribution was paid. Any underpayment not adjusted within the time 
limits as set forth in paragraph (c) of this section shall be adjusted 
on the employer's next contribution report or reported immediately on a 
supplemental return. Interest shall accrue on such underpayment as 
provided for in Sec. 345.122 of this part from the time the adjustment 
should have been made under paragraph (c) of this section to date of 
payment. However, no underpayment shall be adjusted under this section 
after the receipt from the Board of formal notice and demand.



Sec. 345.119  Refunds.

    (a) In general. If more than the correct amount of the employer's 
contribution is paid with respect to any compensation and the 
overpayment may not be adjusted in accordance

[[Page 592]]

with Sec. 345.118 of this part, the amount of the overpayment shall be 
refunded in accordance with this section.
    (b) When permitted. A claim for refund may be made only when the 
overpayment cannot be adjusted in accordance with the procedure set 
forth in Sec. 345.118.
    (c) Form of claim. A claim for refund shall be directed to the Chief 
Financial Officer and shall set forth all grounds in detail and all 
facts alleged in support of the claim, including the amount and date of 
each payment to the Board of the contribution to the Board, and the 
period covered by the contribution report on which such contribution was 
reported.
    (d) Claim by fiduciary. If an executor, administrator, guardian, 
trustee, or receiver files a claim for refund, evidence to establish the 
legal authority of the fiduciary shall be annexed to the claim filed by 
such fiduciary under this section.
    (e) Time limit. No refund shall be allowed after the expiration of 
three years from the time the contribution report was required to be 
filed or two years from the time the contribution was paid, whichever of 
such periods expires the later, or if no contribution report was filed, 
two years from the time the contribution was paid.
    (f) Interest. Interest shall be payable on any contribution refunded 
at the overpayment rate provided for in section 6621 of the Internal 
Revenue Code of 1986 from the date of the overpayment to a date 
preceding the date of the refund check by not more than 30 days.
    (g) Refunds reduced by underpayments. Any overpayment claimed or a 
refund under this section shall be reduced by the amount of any amount 
of any contributions previously assessed under Sec. 345.120 of this 
part, which has not already been collected.



Sec. 345.120  Assessment and collection of contributions or 
underpayments of contributions.

    (a) If any employer's contribution is not paid to the Board when due 
or is not paid in full when due, the Board may, as the circumstances 
warrant, assess the contribution or the deficiency and any interest or 
penalty applicable under this part (whether or not the deficiency is 
adjustable as an underpayment under Sec. 345.118 of this part).
    (b) The amount of any such assessment will be collected in 
accordance with the applicable provisions of law. If any employer liable 
to pay any contribution neglects or refuses to pay the same within ten 
days after notice and demand, the Board may collect such contribution 
with such interest and other additional amounts as are required by law, 
by levy, by administrative offset as authorized by 31 U.S.C. 3716 and in 
accordance with the procedures set forth in part 367 of this chapter, or 
by a proceeding in court, but only if the levy is made or proceeding 
begun:
    (1) Within 10 years after assessment of the contribution; or
    (2) Prior to the expiration of any period, including extension 
thereof, for collection agreed upon by the Chief Financial Officer and 
the employer.
    (c) All provisions of law, including penalties, applicable with 
respect to any tax imposed by the provisions of the Railroad Retirement 
Tax Act and the regulations thereunder, insofar as not inconsistent with 
the provisions in this part, shall be applicable with respect to the 
assessment and collection of contributions under this part.



Sec. 345.121  Jeopardy assessment.

    (a) Whenever in the opinion of the Board it becomes necessary to 
protect the interests of the Government by effecting an immediate 
reporting and collection of an employer's contribution, the Board will 
assess the contribution whether or not the time otherwise prescribed by 
law for filing the contribution report and paying such contribution has 
expired, together with all penalties and interest thereon. Upon 
assessment, such contribution, and any penalty, and interest provided 
for under this part shall be immediately due and payable, and the Board 
shall thereupon issue immediately a notice and demand for payment of the 
contribution, penalty, and interest.
    (b) The collection of the whole or any part of the amount of the 
jeopardy assessment may be stayed by filing with the Board a bond in an 
amount equal to the amount with respect to which

[[Page 593]]

the stay is desired, and with such sureties as the Board may deem 
necessary. Such bond shall be conditioned upon the payment of the amount 
(together with interest and any penalties thereon) the collection of 
which is stayed, at the time at which, but for the jeopardy assessment, 
such amount would be due. In lieu of surety or sureties the employer may 
deposit with the Board bonds or notes of the United States, or bonds or 
notes fully guaranteed by the United States as to principal and 
interest, having a par value not less than the amount of the bond 
required to be furnished, together with an agreement authorizing the 
Board in case of default to collect or sell such bonds or notes so 
deposited.



Sec. 345.122  Interest.

    (a) Rate. If the employer's contribution is not paid to the Board 
when due and is not adjusted under Sec. 345.118 of this part, interest 
accrues at the rate of 1 percent per month, or fraction of a month. 
Interest on past due contributions from the due date thereof until the 
date paid will be assessed after payment of the contributions, and 
notice and demand made upon the employer for payment thereof, in any 
case in which payment of the contribution is made before assessment 
under Sec. 345.120.
    (b) Waiver of interest. The Chief Financial Officer may waive, in 
whole or in part, any interest imposed by paragraph (a) of this section 
if in his or her judgment--
    (1) There was a reasonable cause and not willful neglect for the 
late filing, late payment or underpayment, such as: the serious illness 
or death of an individual with the sole authority to execute the return 
and payment; fire, casualty, or natural disaster at the place where the 
railroad unemployment insurance records are kept; or reasons outside the 
employer's control, such as, the failure of the employer's bank to 
comply with the employer's filing and payment instructions;
    (2) The amount of interest attributed to the delinquency is totally 
disproportionate to the period of the delay and the amount of 
contributions paid; and
    (3) The employer's past record for timely compliance with railroad 
unemployment insurance reporting and payment requirements warrants such 
action considering such factors as the number and extent of delays 
associated with late reports, payments, and underpayments.



Sec. 345.123  Penalty for delinquent or false contribution reports.

    (a) Delinquent reports. Unless waived under paragraph (b) of this 
section, the failure to file a contribution report on or before the due 
date shall cause a penalty to accrue of five percent of the amount of 
such contribution if the failure is for not more than one month, with an 
additional five percent for each additional month or fraction thereof 
during which such failure continues, not exceeding 25 percent in the 
aggregate.
    (b) Waiver of penalty. The Chief Financial Officer may waive all or 
a portion of the penalty imposed under paragraph (a) of this section 
consistent with the criteria applicable to waiver of interest as 
provided for in Sec. 345.122(b) of this part.
    (c) Penalty on net amount. For the purpose of paragraph (a) of this 
section the amount of contribution required to be shown on Form DC-1 
shall be reduced by the amount of any part of the contribution that is 
paid on or before the date prescribed for the payment of the 
contribution and by the amount of any credit against the contribution 
that may be claimed upon the DC-1.
    (d) False reports. If a fraudulent contribution report is made, a 
penalty equal to 50 percent of the amount of any underpayment shall be 
imposed on the employer.



Sec. 345.124  Right to appeal the amount of a contribution, interest, 
or penalty.

    (a) Except as otherwise provided, an employer may seek 
administrative review of any determination with respect to any 
contribution, interest, or penalty made under this part by filing a 
request for reconsideration with the Chief Financial Officer within 30 
days after the mailing of notice of such determination. An employer 
shall have a right to appeal to the Board from any reconsideration 
decision under this section by filing notice of appeal to the Secretary 
to the Board within 14 days

[[Page 594]]

after the mailing of the decision on reconsideration. Upon receipt of a 
notice of an appeal, the Board may designate one of its officers or 
employees to receive evidence and report to the Board under the 
procedures set forth in part 319 of this chapter. An appeal of the 
contribution rate is made under Sec. 345.307 of this part.
    (b) Any appeal filed under this part shall not relieve the employer 
from filing any reports or paying any contribution required under this 
part nor stay the collection thereof. Upon the request of an employer, 
the Board may relieve the employer of any obligation required under this 
part pending an appeal. Unless specifically provided by the Board, such 
relief shall not stay the accrual of interest on any disputed amount as 
provided for in Sec. 345.122 of this part.

[67 FR 13568, Mar. 25, 2002]



Sec. 345.125  Records.

    Every employer subject to the payment of contributions for any 
calendar quarter shall, with respect to each such quarter, keep such 
permanent records as are necessary to establish the total amount of 
compensation payable to its employees, for a period of at least five 
calendar years after the date the contribution report to which the 
compensation relates was required to be filed, or the date the 
contribution is paid, whichever is later. The record should be in such 
form as to contain the information required to be shown on the quarterly 
contribution report. All records required by the regulations in this 
part shall be kept at a safe and convenient location accessible to 
inspection by the Board or any of its officers or employees, or by the 
Inspector General of the Railroad Retirement Board. Such records shall 
be at all times open for inspection by such officers or employees.

(Approved by the Office of Management and Budget under control number 
3220-0012)



Sec. 345.126  Liens.

    If any employer, after demand, neglects or refuses to pay a 
contribution required under this part, the amount of such contribution 
(including any interest, penalties, additional amount, or additions to 
such contribution, together with any costs that may accrue in addition 
thereto) shall be a lien in favor of the United States upon all property 
and rights to property, whether real or personal, belonging to such 
employer.



                  Subpart C_Individual Employer Records



Sec. 345.201  Individual employer record defined.

    Effective January 1, 1990, the Board will establish and maintain a 
record, hereinafter known as an Individual Employer Record, for each 
employer subject to this part. As used in this subpart, ``Individual 
Employer Record'' means a record of each employer's benefit ratio; 
reserve ratio; 1-year compensation base; 3-year compensation base; 
unallocated charge; reserve balance; net cumulative contribution 
balance; and cumulative benefit balance. See Sec. 345.302 of this part 
for a definition of these terms. Whenever a new employer begins paying 
compensation with respect to which contributions are payable under this 
part, the Board will establish and maintain an individual employer 
record for such employer.



Sec. 345.202  Consolidated employer records.

    (a) Establishing a consolidated employer record. Two or more 
employers that are under common ownership or control may request the 
Board to consolidate their individual employer records into a joint 
individual employer record. Such joint individual employer record shall 
be treated as though it were a single employer record. A request for 
such consolidation shall be made to the Director of Assessment and 
Training, and such consolidation shall be effective commencing with the 
calendar year following the year of the request.
    (b) Discontinuance of a consolidated employer record. Two or more 
employers that have established and maintained a consolidated employer 
record will be permitted to discontinue such consolidated record only if 
the individual employers agree to an allocation of the consolidated 
employer record and such allocation is approved by the Director

[[Page 595]]

of Assessment and Training. The discontinuance of the consolidated 
record shall be effective commencing with the calendar year following 
the year of the Director of Assessment and Training's approval.

[70 FR 42489, July 25, 2005]



Sec. 345.203  Merger or combination of employers.

    In the event of a merger or combination of two or more employers, or 
an employer and non-employer, the individual employer record of the 
employer surviving the merger (or any person that becomes an employer as 
the result of the merger or combination) shall consist of the 
combination of the individual employer records of the entities 
participating in the merger. Where the person surviving the merger is an 
existing employer under part 202 of this chapter, the individual 
employer record for the surviving employer will not be updated to 
reflect the combined record until the calendar year following the year 
of the Board's determination. Where the entity surviving the merger 
becomes an employer under part 202 of this chapter by virtue of the 
merger, the individual employer record shall consist of the combined 
record effective with its employer effective date.

[70 FR 42489, July 25, 2005]



Sec. 345.204  Sale or transfer of assets.

    (a) In the event property of an employer is sold or transferred to 
another employer (or to a person that becomes an employer as the result 
of the sale or transfer) or is partitioned among two or more employers 
or persons, the individual employer record of such employer shall be 
prorated among the employer or employers that receive the property 
(including any person that becomes an employer by reason of such 
transaction or partition), in accordance with any agreement among the 
respective parties (including an agreement that there shall be no 
proration of the employer record). Such agreement shall be subject to 
the approval of the Board. Where the employer acquiring the assets is an 
existing employer under part 202 of this chapter, that employer's 
individual employer record will take into consideration the acquired 
assets no earlier than the calendar year following the year of the 
Board's determination, unless an agreement among the respective parties 
provides otherwise. Where the employer acquiring the assets becomes an 
employer under part 202 of this chapter by virtue of such acquisition, 
the individual employer record for such employer shall consider the 
acquired assets as of such person's employer effective date, subject to 
any agreement between the respective parties and the provisions of 
paragraph (b) of this section.
    (b) There shall be no transfer of the employer record where an 
employer abandons a line of track in accordance with the provisions of 
the Interstate Commerce Act and the applicable regulations thereunder, 
and a new entity, found by the Board to be an ``employer'' under part 
301 of this chapter, is formed to operate or continue service over such 
line; the Board will assign to such entity a new-employer contribution 
rate in accordance with section 8(a)(1)(D) of the RUIA and Sec. 345.304 
of this part.

[61 FR 20072, May 3, 1996, as amended at 70 FR 42489, July 25, 2005]



Sec. 345.205  Reincorporation.

    The cumulative benefit balance, net cumulative contribution balance, 
1-year compensation base, and 3-year compensation base of an employer 
that reincorporates or otherwise alters its corporate identity in a 
transaction not involving a merger, consolidation, or unification will 
attach to the reincorporated or altered identity.



Sec. 345.206  Abandonment.

    If an employer abandons property or discontinues service but 
continues to operate as an employer, the employer's individual employer 
record shall continue to be calculated as provided in this subpart 
without retroactive adjustment.



Sec. 345.207  Defunct employer.

    If the Board determines that an employer has permanently ceased to 
pay compensation with respect to which contributions are payable under 
this part, the Board will, on the date of

[[Page 596]]

such determination, transfer the employer's net cumulative contribution 
balance as a subtraction from, and the cumulative benefit balance as an 
addition to, the system unallocated charge balance and will cancel all 
other accumulations of the employer. The Board's determination that an 
employer is defunct will be based on evidence indicating that the 
employer has ceased all operations as an employer and has terminated its 
status as an employer. In making its determination, the Board will 
consider evidence as described in part 202 of this chapter with respect 
to termination of employer status under the Railroad Retirement Act. 
Mere failure of an employer to pay contributions due under this part 
does not indicate that such employer is defunct.



Sec. 345.208  System records.

    Effective January 1, 1990, the Board will establish and maintain 
records necessary to determine pooled charges, pooled credits, and 
unallocated charges for the experience rating system and will publish a 
notice with respect thereto no later than October 15 of each year. See 
Sec. 345.302 of this part for the definition of these terms.



                      Subpart D_Contribution Rates



Sec. 345.301  Introduction.

    (a) General. Effective January 1, 1993, each employer that is 
subject to this part will have an experience-rated rate of contribution 
computed as set forth in Sec. 345.303 of this part. A transitional rate 
of contribution applies to each such employer for 1991 and 1992, in 
accordance with section 8(a)(1)(B) of the RUIA. An employer that first 
becomes subject to section 8 of the RUIA after December 31, 1989 will 
have a ``new-employer'' contribution rate as computed in Sec. 345.304 
of this part. An employer's experience-rated contribution rate will be 
not less than 0.65 percent nor more than 12.5 percent. Not later than 
October 15 of each year, the Board will notify each employer of its 
experience-rated contribution rate for the following calendar year.
    (b) Components of an experience-rated contribution rate. An 
employer's experience-rated contribution rate for each calendar year 
beginning with 1993 will be based upon the following charges:
    (1) An allocated charge based upon the amount of benefits paid to 
employees of such employer; this charge is explained in subpart E of 
this part;
    (2) An unallocated charge based upon a proportionate share of the 
system unallocated charge balance, the computation of which is explained 
in Sec. 345.302(p) of this part;
    (3) A pooled charge, also referred to as risk-sharing, to cover the 
cost of benefit payments that are chargeable to a base year employer but 
are not captured by the contribution rate assigned to such employer 
because it is paying contributions at the maximum rate of contribution; 
the formula for computing the pooled charge is set forth in Sec. 
345.302(j) of this part;
    (4) A surcharge of 1.5, 2.5, or 3.5 percent, or a pooled credit, 
depending on the balance to the credit of the Account as of June 30 of a 
given year; and
    (5) An addition of 0.65 percent to the rate of contribution to cover 
the expenses incurred by the Board in administering the RUIA.
    (c) Maximum rate of contribution. Notwithstanding any provision of 
this part, an employer's contribution rate for any calendar year shall 
be limited to 12 percent, except when a surcharge of 3.5 percent is in 
effect with respect to that calendar year. If a 3.5 percent surcharge is 
in effect, the maximum contribution limit with respect to that calendar 
year is 12.5 percent. The surcharge rate for a calendar year will be 3.5 
percent when the balance to the credit of the Account is less than zero. 
The Board will compute the surcharge rate in accordance with Sec. 
345.302(n) of this part.



Sec. 345.302  Definition of terms and phrases used in experience-rating.

    (a) Account. The Railroad Unemployment Insurance Account established 
by section 10 of the Railroad Unemployment Insurance Act (RUIA) and 
maintained by the Secretary of the Treasury in the unemployment trust 
fund established pursuant to section 904 of the Social Security Act. 
Benefits paid under the RUIA for an employee's days of unemployment or 
days of sickness are paid from this Account.

[[Page 597]]

    (b) Benefit ratio. This ratio is computed for each employer as of 
any given June 30 by dividing all benefits charged to the employer under 
subpart E of this part during the 12 calendar quarters ending on such 
June 30 by the employer's three-year compensation base as of such June 
30, as computed under paragraph (q) of this section. The ratio is 
computed to four decimal places.
    (c) Benefits. Benefits are money payments paid or payable by the 
Board to a qualified employee with respect to his or her days of 
unemployment or days of sickness, as provided by the RUIA.
    (d) Compensation. This term has the meaning given in part 302 of 
this chapter.
    (e) Contributions. Contributions are the money payments paid or 
payable by an employer subject to this part with respect to the 
compensation paid or payable to employees of such employer.
    (f) Cumulative benefit balance. An employer's cumulative benefit 
balance as of any given June 30 is determined by adding:
    (1) The net amount of the benefits charged to the employer under 
subpart E on or after January 1, 1990, and
    (2) The cumulative amount of the employer's unallocated charges on 
and after January 1, 1990, as computed under paragraph (r) of this 
section.
    (g) Fund. The Railroad Unemployment Insurance Administration Fund 
established by section 11 of the RUIA and maintained by the Secretary of 
the Treasury in the unemployment trust fund established pursuant to 
section 904 of the Social Security Act. The costs incurred by the Board 
in administering the RUIA are paid from the Fund.
    (h) Net cumulative contribution balance. The Board will determine an 
employer's net cumulative contribution balance as of any given June 30, 
as follows:
    (1) Step 1. Compute the sum of all contributions paid by the 
employer pursuant to this part after December 31, 1989; add that portion 
of the tax, if any, imposed under 26 U.S.C. 3321(a) that is attributable 
to the surtax rate under section 7106(b) of the Railroad Unemployment 
Insurance and Retirement Improvement Act of 1988 (Pub. L. 100-647) and 
any repayment taxes paid by the employer pursuant to 26 U.S.C. 3321(a) 
after the outstanding balance of loans made under section 10(d) of the 
RUIA before October 1, 1985, plus interest, has been paid;
    (2) Step 2. Subtract an amount equal to the amount of such 
contributions deposited, pursuant to section 8(i) of the RUIA, to the 
credit of the Fund; and
    (3) Step 3. Add an amount equal to the aggregate amount by which 
such contributions were reduced in prior calendar years as a result of 
pooled credits, if any, under paragraph (k) of this section.
    (i) One-year compensation base. An employer's one-year compensation 
base is the aggregate amount of compensation with respect to which the 
employer is liable for contributions under this part in the four 
calendar quarters ending on such June 30.
    (j) Pooled charge ratio. The pooled charge ratio, when applicable, 
is a pro-rata increase in the rate of contribution assigned to each 
employer that is not already paying contributions at the maximum rate. A 
pooled charge will become applicable to each such employer during a 
calendar year when the Account loses income because one or more other 
employers are paying contributions at the maximum rate (12 or 12.5 
percent) rather than at the higher experience-based rate that their 
benefit charges would otherwise require. The pooled charge ratio thus 
picks up the cost of benefits paid to employees of employers whose rate 
of contribution is capped at the maximum rate. The pooled charge ratio 
for a calendar year is the same for all employers whose rate is less 
than the maximum and is computed as follows:
    (1) Step 1. For each employer paying contributions at the maximum 
contribution limit under Sec. 345.301(c) of this part, compute the 
amount of contributions that such employer would have paid if its 
experience-based rate were applied to its one-year compensation base as 
of the preceding June 30 and by then deducting from such amount the 
amount derived by applying the maximum contribution rate to the same

[[Page 598]]

one-year compensation base. For the purposes of this computation, the 
experience-based rate is the rate computed for such employer under Sec. 
345.303 of this part.
    (2) Step 2. After the amount is computed for each employer in 
accordance with Step 1 of this paragraph (j), add the amounts for all 
such employers. The aggregate amount so computed represents the amount 
of contributions not collected by the Account because of the maximum 
contribution limit.
    (3) Step 3. For each employer whose experience-based rate of 
contribution, as computed at Step 3 of Sec. 345.303(a) of this part, is 
less than zero, the percentage rate by which the employer's rate was 
raised in order to bring that rate to the minimum rate of zero is 
multiplied by the employer's 1-year compensation base. The total of the 
amounts so computed is subtracted from the aggregate amount computed in 
Step 2 of this paragraph (j).
    (4) Step 4. Divide the net aggregate amount computed at Step 3 of 
this paragraph (j) by the system compensation base as of the preceding 
June 30, excluding from such base the one-year compensation base of each 
employer whose experience-based contribution rate, computed at Step 6 of 
Sec. 345.303(a) of this part, exceeds the maximum contribution limit. 
The result is the pooled charge ratio for the current calendar year. 
This ratio is computed to four decimal places.
    (k) Pooled credit ratio. Effective January 1, 1991, and on the first 
of each subsequent calendar year, the Board will reduce each employer's 
rate of contribution, as computed under Sec. 345.303 of this part, by 
the amount of the pooled credit ratio, if any, applicable to such 
calendar year. This ratio is computed by reference to the accrual 
balance to the credit of the Account as of the preceding June 30. The 
Board will determine the amount of the pooled credit ratio, as follows:
    (1) Step 1. First, the Board computes the accrual balance to the 
credit of the Account as of the close of business on the preceding June 
30 in the same manner as under Step 1 of paragraph (n) of this section. 
There will be a pooled credit ratio for the calendar year if that 
balance is in excess of the greater of $250 million or of the amount 
that bears the same ratio to $250 million as the system compensation 
base as of that June 30 bears to the system compensation base as of June 
30, 1991, as computed in accordance with paragraph (o) of this section.
    (2) Step 2. If there is such an excess amount, divide that excess 
amount by the system compensation base as of the June 30 preceding the 
calendar year. The result is the pooled credit ratio applicable to each 
employer for the calendar year involved in the computation. This ratio 
is computed to four decimal places.
    (l) Reserve balance. An employer's reserve balance is computed as of 
any given June 30 by subtracting its cumulative benefit balance as of 
such June 30 from its net cumulative contribution balance as of such 
June 30. An employer's net cumulative benefit balance is computed under 
paragraph (f) of this section and its net cumulative contribution 
balance under paragraph (h) of this section. An employer's reserve 
balance may be either positive or negative, depending upon whether its 
net cumulative contribution balance exceeds its cumulative benefit 
balance.
    (m) Reserve ratio. This ratio is computed for each employer as of 
any given June 30 by dividing its reserve balance as of June 30 by its 
one-year compensation base as of such June 30. An employer's reserve 
balance is computed under paragraph (l) of this section and its one-year 
compensation base under paragraph (i) of this section. This ratio is 
computed to four decimal places; it may be either a positive or negative 
figure, depending on whether the employer's reserve balance is a 
positive or negative figure.
    (n) Surcharge rate. Effective January 1, 1991, and on the first of 
each subsequent calendar year, the Board will add to each employer's 
rate of contribution, as computed under Sec. 345.303 of this part, a 
surcharge rate of 1.5, 2.5, or 3.5 percent if the accrual balance to the 
credit of the Account, as of the preceding June 30, falls within the 
range of balances set forth in Steps 1 and 2 of this paragraph (n). The 
Board will determine which surcharge rate, if any, is in effect for a 
calendar year by means of the following computation:

[[Page 599]]

    (1) Step 1. First, the Board computes the accrual balance to the 
credit of the Account as of the close of business on the preceding June 
30. Such balance will include any amounts in the Account attributable to 
loans made under section 10(d) of the Act before October 1, 1985, but 
not the obligation of the Account to repay such loans with interest. For 
this purpose, the Account will be deemed to include any balance to the 
credit of the Fund that exceeds $6 million. The surcharge rate, as 
specified in Step 2 of this paragraph (n), will apply if that balance is 
less than the greater of $100 million or of the amount that bears the 
same ratio to $100 million as the system compensation base as of that 
June 30 bears to the system compensation base as of June 30, 1991, as 
computed in accordance with paragraph (o) of this section.
    (2) Step 2. If the balance to the credit of the Account is less than 
the greater of the amounts referred to in the last sentence of Step 1 of 
this paragraph (n), but is equal to or more than the greater of $50 
million or of the amount that bears the same ratio to $50 million as the 
system compensation base as of that June 30 bears to the system 
compensation base as of June 30, 1991, then the surcharge rate for the 
calendar year shall be 1.5 percent. If the balance to the credit of the 
Account is less than the greater of the amounts referred to in this Step 
2, but greater than or equal to zero, then the surcharge rate for the 
calendar year shall be 2.5 percent. If the balance to the credit of the 
Account is less than zero, the surcharge rate for the calendar year 
shall be 3.5 percent.
    (o) System compensation base. The system compensation base as of 
June 30 of each year is the total of the amounts of the one-year 
compensation bases of all base year employers, computed in accordance 
with paragraph (i) of this section. Not later than October 15 of each 
year, the Board will compute the amount of the system compensation base 
and will publish notice of such amount in the Federal Register as soon 
as practicable thereafter.
    (p) System unallocated charge balance. This balance, as computed 
initially for the period January 1 through June 30, 1990 and updated as 
of June 30 of each subsequent calendar year, represents the net amount 
of expenditures from, and income to, the Account that cannot be 
allocated as benefit charges, or adjustments, to the cumulative benefit 
balances of individual base year employers. The Board computes this 
balance, as of June 30 of each year, as follows:
    (1) Step 1. Compute the aggregate amount of all interest paid by the 
Account on loans from the Railroad Retirement Account after September 
30, 1985, pursuant to section 10(d) of the RUIA, during the 12-month 
period ending on June 30;
    (2) Step 2. Add the amount of unemployment benefits paid by reason 
of strikes or work stoppages growing out of labor disputes and the 
cumulative benefit balance of any defunct employer;
    (3) Step 3. Add the aggregate amount of any other benefit payment 
that is not chargeable to a base year employer pursuant to subpart E of 
this part and any other expenditure not chargeable to the Fund;
    (4) Step 4. Subtract the aggregate amount of income to the Account 
received as a proportionate part of the earnings of the unemployment 
trust fund, computed in accordance with section 904(e) of the Social 
Security Act, and all income to the Account received as fines or 
penalties collected under the RUIA;
    (5) Step 5. Subtract the aggregate amount of all transfers from the 
Fund to the Account pursuant to section 11(d) of the RUIA;
    (6) Step 6. Subtract the aggregate amount of any other cash receipt 
to the Account that cannot be treated as an adjustment to the benefit 
charges of a base year employer;
    (7) Step 7. Subtract the net cumulative contribution balance of any 
defunct employer, calculated as of the date on which the Board 
determines that such employer is defunct. After the Board has computed 
the amount of the system unallocated charge balance as of June 30 of 
each year, the Board will publish notice of such amount in the Federal 
Register on or before October 15 of such year.
    (q) Three-year compensation base. An employer's three-year 
compensation

[[Page 600]]

base as of any given June 30 is the aggregate amount of compensation 
with respect to which the employer is liable for contributions under 
this part in the 12 calendar quarters ending on such June 30.
    (r) Unallocated charge. An employer's unallocated charge as of any 
given June 30 is the amount that, as of such June 30, bears the same 
ratio to the system unallocated charge balance as the employer's 1-year 
compensation base bears to the system compensation base. The system 
unallocated charge balance is computed under paragraph (p) of this 
section and the system compensation base under paragraph (o) of this 
section.



Sec. 345.303  Computation of rate.

    (a) With respect to compensation in a calendar year that begins 
after December 31, 1992, the Board will compute, by October 15, 1992, 
and by October 15 of each subsequent year, a contribution rate for each 
employer (other than a new employer) in accordance with the following 8-
step process:
    (1) Step 1. Compute the employer's benefit ratio as of the preceding 
June 30;
    (2) Step 2. Compute the employer's reserve ratio as of the preceding 
June 30 and subtract it from the benefit ratio;
    (3) Step 3. Subtract the pooled credit ratio (if any) for the 
calendar year;
    (4) Step 4. Multiply the Step 3 result by 100, in order to obtain a 
percentage rate, and then round such rate to the nearest 100th of one 
percent. If the rate so computed is zero or less than zero, the 
percentage rate will be deemed zero at this point;
    (5) Step 5. Add 0.65 (the administrative charge) to the percentage 
rate computed through Step 4.
    (6) Step 6. Add the surcharge rate (if any) for the calendar year;
    (7) Step 7. Add the pooled charge ratio (if any) for the calendar 
year, as computed to four decimal places and multiplied by 100;
    (8) Step 8. If the rate computed through Step 7 is greater than 12 
percent (or 12.5 percent if a surcharge of 3.5 percent is in effect for 
the calendar year), reduce the percentage rate so computed to 12 percent 
or 12.5 percent, if appropriate.
    (b) The percentage rate computed under paragraph (a) of this section 
is the employer's rate of contribution for the calendar year in 
question.
    (c)(1) Any computation that is to be made under this section on the 
basis of a 12-quarter period ending on a given June 30 shall be made on 
the basis of a period beginning on January 1, 1990, or on the first day 
of the first calendar quarter that begins after the date on which the 
employer first began to pay compensation subject to this part, or on 
July 1 of the third calendar year preceding that June 30, whichever date 
is later, and ending on that June 30.
    (2) The amount computed under paragraph (c)(1) of this section shall 
be increased to an amount that bears the same ratio to the amount so 
computed as 12 bears to the number of calendar quarters on which the 
computation is based.



Sec. 345.304  New-employer contribution rates.

    (a) An employer whose coverage under the RUIA becomes effective 
after December 31, 1989, is considered a ``new employer'' for the 
purposes of this part and will be assigned a contribution rate as 
computed under this section. The Board shall determine where an employer 
is a new employer and, if so, the effective date of its coverage under 
the RUIA and its rate of contribution with respect to compensation paid 
to employees on and after such effective date.
    (b) Initial contribution rate. The rate of contribution with respect 
to compensation paid in calendar months before the end of the first full 
calendar year that the employer is subject to this section shall be the 
average contribution rate paid by all employers during the three 
calendar years preceding the calendar year before the calendar year in 
which the compensation is paid. The Board will compute the average 
contribution rate by dividing the aggregate contributions paid by all 
employers during those three calendar years by the aggregate 
compensation with respect to which such contributions were paid and by 
then multiplying the resulting ratio, as computed to four decimal 
points, by 100.

[[Page 601]]

    (c) Second contribution rate. The rate of contribution with respect 
to compensation paid in months in the second full calendar year shall be 
the smaller of the maximum contribution limit under the RUIA or the 
percentage rate computed as follows:
[GRAPHIC] [TIFF OMITTED] TR03MY96.047

    (d) Third contribution rate. The rate of contribution with respect 
to compensation paid in months in the third full calendar year shall be 
the smaller of the maximum contribution limit under the RUIA or the 
percentage rate computed as follows:
[GRAPHIC] [TIFF OMITTED] TR03MY96.048

    (e) Subsequent calendar years. The rate of contribution with respect 
to months after the third full calendar year shall be determined under 
Sec. 345.303 of this part.
    (f) Meaning of symbols. For the purpose of the formulas in 
paragraphs (c) and (d) of this section, ``R'' is the applicable 
contribution rate being computed; ``A2'' is the contribution rate that 
would have been determined under paragraph (b) of this section if the 
employer's second calendar year had been its first full calendar year; 
``A3'' is the contribution rate that would have been determined under 
paragraph (b) of this section, if the employer's third calendar year had 
been such employer's first full calendar year; ``B'' is the contribution 
rate for the employer as determined under Sec. 345.303 of this part for 
the employer's second full calendar year; and ``C'' is the contribution 
rate for the employer as determined under Sec. 345.303 of this part for 
the employer's third full calendar year.
    (g) Special rule for certain computations. For purposes of computing 
``B'' and ``C'' in the formulas in this section, the percentage rate 
computed under Sec. 345.303 shall not be reduced under Step 8 of that 
section; and any computations that, under Sec. 345.303, are to be made 
on the basis of a 4-quarter or 12-quarter period ending on a given June 
30 shall be made on the basis of a period commencing with the first day 
of the first calendar quarter that begins after the date on which the 
employer first began paying compensation subject to this part and ending 
on that June 30, and the amount so computed shall be increased to an 
amount that bears the same ratio to the amount so computed as four or 
twelve, as appropriate, bears to the number of calendar quarters in the 
period on which the computation was based.



Sec. 345.305  Notification and proclamations.

    (a) Quarterly notifications to employers. Not later than the last 
day of any calendar quarter that begins after March 31, 1990, the Board 
will notify each employer of its cumulative benefit balance and its net 
cumulative contribution balance as of the end of the preceding calendar 
quarter, as computed in accordance with Sec. 345.302(f) and (h) of this 
part as of the last day of such preceding calendar quarter rather than 
as of a given June 30 if such last day is not a June 30.
    (b) Annual notifications to employers. Not later than October 15, 
1990, and October 15 of each year thereafter, the Board will notify each 
employer of its benefit ratio, reserve ratio, one-year compensation 
base, three-year compensation base, unallocated charge, and reserve 
balance as of the preceding June 30, as computed in accordance with this 
part, and of the contribution rate applicable to the employer for the 
following calendar year as computed under the applicable section of this 
part.
    (c) Proclamations. Not later than October 15, 1990, and October 15 
of each year thereafter, the Board shall proclaim--
    (1) The balance to the credit of the Account as of the preceding 
June 30 for purposes of computing the pooled credit ratio and the 
surcharge rate of contribution;
    (2) The balance of any advances to the Account under section 10(d) 
of the RUIA after September 30, 1985, that has not been repaid with 
interest as provided in such section as of September 30 of that year;
    (3) The system compensation base as of that June 30;

[[Page 602]]

    (4) The system unallocated charge balance as of that June 30; and
    (5) The pooled credit ratio, the pooled charge ratio, and the 
surcharge rate of contribution, if any, applicable in the following 
calendar year.
    (d) Publication and notice. As soon as practical after the Board has 
determined and proclaimed the amounts specified in paragraph (c) of this 
section, the Board will publish notice of such amounts in the Federal 
Register. The notifications to employers under paragraphs (a) and (b) of 
this section will be sent to the employer official designated to receive 
them.



Sec. 345.306  Availability of information.

    Upon request of an employer subject to this part, the Board will 
make available to such employer any information that is necessary to 
verify the accuracy of its rate of contribution, as determined by the 
Board, including information necessary to verify the accuracy of the 
data maintained by the Board in the employer's individual employer 
record.



Sec. 345.307  Rate protest.

    (a) Request for reconsideration. An employer may appeal a 
determination of a contribution rate computed under this part by filing 
a request for reconsideration with the Director of Assessment and 
Training within 90 days after the date on which the Board notified the 
employer of its rate of contribution for the next ensuing calendar year. 
Within 45 days of the receipt of a request for reconsideration, the 
Director shall issue a decision on the protest.
    (b) Appeal to the Board. An employer aggrieved by the decision of 
the Director of Assessment and Training under paragraph (a) of this 
section may appeal to the Board. Such appeal shall be filed with the 
Secretary to the Board within 30 days after the date on which the 
Director notified the employer of the decision on reconsideration. The 
Board may decide such appeal without a hearing or, in its discretion, 
may refer the matter to a hearings officer pursuant to part 319 of this 
chapter.
    (c) Decision of the Board final. Subject to judicial review provided 
for in section 5(f) of the RUIA, the decision of the Board under 
paragraph (b) of this section is final with respect to all issues 
determined therein.
    (d) Waiver of time limits. A request for reconsideration or appeal 
under this section shall be forfeited if the request or appeal is not 
filed within the time prescribed, unless reasonable cause, as defined in 
this part, for failure to file timely is shown.
    (e) Rate pending review. Pending review of the protested rate, the 
employer shall continue to pay contributions at such rate. Any 
adjustment in the contributions paid at such rate as the result of an 
appeal shall be in accordance with Sec. 345.118 of this part.
    (f) The amount of a contribution, interest, or penalty may be 
protested in accord with Sec. 345.124 of this part.

[67 FR 13568, Mar. 25, 2002]



                       Subpart E_Benefit Charging



Sec. 345.401  General rule.

    Effective January 1, 1990, all benefits paid to an employee for his 
or her days of unemployment or days of sickness will be charged to the 
base year employer of such employee, except as hereinafter provided in 
this part. The Board will make the charge by adding the gross amount of 
the benefits payable to an employee on the basis of a claim for benefits 
to that employee's base year employer's cumulative benefit balance. The 
benefit charge does not depend on whether the employee receiving the 
benefit payment is a current employee of the base year employer.



Sec. 345.402  Strikes or work stoppages.

    If benefits are payable to an employee for days of unemployment 
resulting from a strike or work stoppage growing out of a labor dispute, 
the Board will charge the benefit payment to the system unallocated 
charge balance, not to the cumulative benefit balance of the employee's 
base year employer. For the purposes of this section, the phrase 
``strike or work stoppage growing out of a labor dispute'' does not 
include an employee's protected refusal to work under section 212(b) of 
the Federal Railroad Safety Act of 1970 (45 U.S.C. 441(b)).

[[Page 603]]



Sec. 345.403  Multiple base year employers.

    (a) General rules for benefit charging. All benefits paid to an 
employee who had more than one base year employer shall be charged to 
the cumulative benefit balances of such employers, as follows:
    (1) If the employer at the time of the claim is the same as the last 
employer in the base year, benefits will be charged in reverse 
chronological order, but the amount charged to each base year employer 
shall not exceed the amount of compensation paid by such employer to the 
employee in the base year;
    (2) In all other cases, benefits will be charged in the same ratio 
as the compensation paid to such employee by the employer bears to the 
total of such compensation paid to such employee by all such employers 
in the base year; benefit charging in accordance with this method shall 
apply whether the base year employment was with successive employers or 
with concurrent employers.
    (b) Excess benefit payments. If, in applying the rule in paragraph 
(a)(1) of this section, there remain benefit payments, in whole or in 
part, that cannot be charged to any base year employer, the amount of 
benefits paid in excess of those chargeable under paragraph (a)(1) shall 
be charged to the system unallocated charge balance.
    (c) Board records as basis for charging multiple base year 
employers. Where an employee has more than one base year employer, the 
Board will use records compiled on the basis of employer reports filed 
under Sec. 345.110 of this part for the purpose of determining whether 
the employer at the time of the claim for benefits is the last employer 
in the base year and for other purposes related to benefit charging 
under this subpart. If, in a particular case, such records do not 
contain all the data necessary to determine the charge, the Board will 
request the necessary data from the base year employers who may be 
liable for the charge.



Sec. 345.404  Adjustments.

    (a) Recovery of benefits charged to base year employer. Where the 
Board recovers a benefit payment that it had previously charged, in 
whole or in part, to one or more base year employers, the Board will 
subtract the amount of the recovery from the cumulative benefit balances 
of the employers of the employee to whom such amount was paid as a 
benefit in proportion to the amount by which each such employer's 
cumulative benefit balance was increased as a result of the payment of 
the benefit.
    (b) Recovery of other benefit payments. Where the Board recovers a 
benefit payment that was not charged, in whole or in part, to any base 
year employer, or was made before January 1, 1990, the Board will treat 
the amount of the recovery as a subtraction from the system unallocated 
charge balance.
    (c) Payment of interest or other debt collection-related charges. 
The Board will not adjust a base year employer's cumulative benefit 
balance to reflect payment by a debtor of interest or other charges 
assessed by the Board under Sec. 200.7 of this chapter with respect to 
the collection of a debt arising from a benefit payment charged to such 
employer and later found to be recoverable by the Board.
    (d) Limitations. The Board will adjust a base year employer's 
cumulative benefit balance only when the Board actually recovers, by 
cash payment or setoff, a debt that represents a benefit payment that 
was charged, in whole or in part, to such employer. No adjustment shall 
be made--
    (1) If the Board waives recovery of a debt in accordance with part 
340 of this chapter, or
    (2) If the Board finds that a debt is uncollectible, or
    (3) To the extent of the amount not recovered by the Board by reason 
of a compromise settlement of a debt.



Sec. 345.405  Notices to base year employers.

    (a) Prepayment notification. When the Board receives an employee's 
claim for unemployment or sickness benefits, the Board will give the 
employee's base year employer notice of the claim and an opportunity to 
provide information to the Board with respect to the employee's 
eligibility for benefits for the period of time covered by the claim.

[[Page 604]]

    (b) Notice of claim determination. After the base year employer has 
had an opportunity to provide information in accordance with the 
prepayment notification process described in paragraph (a) of this 
section, the office of the Board that is adjudicating the employee's 
claim for benefits will determine whether to pay or to deny benefits on 
the claim. Such office will send notice to the base year employer 
showing what determination was made on the claim. If benefits are found 
to be payable, the amount of the payment will be charged to the 
cumulative benefit balance of the base year employer in accordance with 
the provisions of this subpart. If the base year employer disagrees with 
the payment of benefits, it may request reconsideration in accordance 
with part 320 of this chapter.
    (c) Quarterly notice of benefit charges. As soon as practical 
following the end of each calendar quarter, the Board will send to each 
employer a report of its cumulative benefit balance computed as of the 
end of such quarter. The computation of such balance will reflect the 
following:
    (1) The total amount of unemployment and sickness benefit payments 
made after December 31, 1989, that have been charged to the employer as 
the base year employer of the employees who received the benefits; minus
    (2) The total amount realized in recovery of such benefits; plus
    (3) The total amount of the unallocated charges assigned to such 
base year employer after December 31, 1989; minus
    (4) The total amount realized in recovery of such unallocated 
charges.



Sec. 345.406  Defunct employer.

    Whenever the Board determines, pursuant to Sec. 345.207 of this 
part, that an employer is defunct, the Board will add the amount of such 
employer's benefit charges, as shown in its cumulative benefit balance, 
to the system unallocated charge balance.



PART 346_RAILROAD HIRING--Table of Contents




    Authority: 45 U.S.C. 362(l).



Sec. 346.1  Central register.

    (a) The Board shall maintain a central register of railroad 
employees with at least one year of service who have declared their 
current availability for rail industry employment. The register shall 
indicate which of those employees claims a first right of hire.
    (b) The central register shall be subdivided by class and craft of 
prior employment and shall be updated periodically to reflect current 
employee availability.
    (c) Upon request, listings of employees named in the central 
register and selected on the basis of job experience, location of 
residence, claimed hiring preference, last railroad employer or other 
available selection criteria will be furnished to railroads. Railroads 
may provide written notice of job vacancies to selected employees listed 
on the register. The railroad notice to the employees should contain job 
qualification requirements and application instructions. If the railroad 
requests, the Board shall notify the employees of the vacancy.

[53 FR 3201, Feb. 4, 1988]



PART 348_REPRESENTATIVE PAYMENT--Table of Contents




Sec.
348.1 Introduction.
348.2 Recognition by the Board of a person to act in behalf of another.

    Authority: 45 U.S.C. 355, 45 U.S.C. 231k.

    Source: 61 FR 42377, Aug. 15, 1996, unless otherwise noted.



Sec. 348.1  Introduction.

    (a) Explanation of representative payment. This part explains the 
principles and procedures that the Board follows in determining whether 
to make representative payment and in selecting a representative payee. 
It also explains the responsibilities that a representative payee has 
concerning the use of the funds which he or she receives on behalf of a 
claimant. A representative payee may be either a person or an 
organization selected by the Board to receive benefits on behalf of a 
claimant. A representative payee will be selected if the Board believes 
that the interest

[[Page 605]]

of a claimant will be served by representative payment rather than 
direct payment of benefits. Generally, the Board will appoint a 
representative payee if it determines that the claimant is not able to 
manage or direct the management of benefit payments in his or her 
interest.
    (b) Statutory authority. Section 12 of the Railroad Retirement Act, 
which is also applicable to the Railroad Unemployment Insurance Act, 
provides that every claimant shall be conclusively presumed to have been 
competent until the date on which the Board receives a notice in writing 
that a legal guardian or other person legally vested with the care of 
the person or estate of an incompetent or a minor has been appointed: 
Provided, however, That despite receiving such notice, the Board may, if 
it finds the interests of such claimant to be served thereby, recognize 
actions by, conduct transactions with, and make payments to such 
claimant.
    (c) Policy used to determine whether to make representative payment. 
(1) The Board's policy is that every claimant has the right to manage 
his or her own benefits. However, due to mental or physical condition 
some claimants may be unable to do so. If the Board determines that the 
interests of a claimant would be better served if benefit payments were 
certified to another person as representative payee, the Board will 
appoint a representative payee in accordance with the procedures set 
forth in this part. The Board may appoint a representative payee even if 
the claimant is a legally competent individual. If the claimant is a 
legally incompetent individual, the Board may appoint the legal guardian 
or some other person as a representative payee.
    (2) If payment is being made directly to a claimant and a question 
arises concerning his or her ability to manage or direct the management 
of benefit payments, the Board may, if the claimant has not been 
adjudged legally incompetent, continue to pay the claimant until the 
Board makes a determination about his or her ability to manage or direct 
the management of benefit payments and the selection of a representative 
payee.



Sec. 348.2  Recognition by the Board of a person to act in behalf of 
another.

    The provisions of part 266 of this chapter shall be applicable to 
the appointment of a representative payee under this part to the same 
extent and in the same manner as they are applicable to the appointment 
of a representative payee under the Railroad Retirement Act.



PART 349_FINALITY OF DECISIONS REGARDING UNEMPLOYMENT AND SICKNESS 
INSURANCE BENEFITS--Table of Contents




Sec.
349.1 Reopening and revising decisions.
349.2 Conditions for reopening.
349.3 Change of legal interpretation or administrative ruling.
349.4 Late completion of timely investigation.
349.5 Notice of revised decision.
349.6 Effect of revised decision.
349.7 Time and place to request a review and/or hearing on revised 
          decision.
349.8 Discretion of the three-member Board to reopen or not to reopen a 
          final decision.

    Authority: 45 U.S.C. 355 and 362(l).

    Source: 65 FR 66499, Nov. 6, 2000, unless otherwise noted.



Sec. 349.1  Reopening and revising decisions.

    (a) This part sets forth the Board's rules governing finality of 
decisions with respect to benefits under the Railroad Unemployment 
Insurance Act. After the expiration of the time limits for review as set 
forth in part 320 of this chapter, decisions may be reopened and revised 
only under the conditions described in this subpart, 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. Whether a final decision is reopened or not reopened is solely 
within the discretion of the Board.
    (b) A final decision, as that term is used in this part, means any 
decision under Sec. 320.5 of this chapter where the time limit for 
review, as set forth in part 320 of this chapter or in the Railroad 
Unemployment Insurance Act, has expired.

[[Page 606]]

    (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 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. 349.2  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:
    (1) If there is new and material evidence; or
    (2) If the decision was not reasonably consistent with the evidence 
of record at the time of adjudication.
    (c) At any time if:
    (1) The decision was obtained by fraud or similar fault;
    (2) The decision was that the claimant was not a qualified employee, 
and he or she is now qualified because compensation was credited to the 
employee's record of compensation in accordance with part 211 of this 
chapter:
    (i) To correct errors apparent on the face of the compensation 
record;
    (ii) 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
    (iii) To correct errors made in the allocation of earnings to 
individuals or periods which would have made him or her a qualified 
employee at the time of the decision if the earnings had been credited 
to his or her earnings record at that time;
    (3) The decision is wholly or partially unfavorable to a claimant, 
but only to correct a clerical error or an error that appears on the 
face of the evidence that was considered when the decision was made.



Sec. 349.3  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. 349.4  Late completion of timely investigation.

    (a) A decision may be revised after the applicable time period in 
Sec. Sec. 349.2(a) or (b) expires if the 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 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 six 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. 349.5  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.

[[Page 607]]



Sec. 349.6  Effect of revised decision.

    A revised decision is binding unless:
    (a) The revised decision is being reconsidered or appealed in accord 
with part 320 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. 349.7  Time and place to request a review and/or hearing on 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 
320 of this chapter. Further review or a hearing will be held according 
to the rules set forth in part 320 of this chapter.



Sec. 349.8  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.

[[Page 608]]



                  SUBCHAPTER D_GARNISHMENT OF BENEFITS





PART 350_GARNISHMENT OF BENEFITS PAID UNDER THE RAILROAD RETIREMENT 
ACT, THE RAILROAD UNEMPLOYMENT INSURANCE ACT, AND UNDER ANY OTHER 
ACT ADMINISTERED BY THE BOARD--Table of Contents




Sec.
350.1 Authorization for garnishment of benefits paid by the Board.
350.2 Definitions.
350.3 Procedure.
350.4 Exemptions.
350.5 Miscellaneous.

    Authority: 15 U.S.C. 1673(b)(2); 42 U.S.C. 659, 661, and 662; and 45 
U.S.C. 231f(b)(5) and 362(1).



Sec. 350.1  Authorization for garnishment of benefits paid by the Board.

    (a) Annuities and accrued annuities payable under the Railroad 
Retirement Act, sickness and unemployment benefits payable under the 
Railroad Unemployment Insurance Act, and benefits payable under any 
other Act administered by the Board, are subject, in like manner and to 
the same extent as if the Board were a private person, to legal process 
brought for the enforcement of legal obligations to provide child 
support or to make alimony payments.
    (b) Lump sums, other than accrued annuities, which are payable under 
the Railroad Retirement Act of 1974, such as those payable under 
sections 6(b)(1) and 6(c)(1) of that Act, are not subject to legal 
process as defined in this subchapter. However, an individual entitled 
to a benefit under section 6 of the Railroad Retirement Act of 1974 may 
assign the right to receive all or any part of that benefit.
    (c) Except as authorized under paragraphs (a) and (b) of this 
section and part 295 of this chapter, no benefit paid by the Board shall 
be assignable or be subject to garnishment, attachment, or other legal 
process, nor shall the payment thereof be anticipated.
    (d) In the absence of law to the contrary, it will be assumed that 
``wages,'' ``earnings,'' and analogous terms referred to in relevant 
provisions of state law include payments made by a private person which 
are analogous to those paid by the Board.

[45 FR 28314, Apr. 29, 1980, as amended at 50 FR 12242, Mar. 28, 1985; 
53 FR 35807, Sept. 15, 1988]



Sec. 350.2  Definitions.

    (a) Child support means periodic payments of funds for the support 
and maintenance of a child or children; such term also includes 
attorney's fees, interest, and court costs, when and to the same extent 
that they are expressly made recoverable pursuant to a decree, order, or 
judgment issued in accordance with applicable state law by a court of 
competent jurisdiction.
    (b) Alimony means periodic payments of funds for the support and 
maintenance of a spouse or former spouse and, subject to and in accord 
with state law, includes but is not limited to, separate maintenance, 
alimony pendente lite, maintenance, and spousal support; such term also 
includes attorney's fees, interest, and court costs, when and to the 
extent that they are expressly made recoverable pursuant to a decree, 
order, or judgment issued in accord with applicable State law by a court 
of competent jurisdiction. Alimony does not include any payment or 
transfer of property or of its value in compliance with any community 
property settlement, equitable distribution of property, or other 
division of property, nor does it include any payment to an estate.
    (c) Legal process means any court order, summons, or other similar 
process, including administrative orders, in the nature of garnishment, 
which is directed to and the purpose of which is to compel the Board to 
make a payment from moneys which are otherwise payable to an individual, 
to another party in order to satisfy a legal obligation of such 
individual to provide child support or make alimony payments. For 
purposes of this subchapter, legal process additionally includes 
assignments in lieu of garnishment, but only where

[[Page 609]]

grounds for the issuance of legal process in the nature of garnishment 
exist. Such assignments are revocable.
    (d) Legal obligation means an obligation to pay alimony or child 
support which is enforceable under appropriate state law.

[45FR 28314, Apr. 29, 1980, as amended at 53 FR 35807, Sept. 15, 1988]



Sec. 350.3  Procedure.

    (a) Service of legal process brought for the enforcement of an 
individual's obligation to provide child support or make alimony 
payments shall be accomplished by certified or registered mail, return 
receipt requested, directed to the Deputy General Counsel of the Board, 
844 Rush Street, Chicago, Illinois 60611, or by personal service upon 
the Deputy General Counsel.
    (b) Where the Deputy General Counsel is effectively served with 
legal process relating to an individual's legal obligation to provide 
child support or to make alimony payments, he shall, as soon as possible 
and not later than 15 days after the date of effective service of such 
process, send written notice that such process has been so served, 
together with a copy thereof, to the individual whose moneys are 
affected thereby; and, if response to such process is required, shall 
respond within 30 days, or within such longer period as may be 
prescribed by state law, after the date effective service is made. These 
requirements do not apply in the case of an assignment in lieu of 
garnishment or an assignment of a portion, attributable to the existence 
of the annuitant's family members, of a railroad retirement annuity 
computed under the social security minimum guaranty provision of the 
Railroad Retirement Act.
    (c) Included with the legal process issued to the Board should be 
the name of the individual against whom the legal obligation to provide 
child support or to make alimony payments is sought to be enforced and, 
if available, the individual's social security or railroad retirement 
number, the individual's address, and the type of benefit that the 
individual is receiving from the Board.
    (d) Legal process which refers to a payment in terms of a percentage 
of some other amount must also refer to that payment in terms of a 
specific amount or amounts. In connection with any legal process which 
does not refer to a payment in terms of a specific amount or amounts, 
the Board may compute the amount or may comply with that portion of the 
legal process which specifies an amount or amounts and withhold 
compliance with the balance of the process pending clarification from 
the issuing court or from the party which procured that process.

[45 FR 28314, Apr. 29, 1980, as amended at 48 FR 51448, Nov. 9, 1983]



Sec. 350.4  Exemptions.

    (a) Unless a lower percentage or dollar amount limitation on 
garnishment is provided by applicable state or local law, the portion of 
any payment due to an individual which is subject to legal process to 
enforce any order for the support of any person shall not exceed 65 
percent. Where the individual is supporting a spouse or dependent child, 
other than a spouse or child with respect to whose support that legal 
process is issued, the portion subject to legal process is reduced by 10 
percent. Where the alimony or support arrearage is less than 12 weeks 
old, the portion subject to legal process is reduced by 5 percent. If a 
lower limitation is provided by applicable state or local law, then that 
lower limitation shall be applied.
    (b) In the absence of some evidence to the contrary, it will be 
assumed that the defendant is not supporting a spouse or dependent child 
other than a spouse or child with respect to whose support the legal 
process is issued.
    (c) In any case in which a recurring benefit payment is reduced, 
whether due to a recovery by the Board of an overpayment or for some 
other reason, below the rate at which it is ordinarily paid, any 
applicable exemptions shall be applied to the amount of the reduced 
benefit which is actually paid.
    (d) For purposes of the applicability of exemptions, amounts 
deducted for medicare premiums must first be subtracted from the annuity 
amount.

[45 FR 28314, Apr. 29, 1980]

[[Page 610]]



Sec. 350.5  Miscellaneous.

    (a) The Board may not be required to vary its normal disbursement 
cycles in order to comply with legal process. However, legal process 
which is received too late to be honored during the disbursement cycle 
in which it is received may be honored to the extent that the legal 
process may, in compliance with this part, be satisfied from the next 
payment due to the obligor.
    (b) Except as provided in these regulations, the Board may not be 
required in connection with proceedings under this part to forward 
documents which have been sent to the Board, to an individual, whether 
or not he is entitled to benefits paid by the Board, or to disclose 
information other than that relating to the type, amount (whether actual 
or estimated), and dates of payment of benefits paid by the Board to 
that individual.
    (c) Neither the Board nor any of its employees shall be liable with 
respect to any payment made to any individual from moneys due from or 
payable by the Board pursuant to legal process regular on its face, if 
such payment is made in accordance with this part.
    (d) No employee of the Board whose duties include responding to 
legal process pursuant to requirements contained in this part shall be 
subject under any law to any disciplinary action or civil or criminal 
liability or penalty for, or on account of, any disclosure of 
information made by such employee in connection with the performance of 
the employee's duties in responding to any such process.
    (e) For purposes of a proceeding under this part, the Board will 
apply the law of the state in which the legal process is issued unless 
it comes to the attention of the Board that the state of issuance has no 
contact with the plaintiff or defendant in the action; in which case, 
the Board may, in its sole discretion, apply the law of any state with 
significant interest in the matter.
    (f) No acknowledgement or response will be made to legal process 
which does not contain the mailing address to which acknowledgement may 
be made. No response to any legal process will be notarized or verified.

[45 FR 28314, Apr. 29, 1980, as amended at 50 FR 12242, Mar. 28, 1985]

[[Page 611]]



SUBCHAPTER E_ADMINISTRATIVE REMEDIES FOR FRAUDULENT CLAIMS OR STATEMENTS





PART 355_REGULATIONS UNDER THE PROGRAM FRAUD CIVIL REMEDIES ACT OF 1986
--Table of Contents




Sec.
355.1 Basis and purpose.
355.2 Definitions.
355.3 Basis for civil penalties and assessments.
355.4 Investigation.
355.5 Review by the reviewing official.
355.6 Prerequisites for issuing a complaint.
355.7 Complaint.
355.8 Service of complaint.
355.9 Answer.
355.10 Default upon failure to file an answer.
355.11 Referral of complaint and answer to the ALJ.
355.12 Notice of hearing.
355.13 Parties to the hearing.
355.14 Separation of functions.
355.15 Ex parte contacts.
355.16 Disqualification of reviewing official or ALJ.
355.17 Rights of parties.
355.18 Authority of the ALJ.
355.19 Prehearing conferences.
355.20 Disclosure of documents.
355.21 Discovery.
355.22 Exchange of witness lists, statements, and exhibits.
355.23 Subpoenas for attendance at hearing.
355.24 Protective order.
355.25 Fees.
355.26 Form, filing and service of papers.
355.27 Computation of time.
355.28 Motions.
355.29 Sanctions.
355.30 The hearing and burden of proof.
355.31 Determining the amount of penalties and assessments.
355.32 Location of hearing.
355.33 Witnesses.
355.34 Evidence.
355.35 The record.
355.36 Post-hearing briefs.
355.37 Initial decision.
355.38 Reconsideration of initial decision.
355.39 Appeal to authority head.
355.40 Stays ordered by the Department of Justice.
355.41 Stay pending appeal.
355.42 Judicial review.
355.43 Collection of civil penalties and assessments.
355.44 Right to administrative offset.
355.45 Deposit in Treasury of United States.
355.46 Compromise or settlement.
355.47 Limitations.

    Authority: 31 U.S.C. 3809.

    Source: 52 FR 47706, Dec. 16, 1987, unless otherwise noted.



Sec. 355.1  Basis and purpose.

    (a) Basis. This part implements the Program Fraud Civil Remedies Act 
of 1986, Pub. L. 99-509, 6101-6104, 100 Stat. 1874 (Oct. 21, 1986), to 
be codified at 31 U.S.C. 3801-3812. 31 U.S.C. 3809 of the statute 
requires each authority head to promulgate regulations necessary to 
implement the provisions of the statute.
    (b) Purpose. This part--
    (1) Establishes administrative procedures for imposing civil 
penalties and assessments against persons who make, submit, or present, 
or cause to be made, submitted, or presented, false, fictitious, or 
fraudulent claims or written statements to authorities or to their 
agents, and
    (2) Specifies the hearing and appeal rights of persons subject to 
allegations of liability for such penalties and assessments.



Sec. 355.2  Definitions.

    ALJ means an Administrative Law Judge detailed to the authority 
pursuant to 5 U.S.C. 3344.
    Authority means Railroad Retirement Board.
    Authority head means the three-member Railroad Retirement Board.
    Benefits means, except as the context otherwise requires, anything 
of value, including but not limited to any advantage, preference, 
privilege, license, permit, favorable decision, ruling, status, or loan 
guarantee.
    Board means Railroad Retirement Board.
    Claim means any request, demand, or submission--
    (a) Made to the authority for property, services, or money 
(including money representing grants, loans, insurance, or benefits);
    (b) Made to a recipient of property, services, or money from the 
authority or to a party to a contract with the authority--

[[Page 612]]

    (1) For property or services if the United States--
    (i) Provided such property or services;
    (ii) Provided any portion of the funds for the purchase of such 
property or services; or
    (iii) Will reimburse such recipient or party for the purchase of 
such property or services; or
    (2) For the payment of money (including money representing grants, 
loans, insurance, or benefits) if the United States--
    (i) Provided any portion of the money requested or demanded; or
    (ii) Will reimburse such recipient or party for any portion of the 
money paid on such request or demand; or
    (c) Made to the authority which has the effect of decreasing an 
obligation to pay or account for property, services, or money.
    Complaint means the administrative complaint served by the reviewing 
official on the defendant under Sec. 355.7.
    Defendant means any person alleged in a complaint under Sec. 355.7 
to be liable for a civil penalty or assessment under Sec. 355.3.
    Government means the U.S. Government.
    Individual means a natural person.
    Initial decision means the written decision of the ALJ required by 
Sec. 355.10 or Sec. 355.37, and includes a revised initial decision 
issued following a remand or a motion for reconsideration.
    Investigating official means the Inspector General of the Railroad 
Retirement Board or an officer or employee of the Office of the 
Inspector General designated by the Inspector General and serving in a 
position for which the rate of basic pay is not less than the minimum 
rate of basic pay for grade GS-16 under the General Schedule.
    Knows or has reason to know means that a person, with respect to a 
claim or statement--
    (a) Has actual knowledge that the claim or statement is false, 
fictitious, or fraudulent;
    (b) Acts in deliberate ignorance of the truth or falsity of the 
claim or statement; or
    (c) Acts in reckless disregard of the truth or falsity of the claim 
or statement.
    Makes, wherever it appears, shall include the terms presents, 
submits, and causes to be made, presented, or submitted. As the context 
requires, making or made shall likewise include the corresponding forms 
of such terms.
    Person means any individual, partnership, corporation, association, 
private organization, state, political subdivision of a state, 
municipality, county, district, and Indian tribe, and includes the 
plural of that term.
    Presiding officer means ALJ.
    Representative means an attorney who is a member in good standing of 
the bar of any state, territory, or possession of the United States or 
of the District of Columbia.
    Reviewing official means the General Counsel of the Board or his or 
her designee who is--
    (a) Not subject to supervision by, or required to report to, the 
investigating official; and
    (b) Not employed in the organizational unit of the authority in 
which the investigating official is employed; and
    (c) Is serving in a position for which the rate of basic pay is not 
less than the minimum rate of basic pay for grade GS-16 under the 
General Schedule.
    Statement means any representation, certification, affirmation, 
document, record, or accounting or bookkeeping entry made--
    (a)With respect to a claim or to obtain the approval or payment of a 
claim (including relating to eligibility to make a claim); or
    (b) With respect to (including relating to eligibility for)--
    (1) A contract with, or a bid or proposal for a contract with; or
    (2) A grant, loan, or benefit from the authority, or any state, 
political subdivision of a state, or other party, if the U.S. Government 
provides any portion of the money or property under such contract or for 
such grant, loan, or benefit, or if the Government will reimburse such 
state, political subdivision, or party for any portion of the money or 
property under such contract or for such grant, loan, or benefit.

[[Page 613]]



Sec. 355.3  Basis for civil penalties and assessments.

    (a) Claims. (1) Except as provided in paragraph (c) of this section, 
any person who makes a claim that the person knows or has reason to 
know--
    (i) Is false, fictitious, or fraudulent;
    (ii) Includes or is supported by any written statement which asserts 
a material fact which is false, fictitious, or fraudulent;
    (iii) Includes or is supported by any written statement that--
    (A) Omits a material fact;
    (B) Is false, fictitious, or fraudulent as a result of such 
omission; and
    (C) Is a statement in which the person making such statement has a 
duty to include such material fact; or
    (iv) Is for payment for the provision of property or services which 
the person has not provided as claimed, shall be subject, in addition to 
any other remedy that may be prescribed by law, to a civil penalty of 
not more than $5,000 for each such claim. This penalty is subject to 
adjustment in accord with part 356 of this chapter.
    (2) Each voucher, invoice, claim form, or other individual request 
or demand for property, services, or money constitutes a separate claim.
    (3) A claim shall be considered made to an authority, recipient, or 
party when such claim is actually made to an agent, fiscal intermediary, 
or other entity, including any state or political subdivision thereof, 
acting for or on behalf of such authority, recipient, or party.
    (4) Each claim for property, services, or money is subject to a 
civil penalty regardless of whether such property, services, or money is 
actually delivered or paid.
    (5) If the Government has made any payment (including transferred 
property or provided services) on a claim, a person subject to a civil 
penalty under paragraph (a)(1) of this section shall also be subject to 
an assessment of not more than twice the amount of such claim or that 
portion thereof that is determined to be in violation of paragraph 
(a)(1) of this section. Such assessment shall be in lieu of damages 
sustained by the Government because of such claim. However, such 
assessment shall not be in lieu of any recovery of erroneous payments as 
authorized by section 10 of the Railroad Retirement Act or section 2(d) 
of the Railroad Unemployment Insurance Act.
    (b) Statements. (1) Except as provided in paragraph (c) of this 
section, any person who makes a written statement that--
    (i) The person knows or has reason to know--
    (A) Asserts a material fact which is false, fictitious, or 
fraudulent; or
    (B) Is false, fictitious, or fraudulent because it omits a material 
fact that the person making the statement has a duty to include in such 
statement; and
    (ii) Contains or is accompanied by an express certification or 
affirmation of the truthfulness and accuracy of the contents of the 
statement, shall be subject, in addition to any other remedy that may be 
prescribed by law, to a civil penalty of not more than $5,000 for each 
such statement. This penalty is subject to adjustment in accord with 
part 356 of this chapter.
    (2) Each written representation, certification, or affirmation 
constitutes a separate statement.
    (3) A statement shall be considered made to an authority when such 
statement is actually made to an agent, fiscal intermediary, or other 
entity, including any state or political subdivision thereof, acting for 
or behalf of such authority.
    (c)(1) In the case of any claim or statement made by any individual 
relating to any of the benefits listed in paragraph (c)(2) of this 
section received by such individual, such individual may be held liable 
for penalties and assessments under this section only if such claim or 
statement is made by such individual in making application for such 
benefits with respect to such individual's eligibility to receive such 
benefits.
    (2) For purposes of this paragraph, the term ``benefits'' means any 
annuity or other benefit under the Railroad Retirement Act of 1974 which 
are intended for the personal use of the individual who receives the 
benefits or for a member of the individual's family.
    (d) No proof of specific intent to defraud is required to establish 
liability under this section.

[[Page 614]]

    (e) In any case in which it is determined that more than one person 
is liable for making a claim or statement under this section, each such 
person may be held liable for a civil penalty under this section.
    (f) In any case in which it is determined that more than one person 
is liable for making a claim under this section on which the Government 
has made payment (including transferred property or provided services), 
an assessment may be imposed against any such person or jointly and 
severally against any combination of such persons.

[52 FR 47706, Dec. 16, 1987, as amended at 62 FR 3791, Jan. 27, 1997]



Sec. 355.4  Investigation.

    (a) If an investigating official concludes that a subpoena pursuant 
to the authority conferred by 31 U.S.C. 3804(a) is warranted--
    (1) The subpoena so issued shall notify the person to whom it is 
addressed of the authority under which the subpoena is issued and shall 
identify the records or documents sought;
    (2) He or she may designate a person to act on his behalf to receive 
the documents sought; and
    (3) The person receiving such subpoena shall be required to tender 
to the investigating official or the person designated to receive the 
documents a certification that the documents sought have been produced, 
or that such documents are not available and the reasons therefor, or 
that such documents, suitably identified, have been withheld based upon 
the assertion of an identified privilege.
    (b) If the investigating official concludes that an action under the 
Program Fraud Civil Remedies Act may be warranted, the investigating 
official shall submit a report containing the findings and conclusions 
of such investigation to the reviewing official.
    (c) Nothing in this section shall preclude or limit an investigating 
official's discretion to refer allegations directly to the Department of 
Justice for suit under the False Claims Act or other civil relief, or to 
preclude or limit such official's discretion to defer or postpone a 
report or referral to avoid interference with a criminal investigation 
or prosecution.
    (d) Nothing in this section modifies any responsibility of an 
investigating official to report violations of criminal law to the 
Attorney General.



Sec. 355.5  Review by the reviewing official.

    (a) If, based on the report of the investigating official under 
Sec. 355.4(b), the reviewing official determines that there is adequate 
evidence to believe that a person is liable under Sec. 355.3 of this 
part, the reviewing official shall transmit to the Attorney General a 
written notice of the reviewing official's intention to issue a 
complaint under Sec. 355.7.
    (b) Such notice shall include--
    (1) A statement of the reviewing official's reasons for issuing a 
complaint;
    (2) A statement specifying the evidence that supports the 
allegations of liability;
    (3) A description of the claims or statements upon which the 
allegations of liability are based;
    (4) An estimate of the amount of money or the value of property, 
services, or other benefits requested or demanded in violation of Sec. 
355.3 this part;
    (5) A statement of any exculpatory or mitigating circumstances that 
may relate to the claims or statements known by the reviewing official 
or the investigating official; and
    (6) A statement that there is a reasonable prospect of collecting an 
appropriate amount of penalties and assessments. Such a statement may be 
based upon information then known or an absence of any information 
indicating that the person may be unable to pay such an amount.



Sec. 355.6  Prerequisites for issuing a complaint.

    (a) The reviewing official may issue a complaint under Sec. 355.7 
only if--
    (1) The Department of Justice approves the issuance of a complaint 
in a written statement described in 31 U.S.C. 3803(b)(1), and
    (2) In the case of allegations of liability under Sec. 355.3(a) 
with respect to a claim, the reviewing official determines that, with 
respect to such claim or a group of related claims submitted

[[Page 615]]

at the same time such claim is submitted (as defined in paragraph (b) of 
this section), the amount of money or the value of property or services 
demanded or requested in violation of Sec. 355.3(a) does not exceed 
$150,000.
    (b) For the purposes of this section, a related group of claims 
submitted at the same time shall include only those claims arising from 
the same transaction (e.g., grant, loan, application, or contract) that 
are submitted simultaneously as part of a single request, demand, or 
submission.
    (c) Nothing in this section shall be construed to limit the 
reviewing official's authority to join in a single complaint against a 
person, claims that are unrelated or were not submitted simultaneously, 
regardless of the amount of money or the value of property or services 
demanded or requested.



Sec. 355.7  Complaint.

    (a) On or after the date the Department of Justice approves the 
issuance of a complaint in accordance with 31 U.S.C. 3803(b)(1), the 
reviewing official may serve a complaint on the defendant, as provided 
in Sec. 355.8.
    (b) The complaint shall state--
    (1) The allegations of liability against the defendant, including 
the statutory basis for liability, an identification of the claims or 
statements that are the basis for the alleged liability, and the reasons 
why liability allegedly arises from such claims or statements;
    (2) The maximum amount of penalties and assessments for which the 
defendant may be held liable;
    (3) Instructions for filing an answer to request a hearing, 
including a specific statement of the defendant's right to request a 
hearing by filing an answer and to be represented by a representative; 
and
    (4) That failure to file and answer within 30 days of service of the 
complaint may result in the imposition of the maximum amount of 
penalties and assessments without right to appeal.
    (c) At the same time the reviewing official serves the complaint, he 
or she shall serve the defendant with a copy of these regulations.



Sec. 355.8  Service of complaint.

    (a) Service of a complaint must be made by certified or registered 
mail or by delivery in any manner authorized by Rule 4(d) of the Federal 
Rules of Civil Procedure.
    (b) Proof of service, stating the name and address of the person on 
whom the complaint was served, and the manner and date of service, may 
be made by--
    (1) Affidavit of the individual making service;
    (2) An acknowledged U.S. Postal Service return receipt card; or
    (3) Written acknowledgment of the defendant or his representative.



Sec. 355.9  Answer.

    (a) The defendant may request a hearing by filing an answer with the 
reviewing official within 30 days of service of the complaint. An answer 
shall be deemed to be a request for hearing.
    (b) In the answer, the defendant--
    (1) Shall admit or deny each of the allegations of liability made in 
the complaint;
    (2) Shall state any defense on which the defendant intends to rely;
    (3) May state any reasons why the defendant contends that the 
penalties and assessments should be less than the statutory maximum; and
    (4) Shall state the name, address, and telephone number of the 
person authorized by the defendant to act as defendant's representative, 
if any.



Sec. 355.10  Default upon failure to file an answer.

    (a) If the defendant does not file an answer within the time 
prescribed in Sec. 355.9(a), the reviewing official may refer the 
complaint to the ALJ.
    (b) Upon the referral of the complaint, the ALJ shall promptly serve 
on defendant in the manner prescribed in Sec. 355.8, a notice that an 
initial decision will be issued under this section.
    (c) If the defendant has failed to answer the complaint, the ALJ 
shall assume the facts alleged in the complaint to be true and, if such 
facts establish liability under Sec. 355.3, the ALJ shall issue an 
initial decision imposing the maximum amount of penalties and 
assessments allowed under the statute.

[[Page 616]]

    (d) Except as otherwise provided in this section, by failing to file 
a timely answer, the defendant waives any right to further review of the 
penalties and assessments imposed under paragraph (c) of this section, 
and the initial decision shall become final and binding upon the parties 
30 days after it is issued.
    (e) If, before such an initial decision becomes final, the defendant 
files a motion with the ALJ seeking to reopen on the grounds that 
extraordinary circumstances prevented the defendant from filing an 
answer, the initial decision shall be stayed pending the ALJ's decision 
on the motion.
    (f) If, on such motion, the defendant can demonstrate extraordinary 
circumstances excusing the failure to file a timely answer, the ALJ 
shall withdraw the initial decision in paragraph (c) of this section, if 
such a decision has been issued, and shall grant the defendant an 
opportunity to answer the complaint.
    (g) A decision of the ALJ denying a defendant's motion under 
paragraph (e) of this section is not subject to reconsideration under 
Sec. 355.38.
    (h) The defendant may appeal to the authority head the decision 
denying a motion to reopen by filing a notice of appeal with the 
authority head within 15 days after the ALJ denies the motion. The 
timely filing of a notice of appeal shall stay the initial decision 
until the authority head decides the issue.
    (i) If the defendant files a timely notice of appeal with the 
authority head, the ALJ shall forward the record of the proceeding to 
the authority head.
    (j) The authority head shall decide expeditiously whether 
extraordinary circumstances excuse the defendant's failure to file a 
timely answer based solely on the record before the ALJ.
    (k) If the authority head decides that extraordinary circumstances 
excused the defendant's failure to file a timely answer, the authority 
head shall remand the case to the ALJ with instructions to grant the 
defendant an opportunity to answer.
    (l) If the authority head decides that the defendant's failure to 
file a timely answer is not excused, the authority head shall reinstate 
the initial decision of the ALJ, which shall become final and binding 
upon the parties 30 days after the authority head issues such decision.



Sec. 355.11  Referral of complaint and answer to the ALJ.

    Upon receipt of an answer, the reviewing official shall file the 
complaint and answer with the ALJ.



Sec. 355.12  Notice of hearing.

    (a) When the ALJ receives the complaint and answer, the ALJ shall 
promptly serve a notice of hearing upon the defendant in the manner 
prescribed by Sec. 355.8. At the same time, the ALJ shall send a copy 
of such notice to the representative for the Government.
    (b) Such notice shall include--
    (1) The tentative time and place, and the nature of the hearing;
    (2) The legal authority and jurisdiction under which the hearing is 
to be held;
    (3) The matters of fact and law to be asserted;
    (4) A description of the procedures for the conduct of the hearing;
    (5) The name, address, and telephone number of the representative of 
the Government and of the defendant, if any; and
    (6) Such other matters as the ALJ deems appropriate.



Sec. 355.13  Parties to the hearing.

    (a) The parties to the hearing shall be the defendant and the 
authority.
    (b) Pursuant to 31 U.S.C. 3730(c)(5), a private plaintiff under the 
False Claims Act may participate in these proceedings to the extent 
authorized by the provisions of that Act.



Sec. 355.14  Separation of functions.

    (a) The investigating official, the reviewing official, and any 
employee or agent of the authority who takes part in investigating, 
preparing, or presenting a particular case may not, in such case or a 
factually related case--
    (1) Participate in the hearing as the ALJ;
    (2) Participate or advise in the initial decision or the review of 
the initial decision by the authority head, except as a witness or a 
representative in public proceedings; or

[[Page 617]]

    (3) Make the collection of penalties and assessments under 31 U.S.C. 
3806.
    (b) The ALJ shall not be responsible to, or subject to the 
supervision or direction of the investigating official or the reviewing 
official.
    (c) Except as provided in paragraph (a) of this section, the 
representative for the Government may be employed anywhere in the 
authority, including in the offices of either the investigating official 
or the reviewing official.



Sec. 355.15  Ex parte contacts.

    No party or person (except employees of the ALJ's office) shall 
communicate in any way with the ALJ on any matter at issue in a case, 
unless on notice and opportunity for all parties to participate. This 
provision does not prohibit a person or party from inquiring about the 
status of a case or asking routine questions concerning administrative 
functions or procedures.



Sec. 355.16  Disqualification of reviewing official or ALJ.

    (a) A reviewing official or ALJ in a particular case may disqualify 
himself or herself at any time.
    (b) A party may file with the ALJ a motion for disqualification of a 
reviewing official or an ALJ. Such motion shall be accompanied by an 
affidavit alleging personal bias or other reason for disqualification.
    (c) Such motion and affidavit shall be filed promptly upon the 
party's discovery of reasons requiring disqualification, or such 
objections shall be deemed waived.
    (d) Such affidavit shall state specific facts that support the 
party's discovery of such facts. It shall be accompanied by a 
certificate of the representative of record that it is made in good 
faith.
    (e) Upon the filing of such a motion and affidavit, the ALJ shall 
proceed no further in the case until he or she resolves the matter of 
disqualification in accordance with paragraph (f) of this section.
    (f)(1) If the ALJ determines that a reviewing official is 
disqualified, the ALJ shall dismiss the complaint without prejudice.
    (2) If the ALJ disqualifies himself or herself, the case shall be 
reassigned promptly to another ALJ.
    (3) If the ALJ denies a motion to disqualify, the authority head may 
determine the matter only as part of his or her review of the initial 
decision upon appeal, if any.



Sec. 355.17  Rights of parties.

    Except as otherwise limited by this part, all parties may--
    (a) Be accompanied, represented, and advised by a representative;
    (b) Participate in any conference held by the ALJ;
    (c) Conduct discovery;
    (d) Agree to stipulations of fact or law, which shall be made part 
of the record;
    (e) Present evidence relevant to the issues at the hearing;
    (f) Present and cross-examine witnesses;
    (g) Present oral arguments at the hearing as permitted by the ALJ; 
and
    (h) Submit written briefs and proposed findings of fact and 
conclusions of law after the hearing.



Sec. 355.18  Authority of the ALJ.

    (a) The ALJ shall conduct a fair and impartial hearing, avoid delay, 
maintain order, and assure that a record of the proceeding is made.
    (b) The ALJ has the authority to--
    (1) Set and change the date, time, and place of the hearing upon 
reasonable notice to the parties;
    (2) Continue or recess the hearing in whole or in part for a 
reasonable period of time;
    (3) Hold conferences to identify or simplify the issues, or to 
consider other matters that may aid in the expeditious disposition of 
the proceeding;
    (4) Administer oaths and affirmations;
    (5) Issue subpoenas requiring the attendance of witnesses and the 
production of documents at depositions or at hearings;
    (6) Rule on motions and other procedural matters;
    (7) Regulate the scope and timing of discovery;
    (8) Regulate the course of the hearing and the conduct of 
representatives and parties;

[[Page 618]]

    (9) Examine witnesses;
    (10) Receive, rule on, exclude, or limit evidence;
    (11) Upon motion of a party, take official notice of facts;
    (12) Upon motion of a party, decide cases, in whole or in part, by 
summary judgment where there is no disputed issue of material fact;
    (13) Conduct any conference, argument, or hearing on motions in 
person or by telephone; and
    (14) Exercise such other authority as is necessary to carry out the 
responsibilities of the ALJ under this part.
    (c) The ALJ does not have the authority to decide upon the validity 
of Federal statutes or regulations.



Sec. 355.19  Prehearing conferences.

    (a) The ALJ may schedule prehearing conferences as appropriate.
    (b) Upon the motion of any party, the ALJ shall schedule at least 
one prehearing conference at a reasonable time in advance of the 
hearing.
    (c) The ALJ may use prehearing conferences to discuss the following:
    (1) Simplification of the issues;
    (2) The necessity or desirability of amendments to the pleadings, 
including the need for a more definite statement;
    (3) Stipulations, admissions of fact or as to the contents and 
authenticity of documents;
    (4) Whether the parties can agree to submission of the case on a 
stipulated record;
    (5) Whether a party chooses to waive appearance at an oral hearing 
and to submit only documentary evidence (subject to the objection of 
other parties) and written argument;
    (6) Limitation of the number of witnesses;
    (7) Scheduling dates for the exchange of witness lists and of 
proposed exhibits;
    (8) Discovery;
    (9) The time and place for the hearing; and
    (10) Such other matters as may tend to expedite the fair and just 
disposition of the proceedings.
    (d) The ALJ may issue an order containing all matters agreed upon by 
the parties or ordered by the ALJ at a prehearing conference.



Sec. 355.20  Disclosure of documents.

    (a) Upon written request to the reviewing official, the defendant 
may review any relevant and material documents, transcripts, records, 
and other materials that relate to the allegations set out in the 
complaint and upon which the findings and conclusions of the 
investigating official under Sec. 355.4(b) are based unless such 
documents are subject to a privilege under Federal law. Upon payment of 
fees for duplication, the defendant may obtain copies of such documents.
    (b) Upon written request to the reviewing official, the defendant 
also may obtain a copy of all exculpatory information in the possession 
of the reviewing official or investigating official relating to the 
allegations in the complaint, even if it is contained in a document that 
would otherwise be privileged. If the document would otherwise be 
privileged, only that portion containing exculpatory information must be 
disclosed.
    (c) The notice sent to the Attorney General from the reviewing 
official as described in Sec. 355.5 is not discoverable under any 
circumstances.
    (d) The defendant may file a motion to compel disclosure of the 
documents subject to the provisions of this section. Such a motion may 
only be filed with the ALJ following the filing of an answer pursuant to 
Sec. 355.9.



Sec. 355.21  Discovery.

    (a) The following types of discovery are authorized:
    (1) Requests for production of documents for inspection and copying;
    (2) Requests for admissions of the authenticity of any relevant 
document or of the truth of any relevant fact;
    (3) Written interrogatories; and
    (4) Depositions.
    (b) For the purpose of this section and Sec. Sec. 355.22 and 
355.23, the term ``documents'' includes information, documents, reports, 
answers, records, accounts, papers, and other data and documentary 
evidence. Nothing contained herein shall be interpreted to require the 
creation of a document.
    (c) Unless mutually agreed to by the parties, discovery is available 
only as ordered by the ALJ. The ALJ shall regulate the timing of 
discovery.

[[Page 619]]

    (d) Motions for discovery. (1) A party seeking discovery may file a 
motion with the ALJ. Such a motion shall be accompanied by a copy of the 
requested discovery, or in the case of depositions, a summary of the 
scope of the proposed deposition.
    (2) Within ten days of service, a party may file an opposition to 
the motion and/or a motion for protective order as provided in Sec. 
355.24.
    (3) The ALJ may grant a motion for discovery only if he or she finds 
that the discovery sought--
    (i) Is necessary for the expeditious, fair, and reasonable 
consideration of the issues;
    (ii) Is not unduly costly or burdensome;
    (iii) Will not unduly delay the proceeding; and
    (iv) Does not seek privileged information.
    (4) The burden of showing that discovery should be allowed is on the 
party seeking discovery.
    (5) The ALJ may grant discovery subject to a protective order under 
Sec. 355.24.
    (e) Depositions. (1) If a motion for deposition is granted, the ALJ 
shall issue a subpoena for the deponent, which may require the deponent 
to produce documents. The subpoena shall specify the time and place at 
which the deposition will be held.
    (2) The party seeking to depose shall serve the subpoena in the 
manner prescribed in Sec. 355.8.
    (3) The deponent may file with the ALJ a motion to quash the 
subpoena or a motion for a protective order within ten days of service.
    (4) The party seeking to depose shall provide for the taking of a 
verbatim transcript of the deposition, which it shall make available to 
all other parties for inspection and copying.
    (f) Each party shall bear its own costs of discovery.



Sec. 355.22  Exchange of witness lists, statements, and exhibits.

    (a) At least 15 days before the hearing or at such other time as may 
be ordered by the ALJ, the parties shall exchange witness lists, copies 
of prior statements of proposed witnesses, and copies of proposed 
hearing exhibits, including copies of any written statements that the 
party intends to offer in lieu of live testimony in accordance with 
Sec. 355.33(b). At the time the above documents are exchanged, any 
party that intends to rely on the transcript of deposition testimony in 
lieu of live testimony at the hearing, if permitted by the ALJ, shall 
provide each party with a copy of the specific pages of the transcript 
it intends to introduce into evidence.
    (b) If a party objects, the ALJ shall not admit into evidence the 
testimony of any witness whose name does not appear on the witness list 
or any exhibit not provided to the opposing party as provided above 
unless the ALJ finds good cause for the failure or that there is no 
prejudice to the objecting party.
    (c) Unless another party objects within the time set by the ALJ, 
documents exchanged in accordance with paragraph (a) of this section 
shall be deemed to be authentic for the purpose of admissibility at the 
hearing.



Sec. 355.23  Subpoenas for attendance at hearing.

    (a) A party wishing to procure the appearance and testimony of any 
individual at the hearing may request that the ALJ issue a subpoena.
    (b) A subpoena requiring the attendance and testimony of an 
individual may also require the individual to produce documents at the 
hearing.
    (c) A party seeking a subpoena shall file a written request therefor 
not less than 15 days before the date fixed for the hearing unless 
otherwise allowed by the ALJ for good cause shown. Such request shall 
specify any documents to be produced and shall designate the witnesses 
and describe the address and location thereof with sufficient 
particularity to permit such witnesses to be found.
    (d) The subpoena shall specify the time and place at which the 
witness is to appear and any documents the witness is to produce.
    (e) The party seeking the subpoena shall serve it in the manner 
prescribed in Sec. 355.8. A subpoena on a party or upon an individual 
under the control of a party may be served by first-class mail.
    (f) A party or the individual to whom the subpoena is directed may 
file with

[[Page 620]]

the ALJ a motion to quash the subpoena within ten days after service or 
on or before the time specified in the subpoena for compliance if it is 
less than ten days after service.



Sec. 355.24  Protective order.

    (a) A party or a prospective witness or deponent may file a motion 
for a protective order with respect to discovery sought by an opposing 
party or with respect to the hearing, seeking to limit the availability 
or disclosure of evidence.
    (b) In issuing a protective order, the ALJ may make any order which 
justice requires to protect a party or person from annoyance, 
embarrassment, oppression, or undue burden or expense, including one or 
more of the following:
    (1) That the discovery not be had;
    (2) That the discovery may be had only on specified terms and 
conditions, including a designation of the time or place;
    (3) That the discovery may be had only through a method of discovery 
other than that requested;
    (4) That certain matters not be inquired into, or that the scope of 
discovery be limited to certain matters;
    (5) That discovery be conducted with no one present except persons 
designated by the ALJ;
    (6) That the contents of discovery or evidence be sealed;
    (7) That a deposition after being sealed be opened only by order of 
the ALJ;
    (8) That a trade secret or other confidential research, development, 
commercial information, or facts pertaining to any criminal 
investigation, proceeding, or other administrative investigation not be 
disclosed or be disclosed only in a designated way; or
    (9) That the parties simultaneously file specified documents or 
information enclosed in sealed envelopes to be opened as directed by the 
ALJ.



Sec. 355.25  Fees.

    The party requesting a subpoena shall pay the cost of the fees and 
mileage of any witness subpoenaed in the amounts that would be payable 
to a witness in a proceeding in U.S. District Court. A check for witness 
fees and mileage shall accompany the subpoena when served, except that 
when a subpoena is issued on behalf of the authority, a check for 
witness fees and mileage need not accompany the subpoena.



Sec. 355.26  Form, filing and service of papers.

    (a) Form. (1) Documents filed with the ALJ shall include an original 
and two copies.
    (2) Every pleading and paper filed in the proceeding shall contain a 
caption setting forth the title of the action, the case number assigned 
by the ALJ, and a designation of the paper (e.g., motion to quash 
subpoena).
    (3) Every pleading and paper shall be signed by, and shall contain 
the address and telephone number of the party or the person on whose 
behalf the paper was filed, or his or her representative.
    (4) Papers are considered filed when they are mailed. Date of 
mailing may be established by a certificate from the party or its 
representative or by proof that the document was sent by certified or 
registered mail.
    (b) Service. A party filing a document with the ALJ shall, at the 
time of filing, serve a copy of such document on every other party. 
Service upon any party of any document other than the complaint or 
notice of hearing shall be made by delivering or mailing a copy to the 
party's last known address. When a party is represented by a 
representative, service shall be made upon such representative in lieu 
of the actual party.
    (c) Proof of service. A certificate of the individual serving the 
document by personal delivery or by mail, setting forth the manner of 
service, shall be proof of service.



Sec. 355.27  Computation of time.

    (a) In computing any period of time under this part or in an order 
issued thereunder, the time begins with the day following the act, 
event, or default, and includes the last day of the period, unless it is 
a Saturday, Sunday, or legal holiday observed by the Federal government, 
in which event it includes the next business day.
    (b) When the period of time allowed is less than seven days, 
intermediate Saturdays, Sundays, and legal holidays

[[Page 621]]

observed by the Federal government shall be excluded from the 
computation.
    (c) Where a document has been served or issued by mail, an 
additional five days will be added to the time permitted for any 
response.



Sec. 355.28  Motions.

    (a) Any application to the ALJ for an order or ruling shall be by 
motion. Motions shall state the relief sought, the authority relied 
upon, and the facts alleged, and shall be filed with the ALJ and served 
on all other parties.
    (b) Except for motions made during a prehearing conference or at the 
hearing, all motions shall be in writing. The ALJ may require that oral 
motions be reduced to writing.
    (c) Within 15 days after a written motion is served, or such other 
time as may be fixed by the ALJ, any party may file a response to such 
motion.
    (d) The ALJ may not grant a written motion before the time for 
filing responses thereto has expired, except upon consent of the parties 
or following a hearing on the motion, but may overrule or deny such 
motion without awaiting a response.
    (e) The ALJ shall make a reasonable effort to dispose of all 
outstanding motions prior to the beginning of the hearing.



Sec. 355.29  Sanctions.

    (a) The ALJ may sanction a person, including any party or 
representative for--
    (1) Failing to comply with an order, rule, or procedure governing 
the proceeding;
    (2) Failing to prosecute or defend an action; or
    (3) Engaging in other misconduct that interferes with the speedy, 
orderly, or fair conduct of the hearing.
    (b) Any such sanction, including but not limited to those listed in 
paragraphs (c), (d), (e) of this section, shall reasonably relate to the 
severity and nature of the failure or misconduct.
    (c) When a party fails to comply with an order, including an order 
for taking a deposition, the production of evidence within the party's 
control, or a request for admission, the ALJ may--
    (1) Draw an inference in favor of the requesting party with regard 
to the information sought;
    (2) In the case of requests for admission, deem each matter of which 
an admission is requested to be admitted;
    (3) Prohibit the party failing to comply with such order from 
introducing evidence concerning, or otherwise relying upon testimony 
relating to the information sought; and
    (4) Strike any part of the pleadings or other submissions of the 
party failing to comply with such request.
    (d) If a party fails to prosecute or defend an action under this 
part commenced by service of a notice of hearing, the ALJ may dismiss 
the action or may issue an initial decision imposing penalties and 
assessments.
    (e) The ALJ may refuse to consider any motion, request, response, 
brief or other document which is not filed in a timely fashion.



Sec. 355.30  The hearing and burden of proof.

    (a) The ALJ shall conduct a hearing on the record in order to 
determine whether the defendant is liable for a civil penalty or 
assessment under Sec. 355.3 and, if so, the appropriate amount of any 
such civil penalty or assessment considering any aggravating or 
mitigating factors.
    (b) The authority shall prove defendant's liability and any 
aggravating factors by a preponderance of the evidence.
    (c) The defendant shall prove any affirmative defenses and any 
mitigating factors by a preponderance of the evidence.
    (d) The hearing shall be open to the public unless otherwise ordered 
by the ALJ for good cause shown.



Sec. 355.31  Determining the amount of penalties and assessments.

    (a) In determining an appropriate amount of civil penalties and 
assessments, the ALJ and upon appeal, the authority head, should 
evaluate any circumstances that mitigate or aggravate the violation and 
should articulate in their opinions the reasons that support the 
penalties and assessments they impose. Because of the intangible

[[Page 622]]

costs of fraud, the expense of investigating such conduct, and the need 
to deter others who might be similarly tempted, ordinarily double 
damages and a significant civil penalty should be imposed.
    (b) Although not exhaustive, the following factors are among those 
that may influence the ALJ and the authority head in determining the 
amount of penalties and assessments to impose with respect to the 
misconduct (i.e., the false, fictitious, or fraudulent claims or 
statements) charged in the complaint:
    (1) The number of false, fictitious, or fraudulent claims or 
statements;
    (2) The time period over which such claims or statements were made;
    (3) The degree of the defendant's culpability with respect to the 
misconduct;
    (4) The amount of money or the value of the property, services, or 
benefit falsely claimed;
    (5) The value of the Government's actual loss as a result of the 
misconduct, including foreseeable consequential damages and the costs of 
investigation;
    (6) The relationship of the amount imposed as civil penalties to the 
amount of the Government's loss;
    (7) The potential or actual impact of the misconduct upon national 
defense, public health or safety, or public confidence in the management 
of Government programs and operations, including particularly the impact 
on the intended beneficiaries of such programs;
    (8) Whether the defendant has engaged in a pattern of the same or 
similar misconduct;
    (9) Whether the defendant attempted to conceal the misconduct;
    (10) The degree to which the defendant has involved others in the 
misconduct or in concealing it;
    (11) Where the misconduct of employees or agents is imputed to the 
defendant, the extent to which the defendant's practices fostered or 
attempted to preclude such misconduct;
    (12) Whether the defendant cooperated in or obstructed an 
investigation of the misconduct;
    (13) Whether the defendant assisted in identifying and prosecuting 
other wrongdoers;
    (14) The complexity of the program or transaction, and the degree of 
the defendant's sophistication with respect to it, including the extent 
of the defendant's prior participation in the program or in similar 
transactions;
    (15) Whether the defendant has been found, in any criminal, civil, 
or administrative proceeding to have engaged in similar misconduct or to 
have dealt dishonestly with the Government of the United States or of a 
state, directly or indirectly; and
    (16) The need to deter the defendant and others from engaging in the 
same or similar misconduct.
    (c) Nothing in this section shall be construed to limit the ALJ or 
the authority head from considering any other factors that in any given 
case may mitigate or aggravate the offense for which penalties and 
assessments are imposed.



Sec. 355.32  Location of hearing.

    (a) The hearing may be held--
    (1) In any judicial district of the United States in which the 
defendant resides or transacts business;
    (2) In any judicial district of the United States in which the claim 
or statement in issue was made; or
    (3) In such other place as may be agreed upon by the defendant and 
the ALJ.
    (b) Each party shall have the opportunity to present argument with 
respect to the location of the hearing.
    (c) The hearing shall be held at the place and at the time ordered 
by the ALJ.



Sec. 355.33  Witnesses.

    (a) Except as provided in paragraph (b) of this section, testimony 
at the hearing shall be given orally by witnesses under oath or 
affirmation.
    (b) At the discretion of the ALJ, testimony may be admitted in the 
form of a written statement or deposition. Any such written statement 
must be provided to all other parties along with the last known address 
of such witness, in a manner which allows sufficient time for other 
parties to subpoena such witness for cross-examination at the hearing. 
Prior written statements of witnesses proposed to testify at the hearing 
and deposition transcripts

[[Page 623]]

shall be exchanged as provided in Sec. 355.22(a).
    (c) The ALJ shall exercise reasonable control over the mode and 
order of interrogating witnesses and presenting evidence so as to--
    (1) Make the interrogation and presentation effective for the 
ascertainment of the truth.
    (2) Avoid needless consumption of time, and
    (3) Protect witnesses from harassment or undue embarrassment.
    (d) The ALJ shall permit the parties to conduct such cross-
examination as may be required for a full and true disclosure of the 
facts.
    (e) At the discretion of the ALJ, a witness may be cross-examined on 
matters relevant to the proceeding without regard to the scope of his or 
her direct examination. To the extent permitted by the ALJ, cross-
examination on matters outside the scope of direct examination shall be 
conducted in the manner of direct examination and may proceed by leading 
questions only if the witness is a hostile witness, an adverse party, or 
a witness identified with an adverse party.
    (f) Upon motion of any party, the ALJ shall order witnesses excluded 
so that they cannot hear the testimony of other witnesses. This rule 
does not authorize exclusion of--
    (1) A party who is an individual;
    (2) In the case of a party that is not an individual, an officer or 
employee of the party designated by the party's representative; or
    (3) An individual whose presence is shown by a party to be essential 
to the presentation of its case, including an individual employed by the 
Government engaged in assisting the representative for the Government.



Sec. 355.34  Evidence.

    (a) The ALJ shall determine the admissibility of evidence.
    (b) Except as provided herein, the ALJ shall not be bound by the 
Federal Rules of Evidence. However, the ALJ may apply the Federal Rules 
of Evidence where appropriate, e.g., to exclude unreliable evidence.
    (c) The ALJ shall exclude irrelevant and immaterial evidence.
    (d) Although relevant, evidence may be excluded if its probative 
value is substantially outweighed by the danger of unfair prejudice, 
confusion of the issues, or by considerations of undue delay or needless 
presentation of cumulative evidence.
    (e) Although relevant, evidence may be excluded if it is privileged 
under Federal law.
    (f) Evidence concerning offers of compromise or settlement shall be 
inadmissible to the extent provided in Rule 408 of the Federal Rules of 
Evidence.
    (g) The ALJ shall permit the parties to introduce rebuttal witnesses 
and evidence.
    (h) All documents and other evidence offered or taken for the record 
shall be open to examination by all parties, unless otherwise ordered by 
the ALJ pursuant to Sec. 355.24.



Sec. 355.35  The record.

    (a) The hearing will be recorded and transcribed. Transcripts may be 
obtained following the hearing from the ALJ at a cost not to exceed the 
actual cost of duplication.
    (b) The transcript of testimony, exhibits and other evidence 
admitted at the hearing, and all papers and requests filed in the 
proceeding constitute the record for the decision by the ALJ and the 
authority head.
    (c) The record may be inspected and copied (upon payment of a 
reasonable fee) by anyone, unless otherwise ordered by the ALJ pursuant 
to Sec. 355.24.



Sec. 355.36  Post-hearing briefs.

    The ALJ may require the parties to file post-hearing briefs. In any 
event, any party may file a post-hearing brief. The ALJ shall fix the 
time for filing such briefs, not to exceed 60 days from the date the 
parties receive the transcript of the hearing or, if applicable, the 
stipulated record. Such briefs may be accompanied by proposed findings 
of fact and conclusions of law. The ALJ may permit the parties to file 
reply briefs.



Sec. 355.37  Initial decision.

    (a) The ALJ shall issue an initial decision based only on the 
record, which

[[Page 624]]

shall contain findings of fact, conclusions of law, and the amount of 
any penalties and assessments imposed.
    (b) The findings of fact shall include a finding on each of the 
following issues:
    (1) Whether the claims or statements identified in the complaint, or 
any portions thereof, violate Sec. 355.3;
    (2) If the person is liable for penalties or assessments, the 
appropriate amount of any such penalties or assessments considering any 
mitigating or aggravating factors that he or she finds in the case, such 
as those described in Sec. 355.31.
    (c) The ALJ shall promptly serve the initial decision on all parties 
within 90 days after the time for submission of post-hearing briefs and 
reply briefs (if permitted) has expired. The ALJ shall at the same time 
serve all defendants with a statement describing the right of any 
defendant determined to be liable for a civil penalty or assessment to 
file a motion for reconsideration with the ALJ or a notice of appeal 
with the authority head. If the ALJ fails to meet the deadline contained 
in this paragraph, he or she shall notify the parties of the reason for 
the delay and shall set a new deadline.
    (d) Unless the initial decision of the ALJ is timely appealed to the 
authority head, or a motion for reconsideration of the initial decision 
is timely filed, the initial decision shall constitute the final 
decision of the authority head and shall be final and binding on the 
parties 30 days after it is issued by the ALJ.



Sec. 355.38  Reconsideration of initial decision.

    (a) Except as provided in paragraph (d) of this section, any party 
may file a motion for reconsideration of the initial decision within 20 
days of receipt of the initial decision. If service was made by mail, 
receipt will be presumed to be five days from the date of mailing in the 
absence of contrary proof.
    (b) Every such motion must set forth the matters claimed to have 
been erroneously decided and the nature of the alleged errors. Such 
motion shall be accompanied by a supporting brief.
    (c) Responses to such motions shall be allowed only upon request of 
the ALJ.
    (d) No party may file a motion for reconsideration of an initial 
decision that has been revised in response to a previous motion for 
reconsideration.
    (e) The ALJ may dispose of a motion for reconsideration by denying 
it or by issuing a revised initial decision.
    (f) When a motion for reconsideration is made, the time periods for 
appeal to the authority head contained in this section, and for finality 
of the initial decision in Sec. 355.36(d), shall begin on the date the 
ALJ issues the denial of the motion for reconsideration or a revised 
initial decision, as appropriate.



Sec. 355.39  Appeal to authority head.

    (a) Any defendant who has filed a timely answer and who is 
determined in an initial decision to be liable for a civil penalty or 
assessment may appeal such decision to the authority head by filing a 
notice of appeal with the authority head in accordance with this 
section.
    (b)(1) No notice of appeal may be filed until the time period for 
filing a motion for reconsideration under Sec. 355.38 has expired.
    (2) If a motion for reconsideration is timely filed, a notice of 
appeal must be filed within 30 days after the ALJ denies the motion or 
issues a revised initial decision, whichever applies.
    (3) If no motion for reconsideration is timely filed, a notice of 
appeal must be filed within 30 days after the ALJ issues the initial 
decision.
    (4) The authority head may extend the initial 30-day period for an 
additional 30 days if the defendant files with the authority head a 
request for an extension within the initial 30-day period and shows good 
cause.
    (c) If the defendant files a timely notice of appeal with the 
authority head, the ALJ shall forward the record of the proceeding to 
the authority head.
    (d) A notice of appeal shall be accompanied by a written brief 
specifying exceptions to the initial decision and reasons supporting the 
exceptions.
    (e) The representative for the Government may file a brief in 
opposition

[[Page 625]]

to exceptions within 30 days of receiving the notice of appeal and 
accompanying brief.
    (f) There is no right to appear personally before the authority 
head.
    (g) There is no right to appeal any interlocutory ruling by the ALJ.
    (h) In reviewing the initial decision, the authority head shall not 
consider any objection that was not raised before the ALJ unless a 
demonstration is made of extraordinary circumstances causing the failure 
to raise the objection.
    (i) If any party demonstrates to the satisfaction of the authority 
head that additional evidene not presented at such hearing is material 
and that there were reasonable grounds for the failure to present such 
evidence at such hearing, the authority head shall remand the matter to 
the ALJ for consideration of such additional evidence.
    (j) The authority head may affirm, reduce, reverse, compromise, 
remand, or settle any penalty or assessment, determined by the ALJ in 
any initial decision.
    (k) The authority head shall promptly serve each party to the appeal 
with a copy of the decision of the authority head. At the same time the 
authority head shall serve the defendant with a statement describing the 
defendant's right to seek judicial review.
    (l) Unless a petition for review is filed as provided in 31 U.S.C. 
3805 after a defendant has exhausted all administrative remedies under 
this part and within 60 days after the date on which the authority head 
serves the defendant with a copy of the authority head's decision, a 
determination that a defendant is liable under Sec. 355.3 is final and 
is not subject to judicial review.



Sec. 355.40  Stays ordered by the Department of Justice.

    If at any time the Attorney General or an Assistant Attorney General 
designated by the Attorney General transmits to the authority head a 
written finding that continuation of the administrative process 
described in this part with respect to a claim or statement may 
adversely affect any pending or potential criminal or civil action 
related to such claim or statement, the authority head shall stay the 
process immediately. The authority head may order the process resumed 
only upon receipt of the written authorization of the Attorney General.



Sec. 355.41  Stay pending appeal.

    (a) An initial decision is stayed automatically pending disposition 
of a motion for reconsideration or of an appeal to the authority head.
    (b) No administrative stay is available following a final decision 
of the authority head.



Sec. 355.42  Judicial review.

    Section 3805 of title 31 U.S. Code authorizes judicial review by an 
appropriate U.S. District Court of a final decision of the authority 
head imposing penalties or assessments under this part and specifies the 
procedures for such review.



Sec. 355.43  Collection of civil penalties and assessments.

    Sections 3806 and 3808(b) of title 31 U.S. Code, authorize actions 
for collection of civil penalties and assessments imposed under this 
part and specify the procedures for such actions.



Sec. 355.44  Right to administrative offset.

    The amount of any penalty or assessment which has become final, or 
for which a judgment has been entered under Sec. 355.42 or Sec. 
355.43, or any amount agreed upon in a compromise or settlement under 
Sec. 355.46, may be collected by administrative offset under 31 U.S.C. 
3716, except that an administrative offset may not be made under this 
subsection against a refund of an overpayment of Federal taxes, then or 
later owing by the United States to the defendant.



Sec. 355.45  Deposit in Treasury of United States.

    All amounts collected pursuant to this part shall be deposited as 
miscellaneous receipts in the Treasury of the United States, except as 
provided in 31 U.S.C. 3806(g).



Sec. 355.46  Compromise or settlement.

    (a) Parties may make offers of compromise or settlement at any time.
    (b) The reviewing official has the exclusive authority to compromise 
or

[[Page 626]]

settle a case under this part at any time after the date on which the 
reviewing official is permitted to issue a complaint and before the date 
on which the ALJ issues an initial decision.
    (c) The authority head has exclusive authority to compromise or 
settle a case under this part at any time after the date on which the 
ALJ issues an initial decision, except during the pendency of any review 
under Sec. 355.42 or during the pendency of any action to collect 
penalties and assessments under Sec. 355.43.
    (d) The Attorney General has exclusive authority to compromise or 
settle a case under this part during the pendency of any review under 
Sec. 355.42 or of any action to recover penalties and assessments under 
31 U.S.C. 3806.
    (e) The investigating official may recommend settlement terms to the 
reviewing official, the authority head, or the Attorney General, as 
appropriate. The reviewing official may recommend settlement terms to 
the authority head, or the Attorney General, as appropriate.
    (f) Any compromise or settlement must be in writing.



Sec. 355.47  Limitations.

    (a) The notice of hearing with respect to a claim or statement must 
be served in the manner specified in Sec. 355.8 within 6 years after 
the date on which such claim or statement is made.
    (b) If the defendant fails to file a timely answer, service of a 
notice under Sec. 355.10(b) shall be deemed a notice of hearing for 
purposes of this section.
    (c) The statute of limitations may be extended by agreement of the 
parties.



PART 356_CIVIL MONETARY PENALTY INFLATION ADJUSTMENT--Table of Contents




Sec.
356.1 Introduction.
356.2 Program Fraud Civil Remedies Act of 1986.
356.3 False claims.

    Authority: 28 U.S.C. 2461; 31 U.S.C. 3729, 3809.

    Source: 62 FR 3791, Jan. 27, 1997, unless otherwise noted.



Sec. 356.1  Introduction.

    (a) The Federal Civil Penalties Inflation Adjustment Act requires 
that civil monetary penalties be adjusted by the percentage by which the 
Consumer Price Index for the month of June of the calendar year 
preceding the adjustment exceeds the Consumer Price Index for the month 
of June of the calendar year in which the amount of such civil monetary 
penalty was last set or adjusted. That Act also mandates rounding of the 
adjustment, depending on the amount of the maximum penalty.
    (b) The ratio of the Consumer Price Index for the month of June of 
the calendar year preceding this adjustment to the Consumer Price Index 
for the month of June of the calendar year in which the amount of civil 
monetary penalties provided for under the Program Fraud Civil Remedies 
Act (31 U.S.C. 3801-3812) and the false claims provisions at 31 U.S.C. 
3729(a) was last set or adjusted, 1986, is 456.7/327.9, which produces 
the following increases in the penalties after applicable rounding:
    (1) The maximum penalty under the Program Fraud Civil Remedies Act 
for a false claim or statement would be increased from $5,000 to $7,000.
    (2) The maximum and minimum penalties under the false claims 
provisions at 31 U.S.C. 3729(a) would be increased from $10,000 to 
$14,000 and $5,000 to $7,000, respectively.
    (c) Imposition of the increases are limited to actions occurring 
after the effective date of the increases.
    (d) No increase may exceed ten percent of the penalty or range of 
penalties, as applicable.



Sec. 356.2  Program Fraud Civil Remedies Act of 1986.

    In the case of penalties assessed under part 355 of this chapter, an 
additional penalty of $500 may be assessed for claims or statements made 
after October 23, 1996.



Sec. 356.3  False claims.

    In the case of penalties assessed under 31 U.S.C. 3729 based on 
actions occurring after October 23, 1996, the minimum penalty is $5,500 
and the maximum penalty is $11,000.

[[Page 627]]



       SUBCHAPTER F_INTERNAL ADMINISTRATION, POLICY AND PROCEDURES



                           PART 360 [RESERVED]



PART 361_RECOVERY OF DEBTS OWED TO THE UNITED STATES GOVERNMENT BY 
GOVERNMENT EMPLOYEES--Table of Contents




Sec.
361.1 Purpose.
361.2 Scope.
361.3 Definitions.
361.4 Determination of indebtedness.
361.5 Notice requirements before offset.
361.6 Requests for waiver or hearing.
361.7 Written decision following a hearing.
361.8 Limitations on notice and hearing requirements.
361.9 Exception to requirement that a hearing be offered.
361.10 Written agreement to repay debt as alternative to salary offset.
361.11 Procedures for salary offset: When deductions may begin.
361.12 Procedures for salary offset: Types of collection.
361.13 Procedures for salary offset: Methods of collection.
361.14 Procedures for salary offset: Imposition of interest, penalties 
          and administrative costs.
361.15 Non-waiver of rights.
361.16 Refunds.
361.17 Coordination with other government agencies.

    Authority: 5 U.S.C. 5514(b)(1).

    Source: 53 FR 45262, Nov. 9, 1988, unless otherwise noted.



Sec. 361.1  Purpose.

    These regulations, which implement 5 U.S.C. 5514, provide the 
standards and procedures which the Board will utilize to collect debts 
owed to the United States from the current pay accounts of its 
employees, including the current pay accounts of employees who owe debts 
to agencies other than the Board.



Sec. 361.2  Scope.

    (a) Coverage. This part applies to agencies and employees as defined 
by Sec. 361.3 of this part.
    (b) Applicability. This part and 5 U.S.C. 5514 apply in recovering 
certain debts by administrative offset, except where the employee 
consents to the recovery, from the current pay account of an employee. 
Because it is an administrative offset, debt collection procedures for 
salary offset which are not specified in 5 U.S.C. 5514 and these 
regulations shall be consistent with the provisions of the Federal 
Claims Collection Standards (FCCS).
    (1) Excluded debts or claims. The procedures contained in this part 
do not apply to debts or claims arising under the Internal Revenue Code 
of 1954 as amended (26 U.S.C. 1, et seq.), the Social Security Act (42 
U.S.C. 301, et seq.), or the tariff laws of the United States; or to any 
case where collection of a debt by salary offset is explicitly provided 
for or prohibited by another statute (e.g., travel advances in 5 U.S.C. 
5705 and employee training expenses in 5 U.S.C. 4108).
    (2) Waiver requests and claims to the U.S. General Accounting 
Office. This part does not preclude an employee from requesting waiver 
of recovery of an overpayment under 5 U.S.C. 5584 or any other similar 
provision of law, or from questioning the amount of validity of a debt 
by submitting a subsequent claim to the U.S. General Accounting Office.
    (3) Compromise, suspension, or termination under the Federal Claims 
Collection Standards (4 CFR 101.1, et seq.). Nothing in this part 
precludes the compromise, suspension or termination of collection 
actions where appropriate under the standards implementing 31 U.S.C. 
3711, et seq. (4 CFR 101.1, et seq.).



Sec. 361.3  Definitions.

    For purposes of this part, terms are defined as follows:
    Agency means--
    (a) An executive agency as defined by section 105 of title 5, United 
States Code; including the U.S. Postal Service and the U.S. Postal Rate 
Commission;
    (b) A military department as defined in section 102 of title 5, 
United States Code;
    (c) An agency or court in the judicial branch, including a court as 
defined in section 610 of title 28, United States

[[Page 628]]

Court for the Northern Mariana Islands, and the Judicial Panel on 
Multidistrict Litigation;
    (d) An agency of the legislative branch, including the U.S. Senate 
and the U.S. House of Representatives; and
    (e) Other independent establishments that are entities of the 
Federal government.
    Creditor agency means the agency to which the debt is owed.
    Debt means an amount owed to the United States from sources which 
include loans insured or guaranteed by the United States and all other 
amounts due the United States from fees, leases, rents, royalties, 
services, sales of real or personal property, overpayments, fines, 
penalties, damages, interest, forfeitures (except those arising under 
the Uniform Code of Military Justice), and all other similar sources.
    Delinquent debt means a debt which has not been paid by the date 
specified in the creditor agency's initial written notification, unless 
satisfactory arrangements for payment have been made by that date, or 
where, at any time thereafter, the employee fails to satisfy his or her 
obligations under a payment agreement with the creditor agency.
    Disposable pay means that part of current basic pay, special pay, 
incentive pay, retired pay, retainer pay, or in the case of an employee 
not entitled to basic pay, other authorized pay, remaining after the 
deduction of any amount required by law to be withheld. Agencies must 
exclude deductions described in 5 CFR 581.104 (b) through (f) to 
determine disposable pay subject to salary offset.
    Employee means a current employee of a Federal agency, including a 
current member of the Armed Forces or a Reserve of the Armed Forces 
(Reserves).
    FCCS means the Federal Claims Collection Standards jointly published 
by the Department of Justice and the U.S. General Accounting Office at 4 
CFR 101.1, et seq.
    Paying agency means the Federal agency or branch of the Armed Forces 
or Reserves employing the individual and disbursing his or her current 
pay account.
    Salary offset means an administrative offset to collect a debt under 
5 U.S.C. 5514 by deduction(s) at one or more officially established pay 
intervals from the current pay account of an employee without his or her 
consent.
    Waiver means the cancellation, remission, forgiveness, or non-
recovery of a debt allegedly owed by an employee to an agency as 
permitted or required by 5 U.S.C. 5584, 5 U.S.C. 8346(b), 10 U.S.C. 
2774, 32 U.S.C. 716, or any other similar law.



Sec. 361.4  Determination of indebtedness.

    In determining that an employee is indebted, the Board will review 
the debt to make sure it is valid and past due.



Sec. 361.5  Notice requirements before offset.

    The Board shall provide an employee written Notice of Intent to 
Offset Salary (Notice of Intent). The employee will be provided the 
notice at least thirty calendar days before the intended deduction is to 
begin. In addition, the notice must provide the following:
    (a) That the Board has reviewed the records relating to the claim 
and has determined that a debt is owed, and the origin, nature, and 
amount of that debt;
    (b) The Board's intention to collect the debt by means of deduction 
from the employee's current disposable pay account;
    (c) The amount, frequency, approximate beginning date, and duration 
of the intended deductions;
    (d) An explanation of the Board's requirements concerning interest, 
penalties, and administrative costs, and notification that such 
assessment must be made unless such payments are excused in accordance 
with the FCCS;
    (e) Advice as to the employee's or his or her representative's right 
to inspect and copy or to be provided copies of government records 
relating to the debt;
    (f) If not previously provided, notification of the opportunity 
(under terms agreeable to the Board) to establish a schedule for the 
voluntary repayment of the debt or to enter into a written agreement to 
establish a schedule for

[[Page 629]]

repayment of the debt in lieu of offset. The agreement must be in 
writing, signed by both the employee and the Board, and documented in 
the Board's files (4 CFR 102.2(e));
    (g) Advice that the Board will accept a repayment agreement which is 
reasonable in view of the financial condition of the employee at that 
time;
    (h) If there is a statutory provision for waiver, cancellation, 
remission or forgiveness of the debt to be collected, advice that waiver 
may be requested within the period and by the procedure specified and 
explaining the conditions under which waiver, cancellation, remission or 
forgiveness is granted;
    (i) Advice as to the employee's right to a hearing conducted by an 
official arranged by the Board (an administrative law judge, or 
alternatively, a hearing official not under the control of the head of 
the agency) on the Board's determination of the debt, the amount of the 
debt, and the percentage of disposable pay to be deducted each pay 
period if a petition is filed as prescribed by the Board;
    (j) Advice that the timely filing of a petition for hearing or a 
request for waiver (if the waiver statute or regulations are not 
``permissive'' in nature) will stay the commencement of collection 
proceedings;
    (k) Advice that a final decision on the hearing (if one is 
requested) will be issued at the earliest practical date, but not later 
than sixty days after the filing of the petition requesting the hearing 
unless the employee requests and the hearing official grants a delay in 
the proceedings;
    (l) Advice as to the method and time period for requesting a hearing 
as provided for in Sec. 361.5 and for requesting waiver, if it is 
available;
    (m) Advice that any knowingly false or frivolous statements, 
representations, or evidence may subject the employee to:
    (1) Disciplinary procedures appropriate under chapter 75 of title 5, 
United States Code, part 752 of title 5, Code of Federal Regulations, or 
any other applicable statutes or regulations;
    (2) Penalties under the False Claims Act, sections 3729-3731 of 
title 31, United States Code, or any other applicable statutory 
authority; or
    (3) Criminal penalties under sections 286, 287, 1001, and 1002 of 
title 18, United States Code, or any other applicable statutory 
authority;
    (n) Advice as to other rights and remedies available to the employee 
under statutes or regulations governing the program for which the 
collection is being made; and
    (o) Advice that unless there are applicable contractual or statutory 
provisions to the contrary, amounts paid on or deducted for the debt 
which are later waived or found not owed to the United States will be 
promptly refunded to the employee. Such refunds will not bear interest 
unless required or permitted by law.



Sec. 361.6  Requests for waiver or hearing.

    (a) A request for waiver or for a hearing must be made in writing 
and received by the Chief Financial Officer no later than thirty 
calendar days after the notice is sent to the employee. This time limit 
may, at the discretion of the Chief Financial Officer, be extended if 
the employee can show that the delay was caused by circumstances which 
were beyond the employee's control or because of the employee's failure 
to receive notice of the time limit. Any right to waiver or to a hearing 
is forfeited unless the time limits set forth in this paragraph are 
complied with.
    (b) The employee's request for a hearing must be signed by the 
employee and fully identify and explain with reasonable specificity all 
the facts, evidence and witnesses, if any, which the employee believes 
support his or her position.
    (c) A request for a hearing under this paragraph is not a request 
for waiver. A request for waiver must state the basis for the request 
for waiver and whether a hearing is requested. If no request for a 
hearing is contained in the waiver request, no hearing will be provided.
    (d) A hearing, if requested, will be an informal proceeding 
conducted by an administrative law judge or hearing official not under 
the control of the Board. The employee, or his/her representative, and 
the Board will be

[[Page 630]]

given full opportunity to present evidence, witnesses and argument.



Sec. 361.7  Written decision following a hearing.

    Within thirty days after the hearing, the administrative law judge 
or hearing official shall issue a written decision stating the facts 
evidencing the nature and origin of the alleged debt; the amount and 
validity of the alleged debt; and the judge or hearing official's 
analysis, findings and conclusions with respect to the employee's 
position on liability for the debt and with respect to his or her 
eligibility for waiver. The decision of the administrative law judge or 
hearing official shall be the final agency decision.



Sec. 361.8  Limitations on notice and hearing requirements.

    (a) The procedural requirements of this part are not applicable to 
collections which result from:
    (1) An employee's election of coverage or of a change in coverage 
under a Federal benefits program which requires periodic deductions from 
pay and which cannot be placed into effect immediately because of normal 
processing delays; and
    (2) Ministerial adjustments in pay rates or allowances which cannot 
be placed into effect immediately because of normal processing delays.
    (b) Limited procedures. If the period of the normal processing delay 
for which the retroactive deduction must be recovered does not exceed 
four pay periods, the procedures provided in Sec. Sec. 361.4 and 361.5 
of this part shall not apply, but the Board shall in advance of the 
collection issue a general notice that:
    (1) Because of the employee's election, future salary will be 
reduced to cover the period between the effective date of the election 
and the first regular withholding, and the employee may dispute the 
amount of the retroactive collection by notifying a specified office or 
official; or
    (2) Due to a normal ministerial adjustment in pay or allowances 
which could not be placed into effect immediately, future salary will be 
reduced to cover any excess pay or allowances received by the employee, 
the employee may dispute the amount of the retroactive collection by 
notifying a specified office or official.
    (c) Limitation on exceptions. The exceptions described in paragraphs 
(a) and (b) of this section shall not include a recovery required to be 
made for any reason other than normal processing delays in putting the 
change into effect, even if the period of time for which the amounts 
must be retroactively withheld is less than four pay periods. Further, 
if normal processing delays exceed four pay periods, then the full 
procedures prescribed under Sec. Sec. 361.4 and 361.5 of this part 
shall be extended to the employee.



Sec. 361.9  Exception to requirement that a hearing be offered.

    When an employee is overpaid due to the hours worked reported on the 
payroll exceeding the actual hours worked, no pre-offset hearing must be 
granted since in such cases there is no question regarding credibility 
and veracity. In these cases the Board will make its determination under 
this part based upon review of the written record.



Sec. 361.10  Written agreement to repay debt as alternative to salary 
offset.

    (a) Notification by employee. The employee may propose, in response 
to a Notice of Intent, a written agreement to repay the debt as an 
alternative to salary offset. Any employee who wishes to do this must 
submit a proposed written agreement to repay the debt which is received 
by the Board within thirty calendar days of the date of the Notice of 
Intent.
    (b) Board's response. In response to timely notice by the debtor as 
described in paragraph (a) of this section, the Board will notify the 
employee whether the employee's proposed written agreement for repayment 
is acceptable. It is within the Board's discretion to accept a repayment 
agreement instead of proceeding by offset. In making this determination, 
the Board will balance the agency's interest in collecting the debt 
against hardship to the employee. If the debt is delinquent and the 
employee has not disputed its existence or amount, the Board will accept 
a repayment agreement instead of offset only if the employee is able to 
establish that offset would result in

[[Page 631]]

undue financial hardship or would be against equity and good conscience.



Sec. 361.11  Procedures for salary offset: When deductions may begin.

    (a) Deductions to liquidate an employee's debt will be by the method 
and in the amount stated in the Notice of Intent to collect from the 
employee's current pay.
    (b) If the employee filed a petition for hearing with the Board 
before the expiration of the period provided for in Sec. 361.5, then 
deductions will begin after the hearing officer has provided the 
employee with a hearing and the hearing officer's final written decision 
is in favor of the Board.
    (c) If an employee retires, resigns or his or her period of 
employment ends before collection of a debt is completed, offset shall 
be made from subsequent payments of any nature (e.g., final salary 
payment, lump sum leave, etc.) due the employee from the Board to the 
extent necessary to liquidate the debt. If the debt cannot be liquidated 
by offset from any final payment due the employee from the Board, the 
Board shall liquidate the debt by administrative offset, pursuant to 31 
U.S.C. 3716, from later payments of any kind which are due the employee 
from the United States.



Sec. 361.12  Procedures for salary offset: Types of collection.

    A debt will be collected in a lump sum or in installments. 
Collection will be effected in one lump sum collection unless the 
employee is financially unable to pay in one lump sum, or if the amount 
of the debt exceeds 15 percent of disposable pay. In these cases, 
deduction will be by installments.



Sec. 361.13  Procedures for salary offset: Methods of collection.

    (a) General. A debt will be collected by deductions at officially-
established pay intervals from an employee's current pay account, unless 
the employee and the Board agree to alternative arrangements for 
repayment. The alternative arrangement must be in writing, signed by 
both the employee and the Board.
    (b) Installment deductions. Installment deductions will be made over 
a period not greater than the anticipated period of employment. The size 
and frequency of installment deductions will bear a reasonable relation 
to the size of the debt and the employee's ability to pay. However, the 
amount deducted for any period will not exceed 15 percent of the 
disposable pay from which the deduction is made, unless the employee has 
agreed in writing to the deduction of a greater amount. If possible, the 
installment payment will be sufficient in size and frequency to 
liquidate the debt in three years. Installment payments of less than $25 
per pay period or $50 a month will be accepted only in the most unusual 
circumstances.
    (c) Sources of deductions. The Board will make deductions only from 
basic pay, special pay, incentive pay, retired pay, retainer pay, or in 
the case of an employee not entitled to basic pay, other authorized pay.



Sec. 361.14  Procedures for salary offset: Imposition of interest, 
penalties and administrative costs.

    Interest will be charged in accordance with 4 CFR 102.13.



Sec. 361.15  Non-waiver of rights.

    So long as there are no statutory or contractual provisions to the 
contrary, no employee involuntary payment (of all or a portion of a 
debt) collected under these regulations will be interpreted as a waiver 
of any rights that the employee may have under 5 U.S.C. 5514.



Sec. 361.16  Refunds.

    The Board will refund promptly to the appropriate individual amounts 
offset under these regulations when:
    (a) A debt is waived or otherwise found not owing the United States 
(unless expressly prohibited by statute or regulation); or
    (b) The Board is directed by an administrative or judicial order to 
refund amounts deducted from the employee's current pay.



Sec. 361.17  Coordination with other government agencies.

    (a) Board is paying agency. (1) If the Board receives a claim which 
meets the requirements of 5 CFR 550.1108 from another agency, deductions 
shall begin

[[Page 632]]

prospectively at the next officially established pay interval. The 
employee will receive written notice that the Board has received a 
certified debt claim from a creditor agency. The notice will contain the 
amount of the debt and the date deductions from salary will commence and 
the amount of such deductions.
    (2) If the Board receives a claim which does not meet the 
requirements of 5 CFR 550.1108, then the Board will return the claim to 
the creditor agency and inform the creditor agency that before any 
action is taken to collect the debt from the employee's current pay 
account, the procedures under 5 U.S.C. 5514 and 5 CFR part 550 must be 
followed and a claim which meets the requirements of 5 CFR 550.1108 must 
be received.
    (b) Board is creditor agency. When the Board is owed a debt by an 
employee of another agency, the other agency shall not initiate the 
requested offset until the Board provides the agency with a written 
certification that the procedures under this part have been followed and 
the Board has provided the other agency with a claim which meets the 
requirement of 5 CFR 550.1108.



PART 362_EMPLOYEES' PERSONAL PROPERTY CLAIMS--Table of Contents




Sec.
362.1 Purposes.
362.2 Definitions.
362.3 Who may file a claim.
362.4 Delegation of authority.
362.5 Time limits for filing a claim.
362.6 Procedure for filing a claim.
362.7 Factors to be considered in settling a claim.
362.8 Investigation of a claim.
362.9 Fraudulent claims.
362.10 Principal types of claims allowable.
362.11 Principal types of claims not allowable.
362.12 Computation of amount of reimbursement.
362.13 Property recovered after payment of claim.
362.14 Finality of settlement.
362.15 Agent's or attorney's fee.

    Authority: Sec. 3(a), Pub. L. 88-558, 78 Stat. 767 (31 U.S.C. 
241(b)(1)), unless otherwise noted.

    Source: 45 FR 57709, Aug. 29, 1980, unless otherwise noted.



Sec. 362.1  Purposes.

    (a) This part prescribes regulations under the Military Personnel 
and Civilian Employees' Claims Act of 1964, as amended, for the 
settlement of a claim against the United States made by an officer or 
employee of the Railroad Retirement Board for damage to, or loss of, 
personal property incident to his service. In accordance with that Act, 
the possession of such property must be reasonable, useful, or proper 
under the circumstances.
    (b) The Railroad Retirement Board is not an insurer of its officers' 
or employees' personal property and does not underwrite the damage or 
loss of such property that may be sustained by an officer or employee. 
Officers and employees of the Board are encouraged to carry private 
insurance to the maximum extent practicable to avoid large losses or 
losses which may not be recoverable from the Board. The procedures set 
forth in this section are designed to enable the claimant to obtain the 
maximum amount of otherwise unreimbursed or uninsured compensation for 
his loss or damage. Failure of the claimant to comply with these 
procedures may reduce or preclude payment of his claim under this part.



Sec. 362.2  Definitions.

    As used in this part:
    (a) Act means the Military Personnel and Civilian Employees' Claims 
Act of 1964, as amended (31 U.S.C. 240-243).
    (b) Article of extraordinary value means an article which was 
purchased or which the employee values at a monetary amount which is in 
excess of the usual, regular or customary amount paid for an article 
which is capable of accomplishing the same purposes.
    (c) Benefit of the Board means that the operations and service of 
the Board were assisted, facilitated or improved.
    (d) Board means the Railroad Retirement Board.
    (e) Employee means an officer or employee of the Board.
    (f) Settle means consider, ascertain, adjust, determine and dispose 
of any claim, whether by full or partial allowance or by disallowance.

[[Page 633]]



Sec. 362.3  Who may file a claim.

    A claim may be filed by an employee, by his spouse in his name as 
authorized agent, or by any other authorized agent or legal 
representative of the employee. If the employee is dead, his (a) spouse, 
(b) child, (c) father or mother, or both, or (d) brother or sister, or 
both, may file the claim and be entitled to payment in that order of 
priority.



Sec. 362.4  Delegation of authority.

    The Deputy General Counsel of the Board is authorized to settle any 
claim filed under this part.

(45 U.S.C. 231f(b)(5))

[45 FR 57709, Aug. 29, 1980, as amended at 48 FR 51448, Nov. 9, 1983]



Sec. 362.5  Time limits for filing a claim.

    A claim under this part may be considered only if:
    (a) The damage or loss occurred after August 31, 1964; and
    (b) The claim is filed in writing within two years after the damage, 
loss or theft occurred or became known to the employee.



Sec. 362.6  Procedure for filing a claim.

    (a) Railroad Retirement Board Form G-108, Employee Claim for Loss or 
Damage to Personal Property, is the prescribed form for filing claims 
pursuant to the regulations in this part and must be completed by the 
employee, the person acting on his behalf, or his survivor and forwarded 
directly to the General Counsel of the Board for processing. Railroad 
Retirement Board Form G-108 may be obtained from the Board's Bureau of 
Law.
    (b) In addition to the information required to complete the form 
described Sec. 362.6(a), the following information or data must be 
submitted with each claim:
    (1) With respect to claims involving property which is stolen or 
lost, the purchase receipt, or if not available, statements from the 
employee estimating the value and what security measures or precautions 
were taken to protect the property;
    (2) With respect to claims involving property which is damaged, an 
itemized repair estimate from an appropriate commercial source, or, if 
beyond repair, a statement from an appropriate commercial source or, if 
such a statement is not available, from the employee, indicating that 
the damaged property is beyond repair;
    (3) With respect to claims involving property stated to be beyond 
repair in accordance with paragraph (b)(2) of this section, a statement 
from the employee estimating the value and the purchase receipt, if 
available;
    (4) With respect to claims considered under Sec. 362.10(b)(3), a 
statement by the employee's supervisor verifying that the supervisor 
required the employee to provide, or that the supervisor consented to 
having the employee provide, such property and that the provision of 
such personal property was in the interest of the Board;
    (5) With respect to a claim filed by an agent or survivor of an 
employee, a power of attorney or other satisfactory evidence of 
authority to file the claim.



Sec. 362.7  Factors to be considered in settling a claim.

    Claims are payable only for such types, quantities or amounts of 
tangible personal property as the Deputy General Counsel of the Board 
shall determine to be reasonable, useful, or proper under the 
circumstances existing at the time and place of the loss, theft or 
damage of the property. In determining what is reasonable, useful or 
proper the Deputy General Counsel will consider the type and quantity of 
property involved, the circumstances attending acquisition and use of 
the property, and whether possession or use by the employee at the time 
of loss, theft or damage was incident to the employee's service. What is 
reasonable, useful or proper is a question of fact to be determined by 
the Deputy General Counsel.

(45 U.S.C. 231f(b)(5))

[45 FR 57709, Aug. 29, 1980, as amended at 48 FR 51448, Nov. 9, 1983]



Sec. 362.8  Investigation of a claim.

    The Deputy General Counsel or his designee may investigate the 
circumstances surrounding the theft, loss or damage of an employee's 
property.

[[Page 634]]

In order to complete such investigation, the Deputy General Counsel or 
his designee may request the submission of information in addition to 
that described in Sec. 362.7 of this part.

(45 U.S.C. 231f(b)(5))

[45 FR 57709, Aug. 29, 1980, as amended at 48 FR 51448, Nov. 9, 1983]



Sec. 362.9  Fraudulent claims.

    Claims are not payable for items fraudulently claimed. When 
investigation discloses that an employee, an agent of the employee, or a 
survivor of the employee has intentionally misrepresented an item 
claimed, as to cost, condition, cost of repair or other significant 
information, the claim as to that item will be disallowed in its 
entirety even though some actual loss or damage may have been sustained. 
However, if the remainder of the claim is proper it will be paid as to 
other items. This section does not preclude appropriate prosecution and 
disciplinary action if warranted.



Sec. 362.10  Principal types of claims allowable.

    (a) In general, a claim may be allowed only for tangible personal 
property of a type and quantity that was, from the Board's perspective, 
reasonable, useful, or proper for the employee to possess under the 
circumstances at the time of the loss or damage. Any questions in this 
regard are to be resolved by the Deputy General Counsel.
    (b) Claims that will ordinarily be allowed include, but are not 
limited to, cases in which the loss or damage occurred:
    (1) In a common or natural disaster;
    (2) When the property was subjected to extraordinary risks in the 
performance of duty or efforts to save human life or property of the 
United States Government;
    (3) When the property was used for the benefit of the Board at the 
direction, or with the consent, of a supervisor.

(45 U.S.C. 231f(b)(5))

[45 FR 57709, Aug. 29, 1980, as amended at 48 FR 51448, Nov. 9, 1983]



Sec. 362.11  Principal types of claims not allowable.

    (a) Claims will be disallowed when:
    (1) The personal property was lost, stolen or damaged prior to 
August 31, 1964;
    (2) The loss or damage totals less than $5 or, to the extent of the 
excess, more than the maximum amount provided in section 241(b)(1) of 
title 31 of the U.S. Code;
    (3) The loss or damage was caused, at least in part, by the 
negligence of the employee or his agent;
    (4) The personal property was acquired, possessed or transported in 
violation of law or regulation;
    (5) The personal property was brought into Board offices for 
temporary storage in anticipation of delivery to another person or 
removal to another location;
    (6) The personal property lost or damaged was food-stuffs or 
furniture;
    (b) Claims which will ordinarily not be allowed include, but are not 
limited to, claims for:
    (1) Money or currency, except when lost in a common or natural 
disaster;
    (2) Articles of extraordinary value;
    (3) Articles being worn (unless allowable under Sec. 362.10);
    (4) Intangible property, such as bank books, checks, notes, stock 
certificates, money orders or travelers' checks;
    (5) Property owned by the United States, unless the employee is 
financially responsible for it to another U.S. Government agency;
    (6) Losses of insurers or subrogees and those losses recoverable 
from an insurer or carrier;
    (7) Losses or damages sustained in quarters not assigned or 
otherwise provided in kind by the Board;
    (8) Losses recoverable or recovered pursuant to contract;
    (9) Loss or damage to any vehicle used for transportation or in 
transportation (unless allowable under Sec. 362.10).



Sec. 362.12  Computation of amount of reimbursement.

    (a) The amount awarded with regard to any item of personal property 
will not exceed its depreciated replacement cost at the time of loss. 
Unless proven to be otherwise, replacement cost will

[[Page 635]]

be based on the price paid in cash for the property or, if not acquired 
by purchase or exchange, the value at the time of acquisition. The 
amount normally payable on property damaged beyond economical repair is 
found by determining its depreciated value immediately before it was 
damaged or lost, less any salvage value. If the cost of repair is less 
than the depreciated value of the property, then it is economically 
repairable, and the cost of repair is the amount payable.
    (b) Depreciation in value of an item of personal property is 
determined by considering the type of article involved, its cost, 
condition when lost or damaged beyond economical repair, and the time 
elapsed between the date of acquisition and the date of accrual of the 
claim.
    (c) Allowance for articles acquired by barter will not exceed the 
cost of the articles tendered in barter.



Sec. 362.13  Property recovered after payment of claim.

    When previously lost or stolen property is recovered by the employee 
after allowance of a claim by the Board, the employee shall return the 
amount of reimbursement.



Sec. 362.14  Finality of settlement.

    Notwithstanding any other provision of law, settlement of a claim 
under the Act and this part is final and conclusive.



Sec. 362.15  Agent's or attorney's fee.

    Under the terms of the Act, no more than 10 percent of the amount 
paid in settlement of a claim submitted and settled under this part may 
be paid or delivered to or received by any agent or attorney on account 
of services rendered in connection with that claim, any contract to the 
contrary notwithstanding.



PART 363_GARNISHMENT OF REMUNERATION OF BOARD PERSONNEL--Table of Contents




Sec.
363.1 Authorization for garnishment of remuneration for employment paid 
          by the Board.
363.2 Definitions.
363.3 Procedure.
363.4 Exemptions.
363.5 Miscellaneous.

    Authority: 15 U.S.C. 1673(b)(2); 42 U.S.C. 659, 661, and 662; and 45 
U.S.C. 231f(b)(5) and 362(1).

    Source: 45 FR 28315, Apr. 29, 1980, unless otherwise noted.



Sec. 363.1  Authorization for garnishment of remuneration for 
employment paid by the Board.

    (a) Remuneration for employment paid or payable by the Board is 
subject, in like manner and to the same extent as if the Board were a 
private person, to legal process brought for the enforcement of legal 
obligations to provide child support or to make alimony payments.
    (b) Remuneration for employment includes compensation paid or 
payable for personal services, whether such compensation is denominated 
as wages, salary, commission, bonus, pay, or otherwise, and includes, 
but is not limited to, severance pay, sick pay, and incentive pay, but 
does not include awards for making suggestions.
    (c) Remuneration for employment does not include:
    (1) Amounts required by law to be deducted, including but not 
limited to Federal employment taxes and civil service retirement 
contributions;
    (2) Amounts which are deducted as health insurance premiums;
    (3) Amounts which are deducted as premiums for regular life 
insurance coverage; and
    (4) Amounts which are properly withheld for Federal, state, or local 
income tax purposes, if the withholding of such amounts is authorized or 
required by law and if amounts withheld are not greater than would be 
the case if the individual concerned claimed all dependents to which he 
was entitled (the withholding of additional amounts pursuant to section 
3402(i) of the Internal Revenue Code of 1954 may be permitted only when 
such individual presents evidence of a tax obligation which supports the 
additional withholding).



Sec. 363.2  Definitions.

    (a) Child support means periodic payments of funds for the support 
and maintenance of a child or children;

[[Page 636]]

such term also includes attorney's fees, interest, and court costs, when 
and to the same extent that they are expressly made recoverable pursuant 
to a decree, order, or judgment issued in accordance with applicable 
state law by a court of competent jurisdiction.
    (b) Alimony means periodic payments of funds for the support and 
maintenance of a spouse or former spouse and, subject to and in accord 
with state law, includes but is not limited to, separate maintenance, 
alimony pendente lite, maintenance, and spousal support; such term also 
includes attorney's fees, interest, and court costs, when and to the 
extent that they are expressly made recoverable pursuant to a decree, 
order, or judgment issued in accord with applicable state law by a court 
of competent jurisdiction. Alimony does not include any payment or 
transfer of property or of its value in compliance with any community 
property settlement, equitable distribution of property, or other 
division of property, nor does it include any payment to an estate.
    (c) Legal process means any court order, summons, or other similar 
process, including administrative orders, in the nature of garnishment, 
which is directed to and the purpose of which is to compel the Board to 
make a payment from moneys which are otherwise payable to an individual, 
to another party in order to satisfy a legal obligation of such 
individual to provide child support or make alimony payments. Legal 
process additionally includes assignments in lieu of garnishment, but 
only where grounds for the issuance of legal process in the nature of 
garnishment exist. Such assignments are revocable.



Sec. 363.3  Procedure.

    (a) Service of legal process brought for the enforcement of a Board 
employee's obligation to provide child support or make alimony payments 
shall be accomplished by certified or registered mail, return receipt 
requested, directed to the Deputy General Counsel of the Board, 844 Rush 
Street, Chicago, Illinois 60611, or by personal service upon the Deputy 
General Counsel.
    (b) Where the Deputy General Counsel is effectively served with 
legal process relating to a Board employee's legal obligation to provide 
child support or to make alimony payments, he shall, as soon as possible 
and not later than 15 days after the date of effective service of such 
process, send written notice that such process has been so served, 
together with a copy thereof, to the individual whose moneys are 
affected thereby; and, if response to such process is required, shall 
respond within 30 days, or within such longer period as may be 
prescribed by state law, after the date effective service is made. These 
requirements do not apply in the case of an assignment in lieu of 
garnishment.

[45 FR 28315, Apr. 29, 1980, as amended at 48 FR 51448, Nov. 9, 1983]



Sec. 363.4  Exemptions.

    (a) The portion of any payment due to a Board employee which is 
subject to legal process to enforce any order for the support of any 
person shall not exceed 65 percent. Where the individual is supporting a 
spouse or dependent child, other than a spouse or child with respect to 
whose support that legal process is issued, the portion subject to legal 
process is reduced by 10 percent. Where the alimony or support arrearage 
is less than 12 weeks old, the portion subject to legal process is 
reduced by 5 percent. If a lower limitation is provided by applicable 
state or local law, then that lower limitation shall be applied.
    (b) In the absence of some evidence to the contrary, it will be 
assumed that the defendant is not supporting a spouse or dependent child 
other than a spouse or child with respect to whose support the legal 
process is issued.



Sec. 363.5  Miscellaneous.

    (a) The Board may not be required to vary its normal disbursement 
cycles in order to comply with legal process.
    (b) Except as provided in these regulations, the Board may not be 
required, in connection with proceedings under this part, to forward 
documents which have been sent to the Board, to an employee of the 
Board.
    (c) Neither the Board nor any of its employees shall be liable with 
respect to any payment made to any individual from moneys due from or 
payable by the Board pursuant to legal process

[[Page 637]]

regular on its face, if such payment is made in accordance with this 
part.
    (d) No employee of the Board whose duties include responding to 
legal process pursuant to requirements contained in this part shall be 
subject under any law to any disciplinary action or civil or criminal 
liability or penalty for, or on account of, any disclosure of 
information made by such employee in connection with the performance of 
the employee's duties in responding to any such process.
    (e) For purposes of a proceeding under this part the Board will 
apply the law of the state in which the legal process is issued unless 
it comes to the attention of the Board that the state of issuance has no 
contact with the plaintiff or defendant in the action; in which case, 
the Board may, in its sole discretion, apply the law of any state with 
significant interest in the matter.



PART 364_USE OF PENALTY MAIL TO ASSIST IN THE LOCATION AND RECOVERY 
OF MISSING CHILDREN--Table of Contents




Sec.
364.1 Purpose.
364.2 Definitions.
364.3 Publication of missing children information in the Railroad 
          Retirement Board's in-house publications.
364.4 Placement of missing children posters in Board field offices.
364.5 Further study of the use of penalty mail in the location and 
          recovery of missing children.

    Authority: 39 U.S.C. 3220(a)(2).

    Source: 52 FR 527 Jan. 7, 1987, unless otherwise noted.



Sec. 364.1  Purpose.

    These regulations, which implement 39 U.S.C. 3220, provide the 
standards and guidelines for the use of Board penalty mail in the 
location and recovery of missing children.



Sec. 364.2  Definitions.

    For purposes of this part, terms are defined as follows:
    All-A-Board is the Board's in-house newspaper that is published on 
an irregular basis about six times a year.
    Field office is a Board district office. These offices are located 
throughout the United States.
    Penalty mail means the official mail of the Board that is used to 
carry out the Board's duties.
    Shelf life means the amount of time the Board has to remove from 
circulation outdated missing children information. This is a three month 
period, commencing with the date notice is received by the National 
Center for Missing and Exploited Children that such information is no 
longer accurate.



Sec. 364.3  Publication of missing children information in the Railroad 
Retirement Board's in-house publications.

    (a) All-A-Board. Information about missing children will appear in 
the All-A-Board. This publication will obtain the necessary information 
from the National Center for Missing and Exploited Children. The 
editorial staff of the All-A-Board shall determine the number of 
children described in each issue and where this information will appear 
in the publication.
    (b) Other in-house publications. The Board may publish missing 
children information in other in-house publications as it deems 
appropriate. This determination will be made in accordance with the 
guidelines that appear in Sec. 364.5.



Sec. 364.4  Placement of missing children posters in Board field offices.

    (a) Poster content. The National Center for Missing and Exploited 
Children shall select the missing child and the pertinent information 
about that child, which may include a photograph of the child, that will 
appear on the poster. The Board will develop a standard format for these 
posters.
    (b) Transmission of posters to field offices. The Board shall send 
the posters to its field offices in penalty mail. Those posters will be 
included in penalty mailings that are made in the normal course of the 
Board's operations.
    (c) Field office use of posters. (1) Upon receipt of the poster, the 
field office will place it in the waiting room, if possible. Otherwise, 
the field office should put the poster in a place where it will be 
viewed by the public.

[[Page 638]]

    (2) The field office must remove and destroy the posters by the end 
of their shelf life. The field office also may remove posters that they 
believe have ceased to be of assistance in locating and recovering 
missing children.



Sec. 364.5  Further study of the use of penalty mail in the location 
and recovery of missing children.

    (a) Criteria. The Board shall continue to study different 
alternatives for using penalty mail to assist in the location and 
recovery of missing children. In order to implement a proposal, it must:
    (1) Be cost effective; and
    (2) Fulfill the goal of aiding in the location and recovery of 
missing children.
    (b) Requirements. In any program, the National Center for Missing 
and Exploited Children shall select the missing children and the 
information about these children, which may include a photograph, that 
will be used by the Board. Proposals must provide for the removal of 
this material before the end of its shelf life.



PART 365_ENFORCEMENT OF NONDISCRIMINATION ON THE BASIS OF HANDICAP IN 
PROGRAMS OR ACTIVITIES CONDUCTED BY THE RAILROAD RETIREMENT BOARD
--Table of Contents




Sec.
365.101 Purpose.
365.102 Application.
365.103 Definitions.
365.104-365.109 [Reserved]
365.110 Self-evaluation.
365.111 Notice.
365.112-365.129 [Reserved]
365.130 General prohibitions against discrimination.
365.131-365.139 [Reserved]
365.140 Employment.
365.141-365.148 [Reserved]
365.149 Program accessibility: Discrimination prohibited.
365.150 Program accessibility: Existing facilities.
365.151 Program accessibility: New construction and alterations.
365.152-365.159 [Reserved]
365.160 Communications.
365.161-365.169 [Reserved]
365.170 Compliance procedures.
365.171-365.999 [Reserved]

    Authority: 29 U.S.C. 794.

    Source: 53 FR 43434, Oct. 27, 1988, unless otherwise noted.



Sec. 365.101  Purpose.

    The purpose of this part is to effectuate section 119 of the 
Rehabilitation, Comprehensive Services, and Developmental Disabilities 
Amendments of 1978, which amended section 504 of the Rehabilitation Act 
of 1973 to prohibit discrimination on the basis of handicap in programs 
or activities conducted by Executive agencies or the United States 
Postal Service.



Sec. 365.102  Application.

    This regulation (Sec. Sec. 365.101 through 365.170) applies to all 
programs or activities conducted by the agency, except for programs or 
activities conducted outside the United States that do not involve 
individuals with handicaps in the United States.



Sec. 365.103  Definitions.

    For purposes of this part, the term--
    Agency means Railroad Retirement Board.
    Assistant Attorney General means the Assistant Attorney General, 
Civil Rights Division, United States Department of Justice.
    Auxiliary aids means services or devices that enable persons with 
impaired sensory, manual, or speaking skills to have an equal 
opportunity to participate in, and enjoy the benefits of, programs or 
activities conducted by the agency. For example, auxiliary aids useful 
for persons with impaired vision include readers, brailled materials, 
audio recordings, and other similar services and devices. Auxiliary aids 
useful for persons with impaired hearing include telephone handset 
amplifiers, telephones compatible with hearing aids, telecommunications 
devices for deaf person (TDD's), interpreters, notetakers, written 
materials, and other similar services and devices.
    Board means the three-member board, appointed pursuant to 45 U.S.C. 
231f, which heads the agency.
    Chief Executive Officer means the Chief Executive Officer of the 
Railroad Retirement Board. This individual is the chief operating 
officer of the agency.

[[Page 639]]

    Complete complaint means a written statement that contains the 
complainant's name and address and describes the agency's actions in 
sufficient detail to inform the agency of the nature and date of the 
alleged violation of section 504. It shall be signed by the complainant 
or by someone authorized to do so on his or her behalf. Complaints filed 
on behalf of classes or third parties shall describe or identify (by 
name, if possible) the alleged victims of discrimination.
    Facility means all or any portion of buildings, structures, 
equipment, roads, walks, parking lots, rolling stock or other 
conveyances, or other real or personal property.
    Individual with handicaps means any person who has a physical or 
mental impairment that substantially limits one or more major life 
activities, has a record of such an impairment, or is regarded as having 
such an impairment. As used in this definition, the phrase:
    (1) Physical or mental impairment includes--
    (i) Any physiological disorder or condition, cosmetic disfigurement, 
or anatomical loss affecting one or more of the following body systems: 
Neurological; musculoskeletal; special sense organs; respiratory, 
including speech organs: cardiovascular; reproductive; digestive; 
genitourinary; hemic and lymphatic; skin; and endocrine; or
    (ii) Any mental or psychological disorder, such as mental 
retardation, organic brain syndrome, emotional or mental illness, and 
specific learning disabilities. The term ``physical or mental 
impairment'' includes, but is not limited to, such diseases and 
conditions as orthopedic, visual, speech, and hearing impairments, 
cerebral palsy, epilepsy, muscular dystrophy, multiple sclerosis, 
cancer, heart disease, diabetes, mental retardation, emotional illness, 
and drug addiction and alcoholism.
    (2) Major life activities includes functions such as caring for 
one's self, performing manual tasks, walking, seeing, hearing, speaking, 
breathing, learning, and working.
    (3) Has a record of such an impairment means has a history of, or 
has been misclassified as having, a mental or physical impairment that 
substantially limits one or more major life activities.
    (4) Is regarded as having an impairment means--
    (i) Has a physical or mental impairment that does not substantially 
limit major life activities but is treated by the agency as constituting 
such a limitation;
    (ii) Has a physical or mental impairment that substantially limits 
major life activities only as a result of the attitudes of others toward 
such impairment; or
    (iii) Has none of the impairments defined in paragraph (1) of this 
definition but is treated by the agency as having such an impairment.
    Qualified individual with handicaps means--
    (1) An individual with handicaps who meets the essential eligibility 
requirements for participation in, or receipt of benefits from, a 
program or activity.
    (2) Qualified handicapped person as that term is defined for 
purposes of employment in 29 CFR 1613.702(f), which is made applicable 
to this part by Sec. 365.140.
    Section 504 means section 504 of the Rehabilitation Act of 1973 
(Pub. L. 93-112, 87 Stat. 394 (29 U.S.C. 794)), as amended by the 
Rehabilitation Act Amendments of 1974 (Pub. L. 93-516, 88 Stat. 1617); 
the Rehabilitation, Comprehensive Services, and Developmental 
Disabilities Amendments of 1978 (Pub. L. 95-602, 92 Stat. 2955); the 
Rehabilitation Act Amendments of 1986, (Pub. L. 99-506, 100 Stat. 1810), 
and the Civil Rights Restoration Act of 1987 (Pub. L. 100-259, 102 Stat. 
28 (1988)). As used in this part, section 504 applies only to programs 
or activities conducted by Executive agencies and not to federally 
assisted programs.



Sec. Sec. 365.104-365.109  [Reserved]



Sec. 365.110  Self-evaluation.

    (a) The agency shall, by December 27, 1989, evaluate its current 
policies and practices, and the effects thereof, that do not or may not 
meet the requirements of this part, and, to the extent modification of 
any such policies and practices is required, the agency shall proceed to 
make the necessary modifications.

[[Page 640]]

    (b) The agency shall provide an opportunity to interested persons, 
including individuals with handicaps or organizations representing 
individuals with handicaps, to participate in the self-evaluation 
process by submitting comments (both oral and written).
    (c) The agency shall, until at least three years following the 
completion of the self-evaluation, maintain on file and make available 
for public inspection:
    (1) A description of areas examined and any problems identified, and
    (2) A description of any modifications made.



Sec. 365.111  Notice.

    The agency shall make available to employees, applicants, 
participants, beneficiaries, and other interested persons such 
information regarding the provisions of this part and its applicability 
to the programs or activities conducted by the agency, and make such 
information available to them in such manner as the agency head finds 
necessary to apprise such persons of the protections against 
discrimination assured them by section 504 and this part.



Sec. Sec. 365.112-365.129  [Reserved]



Sec. 365.130  General prohibitions against discrimination.

    (a) No qualified individual with handicaps shall, on the basis of 
handicap, be excluded from participation in, be denied the benefits of, 
or otherwise be subjected to discrimination under any program or 
activity conducted by the agency.
    (b)(1) The agency, in providing any aid, benefit, or service may 
not, directly or through contractual, licensing, or other arrangements, 
on the basis of handicap--
    (i) Deny a qualified individual with handicaps the opportunity to 
participate in or benefit from the aid, benefit, or service;
    (ii) Afford a qualified individual with handicaps an opportunity to 
participate in or benefit from the aid, benefit, or service that is not 
equal to that afforded others;
    (iii) Provide a qualified individual with handicaps with an aid, 
benefit, or service that is not as effective in affording equal 
opportunity to obtain the same result, to gain the same benefit, or to 
reach the same level of achievement as that provided to others;
    (iv) Provide different or separate aid, benefits, or service to 
individuals with handicaps or to any class of individuals with handicaps 
than is provided to others unless such action is necessary to provide 
qualified individuals with handicaps with aid, benefits, or services 
that are as effective as those provided to others.
    (v) Deny a qualified individual with handicaps the opportunity to 
participate as a member of planning or advisory boards; or
    (vi) Otherwise limit a qualified individual with handicaps in the 
enjoyment of any right, privilege, advantage or opportunity enjoyed by 
others receiving benefits under any programs administered by the Board.
    (2) The agency may not deny a qualified individual with handicaps 
the opportunity to participate in programs or activities that are not 
separate or different, despite the existence of permissibly separate or 
different programs or activities.
    (3) The agency may not, directly or through contractual or other 
arrangements, utilize criteria or methods of administration the purposes 
or effect of which would:
    (i) Subject qualified individuals with handicaps to discrimination 
on the basis of handicap;
    (ii) Deny qualified individuals with handicap assistance in 
obtaining benefits under any program administered by the agency; or
    (iii) Defeat or substantially impair accomplishment of the 
objectives of a program or activity with respect to individuals with 
handicaps.
    (4) The agency may not, in determining the site or location of a 
facility, make selections the purpose or effect of which would:
    (i) Exclude individuals with handicaps from, deny them the benefits 
of, or otherwise subject them to discrimination under any program or 
activity conducted by the agency; or
    (ii) Defeat or substantially impair the accomplishment of the 
objectives

[[Page 641]]

of a program or activity with respect to individuals with handicaps.
    (5) The agency, in the selection of procurement contractors, may not 
use criteria that subject qualified individuals with handicaps to 
discrimination on the basis of handicap.
    (c) The exclusion of nonhandicapped persons from the benefits of a 
program limited by Federal statute or Executive Order to individuals 
with handicaps or the exclusion of a specific class of individuals with 
handicaps from a program limited by Federal statute or Executive Order 
to a different class of individuals with handicaps is not prohibited by 
this part.
    (d) The agency shall administer programs and activities in the most 
integrated setting appropriate to the needs of qualified individuals 
with handicaps.



Sec. Sec. 365.131-365.139  [Reserved]



Sec. 365.140  Employment.

    No qualified individual with handicaps shall, on the basis of 
handicap, be subjected to discrimination in employment under any program 
or activity conducted by the agency. The definitions, requirements and 
procedures of section 501 of the Rehabilitation Act of 1973 (29 U.S.C. 
791), as established by the Equal Employment Opportunity Commission in 
29 CFR part 1613, shall apply to employment in federally conducted 
programs or activities.



Sec. Sec. 365.141-365.148  [Reserved]



Sec. 365.149  Program accessibility: Discrimination prohibited.

    Except as otherwise provided in Sec. 365.150, no qualified 
individual with handicaps shall, because the agency's facilities are 
inaccessible to or unusable by individuals with handicaps, be denied the 
benefits of, be excluded from participation in, or otherwise be 
subjected to discrimination under any program or activity conducted by 
the agency.



Sec. 365.150  Program accessibility: Existing facilities.

    (a) General. The agency shall operate each program or activity so 
that the program or activity when viewed in its entirety is readily 
accessible to and usable by individuals with handicaps. Although all 
facilities in which the agency operates, except for the headquarters 
building, are either owned or leased by and under the general control of 
the General Services Administration (GSA), the agency recognizes its 
obligation to request the GSA to make space reassignments or any 
structural changes which the agency determines are necessary to ensure 
program accessibility. This paragraph does not--
    (1) Necessarily require the agency to make each of its existing 
facilities accessible to and usable by individuals with handicaps; or
    (2) Require the agency to take or to recommend to the GSA any action 
that the agency can demonstrate would result in a fundamental alteration 
in the nature of a program or activity or result in undue financial and 
administrative burdens. In those circumstances where agency personnel 
believe that the proposed action would fundamentally alter the program 
or activity or would result in undue financial and administrative 
burdens, the agency has the burden of proving that compliance with Sec. 
365.150(a) would result in such alteration or burdens. The decision that 
compliance would result in such alteration or burdens must be made by 
the Chief Executive Officer after considering all agency resources 
available for use in the funding and operation of the conducted program 
or activity, and must be accompanied by a written statement of the 
reasons for reaching that conclusion. If an action would result in such 
an alteration or such burdens, the agency shall take any other action 
that would not result in such an alteration or such burdens that would 
nevertheless ensure that individuals with handicaps receive the benefits 
and services of the program or activity.
    (b) Methods. In general the agency will comply with this section by 
making home visits. The agency may also comply with the requirements of 
this section through such means as redesign of equipment, reassignment 
of services to accessible buildings, assignment of aids to 
beneficiaries, delivery of services at alternate accessible sites, 
alteration of existing facilities and construction of new facilities, 
use of accessible rolling stock, or any other methods that result in 
making its programs

[[Page 642]]

or activities readily accessible to and usable by individuals with 
handicaps. The agency is not required to make or request the GSA to make 
structural changes in existing facilities where other methods are 
effective in achieving compliance with this section. The agency, in 
making or requesting space reassignments or alterations to existing 
buildings, shall ensure that accessibility requirements, to the extent 
compelled by the Architectural Barriers Act of 1968, as amended (42 
U.S.C. 4151-4157), and any regulations implementing it are met. In 
choosing among available methods for meeting the requirements of this 
section, the agency shall give priority to those methods that offer 
programs and activities to qualified individuals with handicaps in the 
most integrated setting appropriate.
    (c) Time period for compliance. The agency shall comply with the 
obligations established under this section by February 27, 1989, except 
that where structural changes in facilities are undertaken, the agency 
will make such changes or, where applicable, request the GSA to make 
such changes by December 27, 1991, but in any event as expeditiously as 
possible.
    (d) Transition plan. In the event that structural changes to 
facilities will be undertaken to achieve program accessibility, the 
agency shall develop or, where applicable, request the GSA to develop, 
by June 27, 1989, a transition plan setting forth the steps necessary to 
complete such changes. The agency shall provide an opportunity to 
interested persons, including individuals with handicaps or 
organizations representing individuals with handicaps, to participate in 
the development of the transition plan by submitting comments (both oral 
and written). A copy of the transition plan shall be made available for 
public inspection. The plan shall, at a minimum--
    (1) Identify physical obstacles in the agency's facilities that 
limit the accessibility of its programs or activities to individuals 
with handicaps;
    (2) Describe in detail the methods that will be used to make the 
facilities accessible;
    (3) Specify the schedule for taking the steps necessary to achieve 
compliance with this section and, if the time period of the transition 
plan is longer than one year, identify steps that will be taken during 
each year of the transition period; and
    (4) Indicate the official responsible for implementation of the 
plan.



Sec. 365.151  Program accessibility: New construction and alterations.

    Each building or part of a building that is constructed or altered 
by, on behalf of, or for the use of the agency shall be designed, 
constructed, or altered so as to be readily accessible to and usable by 
individuals with handicaps. The definitions, requirements, and standards 
of the Architectural Barriers Act (42 U.S.C. 4151-4157), as established 
in 41 CFR 101-19.600 to 101-19.607, apply to buildings covered by this 
section.



Sec. Sec. 365.152-365.159  [Reserved]



Sec. 365.160  Communications.

    (a) The agency shall take appropriate steps to ensure effective 
communication with applicants, participants, personnel of other Federal 
entities, and members of the public.
    (1) The agency shall furnish appropriate auxiliary aids where 
necessary to afford an individual with handicaps an equal opportunity to 
participate in, and enjoy the benefits of, a program or activity 
conducted by the agency.
    (i) In determining what type of auxiliary aid is necessary, the 
agency shall give primary consideration to the requests of the 
individual with handicaps.
    (ii) The agency need not provide individually prescribed devices, 
readers for personal use or study, or other devices of a personal 
nature.
    (2) Where the agency communicates with applicants and beneficiaries 
by telephone, telecommunication devices for deaf persons (TDD's) or 
equally effective telecommunication systems shall be used to communicate 
with persons with impaired hearing.
    (b) The agency shall take appropriate steps to provide individuals 
with handicaps with information as to the existence and location of 
accessible services, activities, and facilities and information 
regarding their section 504

[[Page 643]]

rights under the agency's programs or activities.
    (c) This section does not require the agency to take any action that 
it can demonstrate would result in a fundamental alteration in the 
nature of a program or activity or in undue financial and administrative 
burdens. In those circumstances where agency personnel believe that the 
proposed action would fundamentally alter the program or activity or 
would result in undue financial and administrative burdens, the agency 
has the burden of proving that compliance with Sec. 365.160 would 
result in such alteration or burdens. The decision that compliance would 
result in such alteration or burdens must be made by the Chief Executive 
Officer after considering all agency resources available for use in the 
funding and operation of the conducted program or activity, and must be 
accompanied by a written statement of the reasons for reaching that 
conclusion. If an action required to comply with this section would 
result in such an alteration or such burdens, the agency shall take any 
other action that would not result in such an alteration or such burdens 
but would nevertheless ensure that, to the maximum extent possible, 
individuals with handicaps receive the benefits and services of the 
program or activity.



Sec. Sec. 365.161-365.169  [Reserved]



Sec. 365.170  Compliance procedures.

    (a) Except as provided in paragraph (b) of this section, this 
section applies to all allegations of discrimination on the basis of 
handicap in programs or activities conducted by the agency;
    (b) The agency shall process complaints alleging violations of 
section 504 with respect to employment according to the procedures 
established by the Equal Employment Opportunity Commission in 29 CFR 
part 1613 pursuant to section 501 of the Rehabilitation Act of 1973 (29 
U.S.C. 791).
    (c) Except with respect to complaints arising under Sec. 
365.170(b), responsibility for implementation and operation of this 
section shall be vested in the Chief Executive Officer.
    (d) The Chief Executive Officer shall accept and investigate all 
complete complaints for which he or she has jurisdiction. All complete 
complaints must be filed within 90 days of the alleged act of 
discrimination. The Chief Executive Officer may extend this time period 
for good cause.
    (e) If the Chief Executive Officer receives a complaint over which 
the agency does not have jurisdiction, he or she shall promptly notify 
the complainant and shall make reasonable efforts to refer the complaint 
to the appropriate government entity.
    (f) The Chief Executive Officer shall notify the Architectural and 
Transportation Barriers Compliance Board upon receipt of any complaint 
alleging that a building or facility used by the agency that is subject 
to the Architectural Barriers Act of 1968, as amended (42 U.S.C. 4151-
4157), is not readily accessible to and usable by individuals with 
handicaps.
    (g) Within 120 days of the receipt of a complete complaint under 
Sec. 365.170(d) for which the agency has jurisdiction, the Chief 
Executive Officer shall notify the complainant of the results of the 
investigation in a letter containing--
    (1) Findings of fact and conclusions of law;
    (2) A description of a remedy for each violation found; and
    (3) A notice of the right to appeal.
    (h) Appeals of the findings of fact and conclusions of law or 
remedies must be filed by the complainant within 45 days of receipt from 
the Chief Executive Officer of the letter required by Sec. 365.170(g). 
The Chief Executive Officer may extend this time for good cause.
    (i) Timely appeals shall be accepted and processed by the Board.
    (j) The Board shall notify the complainant of the results of the 
appeal within 60 days of the receipt of the request. If the Board 
determines that it needs additional information from the complainant, it 
shall have 30 days from the date it receives the additional information 
to make its determination on the appeal.
    (k) The time limits cited in paragraphs (g) and (j) of this section 
may be extended with the permission of the Assistant Attorney General.
    (l) The agency may delegate its authority for conducting complaint 
investigations to other Federal agencies

[[Page 644]]

except that the authority for making the final determination may not be 
delegated to another agency.



Sec. Sec. 365.171-365.999  [Reserved]



PART 366_COLLECTION OF DEBTS BY FEDERAL TAX REFUND OFFSET--Table of 
Contents




Sec.
366.1 Notification to Internal Revenue Service.
366.2 Past-due legally enforceable debt.
366.3 Reasonable attempt to notify.
366.4 Notification to debtor.
366.5 Consideration of evidence.
366.6 Change in notification to Internal Revenue Service.

    Authority: 45 U.S.C. 231f(b)(5); 31 U.S.C. 3720A.

    Source: 54 FR 397, Jan. 6, 1989, unless otherwise noted.



Sec. 366.1  Notification to Internal Revenue Service.

    Upon entering into an agreement with the Internal Revenue Service 
and the Financial Management Service with regard to its participation in 
the tax refund offset program, the Board may notify the Internal Revenue 
Service, pursuant to the terms of such agreement, of past-due legally 
enforceable debts owed to the Board that are to be collected by tax 
refund offset. The Board's notification to the Internal Revenue Service 
will be as prescribed by the Internal Revenue Service in regard to 
information included and format, and will be made by such dates as 
prescribed by the Internal Revenue Service. The Board will provide the 
Internal Revenue Service with a toll-free or collect telephone number 
which the Internal Revenue Service may furnish to debtors whose refunds 
have been offset for use in obtaining information from the Board 
concerning the offset.

[54 FR 397, Jan. 6, 1989, as amended at 60 FR 66073, Dec. 21, 1995]



Sec. 366.2  Past-due legally enforceable debt.

    A past-due legally enforceable debt which may be referred to the 
Internal Revenue Service is a debt:
    (a) Which arose under any statute administered by the Board or under 
any contract;
    (b) Which is an obligation of a debtor who is a natural person or a 
business;
    (c) Which, except in the case of a judgment debt, has been 
delinquent at least three months but not more than ten years at the time 
the offset is made;
    (d) Which is at least $25.00;
    (e) With respect to which the rights regarding reconsideration, 
waiver, and appeal, described in part 260 or 320 of this chapter or in 
other law, if applicable, have been exhausted;
    (f) With respect to which either:
    (1) The Board's records do not contain evidence that the debtor (or, 
if an individual, his or her spouse) has filed for bankruptcy under 
title 11 of the United States Code; or
    (2) The Board can clearly establish at the time of the referral that 
the automatic stay under section 362 of the Bankruptcy Code has been 
lifted or is no longer in effect with respect to the debtor (or, if an 
individual, his or her spouse) and the debt was not discharged in the 
bankruptcy proceeding;
    (g) Which cannot currently be collected pursuant to the salary 
offset provisions of 5 U.S.C. 5514(a)(1);
    (h) Which is not eligible for administrative offset under 31 U.S.C. 
3716(a) by reason of 31 U.S.C. 3716(c)(2), or cannot currently be 
collected by administrative offset under 31 U.S.C. 3716(a) by the Board 
against amounts payable to the debtor by the Board;
    (i) Which cannot currently be collected by administrative offset 
under Sec. 255.6 or Sec. 340.6 of this chapter against amounts payable 
to the debtor under any statute administered by the Board;
    (j) With respect to which the Board has notified, or has made a 
reasonable attempt to notify, the debtor that the debt is past due, and 
that unless the debtor repays the debt within 60 days, will be referred 
to the Internal Revenue Service for offset against any overpayment of 
tax; and
    (k) With respect to which the Board has given the debtor at least 60 
days from the date of the notification required in paragraph (j) of this 
section to present evidence that all or part of

[[Page 645]]

the debt is not past due or legally enforceable, has considered 
evidence, if any, presented by such debtor, and has determined that an 
amount of such debt is past due and legally enforceable.

[54 FR 397, Jan. 6, 1989, as amended at 60 FR 66073, Dec. 21, 1995]



Sec. 366.3  Reasonable attempt to notify.

    In order to constitute a reasonable attempt to notify the debtor the 
Board must have used a mailing address for the debtor obtained from the 
Internal Revenue Service pursuant to section 6103 (m)(2) or (m)(4) of 
the Internal Revenue Code within a period of one year preceding the 
attempt to notify the debtor, whether or not the Board has used any 
other address maintained by the Board for the debtor.



Sec. 366.4  Notification to debtor.

    The notification provided by the Board to the debtor will inform the 
debtor how he or she may present evidence to the Board that all or part 
of the debt is not past due or legally enforceable.



Sec. 366.5  Consideration of evidence.

    Evidence submitted by the debtor will be considered only by 
officials or employees of the Board and a determination that an amount 
of such debt is past-due and legally enforceable will be made only by 
such officials or employees.



Sec. 366.6  Change in notification to Internal Revenue Service.

    If, after submitting to the Internal Revenue Service notification of 
liability for a debt, the Board:
    (a) Determines that an error has been made with respect to the 
information contained in the notification,
    (b) Receives a payment or credits a payment to the account of the 
debtor named in the notification that reduces the amount of the debt 
referred to the Internal Revenue Service for offset, or
    (c) Receives notification that the debtor has filed for bankruptcy 
under title 11 of the United States Code or has been adjudicated 
bankrupt and the debt has been discharged, the Board will promptly 
notify the Internal Revenue Service. However, the Board will make no 
notification to the Internal Revenue Service to increase the amount of a 
debt owed by a debtor named in the Board's original notification to the 
Internal Revenue Service. If the amount of a debt is reduced after 
referral by the Board and offset by the Internal Revenue Service, the 
Board will refund to the debtor any excess amount and will promptly 
notify the Internal Revenue Service of any refund made by the Board.

[54 FR 397, Jan. 6, 1989, as amended at 60 FR 66073, Dec. 21, 1995]



PART 367_RECOVERY OF DEBTS OWED TO THE UNITED STATES GOVERNMENT BY 
ADMINISTRATIVE OFFSET--Table of Contents




Sec.
367.1 Purpose and scope.
367.2 Past-due legally enforceable debt.
367.3 Board responsibilities.
367.4 Notification to another agency.
367.5 Notification to debtor.
367.6 Consideration of evidence.
367.7 Change in notification to another government agency.
367.8 Administrative offset against amounts payable from Civil Service 
          Retirement and Disability Fund.

    Authority: 45 U.S.C. 231f(b)(5); 31 U.S.C. 3716.

    Source: 56 FR 46375, Sept. 12, 1991, unless otherwise noted.



Sec. 367.1  Purpose and scope.

    The regulations in this part establish procedures to implement the 
Debt Collection Act of 1982 (Pub. L. 97-365), as amended by the Debt 
Collection Improvement Act of 1996 (Pub. L. 104-134), 31 U.S.C. 3716. 
The statute authorizes the Board to collect a claim arising under an 
agency program by means of administrative offset, and requires the Board 
to refer nontax debts over 180 days delinquent to the Department of 
Treasury for administrative offset (the ``Treasury Offset Program''). No 
claim may be collected by such means if outstanding for more than 10 
years after the Board's right to collection of the debt first accrued, 
unless facts material to the Government's right to collect the debt were 
not known and could not reasonably have been known by the official or 
officials of the government

[[Page 646]]

who were charged with the responsibility to discover and collect such 
debts. This part specifies the agency procedures that will be followed 
by the Board for referral and collection by administrative offset.

[62 FR 19220, Apr. 21, 1997]



Sec. 367.2  Past-due legally enforceable debt.

    A past-due legally enforceable debt which may be referred to another 
governmental agency for administrative offset is a debt:
    (a) Which arose under any statute administered by the Board or under 
any contract; and with respect to debts referred to the Department of 
Treasury, is a nontax debt;
    (b) Which is an obligation of a debtor who is a natural person or a 
business;
    (c) Which, except in the case of a judgment debt, has been 
delinquent at least three months but not more than ten years at the time 
the offset is made;
    (d) Which is at least $25.00;
    (e) With respect to which the rights described in part 260 or 320 of 
this chapter or the applicable law regarding reconsideration, waiver, 
and appeal, if applicable, have been exhausted;
    (f) With respect to which:
    (1) The Board's records do not contain evidence that the debtor (or, 
if an individual, his or her spouse) has filed for bankruptcy under 
title 11 of the United States Code; or
    (2) The Board can clearly establish at the time of the referral that 
the automatic stay under section 362 of the Bankruptcy Code has been 
lifted or is no longer in effect with respect to the debtor (or, if an 
individual, his or her spouse) and the debt was not discharged in the 
bankruptcy proceeding; or
    (3) The Board's records do not contain evidence that foreclosure is 
pending on collateral securing the debt.
    (g) Which cannot currently be collected pursuant to the salary 
offset provisions of 5 U.S.C. 5514(a)(1);
    (h) Which cannot currently be collected by administrative offset 
under Sec. 255.6 or Sec. 340.6 of this chapter against amounts payable 
to the debtor under any statute administered by the Board;
    (i) With respect to which the Board has notified, or has made a 
reasonable attempt to notify, the debtor that the debt is past due, and 
that unless the debtor repays the debt within 60 days, the debt will be 
referred to any other agency of the United States government for offset 
against any money owed the debtor by that agency; and
    (j) With respect to which the Board has given the debtor at least 60 
days from the date of the notification required in paragraph (i) of this 
section to present evidence that all or part of the debt is not past due 
or legally enforceable, has considered evidence, if any, presented by 
the debtor, and has determined that the amount of such debt is past due 
and legally enforceable; and
    (k) Which has not been referred to the Department of Justice or 
which is not otherwise in litigation with the Board.

[56 FR 46375, Sept. 12, 1991, as amended at 60 FR 66073, Dec. 21, 1995; 
62 FR 19220, Apr. 21, 1997]



Sec. 367.3  Board responsibilities.

    (a) The Board may delegate to an employee or employees the 
responsibility for collecting any claims owed the Board by means of 
administrative offset, except that all nontax debts over 180 days 
delinquent shall be referred to the Department of Treasury for 
administrative offset through the Treasury Offset Program as required by 
31 U.S.C. 3716;
    (b) Except for mandatory referral of claims to the Department of 
Treasury or as otherwise directed by the Secretary of Treasury, before 
collecting a claim by means of administrative offset, the Board must 
ensure that administrative offset is feasible, allowable, and 
appropriate, and must notify the debtor of the Board's policies for 
collecting a claim by means of administrative offset.
    (c) Except for mandatory referral of claims to the Department of 
Treasury or as otherwise directed by the Secretary of Treasury, whether 
collection by administrative offset is feasible is a determination to be 
made on a case-by-case basis, in the exercise of its sound discretion. 
The Board shall consider not only whether administrative offset

[[Page 647]]

can be accomplished, both practically and legally, but also whether 
offset is best suited to further and protect all of the Government's 
interests. In appropriate circumstances, the Board may give due 
consideration to the debtor's financial condition, and is not required 
to use offset in every instance in which there is an available source of 
funds. The Board may also consider whether offset would substantially 
interfere with or defeat the purposes of the program authorizing the 
payments against which offset is contemplated.
    (d) Before advising the debtor that the delinquent debt will be 
subject to administrative offset, the agency official responsible for 
administering the program under which the debt arose shall review the 
claim and determine that the debt is valid and overdue.
    (e) Administrative offset shall be considered by the Board only 
after attempting to collect a claim under the statutes administered by 
the Board except that no claim under this Act that has been outstanding 
for more than 10 years after the Government's right to collect the debt 
first accrued may be collected by means of administrative offset, unless 
facts material to the right to collect the debt were not known and could 
not reasonably have been known by the official of the agency who was 
charged with the responsibility to discover and collect such debts.

[56 FR 46375, Sept. 12, 1991, as amended at 62 FR 19220, Apr. 21, 1997.]



Sec. 367.4  Notification to another agency.

    When the Board refers a debt under this part to another agency 
forcollection by means of administrative offset, the Board shall provide 
a written certification to the other agency stating that the debtor owes 
the debt (including the amount) and that the provisions of this part 
have been fully complied with.



Sec. 367.5  Notification to debtor.

    The notification provided by the Board to the debtor will inform the 
debtor how he or she may present evidence to the Board that all or part 
of the debt is not past due or legally enforceable.



Sec. 367.6  Consideration of evidence.

    Evidence submitted by the debtor will be considered only by 
officials or employees of the Board, and a determination that all or a 
portion of such debt is past-due and legally enforceable will be made 
only by such officials or employees.



Sec. 367.7  Change in notification to another government agency.

    If, after submitting notification of liability for a debt to another 
agency, the Board:
    (a) Determines that an error has been made with respect to the 
information contained in the notification;
    (b) Receives a payment or credits a payment to the account of the 
debtor named in the notification that reduces the amount of the debt 
referred to the other agency for offset; or
    (c) Receives notification that the debtor has filed for bankruptcy 
under title 11 of the United States Code or has been adjudicated 
bankrupt and the debt has been discharged; the Board will promptly 
notify the other agency. If the amount of a debt is reduced after 
referral by the Board and offset by the other agency, the Board will 
refund to the debtor any excess amount and will promptly notify the 
other agency of any refund made by the Board. If the amount of debt has 
increased after referral by the Board but prior to offset by the other 
agency, then the Board will promptly notify the other agency of such 
increase.

[56 FR 46375, Sept. 12, 1991, as amended at 60 FR 66073, Dec. 21, 1995]



Sec. 367.8  Administrative offset against amounts payable from Civil 
Service Retirement and Disability Fund.

    (a) The Board may request that moneys which are due and payable to a 
debtor from the Civil Service Retirement and Disability Fund be 
administratively offset in reasonable amounts in order to collect debts 
owed to the Board by the debtor. Such requests shall be made to the 
appropriate officials of the Office of Personnel Management in 
accordance with such regulations as may be prescribed by the Director of 
that Office.
    (b) When making a request for administrative offset under paragraph 
(a)

[[Page 648]]

of this section, the Board shall include a written certification that:
    (1) The debtor owes the United States a debt, including the amount 
of the debt;
    (2) The Board has complied with all applicable statutes, 
regulations, and procedures of the Office of Personnel Management; and
    (3) The Board has complied with the requirements of the applicable 
provisions of the Federal Claims Collection Standards, the Railroad 
Retirement Act and the Railroad Unemployment Insurance Act including any 
required hearing or review.
    (c) When the Board decides to request administrative offset under 
paragraph (a) of this section, it should make the request as soon as 
practical after completion of the applicable due process procedures in 
order that the Office of Personnel Management may identify and flag the 
debtor's account in anticipation of the time when the debtor becomes 
eligible and requests to receive payments from the Fund. This will 
satisfy any requirement that offset be initiated prior to expiration of 
the applicable statute of limitations. At such time as the debtor makes 
a claim for payments from the Fund, if at least a year has elapsed since 
the offset request was originally made, the debtor will be permitted to 
offer a satisfactory repayment plan in lieu of offset upon establishing 
that changed financial circumstances would render the offset unjust.
    (d) In accordance with procedures established by the Office of 
Personnel Management, the Board may request an offset from the Civil 
Service Retirement and Disability Fund prior to completion of due 
process procedures.
    (e) If the Board collects part or all of the debt by other means 
before deductions are made or completed pursuant to paragraph (a) of 
this section, the Board shall act promptly to modify or terminate its 
request for offset under paragraph (a) of this section.



PART 368_PROHIBITION OF CIGARETTE SALES TO MINORS--Table of Contents




Sec.
368.1 Introduction.
368.2 Definitions.
368.3 Vending machines.
368.4 Concession stands.
368.5 Free tobacco samples.

    Authority: Sec. 636, Pub. L. 104-52, 109 Stat. 507 (40 U.S.C. 
486nt).

    Source: 61 FR 8214, Mar. 4, 1996, unless otherwise noted.



Sec. 368.1  Introduction.

    This part implements Public Law 104-52, the ``Prohibition of 
Cigarette Sales to Minors in Federal Buildings and Lands Act,'' which 
prohibits the sale of tobacco products through vending machines and the 
distribution of free samples of tobacco products on Federal property.



Sec. 368.2  Definitions.

    As used in this part--
    Federal property includes any building and real property occupied 
and maintained by the Board.
    Minor means an individual under the age of 18 years.
    Tobacco product means cigarettes, cigars, little cigars, pipe 
tobacco, smokeless tobacco, snuff, and chewing tobacco.



Sec. 368.3  Vending machines.

    The sale of tobacco products in vending machines is prohibited in or 
around Federal property occupied and maintained by the Railroad 
Retirement Board.



Sec. 368.4  Concession stands.

    Tobacco products may be sold on property occupied and maintained by 
the Railroad Retirement Board only as authorized by the Railroad 
Retirement Board or the General Services Administration or other Federal 
agency. Concession stands may not sell tobacco products to minors.



Sec. 368.5  Free tobacco samples.

    The distribution of free samples of tobacco products is prohibited 
in or around Federal property occupied and maintained by the Railroad 
Retirement Board.

[[Page 649]]



PART 369_USE OF THE SEAL OF THE RAILROAD RETIREMENT BOARD--Table of 
Contents




Sec.
369.1 Unofficial use of the seal of the Railroad Retirement Board.
369.2 Authority to grant written permission for use of the seal.
369.3 Procedures for obtaining permission to use the seal.
369.4 Inappropriate use of the seal.
369.5 Penalty for misuse of the seal.

    Authority: 18 U.S.C. 701; 45 U.S.C. 231f.

    Source: 66 FR 29475, May 31, 2001, unless otherwise noted.



Sec. 369.1  Unofficial use of the seal of the Railroad Retirement Board.

    Use of the seal of the Railroad Retirement Board for non-Agency 
business is prohibited unless permission for use of the seal has been 
obtained in accordance with this part.



Sec. 369.2  Authority to grant written permission for use of the seal.

    The Board hereby delegates authority to grant written permission for 
the use of the seal of the Railroad Retirement Board to the Director of 
Administration.



Sec. 369.3  Procedures for obtaining permission to use the seal.

    Requests for written permission to use the seal of the Railroad 
Retirement Board shall be in writing and shall be directed to the 
Director of Administration of the Railroad Retirement Board. The request 
should, at a minimum, contain the following information:
    (a) Name and address of the requester.
    (b) A description of the type of activity in which the requester is 
engaged or proposes to engage.
    (c) A statement of whether the requester considers the proposed use 
or imitation to be commercial or non-commercial, and why.
    (d) A brief description and illustration or sample of the proposed 
use, as well as a description of the product or service in connection 
with which it will be used. This description will provide sufficient 
detail to enable the Director of Administration to determine whether the 
intended use of the seal is consistent with the interests of the 
government.
    (e) In the case of a non-commercial use, a description of the 
requesting organization's function and purpose shall be provided.



Sec. 369.4  Inappropriate use of the seal.

    The Railroad Retirement Board shall not grant permission for use of 
the seal in those instances where use of the seal will give the 
unintended appearance of Agency endorsement or authentication. 
Situations where use of the seal of the Railroad Retirement Board would 
be inappropriate include, but are not limited to, the following 
examples:
    (a) A consulting firm makes arrangements with a railroad to conduct 
a retirement planning seminar for its employees. Included in the 
material distributed to the seminar attendees is a booklet, prepared by 
the consulting firm, which displays the seal of the Railroad Retirement 
Board on the cover and contains information regarding benefits payable 
under the Railroad Retirement Act.
    (b) A former employee of the Railroad Retirement Board owns a coffee 
and donut shop, frequented by present and past railroad workers. Many of 
the shop's customers know of the owner's prior employment with the Board 
and frequently ask him questions related to benefits payable under the 
Railroad Unemployment Insurance and Railroad Retirement Acts. The shop 
owner prepares and distributes to his customers a monthly flyer listing 
benefit questions presented to him during the month, as well as his 
answers to the questions. The flyer displays the seal of the Board.
    (c) A retired railroad employee works part-time in a train hobby 
shop. The shop owner, at the former railroad worker's suggestion, 
develops and sells items such as coffee mugs and computer mouse pads 
with text relevant to benefits paid by the Railroad Retirement Board. 
The text is taken from publications issued by the Railroad Retirement 
Board. The merchandise also bears the seal of the Railroad Retirement 
Board.

[[Page 650]]



Sec. 369.5  Penalty for misuse of the seal.

    Unauthorized use of the seal of the Railroad Retirement Board may 
result in criminal prosecution under applicable law.



                         SUBCHAPTER G [RESERVED]



[[Page 651]]



                   SUBCHAPTER H_EMERGENCY REGULATIONS





PART 375_PLAN OF OPERATION DURING A NATIONAL EMERGENCY--Table of Contents




Sec.
375.1 Purpose.
375.2 National emergency and effective date.
375.3 Policy.
375.4 Mailing instructions.
375.5 Organization and functions of the Board, delegations of authority, 
          and lines of succession.
375.6 Personnel, fiscal, and service functions.
375.7 Operating regulations.
375.8 Regulations for employers.

    Authority: 45 U.S.C. 231f(b)(5), 362(l).

    Source: 29 FR 15864, Nov. 26, 1964, unless otherwise noted. 
Redesignated at 29 FR 16322, Dec. 5, 1964, and further redesignated at 
45 FR 28314, Apr. 29, 1980.



Sec. 375.1  Purpose.

    (a) The Railroad Retirement Board has adopted a plan to provide 
basic organization and methods of operation which may be needed to 
continue uninterrupted service during a period of national emergency as 
defined in Sec. 375.2.
    (b) The plan is published to inform all interested persons of the 
circumstances and ways in which the Board will organize and operate in a 
national emergency.
    (c) For purposes of Government-wide uniformity, the procedures of 
the Board regarding payments during evacuation to employees and their 
dependents shall conform to those contained in subpart D of part 550 of 
the regulations of the Office of Personnel Management pertaining to 
``Payments During Evacuation'' (5 CFR part 550, subpart D).

[29 FR 15864, Nov. 26, 1964, as amended at 64 FR 66381, Nov. 26, 1999]



Sec. 375.2  National emergency and effective date.

    A period of national emergency shall be deemed to exist and the 
provisions of this part shall become effective only (a) after an attack 
upon the United States, or at a time specified by the authority of the 
President after such attack, and (b) by order of the Chair of the Board 
or his or her successor as set forth in Sec. 375.5, or when it is no 
longer possible to communicate with such official at his or her 
designated station.

[29 FR 15864, Nov. 26, 1964, as amended at 64 FR 66381, Nov. 26, 1999]



Sec. 375.3  Policy.

    To the greatest extent possible, payment of benefits shall be made 
and employment service functions shall be carried on through the period 
of a national emergency in strict conformance with the pertinent 
provisions of the Railroad Retirement Act, the Railroad Unemployment 
Insurance Act, and the regulations promulgated by the Board to 
administer those acts. Where the character of the national emergency is 
such as to prevent this, the stand-by regulations contained in this part 
shall obtain. It will be expected, however, that every effort shall be 
made to return to normal operating practices as quickly as possible 
thereafter.



Sec. 375.4  Mailing instructions.

    In a national emergency as defined in Sec. 375.2, all mail shall be 
directed to Board offices at their normal locations.

[40 FR 52844, Nov. 13, 1975]



Sec. 375.5  Organization and functions of the Board, delegations of 
authority, and lines of succession.

    (a) During a national emergency, as defined in Sec. 375.2, the 
respective functions and responsibilities of the Board shall be, to the 
extent possible, as set forth in the U.S. Government Manual, which is 
published annually by the Office of the Federal Register, and is 
available on the Internet at http://www.nara.gov/fedreg/, under Other 
Publications.
    (b) The following delegation of authority is made to provide 
continuity in the event of a national emergency:
    (1) The Chair of the Board shall act with full administrative 
authority for the Board.
    (2) In the absence or incapacity of the Chair, the authority of the 
Chair to act

[[Page 652]]

shall pass to the available successor highest on the following list:

Labor Member of the Board
Management Member of the Board
Director of Administration
Director of Programs
General Counsel
Chief Information Officer
Director of Supply and Service
Regional Directors in order of length of Board service.

    (3) Except as may be determined otherwise by the Chair of the Board 
or his or her successor and as provided in Sec. Sec. 375.6 and 375.7, 
the duties of each office head or regional director shall be discharged 
in his or her absence or incapacity during a national emergency by the 
available staff member next in line of succession. Each office head and 
each regional director shall designate and preposition the line of 
succession within his or her office or region. If no such designation 
has been made, such duties shall be assumed by the available subordinate 
who is highest in grade or, if there is more than one, in length of 
Board service.
    (4) Emergency responsibility and authority under this section, once 
assumed, shall be relinquished on direction of the duly constituted 
higher authority acting under the provisions of paragraph (b)(2) of this 
section.

[Board Order 68-135, 29 FR 15864, Nov. 26, 1964. Redesignated at 29 FR 
16322, Dec. 5, 1964, as amended by Board Order 71-26, 36 FR 4980, Mar. 
16, 1971; Board Order 75-52, 40 FR 26673, June 25, 1975; 40 FR 52844, 
Nov. 13, 1975; 64 FR 66381, Nov. 26, 1999]



Sec. 375.6  Personnel, fiscal, and service functions.

    (a) Personnel. In a national emergency as defined in Sec. 375.2, 
when it is no longer possible for a regional director to communicate 
with the Chair or his or her successor as set forth in Sec. 375.5, 
complete responsibility and authority for administration of the 
personnel function are delegated to such regional director for his or 
her respective geographic area.
    (b) Fiscal. (1) In a national emergency, as defined in Sec. 375.2, 
the Chair of the Board or his or her successor, as set forth in Sec. 
375.5, shall designate an individual to assume the responsibilities of 
the Chief Financial Officer in the event that he or she is unable to 
assume those responsibilities.
    (2) In a national emergency, incumbents of the following positions 
are hereby authorized to appoint emergency certifying officers:

Director of Administration
Director of Programs
Chief Financial Officer
Regional Directors.

    (i) The emergency certifying officers shall be empowered to certify:
    (a)Benefit payments under the Railroad Retirement Act.
    (b)Benefit payments under the Railroad Unemployment Insurance Act.
    (c)Administrative expenses of the Railroad Retirement Board.
    (ii) Emergency certifying officers shall be appointed under the 
authority delegated by this section when (a) normal channels for 
certifying payments have been rendered inoperable, and (b) clearance has 
been obtained from the ranking offical in line of sucession as set forth 
in Sec. 375.5(b)(1) and (2) and under such instructions and conditions 
as he may prescribe.
    (c) Supply and service.(1) In a national emergency, as defined in 
Sec. 375.2, complete responsibility and authority for the procurement 
of needed supplies, equipment, space, communications, transportation, 
and repair services, are delegated to each regional director for his or 
her geographic area.
    (2) Federal sources of supply and service, if available, shall be 
used.
    (3) Any supplies, equipment, space, or services provided under this 
emergency delegation shall be documented to show what was provided, the 
amount procured, the cost thereof, and the source from which procured.
    (4) As soon after the period of national emergency as conditions 
permit, the records required by paragraph (c)(3) of this section shall 
be transmitted to the Director of Supply and Service or his surviving 
successor.

[29 FR 15864, Nov. 26, 1964. Redesignated at 29 FR 16322, Dec. 5, 1964, 
as amended by Board Order 67-29, 32 FR 3975, Mar. 11, 1967; 34 FR 12490, 
July 31, 1969; Board Order 75-52, 40 FR 26674, June 25, 1975; 40 FR 
52844, Nov. 13, 1975; 64 FR 66381, Nov. 26, 1999]

[[Page 653]]



Sec. 375.7  Operating regulations.

    (a) Retirement claims. (1) In a national emergency as defined in 
Sec. 375.2, applications for and development and certification of 
claims for retirement, disability, and survivor benefits shall be to the 
extent possible, as set forth in subchapter B of this chapter, except 
that:
    (i) Standards of evidence may be relaxed although legal requirements 
for entitlement to payments shall remain unchanged; in determining 
relationships, employment, birth, death, etc., consideration shall be 
given to whatever information is in the possession of applicants and 
beneficiaries or the Board office adjudicating a claim.
    (ii) If prescribed forms are not available, any writing that 
contains substantially the necessary information shall be acceptable.
    (iii) In a national emergency, that is when the headquarters office 
is inoperable, the development and certification of claims shall be 
assumed by the regional offices.
    (2) To provide the necessary authority for a decentralized program 
as outlined in this paragraph (a), those authorities which have been 
delegated to the Director of Programs are hereby delegated to the 
regional directors or their surviving successors.
    (b) Unemployment and sickness claims. (1) In a national emergency as 
defined in Sec. 375.2, receipt, adjudication, and certification of 
claims for unemployment and sickness benefits shall be to the extent 
possible as set forth in subchapter C of this chapter, except that:
    (i) Where the Board's wage records have been destroyed or are 
otherwise unavailable, the wage-record evidence in the possession of the 
claimant, or the employer's wage records will be acceptable in 
determining qualifications for benefits.
    (ii) In the event normal record sources are destroyed or otherwise 
unavailable, other evidence of previous benefit payments shall be 
considered in determining the periods for which benefits are currently 
payable and the amounts.
    (iii) In developing sickness benefit claims where medical evidence 
in the form of a doctor's statement is not available, an affidavit from 
the claimant or other person having knowledge of his sickness or injury 
shall be acceptable.
    (iv) If prescribed forms are not available, any writing that 
contains substantially the necessary information shall be acceptable.
    (v) Eligibility interviews, investigations, and checking procedures 
shall be curtailed.
    (vi) If claims cannot be submitted to the processing offices in 
headquarters because of the national emergency, the development and 
certification of claims shall be assumed by district offices.
    (2) To provide the necessary authority for a decentralized program 
as outlined in paragraph (b) of this section, the authorities which have 
been delegated to the Director of Programs and to the regional directors 
are hereby delegated to the district managers or to their surviving 
successors.

[29 FR 15864, Nov. 26, 1964. Redesignated at 29 FR 16322, Dec. 5, 1964, 
as amended by Board Order 75-52, 40 FR 26674, June 25, 1975; 64 FR 
66381, Nov. 26, 1999]



Sec. 375.8  Regulations for employers.

    (a) In a national emergency, as described in Sec. 375.2, employers 
shall continue to follow, to the greatest extent possible, the 
requirements pertaining to employers in subchapters A, B, and C of this 
chapter.
    (b) Where a national emergency, as described in Sec. 375.2, 
prevents an employer from following any requirement imposed by paragraph 
(a) of this section, the employer shall comply with such requirement as 
soon as possible after the cessation of the national emergency.
    (c) In a national emergency, as defined in Sec. 375.2, all 
communications by employers shall be directed as set forth in Sec. 
375.4.

[64 FR 66382, Nov. 26, 1999]

[[Page 654]]



                         SUBCHAPTER I [RESERVED]




[[Page 655]]



                              FINDING AIDS




  --------------------------------------------------------------------

  A list of CFR titles, subtitles, chapters, subchapters and parts and 
an alphabetical list of agencies publishing in the CFR are included in 
the CFR Index and Finding Aids volume to the Code of Federal Regulations 
which is published separately and revised annually.

  Table of CFR Titles and Chapters
  Alphabetical List of Agencies Appearing in the CFR
  List of CFR Sections Affected

[[Page 657]]



                    Table of CFR Titles and Chapters




                      (Revised as of April 1, 2006)

                      Title 1--General Provisions

         I  Administrative Committee of the Federal Register 
                (Parts 1--49)
        II  Office of the Federal Register (Parts 50--299)
        IV  Miscellaneous Agencies (Parts 400--500)

                    Title 2--Grants and Agreements

            Subtitle A--Office of Management and Budget Guidance 
                for Grants and Agreements
         I  Office of Management and Budget Governmentwide 
                Guidance for Grants and Agreements (Parts 100-199)
        II  Office of Management and Budget Circulars and Guidance 
                (200-299)
            Subtitle B--Federal Agency Regulations for Grants and 
                Agreements [Reserved]


                        Title 3--The President

         I  Executive Office of the President (Parts 100--199)

                           Title 4--Accounts

         I  Government Accountability Office (Parts 1--99)

                   Title 5--Administrative Personnel

         I  Office of Personnel Management (Parts 1--1199)
        II  Merit Systems Protection Board (Parts 1200--1299)
       III  Office of Management and Budget (Parts 1300--1399)
         V  The International Organizations Employees Loyalty 
                Board (Parts 1500--1599)
        VI  Federal Retirement Thrift Investment Board (Parts 
                1600--1699)
      VIII  Office of Special Counsel (Parts 1800--1899)
        IX  Appalachian Regional Commission (Parts 1900--1999)
        XI  Armed Forces Retirement Home (Part 2100)
       XIV  Federal Labor Relations Authority, General Counsel of 
                the Federal Labor Relations Authority and Federal 
                Service Impasses Panel (Parts 2400--2499)

[[Page 658]]

        XV  Office of Administration, Executive Office of the 
                President (Parts 2500--2599)
       XVI  Office of Government Ethics (Parts 2600--2699)
       XXI  Department of the Treasury (Parts 3100--3199)
      XXII  Federal Deposit Insurance Corporation (Part 3201)
     XXIII  Department of Energy (Part 3301)
      XXIV  Federal Energy Regulatory Commission (Part 3401)
       XXV  Department of the Interior (Part 3501)
      XXVI  Department of Defense (Part 3601)
    XXVIII  Department of Justice (Part 3801)
      XXIX  Federal Communications Commission (Parts 3900--3999)
       XXX  Farm Credit System Insurance Corporation (Parts 4000--
                4099)
      XXXI  Farm Credit Administration (Parts 4100--4199)
    XXXIII  Overseas Private Investment Corporation (Part 4301)
      XXXV  Office of Personnel Management (Part 4501)
        XL  Interstate Commerce Commission (Part 5001)
       XLI  Commodity Futures Trading Commission (Part 5101)
      XLII  Department of Labor (Part 5201)
     XLIII  National Science Foundation (Part 5301)
       XLV  Department of Health and Human Services (Part 5501)
      XLVI  Postal Rate Commission (Part 5601)
     XLVII  Federal Trade Commission (Part 5701)
    XLVIII  Nuclear Regulatory Commission (Part 5801)
         L  Department of Transportation (Part 6001)
       LII  Export-Import Bank of the United States (Part 6201)
      LIII  Department of Education (Parts 6300--6399)
       LIV  Environmental Protection Agency (Part 6401)
        LV  National Endowment for the Arts (Part 6501)
       LVI  National Endowment for the Humanities (Part 6601)
      LVII  General Services Administration (Part 6701)
     LVIII  Board of Governors of the Federal Reserve System (Part 
                6801)
       LIX  National Aeronautics and Space Administration (Part 
                6901)
        LX  United States Postal Service (Part 7001)
       LXI  National Labor Relations Board (Part 7101)
      LXII  Equal Employment Opportunity Commission (Part 7201)
     LXIII  Inter-American Foundation (Part 7301)
       LXV  Department of Housing and Urban Development (Part 
                7501)
      LXVI  National Archives and Records Administration (Part 
                7601)
     LXVII  Institute of Museum and Library Services (Part 7701)
      LXIX  Tennessee Valley Authority (Part 7901)
      LXXI  Consumer Product Safety Commission (Part 8101)
    LXXIII  Department of Agriculture (Part 8301)
     LXXIV  Federal Mine Safety and Health Review Commission (Part 
                8401)
     LXXVI  Federal Retirement Thrift Investment Board (Part 8601)

[[Page 659]]

    LXXVII  Office of Management and Budget (Part 8701)
     XCVII  Department of Homeland Security Human Resources 
                Management System (Department of Homeland 
                Security--Office of Personnel Management) (Part 
                9701)
      XCIX  Department of Defense Human Resources Management and 
                Labor Relations Systems (Department of Defense--
                Office of Personnel Management) (Part 9901)

                      Title 6--Homeland Security

         I  Department of Homeland Security, Office of the 
                Secretary (Parts 0--99)

                         Title 7--Agriculture

            Subtitle A--Office of the Secretary of Agriculture 
                (Parts 0--26)
            Subtitle B--Regulations of the Department of 
                Agriculture
         I  Agricultural Marketing Service (Standards, 
                Inspections, Marketing Practices), Department of 
                Agriculture (Parts 27--209)
        II  Food and Nutrition Service, Department of Agriculture 
                (Parts 210--299)
       III  Animal and Plant Health Inspection Service, Department 
                of Agriculture (Parts 300--399)
        IV  Federal Crop Insurance Corporation, Department of 
                Agriculture (Parts 400--499)
         V  Agricultural Research Service, Department of 
                Agriculture (Parts 500--599)
        VI  Natural Resources Conservation Service, Department of 
                Agriculture (Parts 600--699)
       VII  Farm Service Agency, Department of Agriculture (Parts 
                700--799)
      VIII  Grain Inspection, Packers and Stockyards 
                Administration (Federal Grain Inspection Service), 
                Department of Agriculture (Parts 800--899)
        IX  Agricultural Marketing Service (Marketing Agreements 
                and Orders; Fruits, Vegetables, Nuts), Department 
                of Agriculture (Parts 900--999)
         X  Agricultural Marketing Service (Marketing Agreements 
                and Orders; Milk), Department of Agriculture 
                (Parts 1000--1199)
        XI  Agricultural Marketing Service (Marketing Agreements 
                and Orders; Miscellaneous Commodities), Department 
                of Agriculture (Parts 1200--1299)
       XIV  Commodity Credit Corporation, Department of 
                Agriculture (Parts 1400--1499)
        XV  Foreign Agricultural Service, Department of 
                Agriculture (Parts 1500--1599)
       XVI  Rural Telephone Bank, Department of Agriculture (Parts 
                1600--1699)
      XVII  Rural Utilities Service, Department of Agriculture 
                (Parts 1700--1799)

[[Page 660]]

     XVIII  Rural Housing Service, Rural Business-Cooperative 
                Service, Rural Utilities Service, and Farm Service 
                Agency, Department of Agriculture (Parts 1800--
                2099)
        XX  Local Television Loan Guarantee Board (Parts 2200--
                2299)
      XXVI  Office of Inspector General, Department of Agriculture 
                (Parts 2600--2699)
     XXVII  Office of Information Resources Management, Department 
                of Agriculture (Parts 2700--2799)
    XXVIII  Office of Operations, Department of Agriculture (Parts 
                2800--2899)
      XXIX  Office of Energy Policy and New Uses, Department of 
                Agriculture (Parts 2900--2999)
       XXX  Office of the Chief Financial Officer, Department of 
                Agriculture (Parts 3000--3099)
      XXXI  Office of Environmental Quality, Department of 
                Agriculture (Parts 3100--3199)
     XXXII  Office of Procurement and Property Management, 
                Department of Agriculture (Parts 3200--3299)
    XXXIII  Office of Transportation, Department of Agriculture 
                (Parts 3300--3399)
     XXXIV  Cooperative State Research, Education, and Extension 
                Service, Department of Agriculture (Parts 3400--
                3499)
      XXXV  Rural Housing Service, Department of Agriculture 
                (Parts 3500--3599)
     XXXVI  National Agricultural Statistics Service, Department 
                of Agriculture (Parts 3600--3699)
    XXXVII  Economic Research Service, Department of Agriculture 
                (Parts 3700--3799)
   XXXVIII  World Agricultural Outlook Board, Department of 
                Agriculture (Parts 3800--3899)
       XLI  [Reserved]
      XLII  Rural Business-Cooperative Service and Rural Utilities 
                Service, Department of Agriculture (Parts 4200--
                4299)

                    Title 8--Aliens and Nationality

         I  Department of Homeland Security (Immigration and 
                Naturalization) (Parts 1--499)
         V  Executive Office for Immigration Review, Department of 
                Justice (Parts 1000--1399)

                 Title 9--Animals and Animal Products

         I  Animal and Plant Health Inspection Service, Department 
                of Agriculture (Parts 1--199)
        II  Grain Inspection, Packers and Stockyards 
                Administration (Packers and Stockyards Programs), 
                Department of Agriculture (Parts 200--299)
       III  Food Safety and Inspection Service, Department of 
                Agriculture (Parts 300--599)

[[Page 661]]

                           Title 10--Energy

         I  Nuclear Regulatory Commission (Parts 0--199)
        II  Department of Energy (Parts 200--699)
       III  Department of Energy (Parts 700--999)
         X  Department of Energy (General Provisions) (Parts 
                1000--1099)
      XIII  Nuclear Waste Technical Review Board (Parts 1303--
                1399)
      XVII  Defense Nuclear Facilities Safety Board (Parts 1700--
                1799)
     XVIII  Northeast Interstate Low-Level Radioactive Waste 
                Commission (Part 1800)

                      Title 11--Federal Elections

         I  Federal Election Commission (Parts 1--9099)

                      Title 12--Banks and Banking

         I  Comptroller of the Currency, Department of the 
                Treasury (Parts 1--199)
        II  Federal Reserve System (Parts 200--299)
       III  Federal Deposit Insurance Corporation (Parts 300--399)
        IV  Export-Import Bank of the United States (Parts 400--
                499)
         V  Office of Thrift Supervision, Department of the 
                Treasury (Parts 500--599)
        VI  Farm Credit Administration (Parts 600--699)
       VII  National Credit Union Administration (Parts 700--799)
      VIII  Federal Financing Bank (Parts 800--899)
        IX  Federal Housing Finance Board (Parts 900--999)
        XI  Federal Financial Institutions Examination Council 
                (Parts 1100--1199)
       XIV  Farm Credit System Insurance Corporation (Parts 1400--
                1499)
        XV  Department of the Treasury (Parts 1500--1599)
      XVII  Office of Federal Housing Enterprise Oversight, 
                Department of Housing and Urban Development (Parts 
                1700--1799)
     XVIII  Community Development Financial Institutions Fund, 
                Department of the Treasury (Parts 1800--1899)

               Title 13--Business Credit and Assistance

         I  Small Business Administration (Parts 1--199)
       III  Economic Development Administration, Department of 
                Commerce (Parts 300--399)
        IV  Emergency Steel Guarantee Loan Board, Department of 
                Commerce (Parts 400--499)
         V  Emergency Oil and Gas Guaranteed Loan Board, 
                Department of Commerce (Parts 500--599)

[[Page 662]]

                    Title 14--Aeronautics and Space

         I  Federal Aviation Administration, Department of 
                Transportation (Parts 1--199)
        II  Office of the Secretary, Department of Transportation 
                (Aviation Proceedings) (Parts 200--399)
       III  Commercial Space Transportation, Federal Aviation 
                Administration, Department of Transportation 
                (Parts 400--499)
         V  National Aeronautics and Space Administration (Parts 
                1200--1299)
        VI  Air Transportation System Stabilization (Parts 1300--
                1399)

                 Title 15--Commerce and Foreign Trade

            Subtitle A--Office of the Secretary of Commerce (Parts 
                0--29)
            Subtitle B--Regulations Relating to Commerce and 
                Foreign Trade
         I  Bureau of the Census, Department of Commerce (Parts 
                30--199)
        II  National Institute of Standards and Technology, 
                Department of Commerce (Parts 200--299)
       III  International Trade Administration, Department of 
                Commerce (Parts 300--399)
        IV  Foreign-Trade Zones Board, Department of Commerce 
                (Parts 400--499)
       VII  Bureau of Industry and Security, Department of 
                Commerce (Parts 700--799)
      VIII  Bureau of Economic Analysis, Department of Commerce 
                (Parts 800--899)
        IX  National Oceanic and Atmospheric Administration, 
                Department of Commerce (Parts 900--999)
        XI  Technology Administration, Department of Commerce 
                (Parts 1100--1199)
      XIII  East-West Foreign Trade Board (Parts 1300--1399)
       XIV  Minority Business Development Agency (Parts 1400--
                1499)
            Subtitle C--Regulations Relating to Foreign Trade 
                Agreements
        XX  Office of the United States Trade Representative 
                (Parts 2000--2099)
            Subtitle D--Regulations Relating to Telecommunications 
                and Information
     XXIII  National Telecommunications and Information 
                Administration, Department of Commerce (Parts 
                2300--2399)

                    Title 16--Commercial Practices

         I  Federal Trade Commission (Parts 0--999)
        II  Consumer Product Safety Commission (Parts 1000--1799)

[[Page 663]]

             Title 17--Commodity and Securities Exchanges

         I  Commodity Futures Trading Commission (Parts 1--199)
        II  Securities and Exchange Commission (Parts 200--399)
        IV  Department of the Treasury (Parts 400--499)

          Title 18--Conservation of Power and Water Resources

         I  Federal Energy Regulatory Commission, Department of 
                Energy (Parts 1--399)
       III  Delaware River Basin Commission (Parts 400--499)
        VI  Water Resources Council (Parts 700--799)
      VIII  Susquehanna River Basin Commission (Parts 800--899)
      XIII  Tennessee Valley Authority (Parts 1300--1399)

                       Title 19--Customs Duties

         I  Bureau of Customs and Border Protection, Department of 
                Homeland Security; Department of the Treasury 
                (Parts 0--199)
        II  United States International Trade Commission (Parts 
                200--299)
       III  International Trade Administration, Department of 
                Commerce (Parts 300--399)
        IV  Bureau of Immigration and Customs Enforcement, 
                Department of Homeland Security (Parts 400--599)

                     Title 20--Employees' Benefits

         I  Office of Workers' Compensation Programs, Department 
                of Labor (Parts 1--199)
        II  Railroad Retirement Board (Parts 200--399)
       III  Social Security Administration (Parts 400--499)
        IV  Employees Compensation Appeals Board, Department of 
                Labor (Parts 500--599)
         V  Employment and Training Administration, Department of 
                Labor (Parts 600--699)
        VI  Employment Standards Administration, Department of 
                Labor (Parts 700--799)
       VII  Benefits Review Board, Department of Labor (Parts 
                800--899)
      VIII  Joint Board for the Enrollment of Actuaries (Parts 
                900--999)
        IX  Office of the Assistant Secretary for Veterans' 
                Employment and Training, Department of Labor 
                (Parts 1000--1099)

                       Title 21--Food and Drugs

         I  Food and Drug Administration, Department of Health and 
                Human Services (Parts 1--1299)
        II  Drug Enforcement Administration, Department of Justice 
                (Parts 1300--1399)
       III  Office of National Drug Control Policy (Parts 1400--
                1499)

[[Page 664]]

                      Title 22--Foreign Relations

         I  Department of State (Parts 1--199)
        II  Agency for International Development (Parts 200--299)
       III  Peace Corps (Parts 300--399)
        IV  International Joint Commission, United States and 
                Canada (Parts 400--499)
         V  Broadcasting Board of Governors (Parts 500--599)
       VII  Overseas Private Investment Corporation (Parts 700--
                799)
        IX  Foreign Service Grievance Board Regulations (Parts 
                900--999)
         X  Inter-American Foundation (Parts 1000--1099)
        XI  International Boundary and Water Commission, United 
                States and Mexico, United States Section (Parts 
                1100--1199)
       XII  United States International Development Cooperation 
                Agency (Parts 1200--1299)
       XIV  Foreign Service Labor Relations Board; Federal Labor 
                Relations Authority; General Counsel of the 
                Federal Labor Relations Authority; and the Foreign 
                Service Impasse Disputes Panel (Parts 1400--1499)
        XV  African Development Foundation (Parts 1500--1599)
       XVI  Japan-United States Friendship Commission (Parts 
                1600--1699)
      XVII  United States Institute of Peace (Parts 1700--1799)

                          Title 23--Highways

         I  Federal Highway Administration, Department of 
                Transportation (Parts 1--999)
        II  National Highway Traffic Safety Administration and 
                Federal Highway Administration, Department of 
                Transportation (Parts 1200--1299)
       III  National Highway Traffic Safety Administration, 
                Department of Transportation (Parts 1300--1399)

                Title 24--Housing and Urban Development

            Subtitle A--Office of the Secretary, Department of 
                Housing and Urban Development (Parts 0--99)
            Subtitle B--Regulations Relating to Housing and Urban 
                Development
         I  Office of Assistant Secretary for Equal Opportunity, 
                Department of Housing and Urban Development (Parts 
                100--199)
        II  Office of Assistant Secretary for Housing-Federal 
                Housing Commissioner, Department of Housing and 
                Urban Development (Parts 200--299)
       III  Government National Mortgage Association, Department 
                of Housing and Urban Development (Parts 300--399)
        IV  Office of Housing and Office of Multifamily Housing 
                Assistance Restructuring, Department of Housing 
                and Urban Development (Parts 400--499)
         V  Office of Assistant Secretary for Community Planning 
                and Development, Department of Housing and Urban 
                Development (Parts 500--599)

[[Page 665]]

        VI  Office of Assistant Secretary for Community Planning 
                and Development, Department of Housing and Urban 
                Development (Parts 600--699) [Reserved]
       VII  Office of the Secretary, Department of Housing and 
                Urban Development (Housing Assistance Programs and 
                Public and Indian Housing Programs) (Parts 700--
                799)
      VIII  Office of the Assistant Secretary for Housing--Federal 
                Housing Commissioner, Department of Housing and 
                Urban Development (Section 8 Housing Assistance 
                Programs, Section 202 Direct Loan Program, Section 
                202 Supportive Housing for the Elderly Program and 
                Section 811 Supportive Housing for Persons With 
                Disabilities Program) (Parts 800--899)
        IX  Office of Assistant Secretary for Public and Indian 
                Housing, Department of Housing and Urban 
                Development (Parts 900--1699)
         X  Office of Assistant Secretary for Housing--Federal 
                Housing Commissioner, Department of Housing and 
                Urban Development (Interstate Land Sales 
                Registration Program) (Parts 1700--1799)
       XII  Office of Inspector General, Department of Housing and 
                Urban Development (Parts 2000--2099)
        XX  Office of Assistant Secretary for Housing--Federal 
                Housing Commissioner, Department of Housing and 
                Urban Development (Parts 3200--3899)
       XXV  Neighborhood Reinvestment Corporation (Parts 4100--
                4199)

                           Title 25--Indians

         I  Bureau of Indian Affairs, Department of the Interior 
                (Parts 1--299)
        II  Indian Arts and Crafts Board, Department of the 
                Interior (Parts 300--399)
       III  National Indian Gaming Commission, Department of the 
                Interior (Parts 500--599)
        IV  Office of Navajo and Hopi Indian Relocation (Parts 
                700--799)
         V  Bureau of Indian Affairs, Department of the Interior, 
                and Indian Health Service, Department of Health 
                and Human Services (Part 900)
        VI  Office of the Assistant Secretary-Indian Affairs, 
                Department of the Interior (Parts 1000--1199)
       VII  Office of the Special Trustee for American Indians, 
                Department of the Interior (Part 1200)

                      Title 26--Internal Revenue

         I  Internal Revenue Service, Department of the Treasury 
                (Parts 1--899)

           Title 27--Alcohol, Tobacco Products and Firearms

         I  Alcohol and Tobacco Tax and Trade Bureau, Department 
                of the Treasury (Parts 1--399)

[[Page 666]]

        II  Bureau of Alcohol, Tobacco, Firearms, and Explosives, 
                Department of Justice (Parts 400--699)

                   Title 28--Judicial Administration

         I  Department of Justice (Parts 0--299)
       III  Federal Prison Industries, Inc., Department of Justice 
                (Parts 300--399)
         V  Bureau of Prisons, Department of Justice (Parts 500--
                599)
        VI  Offices of Independent Counsel, Department of Justice 
                (Parts 600--699)
       VII  Office of Independent Counsel (Parts 700--799)
      VIII  Court Services and Offender Supervision Agency for the 
                District of Columbia (Parts 800--899)
        IX  National Crime Prevention and Privacy Compact Council 
                (Parts 900--999)
        XI  Department of Justice and Department of State (Parts 
                1100--1199)

                            Title 29--Labor

            Subtitle A--Office of the Secretary of Labor (Parts 
                0--99)
            Subtitle B--Regulations Relating to Labor
         I  National Labor Relations Board (Parts 100--199)
        II  Office of Labor-Management Standards, Department of 
                Labor (Parts 200--299)
       III  National Railroad Adjustment Board (Parts 300--399)
        IV  Office of Labor-Management Standards, Department of 
                Labor (Parts 400--499)
         V  Wage and Hour Division, Department of Labor (Parts 
                500--899)
        IX  Construction Industry Collective Bargaining Commission 
                (Parts 900--999)
         X  National Mediation Board (Parts 1200--1299)
       XII  Federal Mediation and Conciliation Service (Parts 
                1400--1499)
       XIV  Equal Employment Opportunity Commission (Parts 1600--
                1699)
      XVII  Occupational Safety and Health Administration, 
                Department of Labor (Parts 1900--1999)
        XX  Occupational Safety and Health Review Commission 
                (Parts 2200--2499)
       XXV  Employee Benefits Security Administration, Department 
                of Labor (Parts 2500--2599)
     XXVII  Federal Mine Safety and Health Review Commission 
                (Parts 2700--2799)
        XL  Pension Benefit Guaranty Corporation (Parts 4000--
                4999)

[[Page 667]]

                      Title 30--Mineral Resources

         I  Mine Safety and Health Administration, Department of 
                Labor (Parts 1--199)
        II  Minerals Management Service, Department of the 
                Interior (Parts 200--299)
       III  Board of Surface Mining and Reclamation Appeals, 
                Department of the Interior (Parts 300--399)
        IV  Geological Survey, Department of the Interior (Parts 
                400--499)
       VII  Office of Surface Mining Reclamation and Enforcement, 
                Department of the Interior (Parts 700--999)

                 Title 31--Money and Finance: Treasury

            Subtitle A--Office of the Secretary of the Treasury 
                (Parts 0--50)
            Subtitle B--Regulations Relating to Money and Finance
         I  Monetary Offices, Department of the Treasury (Parts 
                51--199)
        II  Fiscal Service, Department of the Treasury (Parts 
                200--399)
        IV  Secret Service, Department of the Treasury (Parts 
                400--499)
         V  Office of Foreign Assets Control, Department of the 
                Treasury (Parts 500--599)
        VI  Bureau of Engraving and Printing, Department of the 
                Treasury (Parts 600--699)
       VII  Federal Law Enforcement Training Center, Department of 
                the Treasury (Parts 700--799)
      VIII  Office of International Investment, Department of the 
                Treasury (Parts 800--899)
        IX  Federal Claims Collection Standards (Department of the 
                Treasury--Department of Justice) (Parts 900--999)

                      Title 32--National Defense

            Subtitle A--Department of Defense
         I  Office of the Secretary of Defense (Parts 1--399)
         V  Department of the Army (Parts 400--699)
        VI  Department of the Navy (Parts 700--799)
       VII  Department of the Air Force (Parts 800--1099)
            Subtitle B--Other Regulations Relating to National 
                Defense
       XII  Defense Logistics Agency (Parts 1200--1299)
       XVI  Selective Service System (Parts 1600--1699)
     XVIII  National Counterintelligence Center (Parts 1800--1899)
       XIX  Central Intelligence Agency (Parts 1900--1999)
        XX  Information Security Oversight Office, National 
                Archives and Records Administration (Parts 2000--
                2099)
       XXI  National Security Council (Parts 2100--2199)
      XXIV  Office of Science and Technology Policy (Parts 2400--
                2499)
     XXVII  Office for Micronesian Status Negotiations (Parts 
                2700--2799)

[[Page 668]]

    XXVIII  Office of the Vice President of the United States 
                (Parts 2800--2899)

               Title 33--Navigation and Navigable Waters

         I  Coast Guard, Department of Homeland Security (Parts 
                1--199)
        II  Corps of Engineers, Department of the Army (Parts 
                200--399)
        IV  Saint Lawrence Seaway Development Corporation, 
                Department of Transportation (Parts 400--499)

                          Title 34--Education

            Subtitle A--Office of the Secretary, Department of 
                Education (Parts 1--99)
            Subtitle B--Regulations of the Offices of the 
                Department of Education
         I  Office for Civil Rights, Department of Education 
                (Parts 100--199)
        II  Office of Elementary and Secondary Education, 
                Department of Education (Parts 200--299)
       III  Office of Special Education and Rehabilitative 
                Services, Department of Education (Parts 300--399)
        IV  Office of Vocational and Adult Education, Department 
                of Education (Parts 400--499)
         V  Office of Bilingual Education and Minority Languages 
                Affairs, Department of Education (Parts 500--599)
        VI  Office of Postsecondary Education, Department of 
                Education (Parts 600--699)
        XI  National Institute for Literacy (Parts 1100--1199)
            Subtitle C--Regulations Relating to Education
       XII  National Council on Disability (Parts 1200--1299)

                          Title 35 [Reserved]

             Title 36--Parks, Forests, and Public Property

         I  National Park Service, Department of the Interior 
                (Parts 1--199)
        II  Forest Service, Department of Agriculture (Parts 200--
                299)
       III  Corps of Engineers, Department of the Army (Parts 
                300--399)
        IV  American Battle Monuments Commission (Parts 400--499)
         V  Smithsonian Institution (Parts 500--599)
       VII  Library of Congress (Parts 700--799)
      VIII  Advisory Council on Historic Preservation (Parts 800--
                899)
        IX  Pennsylvania Avenue Development Corporation (Parts 
                900--999)
         X  Presidio Trust (Parts 1000--1099)
        XI  Architectural and Transportation Barriers Compliance 
                Board (Parts 1100--1199)
       XII  National Archives and Records Administration (Parts 
                1200--1299)
        XV  Oklahoma City National Memorial Trust (Part 1501)

[[Page 669]]

       XVI  Morris K. Udall Scholarship and Excellence in National 
                Environmental Policy Foundation (Parts 1600--1699)

             Title 37--Patents, Trademarks, and Copyrights

         I  United States Patent and Trademark Office, Department 
                of Commerce (Parts 1--199)
        II  Copyright Office, Library of Congress (Parts 200--299)
       III  Copyright Royalty Board, Library of Congress (Parts 
                301--399)
        IV  Assistant Secretary for Technology Policy, Department 
                of Commerce (Parts 400--499)
         V  Under Secretary for Technology, Department of Commerce 
                (Parts 500--599)

           Title 38--Pensions, Bonuses, and Veterans' Relief

         I  Department of Veterans Affairs (Parts 0--99)

                       Title 39--Postal Service

         I  United States Postal Service (Parts 1--999)
       III  Postal Rate Commission (Parts 3000--3099)

                  Title 40--Protection of Environment

         I  Environmental Protection Agency (Parts 1--1099)
        IV  Environmental Protection Agency and Department of 
                Justice (Parts 1400--1499)
         V  Council on Environmental Quality (Parts 1500--1599)
        VI  Chemical Safety and Hazard Investigation Board (Parts 
                1600--1699)
       VII  Environmental Protection Agency and Department of 
                Defense; Uniform National Discharge Standards for 
                Vessels of the Armed Forces (Parts 1700--1799)

          Title 41--Public Contracts and Property Management

            Subtitle B--Other Provisions Relating to Public 
                Contracts
        50  Public Contracts, Department of Labor (Parts 50-1--50-
                999)
        51  Committee for Purchase From People Who Are Blind or 
                Severely Disabled (Parts 51-1--51-99)
        60  Office of Federal Contract Compliance Programs, Equal 
                Employment Opportunity, Department of Labor (Parts 
                60-1--60-999)
        61  Office of the Assistant Secretary for Veterans' 
                Employment and Training Service, Department of 
                Labor (Parts 61-1--61-999)
            Subtitle C--Federal Property Management Regulations 
                System
       101  Federal Property Management Regulations (Parts 101-1--
                101-99)
       102  Federal Management Regulation (Parts 102-1--102-299)

[[Page 670]]

       105  General Services Administration (Parts 105-1--105-999)
       109  Department of Energy Property Management Regulations 
                (Parts 109-1--109-99)
       114  Department of the Interior (Parts 114-1--114-99)
       115  Environmental Protection Agency (Parts 115-1--115-99)
       128  Department of Justice (Parts 128-1--128-99)
            Subtitle D--Other Provisions Relating to Property 
                Management [Reserved]
            Subtitle E--Federal Information Resources Management 
                Regulations System
       201  Federal Information Resources Management Regulation 
                (Parts 201-1--201-99) [Reserved]
            Subtitle F--Federal Travel Regulation System
       300  General (Parts 300-1--300-99)
       301  Temporary Duty (TDY) Travel Allowances (Parts 301-1--
                301-99)
       302  Relocation Allowances (Parts 302-1--302-99)
       303  Payment of Expenses Connected with the Death of 
                Certain Employees (Part 303-1--303-99)
       304  Payment of Travel Expenses from a Non-Federal Source 
                (Parts 304-1--304-99)

                        Title 42--Public Health

         I  Public Health Service, Department of Health and Human 
                Services (Parts 1--199)
        IV  Centers for Medicare & Medicaid Services, Department 
                of Health and Human Services (Parts 400--499)
         V  Office of Inspector General-Health Care, Department of 
                Health and Human Services (Parts 1000--1999)

                   Title 43--Public Lands: Interior

            Subtitle A--Office of the Secretary of the Interior 
                (Parts 1--199)
            Subtitle B--Regulations Relating to Public Lands
         I  Bureau of Reclamation, Department of the Interior 
                (Parts 200--499)
        II  Bureau of Land Management, Department of the Interior 
                (Parts 1000--9999)
       III  Utah Reclamation Mitigation and Conservation 
                Commission (Parts 10000--10010)

             Title 44--Emergency Management and Assistance

         I  Federal Emergency Management Agency, Department of 
                Homeland Security (Parts 0--399)
        IV  Department of Commerce and Department of 
                Transportation (Parts 400--499)

[[Page 671]]

                       Title 45--Public Welfare

            Subtitle A--Department of Health and Human Services 
                (Parts 1--199)
            Subtitle B--Regulations Relating to Public Welfare
        II  Office of Family Assistance (Assistance Programs), 
                Administration for Children and Families, 
                Department of Health and Human Services (Parts 
                200--299)
       III  Office of Child Support Enforcement (Child Support 
                Enforcement Program), Administration for Children 
                and Families, Department of Health and Human 
                Services (Parts 300--399)
        IV  Office of Refugee Resettlement, Administration for 
                Children and Families, Department of Health and 
                Human Services (Parts 400--499)
         V  Foreign Claims Settlement Commission of the United 
                States, Department of Justice (Parts 500--599)
        VI  National Science Foundation (Parts 600--699)
       VII  Commission on Civil Rights (Parts 700--799)
      VIII  Office of Personnel Management (Parts 800--899)
         X  Office of Community Services, Administration for 
                Children and Families, Department of Health and 
                Human Services (Parts 1000--1099)
        XI  National Foundation on the Arts and the Humanities 
                (Parts 1100--1199)
       XII  Corporation for National and Community Service (Parts 
                1200--1299)
      XIII  Office of Human Development Services, Department of 
                Health and Human Services (Parts 1300--1399)
       XVI  Legal Services Corporation (Parts 1600--1699)
      XVII  National Commission on Libraries and Information 
                Science (Parts 1700--1799)
     XVIII  Harry S. Truman Scholarship Foundation (Parts 1800--
                1899)
       XXI  Commission on Fine Arts (Parts 2100--2199)
     XXIII  Arctic Research Commission (Part 2301)
      XXIV  James Madison Memorial Fellowship Foundation (Parts 
                2400--2499)
       XXV  Corporation for National and Community Service (Parts 
                2500--2599)

                          Title 46--Shipping

         I  Coast Guard, Department of Homeland Security (Parts 
                1--199)
        II  Maritime Administration, Department of Transportation 
                (Parts 200--399)
       III  Coast Guard (Great Lakes Pilotage), Department of 
                Homeland Security (Parts 400--499)
        IV  Federal Maritime Commission (Parts 500--599)

                      Title 47--Telecommunication

         I  Federal Communications Commission (Parts 0--199)

[[Page 672]]

        II  Office of Science and Technology Policy and National 
                Security Council (Parts 200--299)
       III  National Telecommunications and Information 
                Administration, Department of Commerce (Parts 
                300--399)

           Title 48--Federal Acquisition Regulations System

         1  Federal Acquisition Regulation (Parts 1--99)
         2  Defense Acquisition Regulations System, Department of 
                Defense (Parts 200--299)
         3  Department of Health and Human Services (Parts 300--
                399)
         4  Department of Agriculture (Parts 400--499)
         5  General Services Administration (Parts 500--599)
         6  Department of State (Parts 600--699)
         7  United States Agency for International Development 
                (Parts 700--799)
         8  Department of Veterans Affairs (Parts 800--899)
         9  Department of Energy (Parts 900--999)
        10  Department of the Treasury (Parts 1000--1099)
        12  Department of Transportation (Parts 1200--1299)
        13  Department of Commerce (Parts 1300--1399)
        14  Department of the Interior (Parts 1400--1499)
        15  Environmental Protection Agency (Parts 1500--1599)
        16  Office of Personnel Management, Federal Employees 
                Health Benefits Acquisition Regulation (Parts 
                1600--1699)
        17  Office of Personnel Management (Parts 1700--1799)
        18  National Aeronautics and Space Administration (Parts 
                1800--1899)
        19  Broadcasting Board of Governors (Parts 1900--1999)
        20  Nuclear Regulatory Commission (Parts 2000--2099)
        21  Office of Personnel Management, Federal Employees' 
                Group Life Insurance Federal Acquisition 
                Regulation (Parts 2100--2199)
        23  Social Security Administration (Parts 2300--2399)
        24  Department of Housing and Urban Development (Parts 
                2400--2499)
        25  National Science Foundation (Parts 2500--2599)
        28  Department of Justice (Parts 2800--2899)
        29  Department of Labor (Parts 2900--2999)
        30  Department of Homeland Security, Homeland Security 
                Acquisition Regulation (HSAR) (Parts 3000--3099)
        34  Department of Education Acquisition Regulation (Parts 
                3400--3499)
        35  [Reserved]
        44  Federal Emergency Management Agency (Parts 4400--4499)
        51  Department of the Army Acquisition Regulations (Parts 
                5100--5199)

[[Page 673]]

        52  Department of the Navy Acquisition Regulations (Parts 
                5200--5299)
        53  Department of the Air Force Federal Acquisition 
                Regulation Supplement (Parts 5300--5399)
        54  Defense Logistics Agency, Department of Defense (Parts 
                5400--5499)
        57  African Development Foundation (Parts 5700--5799)
        61  General Services Administration Board of Contract 
                Appeals (Parts 6100--6199)
        63  Department of Transportation Board of Contract Appeals 
                (Parts 6300--6399)
        99  Cost Accounting Standards Board, Office of Federal 
                Procurement Policy, Office of Management and 
                Budget (Parts 9900--9999)

                       Title 49--Transportation

            Subtitle A--Office of the Secretary of Transportation 
                (Parts 1--99)
            Subtitle B--Other Regulations Relating to 
                Transportation
         I  Pipeline and Hazardous Materials Safety 
                Administration, Department of Transportation 
                (Parts 100--199)
        II  Federal Railroad Administration, Department of 
                Transportation (Parts 200--299)
       III  Federal Motor Carrier Safety Administration, 
                Department of Transportation (Parts 300--399)
        IV  Coast Guard, Department of Homeland Security (Parts 
                400--499)
         V  National Highway Traffic Safety Administration, 
                Department of Transportation (Parts 500--599)
        VI  Federal Transit Administration, Department of 
                Transportation (Parts 600--699)
       VII  National Railroad Passenger Corporation (AMTRAK) 
                (Parts 700--799)
      VIII  National Transportation Safety Board (Parts 800--999)
         X  Surface Transportation Board, Department of 
                Transportation (Parts 1000--1399)
        XI  Research and Innovative Technology Administration, 
                Department of Transportation (Parts 1400--1499)
       XII  Transportation Security Administration, Department of 
                Homeland Security (Parts 1500--1699)

                   Title 50--Wildlife and Fisheries

         I  United States Fish and Wildlife Service, Department of 
                the Interior (Parts 1--199)
        II  National Marine Fisheries Service, National Oceanic 
                and Atmospheric Administration, Department of 
                Commerce (Parts 200--299)
       III  International Fishing and Related Activities (Parts 
                300--399)

[[Page 674]]

        IV  Joint Regulations (United States Fish and Wildlife 
                Service, Department of the Interior and National 
                Marine Fisheries Service, National Oceanic and 
                Atmospheric Administration, Department of 
                Commerce); Endangered Species Committee 
                Regulations (Parts 400--499)
         V  Marine Mammal Commission (Parts 500--599)
        VI  Fishery Conservation and Management, National Oceanic 
                and Atmospheric Administration, Department of 
                Commerce (Parts 600--699)

                      CFR Index and Finding Aids

            Subject/Agency Index
            List of Agency Prepared Indexes
            Parallel Tables of Statutory Authorities and Rules
            List of CFR Titles, Chapters, Subchapters, and Parts
            Alphabetical List of Agencies Appearing in the CFR

[[Page 675]]





           Alphabetical List of Agencies Appearing in the CFR




                      (Revised as of April 1, 2006)

                                                  CFR Title, Subtitle or 
                     Agency                               Chapter

Administrative Committee of the Federal Register  1, I
Advanced Research Projects Agency                 32, I
Advisory Council on Historic Preservation         36, VIII
African Development Foundation                    22, XV
  Federal Acquisition Regulation                  48, 57
Agency for International Development, United      22, II
     States
  Federal Acquisition Regulation                  48, 7
Agricultural Marketing Service                    7, I, IX, X, XI
Agricultural Research Service                     7, V
Agriculture Department                            5, LXXIII
  Agricultural Marketing Service                  7, I, IX, X, XI
  Agricultural Research Service                   7, V
  Animal and Plant Health Inspection Service      7, III; 9, I
  Chief Financial Officer, Office of              7, XXX
  Commodity Credit Corporation                    7, XIV
  Cooperative State Research, Education, and      7, XXXIV
       Extension Service
  Economic Research Service                       7, XXXVII
  Energy, Office of                               7, XXIX
  Environmental Quality, Office of                7, XXXI
  Farm Service Agency                             7, VII, XVIII
  Federal Acquisition Regulation                  48, 4
  Federal Crop Insurance Corporation              7, IV
  Food and Nutrition Service                      7, II
  Food Safety and Inspection Service              9, III
  Foreign Agricultural Service                    7, XV
  Forest Service                                  36, II
  Grain Inspection, Packers and Stockyards        7, VIII; 9, II
       Administration
  Information Resources Management, Office of     7, XXVII
  Inspector General, Office of                    7, XXVI
  National Agricultural Library                   7, XLI
  National Agricultural Statistics Service        7, XXXVI
  Natural Resources Conservation Service          7, VI
  Operations, Office of                           7, XXVIII
  Procurement and Property Management, Office of  7, XXXII
  Rural Business-Cooperative Service              7, XVIII, XLII
  Rural Development Administration                7, XLII
  Rural Housing Service                           7, XVIII, XXXV
  Rural Telephone Bank                            7, XVI
  Rural Utilities Service                         7, XVII, XVIII, XLII
  Secretary of Agriculture, Office of             7, Subtitle A
  Transportation, Office of                       7, XXXIII
  World Agricultural Outlook Board                7, XXXVIII
Air Force Department                              32, VII
  Federal Acquisition Regulation Supplement       48, 53
Air Transportation Stabilization Board            14, VI
Alcohol and Tobacco Tax and Trade Bureau          27, I
Alcohol, Tobacco, Firearms, and Explosives,       27, II
     Bureau of
AMTRAK                                            49, VII
American Battle Monuments Commission              36, IV
American Indians, Office of the Special Trustee   25, VII
Animal and Plant Health Inspection Service        7, III; 9, I
Appalachian Regional Commission                   5, IX

[[Page 676]]

Architectural and Transportation Barriers         36, XI
     Compliance Board
Arctic Research Commission                        45, XXIII
Armed Forces Retirement Home                      5, XI
Army Department                                   32, V
  Engineers, Corps of                             33, II; 36, III
  Federal Acquisition Regulation                  48, 51
Benefits Review Board                             20, VII
Bilingual Education and Minority Languages        34, V
     Affairs, Office of
Blind or Severely Disabled, Committee for         41, 51
     Purchase From People Who Are
Broadcasting Board of Governors                   22, V
  Federal Acquisition Regulation                  48, 19
Census Bureau                                     15, I
Centers for Medicare & Medicaid Services          42, IV
Central Intelligence Agency                       32, XIX
Chief Financial Officer, Office of                7, XXX
Child Support Enforcement, Office of              45, III
Children and Families, Administration for         45, II, III, IV, X
Civil Rights, Commission on                       45, VII
Civil Rights, Office for                          34, I
Coast Guard                                       33, I; 46, I; 49, IV
Coast Guard (Great Lakes Pilotage)                46, III
Commerce Department                               44, IV
  Census Bureau                                   15, I
  Economic Affairs, Under Secretary               37, V
  Economic Analysis, Bureau of                    15, VIII
  Economic Development Administration             13, III
  Emergency Management and Assistance             44, IV
  Federal Acquisition Regulation                  48, 13
  Fishery Conservation and Management             50, VI
  Foreign-Trade Zones Board                       15, IV
  Industry and Security, Bureau of                15, VII
  International Trade Administration              15, III; 19, III
  National Institute of Standards and Technology  15, II
  National Marine Fisheries Service               50, II, IV, VI
  National Oceanic and Atmospheric                15, IX; 50, II, III, IV, 
       Administration                             VI
  National Telecommunications and Information     15, XXIII; 47, III
       Administration
  National Weather Service                        15, IX
  Patent and Trademark Office, United States      37, I
  Productivity, Technology and Innovation,        37, IV
       Assistant Secretary for
  Secretary of Commerce, Office of                15, Subtitle A
  Technology, Under Secretary for                 37, V
  Technology Administration                       15, XI
  Technology Policy, Assistant Secretary for      37, IV
Commercial Space Transportation                   14, III
Commodity Credit Corporation                      7, XIV
Commodity Futures Trading Commission              5, XLI; 17, I
Community Planning and Development, Office of     24, V, VI
     Assistant Secretary for
Community Services, Office of                     45, X
Comptroller of the Currency                       12, I
Construction Industry Collective Bargaining       29, IX
     Commission
Consumer Product Safety Commission                5, LXXI; 16, II
Cooperative State Research, Education, and        7, XXXIV
     Extension Service
Copyright Office                                  37, II
Copyright Royalty Board                           37, III
Corporation for National and Community Service    45, XII, XXV
Cost Accounting Standards Board                   48, 99
Council on Environmental Quality                  40, V
Court Services and Offender Supervision Agency    28, VIII
     for the District of Columbia
Customs and Border Protection Bureau              19, I
Defense Contract Audit Agency                     32, I
Defense Department                                5, XXVI; 32, Subtitle A; 
                                                  40, VII

[[Page 677]]

  Advanced Research Projects Agency               32, I
  Air Force Department                            32, VII
  Army Department                                 32, V; 33, II; 36, III, 
                                                  48, 51
  Defense Acquisition Regulations System          48, II
  Defense Intelligence Agency                     32, I
  Defense Logistics Agency                        32, I, XII; 48, 54
  Engineers, Corps of                             33, II; 36, III
  National Imagery and Mapping Agency             32, I
  Navy Department                                 32, VI; 48, 52
  Secretary of Defense, Office of                 32, I
Defense Contract Audit Agency                     32, I
Defense Intelligence Agency                       32, I
Defense Logistics Agency                          32, XII; 48, 54
Defense Nuclear Facilities Safety Board           10, XVII
Delaware River Basin Commission                   18, III
District of Columbia, Court Services and          28, VIII
     Offender Supervision Agency for the
Drug Enforcement Administration                   21, II
East-West Foreign Trade Board                     15, XIII
Economic Affairs, Under Secretary                 37, V
Economic Analysis, Bureau of                      15, VIII
Economic Development Administration               13, III
Economic Research Service                         7, XXXVII
Education, Department of                          5, LIII
  Bilingual Education and Minority Languages      34, V
       Affairs, Office of
  Civil Rights, Office for                        34, I
  Educational Research and Improvement, Office    34, VII
       of
  Elementary and Secondary Education, Office of   34, II
  Federal Acquisition Regulation                  48, 34
  Postsecondary Education, Office of              34, VI
  Secretary of Education, Office of               34, Subtitle A
  Special Education and Rehabilitative Services,  34, III
       Office of
  Vocational and Adult Education, Office of       34, IV
Educational Research and Improvement, Office of   34, VII
Elementary and Secondary Education, Office of     34, II
Emergency Oil and Gas Guaranteed Loan Board       13, V
Emergency Steel Guarantee Loan Board              13, IV
Employee Benefits Security Administration         29, XXV
Employees' Compensation Appeals Board             20, IV
Employees Loyalty Board                           5, V
Employment and Training Administration            20, V
Employment Standards Administration               20, VI
Endangered Species Committee                      50, IV
Energy, Department of                             5, XXIII; 10, II, III, X
  Federal Acquisition Regulation                  48, 9
  Federal Energy Regulatory Commission            5, XXIV; 18, I
  Property Management Regulations                 41, 109
Energy, Office of                                 7, XXIX
Engineers, Corps of                               33, II; 36, III
Engraving and Printing, Bureau of                 31, VI
Environmental Protection Agency                   5, LIV; 40, I, IV, VII
  Federal Acquisition Regulation                  48, 15
  Property Management Regulations                 41, 115
Environmental Quality, Office of                  7, XXXI
Equal Employment Opportunity Commission           5, LXII; 29, XIV
Equal Opportunity, Office of Assistant Secretary  24, I
     for
Executive Office of the President                 3, I
  Administration, Office of                       5, XV
  Environmental Quality, Council on               40, V
  Management and Budget, Office of                5, III, LXXVII; 14, VI; 
                                                  48, 99
  National Drug Control Policy, Office of         21, III
  National Security Council                       32, XXI; 47, 2
  Presidential Documents                          3
  Science and Technology Policy, Office of        32, XXIV; 47, II

[[Page 678]]

  Trade Representative, Office of the United      15, XX
       States
Export-Import Bank of the United States           5, LII; 12, IV
Family Assistance, Office of                      45, II
Farm Credit Administration                        5, XXXI; 12, VI
Farm Credit System Insurance Corporation          5, XXX; 12, XIV
Farm Service Agency                               7, VII, XVIII
Federal Acquisition Regulation                    48, 1
Federal Aviation Administration                   14, I
  Commercial Space Transportation                 14, III
Federal Claims Collection Standards               31, IX
Federal Communications Commission                 5, XXIX; 47, I
Federal Contract Compliance Programs, Office of   41, 60
Federal Crop Insurance Corporation                7, IV
Federal Deposit Insurance Corporation             5, XXII; 12, III
Federal Election Commission                       11, I
Federal Emergency Management Agency               44, I
  Federal Acquisition Regulation                  48, 44
Federal Employees Group Life Insurance Federal    48, 21
     Acquisition Regulation
Federal Employees Health Benefits Acquisition     48, 16
     Regulation
Federal Energy Regulatory Commission              5, XXIV; 18, I
Federal Financial Institutions Examination        12, XI
     Council
Federal Financing Bank                            12, VIII
Federal Highway Administration                    23, I, II
Federal Home Loan Mortgage Corporation            1, IV
Federal Housing Enterprise Oversight Office       12, XVII
Federal Housing Finance Board                     12, IX
Federal Labor Relations Authority, and General    5, XIV; 22, XIV
     Counsel of the Federal Labor Relations 
     Authority
Federal Law Enforcement Training Center           31, VII
Federal Management Regulation                     41, 102
Federal Maritime Commission                       46, IV
Federal Mediation and Conciliation Service        29, XII
Federal Mine Safety and Health Review Commission  5, LXXIV; 29, XXVII
Federal Motor Carrier Safety Administration       49, III
Federal Prison Industries, Inc.                   28, III
Federal Procurement Policy Office                 48, 99
Federal Property Management Regulations           41, 101
Federal Railroad Administration                   49, II
Federal Register, Administrative Committee of     1, I
Federal Register, Office of                       1, II
Federal Reserve System                            12, II
  Board of Governors                              5, LVIII
Federal Retirement Thrift Investment Board        5, VI, LXXVI
Federal Service Impasses Panel                    5, XIV
Federal Trade Commission                          5, XLVII; 16, I
Federal Transit Administration                    49, VI
Federal Travel Regulation System                  41, Subtitle F
Fine Arts, Commission on                          45, XXI
Fiscal Service                                    31, II
Fish and Wildlife Service, United States          50, I, IV
Fishery Conservation and Management               50, VI
Food and Drug Administration                      21, I
Food and Nutrition Service                        7, II
Food Safety and Inspection Service                9, III
Foreign Agricultural Service                      7, XV
Foreign Assets Control, Office of                 31, V
Foreign Claims Settlement Commission of the       45, V
     United States
Foreign Service Grievance Board                   22, IX
Foreign Service Impasse Disputes Panel            22, XIV
Foreign Service Labor Relations Board             22, XIV
Foreign-Trade Zones Board                         15, IV
Forest Service                                    36, II
General Services Administration                   5, LVII; 41, 105
  Contract Appeals, Board of                      48, 61
  Federal Acquisition Regulation                  48, 5
  Federal Management Regulation                   41, 102

[[Page 679]]

  Federal Property Management Regulations         41, 101
  Federal Travel Regulation System                41, Subtitle F
  General                                         41, 300
  Payment From a Non-Federal Source for Travel    41, 304
       Expenses
  Payment of Expenses Connected With the Death    41, 303
       of Certain Employees
  Relocation Allowances                           41, 302
  Temporary Duty (TDY) Travel Allowances          41, 301
Geological Survey                                 30, IV
Government Accountability Office                  4, I
Government Ethics, Office of                      5, XVI
Government National Mortgage Association          24, III
Grain Inspection, Packers and Stockyards          7, VIII; 9, II
     Administration
Harry S. Truman Scholarship Foundation            45, XVIII
Health and Human Services, Department of          5, XLV; 45, Subtitle A
  Centers for Medicare & Medicaid Services        42, IV
  Child Support Enforcement, Office of            45, III
  Children and Families, Administration for       45, II, III, IV, X
  Community Services, Office of                   45, X
  Defense Acquisition Regulations System          48, 2
  Family Assistance, Office of                    45, II
  Federal Acquisition Regulation                  48, 3
  Food and Drug Administration                    21, I
  Human Development Services, Office of           45, XIII
  Indian Health Service                           25, V; 42, I
  Inspector General (Health Care), Office of      42, V
  Public Health Service                           42, I
  Refugee Resettlement, Office of                 45, IV
Homeland Security, Department of                  6, I
  Coast Guard                                     33, I; 46, I; 49, IV
  Coast Guard (Great Lakes Pilotage)              46, III
  Customs and Border Protection Bureau            19, I
  Federal Emergency Management Agency             44, I
  Immigration and Customs Enforcement Bureau      19, IV
  Immigration and Naturalization                  8, I
  Transportation Security Administration          49, XII
Housing and Urban Development, Department of      5, LXV; 24, Subtitle B
  Community Planning and Development, Office of   24, V, VI
       Assistant Secretary for
  Equal Opportunity, Office of Assistant          24, I
       Secretary for
  Federal Acquisition Regulation                  48, 24
  Federal Housing Enterprise Oversight, Office    12, XVII
       of
  Government National Mortgage Association        24, III
  Housing--Federal Housing Commissioner, Office   24, II, VIII, X, XX
       of Assistant Secretary for
  Housing, Office of, and Multifamily Housing     24, IV
       Assistance Restructuring, Office of
  Inspector General, Office of                    24, XII
  Public and Indian Housing, Office of Assistant  24, IX
       Secretary for
  Secretary, Office of                            24, Subtitle A, VII
Housing--Federal Housing Commissioner, Office of  24, II, VIII, X, XX
     Assistant Secretary for
Housing, Office of, and Multifamily Housing       24, IV
     Assistance Restructuring, Office of
Human Development Services, Office of             45, XIII
Immigration and Customs Enforcement Bureau        19, IV
Immigration and Naturalization                    8, I
Immigration Review, Executive Office for          8, V
Independent Counsel, Office of                    28, VII
Indian Affairs, Bureau of                         25, I, V
Indian Affairs, Office of the Assistant           25, VI
     Secretary
Indian Arts and Crafts Board                      25, II
Indian Health Service                             25, V; 42, I
Industry and Security, Bureau of                  15, VII
Information Resources Management, Office of       7, XXVII
Information Security Oversight Office, National   32, XX
   Archives and Records Administration
[[Page 680]]

Inspector General
  Agriculture Department                          7, XXVI
  Health and Human Services Department            42, V
  Housing and Urban Development Department        24, XII
Institute of Peace, United States                 22, XVII
Inter-American Foundation                         5, LXIII; 22, X
Interior Department
  American Indians, Office of the Special         25, VII
       Trustee
  Endangered Species Committee                    50, IV
  Federal Acquisition Regulation                  48, 14
  Federal Property Management Regulations System  41, 114
  Fish and Wildlife Service, United States        50, I, IV
  Geological Survey                               30, IV
  Indian Affairs, Bureau of                       25, I, V
  Indian Affairs, Office of the Assistant         25, VI
       Secretary
  Indian Arts and Crafts Board                    25, II
  Land Management, Bureau of                      43, II
  Minerals Management Service                     30, II
  National Indian Gaming Commission               25, III
  National Park Service                           36, I
  Reclamation, Bureau of                          43, I
  Secretary of the Interior, Office of            43, Subtitle A
  Surface Mining and Reclamation Appeals, Board   30, III
       of
  Surface Mining Reclamation and Enforcement,     30, VII
       Office of
Internal Revenue Service                          26, I
International Boundary and Water Commission,      22, XI
     United States and Mexico, United States 
     Section
International Development, United States Agency   22, II
     for
  Federal Acquisition Regulation                  48, 7
International Development Cooperation Agency,     22, XII
     United States
International Fishing and Related Activities      50, III
International Investment, Office of               31, VIII
International Joint Commission, United States     22, IV
     and Canada
International Organizations Employees Loyalty     5, V
     Board
International Trade Administration                15, III; 19, III
International Trade Commission, United States     19, II
Interstate Commerce Commission                    5, XL
James Madison Memorial Fellowship Foundation      45, XXIV
Japan-United States Friendship Commission         22, XVI
Joint Board for the Enrollment of Actuaries       20, VIII
Justice Department                                5, XXVIII; 28, I, XI; 40, 
                                                  IV
  Alcohol, Tobacco, Firearms, and Explosives,     27, II
       Bureau of
  Drug Enforcement Administration                 21, II
  Federal Acquisition Regulation                  48, 28
  Federal Claims Collection Standards             31, IX
  Federal Prison Industries, Inc.                 28, III
  Foreign Claims Settlement Commission of the     45, V
       United States
  Immigration Review, Executive Office for        8, V
  Offices of Independent Counsel                  28, VI
  Prisons, Bureau of                              28, V
  Property Management Regulations                 41, 128
Labor Department                                  5, XLII
  Benefits Review Board                           20, VII
  Employee Benefits Security Administration       29, XXV
  Employees' Compensation Appeals Board           20, IV
  Employment and Training Administration          20, V
  Employment Standards Administration             20, VI
  Federal Acquisition Regulation                  48, 29
  Federal Contract Compliance Programs, Office    41, 60
       of
  Federal Procurement Regulations System          41, 50
  Labor-Management Standards, Office of           29, II, IV
  Mine Safety and Health Administration           30, I
  Occupational Safety and Health Administration   29, XVII
  Public Contracts                                41, 50

[[Page 681]]

  Secretary of Labor, Office of                   29, Subtitle A
  Veterans' Employment and Training Service,      41, 61; 20, IX
       Office of the Assistant Secretary for
  Wage and Hour Division                          29, V
  Workers' Compensation Programs, Office of       20, I
Labor-Management Standards, Office of             29, II, IV
Land Management, Bureau of                        43, II
Legal Services Corporation                        45, XVI
Library of Congress                               36, VII
  Copyright Office                                37, II
  Copyright Royalty Board                         37, III
Local Television Loan Guarantee Board             7, XX
Management and Budget, Office of                  5, III, LXXVII; 14, VI; 
                                                  48, 99
Marine Mammal Commission                          50, V
Maritime Administration                           46, II
Merit Systems Protection Board                    5, II
Micronesian Status Negotiations, Office for       32, XXVII
Mine Safety and Health Administration             30, I
Minerals Management Service                       30, II
Minority Business Development Agency              15, XIV
Miscellaneous Agencies                            1, IV
Monetary Offices                                  31, I
Morris K. Udall Scholarship and Excellence in     36, XVI
     National Environmental Policy Foundation
National Aeronautics and Space Administration     5, LIX; 14, V
  Federal Acquisition Regulation                  48, 18
National Agricultural Library                     7, XLI
National Agricultural Statistics Service          7, XXXVI
National and Community Service, Corporation for   45, XII, XXV
National Archives and Records Administration      5, LXVI; 36, XII
  Information Security Oversight Office           32, XX
National Bureau of Standards                      15, II
National Capital Planning Commission              1, IV
National Commission for Employment Policy         1, IV
National Commission on Libraries and Information  45, XVII
     Science
National Council on Disability                    34, XII
National Counterintelligence Center               32, XVIII
National Credit Union Administration              12, VII
National Crime Prevention and Privacy Compact     28, IX
     Council
National Drug Control Policy, Office of           21, III
National Foundation on the Arts and the           45, XI
     Humanities
National Highway Traffic Safety Administration    23, II, III; 49, V
National Imagery and Mapping Agency               32, I
National Indian Gaming Commission                 25, III
National Institute for Literacy                   34, XI
National Institute of Standards and Technology    15, II
National Labor Relations Board                    5, LXI; 29, I
National Marine Fisheries Service                 50, II, IV, VI
National Mediation Board                          29, X
National Oceanic and Atmospheric Administration   15, IX; 50, II, III, IV, 
                                                  VI
National Park Service                             36, I
National Railroad Adjustment Board                29, III
National Railroad Passenger Corporation (AMTRAK)  49, VII
National Science Foundation                       5, XLIII; 45, VI
  Federal Acquisition Regulation                  48, 25
National Security Council                         32, XXI
National Security Council and Office of Science   47, II
     and Technology Policy
National Telecommunications and Information       15, XXIII; 47, III
     Administration
National Transportation Safety Board              49, VIII
National Weather Service                          15, IX
Natural Resources Conservation Service            7, VI
Navajo and Hopi Indian Relocation, Office of      25, IV
Navy Department                                   32, VI
  Federal Acquisition Regulation                  48, 52

[[Page 682]]

Neighborhood Reinvestment Corporation             24, XXV
Northeast Interstate Low-Level Radioactive Waste  10, XVIII
     Commission
Nuclear Regulatory Commission                     5, XLVIII; 10, I
  Federal Acquisition Regulation                  48, 20
Occupational Safety and Health Administration     29, XVII
Occupational Safety and Health Review Commission  29, XX
Offices of Independent Counsel                    28, VI
Oklahoma City National Memorial Trust             36, XV
Operations Office                                 7, XXVIII
Overseas Private Investment Corporation           5, XXXIII; 22, VII
Patent and Trademark Office, United States        37, I
Payment From a Non-Federal Source for Travel      41, 304
     Expenses
Payment of Expenses Connected With the Death of   41, 303
     Certain Employees
Peace Corps                                       22, III
Pennsylvania Avenue Development Corporation       36, IX
Pension Benefit Guaranty Corporation              29, XL
Personnel Management, Office of                   5, I, XXXV; 45, VIII
  Federal Acquisition Regulation                  48, 17
  Federal Employees Group Life Insurance Federal  48, 21
       Acquisition Regulation
  Federal Employees Health Benefits Acquisition   48, 16
       Regulation
Pipeline and Hazardous Materials Safety           49, I
     Administration
Postal Rate Commission                            5, XLVI; 39, III
Postal Service, United States                     5, LX; 39, I
Postsecondary Education, Office of                34, VI
President's Commission on White House             1, IV
     Fellowships
Presidential Documents                            3
Presidio Trust                                    36, X
Prisons, Bureau of                                28, V
Procurement and Property Management, Office of    7, XXXII
Productivity, Technology and Innovation,          37, IV
     Assistant Secretary
Public Contracts, Department of Labor             41, 50
Public and Indian Housing, Office of Assistant    24, IX
     Secretary for
Public Health Service                             42, I
Railroad Retirement Board                         20, II
Reclamation, Bureau of                            43, I
Refugee Resettlement, Office of                   45, IV
Regional Action Planning Commissions              13, V
Relocation Allowances                             41, 302
Research and Innovative Technology                49, XI
     Administration
Rural Business-Cooperative Service                7, XVIII, XLII
Rural Development Administration                  7, XLII
Rural Housing Service                             7, XVIII, XXXV
Rural Telephone Bank                              7, XVI
Rural Utilities Service                           7, XVII, XVIII, XLII
Saint Lawrence Seaway Development Corporation     33, IV
Science and Technology Policy, Office of          32, XXIV
Science and Technology Policy, Office of, and     47, II
     National Security Council
Secret Service                                    31, IV
Securities and Exchange Commission                17, II
Selective Service System                          32, XVI
Small Business Administration                     13, I
Smithsonian Institution                           36, V
Social Security Administration                    20, III; 48, 23
Soldiers' and Airmen's Home, United States        5, XI
Special Counsel, Office of                        5, VIII
Special Education and Rehabilitative Services,    34, III
     Office of
State Department                                  22, I; 28, XI
  Federal Acquisition Regulation                  48, 6
Surface Mining and Reclamation Appeals, Board of  30, III
Surface Mining Reclamation and Enforcement,       30, VII
     Office of
Surface Transportation Board                      49, X
Susquehanna River Basin Commission                18, VIII

[[Page 683]]

Technology Administration                         15, XI
Technology Policy, Assistant Secretary for        37, IV
Technology, Under Secretary for                   37, V
Tennessee Valley Authority                        5, LXIX; 18, XIII
Thrift Supervision Office, Department of the      12, V
     Treasury
Trade Representative, United States, Office of    15, XX
Transportation, Department of                     5, L
  Commercial Space Transportation                 14, III
  Contract Appeals, Board of                      48, 63
  Emergency Management and Assistance             44, IV
  Federal Acquisition Regulation                  48, 12
  Federal Aviation Administration                 14, I
  Federal Highway Administration                  23, I, II
  Federal Motor Carrier Safety Administration     49, III
  Federal Railroad Administration                 49, II
  Federal Transit Administration                  49, VI
  Maritime Administration                         46, II
  National Highway Traffic Safety Administration  23, II, III; 49, V
  Pipeline and Hazardous Materials Safety         49, I
       Administration
  Saint Lawrence Seaway Development Corporation   33, IV
  Secretary of Transportation, Office of          14, II; 49, Subtitle A
  Surface Transportation Board                    49, X
  Transportation Statistics Bureau                49, XI
Transportation, Office of                         7, XXXIII
Transportation Security Administration            49, XII
Transportation Statistics Bureau                  49, XI
Travel Allowances, Temporary Duty (TDY)           41, 301
Treasury Department                               5, XXI; 12, XV; 17, IV; 
                                                  31, IX
  Alcohol and Tobacco Tax and Trade Bureau        27, I
  Community Development Financial Institutions    12, XVIII
       Fund
  Comptroller of the Currency                     12, I
  Customs and Border Protection Bureau            19, I
  Engraving and Printing, Bureau of               31, VI
  Federal Acquisition Regulation                  48, 10
  Federal Law Enforcement Training Center         31, VII
  Fiscal Service                                  31, II
  Foreign Assets Control, Office of               31, V
  Internal Revenue Service                        26, I
  International Investment, Office of             31, VIII
  Monetary Offices                                31, I
  Secret Service                                  31, IV
  Secretary of the Treasury, Office of            31, Subtitle A
  Thrift Supervision, Office of                   12, V
Truman, Harry S. Scholarship Foundation           45, XVIII
United States and Canada, International Joint     22, IV
     Commission
United States and Mexico, International Boundary  22, XI
     and Water Commission, United States Section
Utah Reclamation Mitigation and Conservation      43, III
     Commission
Veterans Affairs Department                       38, I
  Federal Acquisition Regulation                  48, 8
Veterans' Employment and Training Service,        41, 61; 20, IX
     Office of the Assistant Secretary for
Vice President of the United States, Office of    32, XXVIII
Vocational and Adult Education, Office of         34, IV
Wage and Hour Division                            29, V
Water Resources Council                           18, VI
Workers' Compensation Programs, Office of         20, I
World Agricultural Outlook Board                  7, XXXVIII

[[Page 685]]



List of CFR Sections Affected



All changes in this volume of the Code of Federal regulations that were 
made by documents published in the Federal Register since January 1, 
2001, are enumerated in the following list. Entries indicate the nature 
of the changes effected. Page numbers refer to Federal Register pages. 
The user should consult the entries for chapters and parts as well as 
sections for revisions.
For the period before January 1, 2001, see the ``List of CFR Sections 
Affected,'' 1949-1963, 1964-1972, 1973-1985, and 1986-2000, published in 
11 separate volumes.

                                  2001

20 CFR
                                                                   66 FR

Chapter I
1 Revised; interim.................................................28961
    Comment period reopened........................................47382
30 (Subchapter C) Added; interim...................................28962
    Comment period reopened........................................47382
Chapter II
217.8 (m) through (u) redesignated as (n) through (v); new (m) 
        added......................................................27454
369 Added..........................................................29475

                                  2002

20 CFR
                                                                   67 FR
                                                                    Page
Chapter I
1 Revised..........................................................78885
30 (Subchapter C) Revised..........................................78876
30.112 OMB number pending..........................................78874
30.213 OMB number pending..........................................78874
Chapter II
200.1 (a)(4), (b)(1) and (2) revised................................5723
200.7 (i) added.....................................................5723
217.9 (b)(1) amended; (b)(3) added.................................42714
217.30 (b) removed; (c) redesignated as (b); new (c) added.........42714
260 Heading revised................................................77153
260.1 Heading and (a) introductory text revised; (b), (d)(1) and 
        (2) amended................................................77153
260.2 Revised......................................................77153
260.3 Heading, (a), introductory text, (b), (c), (d) and (f) 
        revised....................................................77153
260.4 Heading and (b) through (i) revised..........................77153
260.5 Revised......................................................77154
260.8 Amended......................................................77155
260.9 (d) through (g) redesignated as (e) through (h); (b), new 
        (e) and new (f) revised; new (d) added.....................77155
260.10 Revised.....................................................77156
320.5 Amended......................................................77156
320.6 (b) introductory text, (d) and (e) revised; (b)(8) and (f) 
        added......................................................77156
320.10 (e) revised.................................................77156
320.11 (a) and (f) revised; (d), (e), and (g) amended..............77156
320.12 Revised.....................................................77157
320.25 (a), (b) and (d) revised....................................77157
320.28 Revised.....................................................77157
320.39 Revised.....................................................77157
320.40 Heading revised; (d) added..................................77158
320.49 Revised.....................................................77158
345.111 Revised....................................................13567
345.113 Revised....................................................13567
345.114 Revised....................................................13568
345.115 Revised....................................................13568
345.124 Revised....................................................13568
345.307 Revised....................................................13568

[[Page 686]]

                                  2003

20 CFR
                                                                   68 FR
                                                                    Page
Chapter I
30.112 OMB number..................................................14316
30.213 OMB number..................................................14316
Chapter II
200.4 (d), (h), (i) and (m) revised; (j) introductory text, (2), 
        (k), (l), (n)(2) and (p) amended...........................61621
206 Added..........................................................51153
218.9 (a)(2) amended...............................................39010
    Regulation at 68 FR 39010 corrected............................45315
218.12 (b)(2)(ii) amended..........................................39010
    Regulation at 68 FR 39010 corrected............................45315
218.13 (b)(1)(ii) and (2)(ii) amended..............................39010
    Regulation at 68 FR 39010 corrected............................45315
218.16 (b)(2)(ii) amended..........................................39010
    Regulation at 68 FR 39010 corrected............................45315
218.17 (b)(2)(ii) amended..........................................39010
    Regulation at 68 FR 39010 corrected............................45315
218.36 (a)(3) and (b) amended......................................39010
    Regulation at 68 FR 39010 corrected............................45315
218.40 (c)(4) amended..............................................39010
    Regulation at 68 FR 39010 corrected............................45315
218.43 (b)(3) and (c)(6) amended...................................39010
    Regulation at 68 FR 39010 corrected............................45315
218.44 (b)(3) and (c)(6) amended...................................39010
    Regulation at 68 FR 39010 corrected............................45315
220.110 (f) added..................................................60291
220.112 (a) amended................................................60291
220.114 Revised....................................................60291
220.120 Revised....................................................60293
220.135 Added......................................................60294
220.161 Amended....................................................39010
220.176 Amended....................................................39010
220 Appendix 2 amended.............................................60294
225.2 Amended......................................................39010
225.30 (a) amended.................................................39010
225.33 (a)(1) amended..............................................39010
225.34 (a)(1) amended; (b)(3) revised; (b)(4) added................39010
    Regulation at 68 FR 39010 corrected............................45315
260.9 (b) correctly amended.........................................6820
320.39 (a) correctly amended........................................6820

                                  2004

20 CFR
                                                                   69 FR
                                                                    Page
Chapter I
321 Added..........................................................32260

                                  2005

20 CFR
                                                                   70 FR
                                                                    Page
Chapter I
1 Revised; interim.................................................33604
    Compliance notification........................................41340
30 (Subchapter C) revised; interim.................................33604
    Compliance notification........................................41340
Chapter II
345.202 Revised....................................................42489
345.203 Revised....................................................42489
345.204 (a) revised................................................42489

                                  2006

 (No regulations published from January 1, 2006, through April 1, 2006)


                                  [all]