[Federal Register Volume 65, Number 77 (Thursday, April 20, 2000)]
[Proposed Rules]
[Pages 21164-21165]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-9860]


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RAILROAD RETIREMENT BOARD

20 CFR Part 349

RIN 3220-AB25


Finality of Decisions Regarding Unemployment and Sickness 
Insurance

AGENCY: Railroad Retirement Board.

ACTION: Proposed rule.

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SUMMARY: The Railroad Retirement Board proposes to adopt regulations 
pertaining to the finality of decisions under the Railroad Unemployment 
Insurance Act (Act). The present rules dealing with finality of 
decisions under that statute are incomplete and are contained in a 
Board Order which is not readily available to the public. Therefore, 
the Board has determined that the present rules should be revised and 
published as a regulation.

DATES: Submit comments on or before June 19, 2000.

ADDRESSES: Address any comments concerning this proposed rule to the 
Secretary to the Board, Railroad Retirement Board, 844 North Rush 
Street, Chicago, Illinois 60611.

FOR FURTHER INFORMATION CONTACT: Marguerite P. Dadabo, Senior Attorney, 
Railroad Retirement Board, (312) 751-4945, TTD (312) 751-4701.

SUPPLEMENTARY INFORMATION: The Board's rules and procedures regarding 
the finality of decisions with respect to benefits under the Railroad 
Unemployment Insurance Act are presently contained in a Board Order, 
which is not readily available to the public. Also the Board Order does 
not contain any time limits on reopening. The proposed regulation 
addresses the finality of benefit decisions. This proposed rule is 
similar to part 261 of the Board's regulations on reopening of 
decisions under the Railroad Retirement Act (20 CFR 261).
    Proposed Sec. 349.1 describes who may open a final decision issued 
by the agency. Proposed Sec. 349.2 describes when a final decision may 
be reopened. A final decision may be reopened within 12 months of the 
date of notice of such decision. A final decision may also be reopened 
within 4 years of the date of notice if new and material evidence is 
furnished or if the decision was not reasonably consistent with the 
evidence of record at the time the decision was made. A decision may be 
reopened at any time if the decision was obtained by fraud or similar 
fault, or if the decision was that the employee was not a qualified 
employee and is later found to be one because of a correction in his or 
her record of compensation, or if the decision was wholly or partially 
unfavorable to a claimant, but only to correct clerical error or an 
error that appears on the face of the evidence that was considered when 
the decision was made. See proposed Sec. 349.2(c).
    Proposed Sec. 349.3 provides that a change of legal interpretation 
or administrative ruling upon which a decision was based is not a basis 
for reopening.
    Proposed Sec. 349.4 provides that a decision may be reopened after 
the 1 year and 4 year time limits set forth in Sec. 349.2 if the Board 
had begun an investigation within those time limits. However, if the 
Board does not diligently pursue the investigation, the agency will not 
reopen the decision if the decision was favorable to the claimant.
    Proposed Secs. 349.5-349.7 are procedural and provide that if a 
decision is reopened, the claimant will be given notice and will have a 
right to reconsideration and/or a hearing. Any hearing shall be 
conducted in accordance with part 320 of the Board's regulations (20 
CFR 320).
    Finally, proposed Sec. 349.8 provides that the three-member Board 
has the discretion to reopen or not to reopen any decision under these 
regulations.
    The Board, with the concurrence of the Office of Management and 
Budget, has determined that this is not a significant regulatory action 
under Executive Order 12866; therefore, no regulatory impact analysis 
is required. There are no information collections associated with this 
rule.

List of Subjects in 20 CFR Part 349

    Railroad employees, Railroad unemployment insurance.

    For the reasons set out in the preamble, the Railroad Retirement 
Board proposes to add a new part 349 to 20 CFR Chapter II as follows:

PART 349--FINALITY OF DECISIONS REGARDING UNEMPLOYMENT AND SICKNESS 
INSURANCE

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.

    Authority: 45 U.S.C. 355 and 362(l).


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.
    (c) Reopening a final decision under this part means a conscious 
determination on the part of the agency to reconsider an otherwise 
final

[[Page 21165]]

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 
Secs. 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.


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.

    Dated: April 11, 2000.

    By Authority of the Board.

    For the Board,
Beatrice Ezerski,
Secretary to the Board.
[FR Doc. 00-9860 Filed 4-19-00; 8:45 am]
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