[Federal Register Volume 67, Number 242 (Tuesday, December 17, 2002)]
[Rules and Regulations]
[Pages 77152-77158]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-31640]


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RAILROAD RETIREMENT BOARD

20 CFR Parts 260 and 320

RIN 3220-AB03


Requests for Reconsideration and Appeals Within the Board

AGENCY: Railroad Retirement Board.

ACTION: Final rule.

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SUMMARY: The Railroad Retirement Board (Board) amends its regulations 
to simplify the procedures with respect to requests for reconsideration 
and appeals within the Board. These amendments clarify the appeals 
procedures and make the regulations more readable and understandable to 
the public.

DATES: This rule is effective December 17, 2002.

FOR FURTHER INFORMATION CONTACT: Marguerite P. Dadabo, Assistant 
General Counsel, Railroad Retirement Board, (312) 751-4945, TDD (312) 
751-4701.

SUPPLEMENTARY INFORMATION: Part 260 of the Board's regulations deals 
generally with administrative review of denials of claims or requests 
for waiver of recovery of overpayments under the Railroad Retirement 
Act (RRA). Part 320 deals with the same matters under the Railroad 
Unemployment Insurance Act (RUIA). The Board believes this regulation 
streamlines the process without diminishing the rights of claimants in 
the administrative review process. In addition, the Board believes that 
part 260 has been made more readable and thus more understandable to 
the public.
    Specifically, the Board amends Sec.  260.2 to clarify that the 
procedure applicable to the appeal of a decision denying the crediting 
of compensation also applies to the crediting of service months under 
the RRA. Sections 260.3(d) and 320.10(e) are amended to add as possible 
good cause for failure to file a timely reconsideration request or 
appeal within the agency that the claimant believed his or her 
representative had filed such a request or appeal. In order to protect 
an appellant where he or she may have a problem obtaining appeal forms, 
Sec. Sec.  260.5(b), 260.9(b), 320.12, and 320.39 are amended to 
provide that the right to appeal is protected by the submission of a 
written request received within the appeal period stating an intent to 
appeal, if the claimant files the appeal form within the 30-day period 
following the date of the letter sending the form to the claimant.
    As proposed, section 260.5(l) provides that a hearing may be 
conducted by telephone conference at the discretion of the hearings 
officer. We have also amended section 320.25(d) to conform it to 
proposed section 260.5(l), which is being adopted without change.
    A request for waiver of recovery of an overpayment must be filed 
within 60 days of the notice of overpayment. Sections 260.4(c) and 
320.11(f) provide that the Board will still consider a request for 
waiver filed after the 60-day time period, but may proceed to collect 
the overpayment and that any amounts collected prior to the request for 
waiver will not be waived.
    The regulation amends both parts 260 and 320 to delay recovery of 
an erroneous payment when a timely appeal is filed with the Bureau of 
Hearings and Appeals (new paragraphs 260.5(d) and 320.12(c)) and also 
when a timely appeal is filed with the three-member Board (new 
paragraphs 260.9(d) and 320.39(b)).
    Sections 260.9(d) and (e) clarify that new evidence will ordinarily 
not be accepted on appeal to the three-member Board from a decision of 
a hearings officer, but that argument will be accepted. A new Sec.  
320.40(d) parallels Sec.  260.9(e). Sections 260.10 and 320.49 provide 
that the date of postmark will be considered the date of filing a 
document with the Board. Finally, a number of nomenclature changes are 
made to reflect a recent reorganization.
    Sections 260.10 and 320.49 are revised to state that as a general 
rule a document is filed on the day it is received by the Board but 
that the date of a postmark or other evidence of the date of mailing 
will be used to establish a filing date. The current Sec.  320.49 
contains a provision that allows the Board and a base-year employer to 
agree to transmit documents and notices by electronic mail. That 
sentence was inadvertently omitted from the proposed rule, and has been 
restored in the final rule as paragraph 320.49(c).
    The Board published the proposed rule on March 29, 2002 (67 FR 
15127), and invited comments by May 28, 2002. No comments were 
received. With the exceptions for Sec. Sec.  320.25(d) and 320.49 noted 
above, the proposed rule has been redrafted as a final rule without 
change.

Collection of Information Requirements

    Pursuant to the Paperwork Reduction Act of 1995, the information 
collection associated with this rule, the Form HA-1, used to file 
appeals to the Bureau of Hearings and Appeals and to the three-member 
Board, has been approved by the Office of Management and Budget under 
control number 3220-0007. This collection has been cleared for use 
through August 31, 2004 by the Office of Management and Budget.

Regulatory Impact Statement

    Prior to publication of this final rule, the Board submitted this 
rule to the Office of Management and Budget for review pursuant to 
Executive Order 12866. Executive Order 12866 directs agencies to assess 
all costs and benefits of available regulatory alternatives and when 
regulation is necessary, to select regulatory approaches that maximize 
net benefits (including potential economic, environmental, public 
health and safety effects, distributive impacts, and equity). A 
regulatory impact analysis (RIA) must be prepared for rules that 
constitute significant regulatory action, including rules that have an 
economic effect of $100 million or more annually. This final rule is 
not a major rule in terms of the aggregate costs involved. 
Specifically, we have determined that this final rule is not a major 
rule with economically significant effects because it would not result 
in increases in total expenditures of $100 million or more per year.
    The revisions made by this final rule are significant. Parts 260 
and 320 explain the procedures for seeking review of and appealing a 
decision through several levels within the Railroad Retirement Board. 
The revisions should result in modest savings in administrative costs 
due to the streamlining of procedures. However, the revisions will 
benefit the

[[Page 77153]]

agency's constituents as a result of the overall additional protections 
provided.
    Both the Regulatory Flexibility Act and the Unfunded Mandates Act 
of 1995 define ``agency'' by referencing the definition of ``agency'' 
contained in 5 U.S.C. 551(1). Section 551(1)(E) excludes from the term 
``agency'' an agency that is composed of representatives of the parties 
or of representatives of organizations of the parties to the disputes 
determined by them. The Railroad Retirement Board falls within this 
exclusion (45 U.S.C. 231f(a)) and is therefore exempt from the 
Regulatory Flexibility Act and the Unfunded Mandates Act.
    Executive Order 13132 establishes certain requirements that an 
agency must meet when it promulgates a rule that imposes substantial 
direct compliance costs on State and local governments, preempts State 
law, or otherwise has Federalism implications. We have reviewed this 
final rule under the threshold criteria of Executive Order 13132 and 
have determined that it would not have a substantial direct effect on 
the rights, roles, and responsibilities of States or local governments.
    In accordance with the provisions of Executive Order 12866, this 
regulation has been reviewed by the Office of Management and Budget.

List of Subjects

20 CFR Part 260

    Administrative practice and procedure, Railroad retirement, 
Reporting and recordkeeping requirements.

20 CFR Part 320

    Administrative practice and procedure, Claims, Railroad 
unemployment insurance, Reporting and recordkeeping requirements.

    For the reasons set out in the preamble, the Railroad Retirement 
Board amends title 20, chapter II, parts 260 and 320 of the Code of 
Federal Regulations as follows:

PART 260--REQUESTS FOR RECONSIDERATION AND APPEALS WITHIN THE BOARD 
FROM DECISIONS ISSUED BY THE BUREAU OF DISABILITY AND MEDICARE 
OPERATIONS, BUREAU OF RETIREMENT BENEFITS, BUREAU OF SURVIVOR 
BENEFITS, OFFICE OF RETIREMENT AND SURVIVOR PROGRAMS, AND THE 
BUREAU OF RESEARCH AND EMPLOYMENT ACCOUNTS

    1. The authority citation for part 260 continues to read as 
follows:

    Authority: 45 U.S.C. 231f; 45 U.S.C. 231g; 45 U.S.C. 355.


    2. The heading of part 260 is revised to read as follows:

PART 260--REQUESTS FOR RECONSIDERATION AND APPEALS WITHIN THE BOARD

    3. The heading of Sec.  260.1, and introductory paragraph (a) are 
revised to read as follows:


Sec.  260.1  Initial decisions.

    (a) General. Claims for benefits shall be adjudicated and initial 
decisions made by the Board concerning:
* * * * *

    4. In Sec. Sec.  260.1(b), 260.1(d)(1), and (d)(2), remove the 
words ``Director of the appropriate bureau or office'' and 
``appropriate bureau or office'' wherever they appear, and add in their 
place the word ``Board''.

    5. The heading and Sec.  260.2 are revised to read as follows:


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.

    6. In Sec.  260.3 the heading, paragraph (a) introductory text, 
paragraphs (b) through (d), and paragraph (f) are revised to read as 
follows:


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:
* * * * *
    (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 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) * * *
    (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) * * *

    7. In Sec.  260.4 the heading is revised, and paragraphs (b) 
through (i) are revised to read as follows:

[[Page 77154]]

Sec.  260.4  Request for waiver of recovery of an overpayment and/or 
for reconsideration of an initial erroneous payment decision.

* * * * *
    (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 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) * * *

    8. The heading and Sec.  260.5 are revised to read as follows:


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 
andAppeals 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

[[Page 77155]]

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 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.
    (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)


Sec.  260.8  [Amended]

    9. In Sec.  260.8, remove the word ``bureau'' wherever it appears 
and add in its place the word ``office''.
    10. Section 260.9 is amended by redesignating paragraphs (d) 
through (g) as paragraphs (e) through (h), by revising paragraph (b), 
adding a new paragraph (d), and by revising redesignated paragraph (e) 
and redesignated paragraph (f) to read as follows:


Sec.  260.9  Final appeal from a decision of the hearings officer.

* * * * *
    (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,

[[Page 77156]]

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) * * *
    (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 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.
* * * * *

    11. The heading, and Sec.  260.10 are revised to read as follows:


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.

PART 320--INITIAL DETERMINATIONS UNDER THE RAILROAD UNEMPLOYMENT 
INSURANCE ACT AND REVIEWS OF AND APPEALS FROM SUCH DETERMINATIONS

    12. The authority citation for part 320 continues to read as 
follows:

    Authority: 45 U.S.C. 355 and 362(1).


Sec.  320.5  Initial determinations.

    13. In Sec.  320.5, following the words ``Director of'', remove the 
words ``Unemployment and Sickness Insurance'' and add in their place 
the words ``Policy and Systems''.
    14. In Sec.  320.6, the introductory paragraph of Sec.  320.6(b) is 
revised, a new paragraph (b)(8) is added, paragraphs (d) and (e) are 
revised, and a new paragraph (f) is added to read as follows:


Sec.  320.6  Adjudicating office.

* * * * *
    (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:
* * * * *
    (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.
* * * * *
    (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.

    15. In Sec.  320.10, paragraph (e) is revised to read as follows:


Sec.  320.10  Reconsideration of initial determination.

* * * * *
    (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 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.

    16. In Sec.  320.11, paragraphs (a) and (f) are revised to read as 
follows, and in paragraphs (d), (e), and (g), remove the words 
``Director of Unemployment and Sickness Insurance'', and add in their 
place the words ``Debt Recovery Manager''; also, in paragraphs (d) and 
(g), remove the word ``Director'' and add

[[Page 77157]]

in its place the word ``Manager'' wherever it appears.


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.
* * * * *
    (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 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.
* * * * *

    17. Section 320.12 is revised to read as follows:


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.

    18. In Sec.  320.25, paragraphs (a), (b), and (d) are revised to 
read as follows:


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) * * *
    (d) Hearing by telephone. At the discretion of the hearings 
officer, any hearing required under this part may be conducted by 
telephone conference.
    19. Section 320.28 is revised to read as follows:


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.

    20. Section 320.39 is revised to read as follows:


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 
reconsideration 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.

[[Page 77158]]

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.

    21. The heading of Sec.  320.40 is revised, and a new paragraph(d) 
is added to read as follows:


Sec.  320.40  Procedure before the Board on appeal from a decision of a 
hearings officer.

* * * * *
    (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.

    22. Section 320.49 is revised to read as follows:


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.

    Dated: December 11, 2002.

    By Authority of the Board,
Beatrice Ezerski,
Secretary to the Board.
[FR Doc. 02-31640 Filed 12-16-02; 8:45 am]
BILLING CODE 7905-01-P