[Federal Register Volume 90, Number 174 (Thursday, September 11, 2025)]
[Rules and Regulations]
[Pages 43909-43910]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2025-17475]
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RAILROAD RETIREMENT BOARD
20 CFR Parts 216 and 222
RIN 3220-AB84
Eligibility for an Annuity and Family Relationships
AGENCY: Railroad Retirement Board.
ACTION: Direct final rule.
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[[Page 43910]]
SUMMARY: The Railroad Retirement Board amends its regulations to remove
facially unlawful provisions that define when the spouse, divorced
spouse, surviving divorced spouse, or remarried widow(er) of a railroad
employee may receive an annuity under the Railroad Retirement Act for
having the employee's minor child in care. As currently written, the
regulations treat male spouses less favorably than female spouses by
terminating annuity entitlement when the child turns age 16 instead of
age 18 as for female spouses. If enforced, this disparity would violate
the right to equal protection secured by the Due Process Clause of the
Fifth Amendment to the United States Constitution.
DATES: This rule is effective October 27, 2025 without further action,
unless adverse comment is received by October 14, 2025. If adverse
comment is received, the Railroad Retirement Board will publish a
timely withdrawal of the rule in the Federal Register.
FOR FURTHER INFORMATION CONTACT: Peter J. Orlowicz, Senior Counsel,
Railroad Retirement Board, 844 North Rush Street, Chicago, IL 60611-
1275, (312) 751-4922.
SUPPLEMENTARY INFORMATION: Sections 2(c) and 2(d) of the Railroad
Retirement Act, 45 U.S.C. 231a(c) and (d), provides for annuities to be
paid to the wife, divorced wife, widow, surviving divorced wife, and
remarried widow of a railroad employee if such person has the
employee's child in care. Although the text of the Act does not provide
for such annuities for husbands, divorced husbands, widowers, surviving
divorced husbands, or remarried widowers who have the employee's child
in care, the Supreme Court held in Weinberger v. Wiesenthal, 420 U.S.
636 (1975) that identical sex-based distinctions mandated by the
provisions of the Social Security Act unjustifiably discriminated
against female wage earners in violation of the right to equal
protection secured by the Due Process Clause of the Fifth Amendment to
the United States Constitution. Accordingly, the Board extends
eligibility for such annuities to both male and female spouses who
otherwise meet the eligibility criteria in the Act.
Although eligibility for railroad retirement annuities is
controlled by the Railroad Retirement Act, the Act requires many
calculations and definitions through reference to provisions of the
Social Security Act. Beginning in 1981, the Board attempted to resolve
a conflict between eligibility criteria in the Railroad Retirement Act
and calculations of annuities guided by the Social Security Act by
terminating child-in-care benefits when the child turned age 16, rather
than age 18. This interpretation was successfully challenged on
judicial review in several federal circuit courts. Costello v. United
States R.R. Retirement Bd., 780 F.2d 1352 (8th Cir. 1985); Johnson v.
United States R.R. Retirement Bd., 925 F.2d 1374 (11th Cir. 1991);
Johnson v. United States R.R. Retirement Bd., 969 F.2d 1082 (D.C. Cir.
1992). Nevertheless, the Board revised its regulations in 1989 and
1991, inserting into 20 CFR 216.51, 222.17, and 222.18, without
explanation, that a child in care meant a child under age 18, except
with respect to male spouses, divorced spouses, surviving divorced
spouses, or remarried widower annuities, when it meant a child under
age 16. 54 FR 42949 (Oct. 19, 1989); 56 FR 28692 (Jun. 24, 1991). It is
unclear whether the Board ever attempted to enforce this distinction
when making benefit payments, but it is not the Board's current policy
or practice to apply sex-based distinctions between claimants for an
annuity based on having the railroad employee's minor child in care.
As part of its review of regulations directed by Executive Order
14219, Ensuring Lawful Governance and Implementing the President's
``Department of Government Efficiency'' Deregulatory Initiative (Feb.
19, 2025), the Board identified these provisions distinguishing between
male and female annuitants as unconstitutional and in direct conflict
with the Supreme Court's decision in Wiesenthal. In accordance with the
Presidential memorandum of April 9, 2025, directing the repeal of
unlawful regulations, the Board is amending its regulations to remove
this facially unlawful distinction. Pursuant to the memorandum, notice
and comment proceedings are unnecessary when repeal is required as a
matter of law to ensure consistency with a ruling of the Supreme Court.
Therefore, no comments are being requested.
Regulatory Analysis
Executive Order 12866, as Supplemented by Executive Order 13563
The Board, with the Office of Management and Budget, has determined
that this is not a significant regulatory action under Executive Order
12866, as supplemented by Executive Order 13563. Therefore, no
regulatory impact analysis is required.
Regulatory Flexibility Act
The Board certifies that this direct final rule would not have a
significant economic impact on a substantial number of small entities
because it affects only individuals.
Paperwork Reduction Act
This direct final rule imposes no reporting or recordkeeping
requirements subject to Office of Management and Budget clearance.
List of Subjects
20 CFR Part 216
Railroad retirement, reporting and recordkeeping requirements.
20 CFR Part 222
Claims, railroad retirement.
For the reasons stated in the preamble, the Railroad Retirement
Board amends 20 CFR parts 216 and 222 as follows:
PART 216--ELIGIBILITY FOR AN ANNUITY
0
1. The authority citation continues to read as follows:
Authority: 45 U.S.C. 231f.
Sec. 216.51 [Amended]
0
2. Amend Sec. 216.51 by removing the phrase ``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'' where it appears in paragraphs (b)(2), (c)(2), and (d)(2)
and add, in its place, the phrase ``child of the employee who either is
under age 18 or is disabled''.
PART 222--FAMILY RELATIONSHIPS
0
3. The authority citation continues to read as follows:
Authority: 45 U.S.C. 231f.
Sec. 222.17 [Amended]
0
4. Amend Sec. 222.17 by removing the parenthetical ``(16 with respect
to male spouse, divorced spouse, surviving divorced spouse, or
remarried widow(er) annuities)'' where it appears in paragraphs (b),
(c), and (d).
Sec. 222.18 [Amended]
0
5. Amend Sec. 222.18 by removing the parenthetical ``(16 with respect
to male spouse, divorced spouse, surviving divorced spouse, or
remarried widow(er) annuities)'' where it appears in paragraphs (a)(2)
and (a)(3).
Dated: September 8, 2025.
By Authority of the Board.
Stephanie Hillyard,
Secretary to the Board.
[FR Doc. 2025-17475 Filed 9-10-25; 8:45 am]
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