[Federal Register Volume 62, Number 181 (Thursday, September 18, 1997)]
[Proposed Rules]
[Pages 48963-48968]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-24803]


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SOCIAL SECURITY ADMINISTRATION

20 CFR Parts 404 and 416

RIN 0960-AE74


Federal Old-Age, Survivors, and Disability Insurance Benefits; 
Supplemental Security Income for the Aged, Blind, and Disabled; 
Organization and Procedures; Application of Circuit Court Law

AGENCY: Social Security Administration (SSA).

ACTION: Proposed rules.

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SUMMARY: These proposed regulations would revise the current 
regulations governing how we apply holdings of the United States Courts 
of Appeals that we determine conflict with our interpretation of the 
Social Security Act or regulations in adjudicating claims under title 
II and title XVI of the Social Security Act (the Act). The regulations 
explain the new goal we have adopted to ensure that Acquiescence 
Rulings (ARs) are developed and issued promptly and the new procedures 
we are implementing to identify cases pending in the administrative 
process which might be affected by ARs.

DATES: To be sure your comments are considered, we must have them no 
later than November 17, 1997.

ADDRESSES: Comments should be submitted in writing to the Commissioner 
of Social Security, P.O. Box 1585, Baltimore, Maryland 21235, sent by 
telefax to (410) 966-2830, sent by E-mail to <a href="/cdn-cgi/l/email-protection#f69696849391839a97829f999885b6858597d8919980">``<span class="__cf_email__" data-cfemail="81f3e4e6f4ede0f5e8eeeff2c1f2f2e0afe6eef7">[email protected]</span></a>,'' 
or delivered to the Division of Regulations and Rulings, Social 
Security Administration, 3-B-1 Operations Building, 6401 Security 
Boulevard, Baltimore, MD 21235, between 8:00 a.m. and 4:30 p.m. on 
regular business days. Comments may be inspected during these same 
hours by making arrangements with the contact person shown below.

FOR FURTHER INFORMATION CONTACT: Harry J. Short, Legal Assistant, 
Division of Regulations and Rulings, Social Security Administration, 
6401 Security Boulevard, Baltimore MD 21235, (410) 965-6243 for 
information about these rules. For information on eligibility or 
claiming benefits, call our national toll free number, 1-800-772-1213.

SUPPLEMENTARY INFORMATION: On January 11, 1990, (55 FR 1012) we 
published final regulations to implement a revised policy for applying 
circuit court holdings that conflict with our interpretation of the Act 
or regulations to subsequent claims within that circuit involving the 
same issue.

[[Page 48964]]

Under those regulations, which are set out at 20 CFR 404.985 and 
416.1485, we prepare Acquiescence Rulings which explain the circuit 
court holdings and provide binding guidance to adjudicators on how to 
apply the holding to subsequent claims within the circuit involving the 
same issue. Those regulations reflected the agency's decision in 1985 
to abandon its prior policy of applying conflicting circuit court 
holdings only to the named party or parties to the decision, rather 
than to other cases pending before an Administrative Law Judge or the 
Appeals Council involving the same issue or issues. The 1990 
regulations expanded the 1985 policy decision to apply an AR to all 
levels of adjudication, as appropriate.
    After the 1990 regulations were adopted, allegations that the 
agency refused to acquiesce in circuit court decisions with holdings in 
conflict with our interpretation of the Act or regulations declined 
dramatically. A major goal of the 1990 regulations has been achieved 
because the circuit courts have found virtually no cause to cite the 
agency for failing to adhere to circuit court precedent.
    On July 2, 1996, we issued Social Security Ruling 96-1p (61 FR 
34470) reaffirming the rules established in the 1990 regulations. Since 
that time, we have reviewed our rules and our implementing procedures 
to determine what changes could be instituted to further improve the 
acquiescence process. Our review has led us to conclude that we should 
reaffirm an important principle regarding the impact of litigation on 
claims adjudication and, through these final regulations, amend the 
1990 regulations in two significant respects.

The Role of Litigation in the Policymaking Process

    Our review indicated that it is important to reaffirm the principle 
that our goal in administering our programs is to have uniform, 
national program standards. Our procedures, which provide for 
acquiescence within the circuit when a circuit court issues a decision 
containing a holding which conflicts with our interpretation of the Act 
or regulations, result in differing policies in different sections of 
the country. This situation is not desirable and ordinarily should not, 
if possible, continue indefinitely.
    Therefore, we wish to make it clear that generally ARs are 
temporary measures. When we receive a circuit court decision containing 
a holding which conflicts with our interpretation of the Act or 
regulations, we consider whether the rule at issue should be changed on 
a nationwide basis to conform to the court's holding. If we continue to 
believe that our interpretation of the statute or regulations at issue 
is correct and we seek further judicial review of the circuit court's 
decision, we will stay further development of the AR until the judicial 
review process runs its course. If our assessment shows that we should 
change our rules and adopt a circuit court's holding nationwide, we 
will, at the time we publish the AR, have determined the steps 
necessary to do so. This may require changing our regulations or 
rulings; it may also require seeking a clarifying legislative change to 
the Act. In this case, however, we would proceed to issue an AR since 
adopting the rules nationwide inevitably requires a significant period 
of time.
    Similarly, if our assessment is that our rules are correct but we 
are unable to resolve the matter by seeking further judicial review, we 
will issue an AR and at the time we publish the AR have determined the 
appropriate steps to attempt to address the issue which was the subject 
of the circuit court's holding. This may mean issuing clarifying 
regulations or seeking legislation. There are certain instances when an 
issue cannot be resolved, such as a constitutional issue which the 
Supreme Court chooses not to review and, therefore, an AR may remain in 
effect.
    Although our goal to have uniform national standards is implicit in 
the current regulations, we are including in this preamble, an explicit 
statement of our commitment to maintaining a uniform nationwide system 
of rules and regulations. In addition to making minor editorial 
corrections to the current regulations, these proposed rules would 
amend the regulations in two substantive areas, as follow:

Establishing a Timeliness Goal for Issuing Acquiescence Rulings

    A common criticism regarding the current process involves the 
length of time it takes for SSA to prepare and issue an AR. As a 
result, we have reassessed our procedures and have decided that we will 
release an AR for publication in the Federal Register no later than 120 
days from the time we receive a precedential circuit court decision for 
which the AR is being issued, unless further judicial review of that 
decision is pending. We propose to add new sections 404.985(b)(1) and 
416.1485(b)(1) so that the public is fully informed of this timeframe.

Identifying Pending Claims Which May Be Affected by an AR

    When we published the 1990 regulations, we noted that a number of 
commenters on the 1988 proposed regulations (53 FR 46628 (November 18, 
1988)) urged that we take action to identify and list pending claims 
that might be affected by an AR. In the response to that comment, we 
stated:

    As a matter of operational necessity, some time will always 
elapse between the date of a court decision and the time that we 
could notify all adjudicators to begin listing cases which might be 
affected by its holding. Thus, a substantial number of cases would 
not be listed for later readjudication. The process which these 
comments suggest presumes instantaneous, comprehensive 
identification of all cases, which operationally we cannot 
accomplish. Therefore, despite the fact that requiring claimants to 
seek readjudication does require some action on their part, we have 
concluded that this is the most efficient and effective way to 
proceed and have not adopted these comments in the final 
regulations.

(55 FR 1012, 1013). The basic facts noted in our response remain valid. 
Despite improved technology, it is still operationally impossible for 
us to identify all pending claims that might be affected by an AR. 
However, we have reassessed this situation and have now decided that it 
would be a significant benefit to claimants if we were to act as 
expeditiously as possible to identify pending claims that might be 
affected by an AR, even though we will not be able to identify all such 
claims.
    Therefore, as described in the proposed new sections 404.985(b)(3) 
and 416.1485(b)(3), we are implementing the following procedures. As 
soon as possible after we receive a circuit court decision that we find 
may contain a holding that conflicts with our interpretation of the Act 
or regulations, we will develop and provide our adjudicators with 
criteria that they will use to identify pending claims we are deciding 
within the relevant circuit that might be affected, if we subsequently 
determine that an AR is required. If an AR is subsequently released, a 
notice will be sent informing the claimant in these cases that might be 
affected by the AR that an AR has been issued that might affect the 
claim. The notice to the claimant will also explain the procedures for 
obtaining a readjudication of the claim under the AR. If we develop 
criteria and begin identifying cases but subsequently determine that an 
AR is not required, the notices will not be sent.
    We will notify adjudicators of the appropriate criteria to be used 
to identify cases no later than 10 days after

[[Page 48965]]

we receive a circuit court decision that we determine may contain a 
holding which conflicts with our interpretation of the Act or 
regulations. Although we believe that the new procedure to identify 
pending claims within the relevant circuit that might be affected will 
greatly reduce the number of claimants who would have to learn of the 
issuance of the AR through the Federal Register publication of it or 
otherwise, the new procedure will not capture everyone. For this 
reason, we have retained the readjudication procedure in sections 
404.985(b)(2) and 416.1485(b)(2) to ensure the protection of all 
claimants. Additionally, if a claimant or an adjudicator brings to our 
attention that a claim could potentially be affected by a circuit court 
decision that might become the subject of an AR, we will consider 
identifying that case pending a decision as to whether an AR is 
necessary in the circuit court decision in question.

Electronic Version

    The electronic version of this document is available on the Federal 
Bulletin Board (FBB) at 9:00 a.m. on the date of publication in the 
Federal Register. To download the file, modem dial (202) 512-1387. The 
FBB instructions will explain how to download the file and the fee. 
This file is in WordPerfect and will remain on the FBB during the 
comment period.

Regulatory Procedures

Executive Order 12866

    We have consulted with the Office of Management and Budget (OMB) 
and determined that these rules do not meet the criteria for a 
significant regulatory action under Executive Order 12866. Thus, they 
are not subject to OMB review.

Regulatory Flexibility Act

    We certify that these regulations will not have a significant 
economic impact on a substantial number of small entities because these 
rules affect only individuals. Therefore, a regulatory flexibility 
analysis as provided in the Regulatory Flexibility Act, as amended, is 
not required.

Paperwork Reduction Act

    These proposed rules contain reporting requirements in Part 404, 
section 404.985(b)(2) and 416.1485(b)(2). As required by 42 U.S.C. 
section 3507, as amended by section 2 of the Paperwork Reduction Act of 
1995, we will submit a copy to the Office of Management and Budget for 
its review.
    The regulation sections cited above allow claimants to request 
application of the published Acquiescence Ruling to a prior 
determination or decision. Claimants must demonstrate that the 
application of the Acquiescence Ruling could change the prior 
determination or decision. Claimants may do so by submitting a 
statement. If the claimant can so demonstrate, the information will be 
used to readjudicate the claim. Thus, claimants, whose determinations 
or decisions on their claims may be affected by the Acquiescence 
Ruling, may continue to make submissions to the Agency regarding such 
claims.
    We estimate that the public reporting burden will be 17 minutes per 
response for between 0 and 50,000 respondents depending on the 
characteristics of the individual AR, resulting in up to 7083.33 burden 
hours per AR. We estimate there will be 3 to 4 ARs per year. If you 
have any comments or suggestions on this estimate, write to OMB and SSA 
at the following addresses:

Office of Management and Budget, OIRA, Attn: Laura Oliven, Room 10230, 
New Executive Office Building, Washington, D.C. 20503.
Social Security Administration, DCFAM. Attn: Nicholas E. Tagliareni, 1-
A-21 Operations Building, 6401 Security Blvd., Baltimore, MD 21235.

    In addition to your comments on the accuracy of the Agency's burden 
estimate, we are soliciting comments on the need for the information; 
its practical utility; ways to enhance its quality, utility and 
clarity; and on ways to minimize the time it takes for claimants to 
request application of the Acquiescence Ruling to the prior 
determination, including the use of automated collection techniques or 
other forms of information technology.

(Catalog of Federal Domestic Assistance Program Nos. 96.001, Social 
Security-Disability Insurance; 96.002, Social Security-Retirement 
Insurance; 96.003, Social Security-Special Benefits for Persons Aged 
72 and Over; 96.004, Social Security-Survivors Insurance; 96.005, 
Special Benefits for Disabled Coal Miners; 96.006, Supplemental 
Security Income)

List of Subjects

20 CFR Part 404

    Administrative practice and procedure, Death benefits, Disability 
benefits, Old-Age, Survivors and Disability Insurance, Reporting and 
recordkeeping requirements, Social Security.

20 CFR Part 416

    Administrative practice and procedure, Aged, Blind, Disability 
benefits, Public assistance programs, Supplemental Security Income 
(SSI), Reporting and recordkeeping requirements.

    Dated: September 11, 1997.
John J. Callahan,
Acting Commissioner of Social Security.
    For the reasons set out in the preamble, subpart J of part 404 and 
subpart N of part 416 of chapter III of title 20 of the Code of Federal 
Regulations are proposed to be amended as set forth below.

PART 404--FEDERAL OLD-AGE, SURVIVORS AND DISABILITY INSURANCE 
(1950-  )

    1. The authority citation for subpart J of part 404 continues to 
read as follows:

    Authority: Secs. 201(j), 205 (a), (b), (d)-(h), and (j), 221, 
225, and 702(a)(5) of the Social Security Act (42 U.S.C. 401(j), 405 
(a), (b), (d)-(h), and (j), 421, 425, and 902(a)(5)); 31 U.S.C. 
3720A; sec. 5, Pub. L. 97-455, 96 Stat. 2500 (42 U.S.C. 405 note); 
secs. 5, 6 (c)-(e), and 15, Pub. L. 98-460, 98 Stat. 1802 (42 U.S.C. 
421 note).

    2. Section 404.985 is revised to read as follows:


Sec. 404.985  Application of circuit court law.

    The procedures which follow apply to administrative determinations 
or decisions on claims involving the application of circuit court law.
    (a) General. We will apply a holding in a United States Court of 
Appeals decision that we determine conflicts with our interpretation of 
a provision of the Social Security Act or regulations unless the 
Government seeks further judicial review of that decision or we 
relitigate the issue presented in the decision in accordance with 
paragraphs (c) and (d) of this section. We will apply the holding to 
claims at all levels of administrative adjudication within the 
applicable circuit unless the holding, by its nature, applies only at 
certain levels of adjudication.
    (b) Issuance of an Acquiescence Ruling. When we determine that a 
United States Court of Appeals holding conflicts with our 
interpretation of a provision of the Social Security Act or regulations 
and the Government does not seek further judicial review or is 
unsuccessful on further review, we will issue a Social Security 
Acquiescence Ruling. The Acquiescence Ruling will describe the 
administrative case and the court decision, identify the issue(s) 
involved, and explain how we will apply the holding, including, as 
necessary, how the holding relates to other decisions within the 
applicable circuit. These Acquiescence Rulings will generally be 
effective on the date of their publication in the Federal Register

[[Page 48966]]

and will apply to all determinations and decisions made on or after 
that date unless an Acquiescence Ruling is rescinded as stated in 
paragraph (e) of this section. The process we will use when issuing an 
Acquiescence Ruling follows:
    (1) We will release an Acquiescence Ruling for publication in the 
Federal Register for any precedential circuit court decision that we 
determine contains a holding that conflicts with SSA's interpretation 
of a provision of the Social Security Act or regulations no later than 
120 days from the receipt of the court's decision. This timeframe will 
not apply when we decide to seek further judicial review of the circuit 
court decision or when coordination with the Department of Justice and/
or other Federal agencies makes this timeframe no longer feasible.
    (2) If we make a determination or decision on your claim between 
the date of a circuit court decision and the date we publish an 
Acquiescence Ruling, you may request application of the published 
Acquiescence Ruling to the prior determination or decision. You must 
demonstrate that application of the Acquiescence Ruling could change 
the prior determination or decision in your case. You may demonstrate 
this by submitting a statement that cites the Acquiescence Ruling and 
indicates what finding or statement in the prior determination or 
decision conflicts with the Acquiescence Ruling. If you can so 
demonstrate, we will readjudicate the claim at the level at which it 
was last adjudicated in accordance with the Acquiescence Ruling. Any 
readjudication will be limited to consideration of the issue(s) covered 
by the Acquiescence Ruling and any new determination or decision on 
readjudication will be subject to administrative and judicial review in 
accordance with this subpart. Our denial of a request for 
readjudication will not be subject to further administrative or 
judicial review. If you file a request for readjudication within the 
60-day appeal period and we deny that request, we shall extend the time 
to file an appeal on the merits of the claim to 60 days after the date 
that we deny the request for readjudication.
    (3) After we receive a precedential circuit court decision and 
determine that an Acquiescence Ruling may be required, we will begin to 
identify those claims that are pending before us within the circuit and 
that might be subject to a readjudication if an Acquiescence Ruling is 
subsequently issued. When an Acquiescence Ruling is published, we will 
send notices to those individuals whose cases we have identified which 
may be affected by the Acquiescence Ruling. The notice will provide 
information about the Acquiescence Ruling and the right to request a 
readjudication under that Acquiescence Ruling, as described in 
paragraph (b)(2) of this section. It is not necessary for an individual 
to receive a notice in order to request application of an Acquiescence 
Ruling to his or her claim, as described in paragraph (b)(2) of this 
section.
    (c) Relitigation of court's holding after publication of an 
Acquiescence Ruling. After we have published an Acquiescence Ruling to 
reflect a holding of a United States Court of Appeals on an issue, we 
may decide under certain conditions to relitigate that issue within the 
same circuit. We will relitigate only when the conditions specified in 
paragraphs (c) (2) and (3) of this section are met, and, in general, 
one of the events specified in paragraph (c)(1) of this section occurs.
    (1) Activating events:
    (i) An action by both Houses of Congress indicates that a court 
case on which an Acquiescence Ruling was based was decided 
inconsistently with congressional intent, such as may be expressed in a 
joint resolution, an appropriations restriction, or enactment of 
legislation which affects a closely analogous body of law;
    (ii) A statement in a majority opinion of the same circuit 
indicates that the court might no longer follow its previous decision 
if a particular issue were presented again;
    (iii) Subsequent circuit court precedent in other circuits supports 
our interpretation of the Social Security Act or regulations on the 
issue(s) in question; or
    (iv) A subsequent Supreme Court decision presents a reasonable 
legal basis for questioning a circuit court holding upon which we base 
an Acquiescence Ruling.
    (2) The General Counsel of the Social Security Administration, 
after consulting with the Department of Justice, concurs that 
relitigation of an issue and application of our interpretation of the 
Social Security Act or regulations at the administrative level within 
the circuit would be appropriate.
    (3) We publish a notice in the Federal Register that we intend to 
relitigate an Acquiescence Ruling issue and that we will apply our 
interpretation of the Social Security Act or regulations at the 
administrative level within the circuit to claims selected for 
relitigation. The notice will explain why we made this decision.
    (d) Notice of relitigation. When we decide to relitigate an issue, 
we will provide a notice explaining our action to all affected 
claimants. In adjudicating claims subject to relitigation, 
decisionmakers throughout the SSA administrative review process will 
apply our interpretation of the Social Security Act and regulations, 
but will also state in written determinations or decisions how the 
claims would have been decided under the circuit standard. Claims not 
subject to relitigation will continue to be decided under the 
Acquiescence Ruling in accordance with the circuit standard. So that 
affected claimants can be readily identified and any subsequent 
decision of the circuit court or the Supreme Court can be implemented 
quickly and efficiently, we will maintain a listing of all claimants 
who receive this notice and will provide them with the relief ordered 
by the court.
    (e) Rescission of an Acquiescence Ruling. We will rescind as 
obsolete an Acquiescence Ruling and apply our interpretation of the 
Social Security Act or regulations by publishing a notice in the 
Federal Register when any of the following events occurs:
    (1) The Supreme Court overrules or limits a circuit court holding 
that was the basis of an Acquiescence Ruling;
    (2) A circuit court overrules or limits itself on an issue that was 
the basis of an Acquiescence Ruling;
    (3) A Federal law is enacted that removes the basis for the holding 
in a decision of a circuit court that was the subject of an 
Acquiescence Ruling; or
    (4) We subsequently clarify, modify or revoke the regulation or 
ruling that was the subject of a circuit court holding that we 
determined conflicts with our interpretation of the Social Security Act 
or regulations, or we subsequently publish a new regulation(s) 
addressing an issue(s) not previously included in our regulations when 
that issue(s) was the subject of a circuit court holding that 
conflicted with our interpretation of the Social Security Act or 
regulations and that holding was not compelled by the statute or 
Constitution.

PART 416--SUPPLEMENTAL SECURITY INCOME FOR THE AGED, BLIND, AND 
DISABLED

    1. The authority citation for subpart N continues to read as 
follows:

    Authority: Sec. 702(a)(5), 1631, and 1633 of the Social Security 
Act (42 U.S.C. 902(a)(5), 1383, and 1383b).

    2. Section 416.1485 is revised to read as follows:


Sec. 416.1485  Application of circuit court law.

    The procedures which follow apply to administrative determinations 
or

[[Page 48967]]

decisions on claims involving the application of circuit court law.
    (a) General. We will apply a holding in a United States Court of 
Appeals decision that we determine conflicts with our interpretation of 
a provision of the Social Security Act or regulations unless the 
Government seeks further judicial review of that decision or we 
relitigate the issue presented in the decision in accordance with 
paragraphs (c) and (d) of this section. We will apply the holding to 
claims at all levels of administrative adjudication within the 
applicable circuit unless the holding, by its nature, applies only at 
certain levels of adjudication.
    (b) Issuance of an Acquiescence Ruling. When we determine that a 
United States Court of Appeals holding conflicts with our 
interpretation of a provision of the Social Security Act or regulations 
and the Government does not seek further judicial review or is 
unsuccessful on further review, we will issue a Social Security 
Acquiescence Ruling. The Acquiescence Ruling will describe the 
administrative case and the court decision, identify the issue(s) 
involved, and explain how we will apply the holding, including, as 
necessary, how the holding relates to other decisions within the 
applicable circuit. These Acquiescence Rulings will generally be 
effective on the date of their publication in the Federal Register and 
will apply to all determinations and decisions made on or after that 
date unless an Acquiescence Ruling is rescinded as stated in paragraph 
(e) of this section. The process we will use when issuing an 
Acquiescence Ruling follows:
    (1) We will release an Acquiescence Ruling for publication in the 
Federal Register for any precedential circuit court decision that we 
determine contains a holding that conflicts with SSA's interpretation 
of a provision of the Social Security Act or regulations no later than 
120 days from the receipt of the court's decision. This timeframe will 
not apply when we decide to seek further judicial review of the circuit 
court decision or when coordination with the Department of Justice and/
or other Federal agencies makes this timeframe no longer feasible.
    (2) If we make a determination or decision on your claim between 
the date of a circuit court decision and the date we publish an 
Acquiescence Ruling, you may request application of the published 
Acquiescence Ruling to the prior determination or decision. You must 
demonstrate that application of the Acquiescence Ruling could change 
the prior determination or decision in your case. You may demonstrate 
this by submitting a statement that cites the Acquiescence Ruling and 
indicates what finding or statement in the prior determination or 
decision conflicts with the Acquiescence Ruling. If you can so 
demonstrate, we will readjudicate the claim at the level at which it 
was last adjudicated in accordance with the Acquiescence Ruling. Any 
readjudication will be limited to consideration of the issue(s) covered 
by the Acquiescence Ruling and any new determination or decision on 
readjudication will be subject to administrative and judicial review in 
accordance with this subpart. Our denial of a request for 
readjudication will not be subject to further administrative or 
judicial review. If you file a request for readjudication within the 
60-day appeal period and we deny that request, we shall extend the time 
to file an appeal on the merits of the claim to 60 days after the date 
that we deny the request for readjudication.
    (3) After we receive a precedential circuit court decision and 
determine that an Acquiescence Ruling may be required, we will begin to 
identify those claims that are pending before us within the circuit and 
that might be subject to a readjudication if an Acquiescence Ruling is 
subsequently issued. When an Acquiescence Ruling is published, we will 
send notices to those individuals whose cases we have identified which 
may be affected by the Acquiescence Ruling. The notice will provide 
information about the Acquiescence Ruling and the right to request a 
readjudication under that Acquiescence Ruling, as described in 
paragraph (b)(2) of this section. It is not necessary for an individual 
to receive a notice in order to request application of an Acquiescence 
Ruling to his or her claim, as described in paragraph (b)(2) of this 
section.
    (c) Relitigation of court's holding after publication of an 
Acquiescence Ruling. After we have published an Acquiescence Ruling to 
reflect a holding of a United States Court of Appeals on an issue, we 
may decide under certain conditions to relitigate that issue within the 
same circuit. We will relitigate only when the conditions specified in 
paragraphs (c) (2) and (3) of this section are met, and, in general, 
one of the events specified in paragraph (c)(1) of this section occurs.
    (1) Activating events:
    (i) An action by both Houses of Congress indicates that a court 
case on which an Acquiescence Ruling was based was decided 
inconsistently with congressional intent, such as may be expressed in a 
joint resolution, an appropriations restriction, or enactment of 
legislation which affects a closely analogous body of law;
    (ii) A statement in a majority opinion of the same circuit 
indicates that the court might no longer follow its previous decision 
if a particular issue were presented again;
    (iii) Subsequent circuit court precedent in other circuits supports 
our interpretation of the Social Security Act or regulations on the 
issue(s) in question; or
    (iv) A subsequent Supreme Court decision presents a reasonable 
legal basis for questioning a circuit court holding upon which we base 
an Acquiescence Ruling.
    (2) The General Counsel of the Social Security Administration, 
after consulting with the Department of Justice, concurs that 
relitigation of an issue and application of our interpretation of the 
Social Security Act or regulations at the administrative level within 
the circuit would be appropriate.
    (3) We publish a notice in the Federal Register that we intend to 
relitigate an Acquiescence Ruling issue and that we will apply our 
interpretation of the Social Security Act or regulations at the 
administrative level within the circuit to claims selected for 
relitigation. The notice will explain why we made this decision.
    (d) Notice of relitigation. When we decide to relitigate an issue, 
we will provide a notice explaining our action to all affected 
claimants. In adjudicating claims subject to relitigation, 
decisionmakers throughout the SSA administrative review process will 
apply our interpretation of the Social Security Act and regulations, 
but will also state in written determinations or decisions how the 
claims would have been decided under the circuit standard. Claims not 
subject to relitigation will continue to be decided under the 
Acquiescence Ruling in accordance with the circuit standard. So that 
affected claimants can be readily identified and any subsequent 
decision of the circuit court or the Supreme Court can be implemented 
quickly and efficiently, we will maintain a listing of all claimants 
who receive this notice and will provide them with the relief ordered 
by the court.
    (e) Rescission of an Acquiescence Ruling. We will rescind as 
obsolete an Acquiescence Ruling and apply our interpretation of the 
Social Security Act or regulations by publishing a notice in the 
Federal Register when any of the following events occurs:
    (1) The Supreme Court overrules or limits a circuit court holding 
that was the basis of an Acquiescence Ruling;

[[Page 48968]]

    (2) A circuit court overrules or limits itself on an issue that was 
the basis of an Acquiescence Ruling;
    (3) A Federal law is enacted that removes the basis for the holding 
in a decision of a circuit court that was the subject of an 
Acquiescence Ruling; or
    (4) We subsequently clarify, modify or revoke the regulation or 
ruling that was the subject of a circuit court holding that we 
determined conflicts with our interpretation of the Social Security Act 
or regulations, or we subsequently publish a new regulation(s) 
addressing an issue(s) not previously included in our regulations when 
that issue(s) was the subject of a circuit court holding that 
conflicted with our interpretation of the Social Security Act or 
regulations and that holding was not compelled by the statute or 
Constitution.

[FR Doc. 97-24803 Filed 9-17-97; 8:45 am]
BILLING CODE 4190-11-P


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