45712 Federal Register / Vol. 62, No. 168 / Friday, August 29, 1997 / Rules and Regulations

Service Bulletin A300–22–6021, Revision 1,

dated December 24, 1993 (for Model A300–

600 series airplanes), as applicable.

(c) As of November 2, 1994, no person

shall install a FCC having either P/N

B470ABM1 or B470AAM1 on any airplane.

New actions required by this ad:

(d) For airplanes on which Modification

No. 11454 [reference Airbus Service Bulletin

A310–22–2044 (for Model A310 series

airplanes) or Airbus Service Bulletin A300–

22–6032 (for Model A300–600 series

airplanes)] has not been installed:

Accomplish paragraphs (d)(1), (d)(2)(i) and

(d)(2)(ii) of this AD.

(1) Within 24 months after the effective

date of this AD, modify the autopilot in

accordance with Airbus Service Bulletin

A310–22–2044, Revision 1, dated January 8,

1997 (for Model A310 series airplanes), or

Service Bulletin A300–22–6032, Revision 1,

dated January 8, 1997 (for Model A300–600

series airplanes), as applicable. The

requirements of paragraph (a) of AD 95–25–

09, amendment 39–9455, if applicable, must

be accomplished prior to or at the same time

the requirements of this paragraph are

accomplished.

(2) Prior to further flight following

accomplishment of paragraph (d)(1) of this

AD:

(i) Remove the AFM revisions required by

paragraph (b) of this AD; and

(ii) Perform an operational test of this

autopilot disconnect feature to determine

that it operates properly, in accordance with

Airbus Service Bulletin A310–22–2047,

dated July 16, 1996 (for Model A310 series

airplanes), or Service Bulletin A300–22–

6035, dated July 16, 1996 (for Model A300–

600 series airplanes), as applicable. If any

discrepancy is detected, prior to further

flight, repair it in accordance with the

applicable service bulletin. Repeat this test

thereafter at intervals not to exceed 18

months.

(e) An alternative method of compliance or

adjustment of the compliance time that

provides an acceptable level of safety may be

used if approved by the Manager,

Standardization Branch, ANM–113, FAA,

Transport Airplane Directorate. Operators

shall submit their requests through an

appropriate FAA Principal Maintenance

Inspector, who may add comments and then

send it to the Manager, Standardization

Branch, ANM–113.

Note 2: Information concerning the

existence of approved alternative methods of

compliance with this AD, if any, may be

obtained from the Standardization Branch,

ANM–113.

(f) Special flight permits may be issued in

accordance with sections 21.197 and 21.199

of the Federal Aviation Regulations (14 CFR

21.197 and 21.199) to operate the airplane to

a location where the requirements of this AD

can be accomplished.

(g) The modification of the FCC’s shall be

done in accordance with Airbus Service

Bulletin A310–22–2036, dated December 14,

1993, or Airbus Service Bulletin A300–22–

6021, Revision 1, dated December 24, 1993,

as applicable. The incorporation by reference

of those documents was approved previously

by the Director of the Federal Register, in

accordance with 5 U.S.C. 552(a) and 1 CFR

part 51, as of May 23, 1996 (61 FR 16873,

April 18, 1996). The modification and

operational test of the autopilot shall be done

in accordance with Airbus Service Bulletin

A310–22–2044, Revision 1, dated January 8,

1997; Airbus Service Bulletin A300–22–6032,

Revision 1, dated January 8, 1997; Airbus

Service Bulletin A310–22–2047, dated July

16, 1996; or Airbus Service Bulletin A300–

22–6035, dated July 16, 1996; as applicable.

The incorporation by reference of those

documents was approved by the Director of

the Federal Register in accordance with 5

U.S.C. 552(a) and 1 CFR part 51. Copies may

be obtained from Airbus Industrie, 1 Rond

Point Maurice Bellonte, 31707 Blagnac

Cedex, France. Copies may be inspected at

the FAA, Transport Airplane Directorate,

1601 Lind Avenue, SW., Renton,

Washington; or at the Office of the Federal

Register, 800 North Capitol Street, NW., suite

700, Washington, DC.

(h) This amendment becomes effective on

October 3, 1997.

Issued in Renton, Washington, on August

25, 1997.

John J. Hickey,

Acting Manager, Transport Airplane

Directorate, Aircraft Certification Service.

[FR Doc. 97–23099 Filed 8–28–97; 8:45 am]

BILLING CODE 4910–13–U

RAILROAD RETIREMENT BOARD

20 CFR Part 261

RIN 3220–AB15

Finality of Decisions Regarding

Railroad Retirement Annuities

AGENCY: Railroad Retirement Board.

ACTION: Final rule.

SUMMARY: The Railroad Retirement

Board (Board) hereby adopts regulations

pertaining to the finality of decisions

under the Railroad Retirement Act of

1974 (Act).

EFFECTIVE DATE: This rule will be

effective September 29, 1997.

ADDRESSES: Secretary to the Board,

Railroad Retirement Board, 844 North

Rush Street, Chicago, Illinois 60611.

FOR FURTHER INFORMATION CONTACT:

Thomas W. Sadler, Senior Attorney,

Railroad Retirement Board, 844 North

Rush Street, Chicago, Illinois 60611,

telephone (312) 751–4513, TTD (312)

751–4701.

SUPPLEMENTARY INFORMATION: The

Board’s rules and procedures regarding

the finality of decisions are presently

contained in Board Orders, which are

not readily available to the public. The

Board Order regarding finality of

decisions provides that finality of

certain decisions is based on a number

of factors; adjudication based on these

factors is difficult to administer. Also

the Board Order does not contain any

time limits on reopening.

The regulation addresses the finality

of benefit decisions. This rule is similar

to the regulation of the Social Security

Administration (SSA) entitled

‘‘Reopening and Revising

Determinations and Decisions’’ (20 CFR

404.987–404.996).

Section 261.1 describes who may

open a final decision issued by the

agency. Section 261.2 describes when a

final decision may be reopened. All

final decisions, except decisions

awarding separation allowance lump

sum payments, may be reopened within

12 months of the date of notice of such

decision (see § 261.2(d)); within 4 years

of the date of notice if new and material

evidence is furnished or if there was an

adjudicative error not consistent with

the evidence of record at the time of

adjudication; or at any time under the

conditions set forth in § 261.2(c).

Section 261.3 provides that a change

of legal interpretation or administrative

ruling upon which a decision was based

is not a basis for reopening.

Section 261.4 provides that the

annuity beginning date will not be

changed if the annuitant was later found

to be engaged in compensated service

for an employer, as defined in part 202

of the Board’s regulations, and the

annuitant had no basis for knowing that

he was engaged in such service. This

section also provides that the award of

an annuity would not be withdrawn if

based upon incorrect records of service

where the erroneously credited service

months do not exceed 6 months and the

annuitant was not at fault in causing the

error.

Section 261.5 provides that a decision

may be reopened after the 1 year and 4

year time limits set forth in § 261.2 of

this part if the Board had begun an

investigation within those time limits.

However, if the Board does not

diligently pursue the investigation it

will not reopen the decision if the

decision was favorable to the annuitant.

Sections 261.6–261.8 are procedural

and provide that if a decision is

reopened, the annuitant will be given

notice and will have a right to

reconsideration and/or a hearing. Any

hearing shall be conducted in

accordance with part 260 of the Board’s

regulations (20 CFR 260).

Section 261.9 provides that if a

decision on a claim is reopened it may

also cause a reopening of a decision on

a previous claim based upon the same

compensation record, even though the

time limits for reopening a decision on

the first claim have passed.
Federal Register / Vol. 62, No. 168 / Friday, August 29, 1997 / Rules and Regulations 45713

Section 261.10 provides that where

new evidence shows that the date of

birth used in the initial decision was

incorrect or where the record of

compensation has been changed a

decision may be revised even beyond

the time limits of § 261.2 of this part if

such reopening is favorable to the

annuitant, but any increase in benefits

payable as the result of the reopening

shall be paid prospectively only.

Finally, § 261.11 provides that the

three-member Board has the discretion

to reopen or not to reopen any decision

under these regulations.

On December 21, 1995, the Board

published this rule as a proposed rule

(60 FR 66203–66205). The Labor

Member of the Board dissented from

publication of the proposed rule. His

reasons for doing so were set forth in the

supplementary section of the proposed

rule (60 FR 66204). One comment was

received, indicating agreement with the

views of the Labor Member. The views

of the commentor were considered, but

a majority of the Board does not agree

with those views. In addition to the

comment discussed above, the Board

received letters from two individuals

requesting that final action on this rule

be deferred to allow rail labor and rail

management to reach agreement on the

substance of the rule. Based upon

comments received by rail labor and

management, to the effect that the Board

should consider closely paralleling the

Social Security Administration’s

regulations’s regarding reopening, the

Board has added a new paragraph (7) to

§ 261.2(c). This paragraph provides that

the Board will reopen an unfavorable

decision to correct an error made by the

Board which should have been obvious

at the time the initial decision was

made. This paragraph is identical to 20

CFR 404.988(c)(8) of the regulations of

the Social Security Administration.

Proposed § 261.2(c)(9) was modified and

§ 261.2(c)(10) was removed to make this

regulation more consistent with Social

Security 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 261

Pensions, Railroad employees,

Railroad retirement.

For the reasons set out in the

preamble, chapter II of title 20 of the

Code of Federal Regulations is amended

by adding part 261 to read as follows:

PART 261—ADMINISTRATIVE

FINALITY

Sec.

261.1 Reopening and revising decisions.

261.2 Conditions for reopening.

261.3 Change of legal interpretation or

administrative ruling.

261.4 Decisions which shall not be

reopened.

261.5 Late completion of timely

investigation.

261.6 Notice of revised decision.

261.7 Effect of revised decision.

261.8 Time and place to request review of

a revised decision.

261.9 Finality of findings when later claim

is filed on same earnings record.

261.10 Increase in future benefits where

time period for reopening has expired.

261.11 Discretion of the three-member

Board to reopen or not to reopen a final

decision.

Authority: 45 U.S.C. 231f.

§ 261.1 Reopening and revising decisions.

(a) This part sets forth the Board’s

rules governing finality of decisions.

After the expiration of the time limits

for review as set forth in part 260 of this

chapter, decisions of the agency may be

reopened and revised under the

conditions described in this part, by the

bureau, office, or entity that made the

earlier decision or by a bureau, office, or

other entity at a higher level, which has

the claim properly before it.

(b) A final decision as that term is

used in this part means any decision of

the type listed in § 260.1 of this chapter

where the time limits for review as set

forth in part 260 of this chapter or in the

Railroad Retirement Act have expired.

(c) Reopening a final decision under

this part means a conscious

determination on the part of the agency

to reconsider an otherwise final

decision for purposes of revising that

decision.

(d) New and material evidence as that

phrase is used in this part means

evidence that may reasonably be

expected to affect a final decision,

which was unavailable to the agency at

the time the decision was made, and

which the claimant could not

reasonably have been expected to have

submitted at that time.

§ 261.2 Conditions for reopening.

A final decision may be reopened:

(a) Within 12 months of the date of

the notice of such decision, for any

reason;

(b) Within four years of the date of the

notice of such decision, if there is new

and material evidence or there was

adjudicative error not consistent with

the evidence of record at the time of

adjudication; or

(c) At any time if:

(1) The decision was obtained by

fraud or similar fault;

(2) Another person files a claim on the

same record of compensation and

allowance of the claim adversely affects

the first claim;

(3) A person previously determined to

be dead on whose earnings record a

survivor annuity is based is found to be

alive;

(4) A claim was denied because of the

absence of proof of death of the

employee, and the death is later

established:

(i) By reason of an unexplained

absence from his or her residence for a

period of 7 years; or

(ii) By location or identification of his

or her body;

(5) The Social Security

Administration has awarded duplicate

benefits on the same record of

compensation;

(6) The decision was that the claimant

did not have an insured status, and

compensation has been credited to the

employee’s record of compensation in

accordance with part 211 of this

chapter:

(i) To enter items transferred by the

Social Security Administration which

were credited under the Social Security

Act when they should have been

credited to the employee’s railroad

retirement compensation record; or

(ii) To correct an error made in the

allocation of earnings to an individual

which, if properly allocated, would

have given him or her an insured status

at the time of the decision and the

evidence of these earnings was in the

possession of the Railroad Retirement

Board or the Social Security

Administration at the time of the

decision;

(7) The decision is wholly or partially

unfavorable to a party, but only to

correct clerical error or an error that

appears on the face of the evidence that

was considered when the determination

or decision was made;

(8) The decision found the claimant

entitled to an annuity or to a lump sum

payment based on the earnings record of

a deceased person, and it is later

established that:

(i) The claimant was convicted of a

felony or an act in the nature of a felony

for intentionally causing that person’s

death; or

(ii) If the claimant was subject to the

juvenile justice system, he or she was

found by a court of competent

jurisdiction to have intentionally caused

that person’s death by committing an act

which, if committed by an adult, would

have been considered a felony or an act

in the nature of a felony;
45714 Federal Register / Vol. 62, No. 168 / Friday, August 29, 1997 / Rules and Regulations

(9) The claimant shows that it is to his

or her advantage to select a later annuity

beginning date and refunds, by cash

payment or setoff, past payments

applying to the period prior to the later

beginning date, subject, however, to the

provisions of subpart D of part 217 and

§ 218.9 of this chapter;

(10) The decision is incorrect because

of a failure to apply a reduction, or the

proper reduction, to the tier I

component of an annuity, but the Board

shall apply the reduction only for the

months following the month the Board

first takes corrective action.

(d) Revision of the amount or

payment of a separation allowance lump

sum amount pursuant to section 6(e) of

the Railroad Retirement Act is limited to

60 days from the date of notification of

the award of the separation allowance

lump sum payment.

§ 261.3 Change of legal interpretation or

administrative ruling.

A change of legal interpretation or

administrative ruling upon which a

decision is based does not render a

decision erroneous and does not

provide a basis for reopening.

§ 261.4 Decisions which shall not be

reopened.

The following decisions shall not be

reopened:

(a) An award of an annuity beginning

date to an applicant later found to have

been in compensated service to an

employer under part 202 of this chapter

on that annuity beginning date and who

is found not to be at fault in causing the

erroneous award; provided, however,

that this exception shall not operate to

permit payment of benefits for any

month in which the claimant is found

to be engaged in compensated service.

(b) An award of an annuity based on

a subsequently discovered erroneous

crediting of months of service and

compensation to a claimant where:

(1) The loss of such months of service

and compensation will cause the

applicant to lose his or her eligibility for

an annuity previously awarded;

(2) The erroneously credited months

of service do not exceed six months; and

(3) The annuitant is found not to be

at fault in causing the erroneous

crediting.

(c) An erroneous award of an annuity

where the error is no greater than one

dollar per month per annuity affected.

(d) An erroneous award of a lump

sum or accrued annuity payment where

the error is no greater than $25.00.

§ 261.5 Late completion of timely

investigation.

(a) A decision may be revised after the

applicable time period in § 261.2(a) or

§ 261.2(b) of this part expires if the

Railroad Retirement Board begins an

investigation into whether to revise the

decision before the applicable time

period expires and the agency diligently

pursues the investigation to the

conclusion. The investigation may be

based on a request by a claimant or on

action by the Railroad Retirement

Board.

(b) Diligently pursued for purposes of

this section means that in view of the

facts and circumstances of a particular

case, the necessary action was

undertaken and carried out as promptly

as the circumstances permitted. Diligent

pursuit will be presumed to have been

met if the investigation is concluded

and, if necessary, the decision is revised

within 6 months from the date the

investigation began.

(c) If the investigation is not diligently

pursued to its conclusion, the decision

will be revised if a revision is applicable

and if it is favorable to the claimant. It

will not be revised if it would be

unfavorable to the claimant.

§ 261.6 Notice of revised decision.

(a) When a decision is revised, notice

of the revision will be mailed to the

parties to the decision at their last

known address. The notice will state the

basis for the revised decision and the

effect of the revision. The notice will

also inform the parties of the right to

further review.

(b) If a hearings officer or the threemember 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.

§ 261.7 Effect of revised decision.

A revised decision is binding unless:

(a) The revised decision is

reconsidered or appealed in accord with

part 260 of this chapter;

(b) The three-member Board reviews

the revised decision; or

(c) The revised decision is further

revised consistent with this part.

§ 261.8 Time and place to request review

of a revised decision.

A party to a revised decision may

request, as appropriate, further review

of the decision in accordance with the

rules set forth in part 260 of this

chapter.

§ 261.9 Finality of findings when later

claim is filed on same earnings record.

If two claims for benefits are filed on

the same record of compensation,

findings of fact made in a decision in

the first claim may be revised in

determining or deciding the second

claim, even though the time limit for

revising the findings made in the first

claim has passed. However, a finding in

connection with a claim that a person

was fully or currently insured at the

time of filing an application, at the time

of death, or any other pertinent time,

may be revised only under the

conditions stated in § 261.2 of this part.

§ 261.10 Increase in future benefits where

time period for reopening has expired.

If, after the time period for reopening

under § 261.2(b) of this part has expired,

new evidence is furnished showing a

different date of birth or new evidence

is furnished which would cause a

correction in a record of compensation

as provided for in part 211 of this

chapter and, as a result of the new

evidence, increased benefits would be

payable, the Board will pay increased

benefits, but only for the months

following the month the new evidence

is received.

§ 261.11 Discretion of the three-member

Board to reopen or not to reopen a final

decision.

In any case in which the threemember 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: August 21, 1997.

By Authority of the Board.

For the Board,

Beatrice Ezerski,

Secretary to the Board.

[FR Doc. 97–23080 Filed 8–28–97; 8:45 am]

BILLING CODE 7905–01–P

DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation

and Enforcement

30 CFR Part 917

[KY–211–FOR]

Kentucky Regulatory Program

AGENCY: Office of Surface Mining

Reclamation and Enforcement (OSM),

Interior.

ACTION: Final rule; approval of

amendment.