Federal Register / Vol. 60, No. 245 / Thursday, December 21, 1995 / Proposed Rules 66203

information provider of the receipt of

Customer purchase request/response requests

shall occur within 1 minute for Phase I. The

actual negotiations and agreements on

purchase request/response requests do not

have time constraints. For Phase II,

acknowledgment shall occur within 30

seconds.

Question 38. The Commission requests

comments on how to redesign the download

templates in Appeat primary and secondary

capacity can be offered through

downloadable files that have the same

format. The Commission also requests

comments on how primary and secondary

capacity can be displayed in the same tables

on a RIN Node.

Question 39. What is the best way to

handle the purchase request and response

process when primary and secondary

capacity appear in the same RIN displays and

files?

Question 40. The Commission requests

comments on how to determine the costs

associated with posting resales on the RIN?

Question 41. Are the standards of conduct

proposed herein sufficient? Should they be

modified in any way?

Question 42. In particular, if the

Commission in its final rule requires

functional unbundling of all transmission

from generation, how would these standards

of conduct need to be modified? Would any

other organizational changes need to be

made? Would any modifications be needed

with regard to ancillary services?

Question 43. Would the Commission’s

proposed separation of functions jeopardize

system reliability? If so, what other

mechanism would provide wholesale

transmission customers and potential

customers with assurance that they would be

obtaining access to the same information, at

the same time, as that used by Transmission

Providers in making their own wholesale

transmission purchasing decisions?

Question 44. Regarding information on

affiliate discounts, what specifications are

needed for the information to be posted in

HTML displays and what specifications and

formats are needed for the downloadable

files?

Question 45. The Commission requests

comments on whether and to what extent the

Commission should exercise this statutory

authority to extend the RINs requirements to

non-public utilities’ that own and/or control

facilities used for the transmission of electric

energy in interstate commerce.

Question 46. Should reciprocity require

that a non-public utility (such as a co-op or

publicly owned utility) have a RIN?

Question 47. In light of the proposal in the

How Report to use a low cost Internet-based

approach, the Commission requests specific

comments on circumstances in which the

RINs requirements are believed to be an

unnecessary burden. Are there less

burdensome ways to meet the same-time

access requirement in circumstances where

the utility’s wholesale transmission facilities

have little commercial value? What criteria

should the Commission use in determining

whether and when to relax the RINs

requirements?

[FR Doc. 95–30884 Filed 12–20–95; 8:45 am]

BILLING CODE 6717–01–P

RAILROAD RETIREMENT BOARD

20 CFR Part 261

RIN 3220–AB15

Finality of Decisions Regarding

Railroad Retirement Annuities

AGENCY: Railroad Retirement Board.

ACTION: Proposed rule.

SUMMARY: The Railroad Retirement

Board (Board) hereby proposes to adopt

regulations pertaining to the finality of

decisions under the Railroad Retirement

Act of 1974 (Act).

DATES: Comments must be received on

or before February 20, 1996.

ADDRESSES: Secretary to the Board,

Railroad Retirement Board, 844 North

Rush Street, Chicago, Illinois 60611.

FOR FURTHER INFORMATION CONTACT:

Michael C. Litt, General Attorney,

Railroad Retirement Board, 844 North

Rush Street, Chicago, Illinois 60611,

telephone (312) 751–4929, TDD (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 proposed regulation addresses

the finality of benefit decisions. This

proposed 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).

Proposed § 261.1 describes who may

open a final decision issued by the

agency. Proposed § 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; within 3 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 proposed § 261.2(c).

Proposed § 261.3 provides that a

change of legal interpretation or

administrative ruling upon which a

decision was based is not a basis for

reopening.

Proposed § 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.

Proposed § 261.5 provides that a

decision may be reopened after the 1

year and 3 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.

Proposed §§ 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 part 260).

Proposed § 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.

Proposed § 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, proposed § 261.11 provides

that the three-member Board has the

discretion to reopen or not to reopen

any decision under these regulations.

The Labor Member of the Board

dissented from the action of the majority

of the Board approving this proposed

rule. The Labor Member’s reasons for

dissenting from this action are set out

below.
66204 Federal Register / Vol. 60, No. 245 / Thursday, December 21, 1995 / Proposed Rules

Views of the Labor Member of the

Board

Proposed § 261.2 would allow

unlimited retroactivity for reopening

where an overpayment resulted from the

Board’s failure to apply a proper

reduction to the tier I component of an

annuity. This same section would allow

unlimited retroactivity in cases where

an incorrect decision results in

entitlement to an annuity where if the

decision were correct there would be no

entitlement.

The Labor Member contends that

failure to consider these cases final after

a reasonable period of time clearly

defeats the purpose of developing an

administrative finality policy. He agrees

that, where an individual through

fraudulent or similar means causes an

incorrect benefit to be paid, the Board

should promptly take steps to correct

the payment and collect the

overpayment. However, in cases where

an overpayment has been made due to

an error on the part of the Board or the

beneficiary and there was no intent at

deception, he feels that a reasonable

‘‘statute of limitations’’ should be set.

He feels a more reasonable approach

would be to borrow a policy from the

Social Security Administration and

allow unlimited retroactivity for

reopening decision that were

unfavorable to a party, but only to

correct clerical error or error that

appears on the face of the evidence that

was considered when the determination

or decision was originally made. In most

other cases, reopening should be

limited.

The Labor Member points out that in

November 1985 the Board published a

proposed rule in the Federal Register

dealing with administrative finality (50

FR 48602, November 26, 1985). Several

months later, the Office of Management

and Budget submitted a letter to the

then Chairman of the Board expressing

dissatisfaction with the proposed rule

comparing it unfavorably with SSA’s.

The Labor Member interprets this as

a clear message that the Board should

tailor its administrative finality policy

to that of SSA’s to the extent possible.

The Labor Member wants our

beneficiaries to have the security of

knowing that benefits that they have

come to rely on will not be suddenly

taken away and argues that conforming

our administrative finality regulations to

those of SSA’s where appropriate, lends

itself to a true administrative finality,

while still maintaining the integrity of

the railroad retirement system. He

thinks the proposed rule approved by

the majority of the Board fails to do this,

and for this reason he cannot endorse it.

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 proposed

to amended as follows:

1. Part 261, Administrative Finality, is

added 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 or

the notice of such decision, for any

reason;

(b) Within three 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

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 found the claimant

entitled to an annuity or to a lump sum

payment based on the earnings record of
Federal Register / Vol. 60, No. 245 / Thursday, December 21, 1995 / Proposed Rules 66205

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;

(8) 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;

(9) The decision is incorrect because

of a failure to apply a reduction, or the

proper reduction, to the tier I

component of an annuity;

(10) Except as is provided in § 261.4

of this part, the decision is incorrect for

any reason and results in entitlement to

an annuity in a case where if the

decision were correct there would be no

entitlement.

(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 fist

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: December 14, 1995.

By authority of the Board.

For the Board

Beatrice Ezerski,

Secretary to the Board.

[FR Doc. 95–31059 Filed 12–20–95; 8:45 am]

BILLING CODE 7905–01–M