20 CFR 227.5 PART 230 -- MONTHS ANNUITIES NOT PAYABLE BY REASON OF WORK
Sec.
230.1 Statutory provisions.
230.2 Loss of annuity for month in which compensated service is
rendered.
230.5 Exception concerning service to a local lodge or division.
Authority: 45 U.S.C. 231f.
Source: Board Order 60-2, 25 FR 593, Jan. 23, 1960, unless
otherwise noted. Redesignated at 47 FR 7656, Feb. 22, 1982.
20 CFR 230.1 Statutory provisions.
No annuity shall be paid with respect to any month in which an
individual in receipt of any annuity hereunder shall render compensated
service to an employer or to the last person by whom he was employed
prior to the date on which the annuity began to accrue. Individuals
receiving annuities shall report to the Board immediately all such
compensated service. No annuity under paragraph 4 or 5 of subsection
(a) of this section shall be paid to an individual with respect to any
month in which the individual is under age sixty-five and is paid more
than $100 in earnings from employment or self-employment of any form:
Provided, That for purposes of this paragraph, if a payment in any one
calendar month is for accruals in more than one calendar month, such
payment shall be deemed to have been paid in each of the months in which
accrued to the extent accrued in such month. Any such individual under
the age of sixty-five shall report to the Board any such payment of
earnings for such employment or self-employment before receipt and
acceptance of an annuity for the second month following the month of
such payment. A deduction shall be imposed, with respect to any such
individual who fails to make such report, in the annuity or annuities
otherwise due the individual, in an amount equal to the amount of the
annuity for each month in which he is paid such earnings in such
employment or self-employment, except that the first deduction imposed
pursuant to this sentence shall in no case exceed an amount equal to the
amount of the annuity otherwise due for the first month with respect to
which the deduction is imposed. If pursuant to the third sentence of
this subsection an annuity was not paid to an individual with respect to
one or more months in any calendar year, and it is subsequently
established that the total amount of such individual's earnings during
such year as determined in accordance with that sentence (but exclusive
of earnings for services described in the first sentence of this
subsection) did not exceed $1,200, the annuity with respect to such
month or months, and any deduction imposed by reason of the failure to
report earnings for such month or months under the fifth sentence of
this subsection, shall then be payable. If the total amount of such
individual's earnings during such year (exclusive of earnings for
services described in the first sentence of this subsection) is in
excess of $1,200, the number of months in such year with respect to
which an annuity is not payable by reason of such third and fifth
sentences shall not exceed one month for each $100 of such excess,
treating the last $50 or more of such excess as $100; and if the amount
of the annuity has changed during such year, any payments of annuity
which become payable solely by reason of the limitation contained in
this sentence shall be made first with respect to the month or months
for which the annuity is larger. (Section 2(d) of the act.)
20 CFR 230.2 Loss of annuity for month in which compensated service is
rendered.
If an individual in receipt of an annuity renders compensated
service, he shall not be paid an annuity with respect to any month in
which such service is rendered to:
(a) An employer;
(b) Any person whether or not an employer by whom he was most
recently employed when his annuity begins to accrue;
(c) Any person with whom he held, at the time the annuity begins to
accrue, any rights to return to service;
(d) Any person with whom he ceased service in order to have his
annuity begin to accrue.
(Board Order 60-2, 25 FR 593, Jan. 23, 1960; 25 FR 1074, Feb. 6,
1960. Redesignated at 47 FR 7656, Feb. 22, 1982)
*Editorial Note: At 47 FR 7637, Feb. 22, 1982, 208.7 was removed.
20 CFR 230.5 Exception concerning service to a local lodge or division.
In determining whether an annuity is subject to the provisions of
this part the Board shall disregard any compensated service rendered
after December 31, 1936, to a local lodge or division of a
railway-labor-organization employer if the compensation for such service
is required to be disregarded under the provisions of 222.3(f) of this
chapter.
(Board Order 40-742, 6 FR 298, Jan. 14, 1941. Redesignated at 47 FR
7656, Feb. 22, 1982)
20 CFR 230.5 PART 232 -- SPOUSES' ANNUITIES
20 CFR 230.5 Subparts A-B -- (Reserved)
20 CFR 230.5 Subpart C -- Computation of Annuity
Sec.
232.301 Statutory provisions.
232.302 Amount of annuity.
232.303 Reduction because of other benefits.
232.304 Reduction because of age.
232.305 Rounding annuity.
232.306 Commutation of annuity.
20 CFR 230.5 Subpart D -- Payment of Annuities
232.401 Statutory provisions.
232.402 Loss of annuity with respect to any month.
Authority: 45 U.S.C. 231f(b)(5).
Source: Board Order 60-13, 25 FR 1674, Feb. 26, 1960, unless
otherwise noted.
20 CFR 230.5 Subparts A-B -- (Reserved)
20 CFR 230.5 Subpart C -- Computation of Annuity
20 CFR 232.301 Statutory provisions.
The spouse of an individual, * * * shall be entitled to a spouse's
annuity equal to one-half of such individual's annuity or pension, but
not more, with respect to any month, than 110 per centum of an amount
equal to the maximum amount which could be paid to anyone, with respect
to such month, as a wife's insurance benefit under section 202(b) of the
Social Security Act as amended from time to time: Provided however,
That if the annuity of the individual is awarded under paragraph 3 of
subsection (a), the spouse's annuity shall be computed or recomputed as
though such individual had been awarded the annuity to which he would
have been entitled under paragraph 1 of said subsection: Provided
further, That, if the annuity of the individual is awarded pursuant to a
joint and survivor election, the spouse's annuity shall be computed or
recomputed as though such individual had not made a joint and survivor
election: And provided further, That any spouse's annuity shall be
reduced by the amount of any annuity and the amount of any monthly
insurance benefit, other than a wife's or husband's insurance benefit,
to which such spouse is entitled, or on proper application would be
entitled, under subsection (a) of this section or subsection (d) of
section 5 of this Act or section 202 of the Social Security Act; except
that if such spouse is disentitled to a wife's or husband's insurance
benefit, or has had such benefit reduced, by reason of subsection (k) of
section 202 of the Social Security Act, the reduction pursuant to this
third proviso shall be only in the amount by which such spouse's monthly
insurance benefit under said Act exceeds the wife's or husband's
insurance benefit to which such spouse would have been entitled under
that Act but for said subsection (k) (Section 2(e) of the act).
20 CFR 232.302 Amount of annuity.
(a)(1) A spouse's annuity for a month shall be equal to one-half of
the annuity or pension of the retired employee, but not more than 110
per cent of an amount equal to the maximum amount which could be paid to
anyone, with respect to such month, as a wife's insurance benefit under
section 202(b) of the Social Security Act as amended from time to time.
(2) The maximum spouse's annuity for a month may be exceeded where
the employee's annuity is computed as prescribed in 226.6 of this
chapter.
(b) Where the annuity of the retired employee was awarded on a
reduced basis because such individual had not attained the age of 65,
the spouse's annuity shall be computed as though the employee's annuity
had been awarded under section 2(a)1 of the act after such annuitant had
attained age 65.
(c) Where the annuity of the retired employee was awarded and reduced
pursuant to a joint and survivor election, the spouse's annuity shall be
computed as though such joint and survivor election had not been made.
(Board Order 55-89, 20 FR 3712, May 27, 1955, as amended by Board
Order 60-13, 25 FR 1674, Feb. 26, 1960; Board Order 62-33, 27 FR 3323,
Apr. 7, 1962; 54 FR 12903, Mar. 29, 1989)
20 CFR 232.303 Reduction because of other benefits.
The spouse's annuity of an individual who is entitled, or on proper
application would be entitled, to a retirement annuity or parent's
insurance annuity under the Railroad Retirement Act, or to any monthly
insurance benefit under the Social Security Act, other than a wife's or
husband's insurance benefit, shall be reduced by the amount of such
other benefits: Provided however, That where a spouse has not been
awarded a wife's or husband's insurance benefit, or becomes disentitled
to a wife's or husband's insurance benefit after having been awarded
such benefit, or has had a wife's or husband's insurance benefit reduced
because the spouse is or on proper application would be entitled to any
other monthly insurance benefit under the Social Security Act, the
reduction shall be limited to the amount by which such other monthly
insurance benefit exceeds the wife's or husband's insurance benefit to
which the spouse would otherwise be entitled.
20 CFR 232.304 Reduction because of age.
Where eligibility for a spouse's annuity is based on age 62 to 65,
the amount of the annuity as computed under 232.302 shall be reduced by
1/180 for each calendar month during all of which the spouse is less
than 65 years of age when the annuity begins to accrue.
20 CFR 232.305 Rounding annuity.
When awarded on or after September 6, 1958, a monthly spouse's
annuity that is computed under this part and that is not a multiple of
$0.10, shall be rounded to the next higher multiple of $0.10.
20 CFR 232.306 Commutation of annuity.
When awarded on or after September 6, 1958, a monthly spouse's
annuity that is less than $5 may be paid quarterly or in a lump sum
equal to its commuted value as determined by the Board.
20 CFR 232.306 Subpart D -- Payment of Annuities
20 CFR 232.401 Statutory provisions.
The spouse's annuity provided in subsection (e) shall, with respect
to any month, be subject to the same provisions of subsection (d) as the
individual's annuity, and, in addition, the spouse's annuity shall not
be payable for any month if the individual's annuity is not payable for
such month (or, in the case of a pensioner, would not be payable if the
pension were an annuity) by reason of the provisions of said subsection
(d). Such spouse's annuity shall cease at the end of the month
preceding the month in which (i) the spouse or the individual dies, (ii)
the spouse and the individual are absolutely divorced, or (iii), in the
case of a wife under age 65 (other than a wife who is receiving such
annuity by reason of an election under subsection (h)), she no longer
has in her care a child who, if her husband were then to die, would be
entitled to an annuity under subsection (c) of section 5 of this Act
(section 2(g) of the act).
20 CFR 232.402 Loss of annuity with respect to any month.
A spouse's annuity shall not be paid with respect to any month in
which an individual in receipt of an annuity under section 2(e) of the
act shall:
(a) Render compensated service to an employer or to the last person
by whom such spouse annuitant was employed prior to the date on which
the annuity began to accrue, or
(b) The retirement annuity of the employee annuitant is not payable,
or in the case of a pensioner such pension would not be payable if it
were an annuity subject to the provisions of section 2(d) of the act.
(Board Order 55-89, 20 FR 3712, May 27, 1955)
20 CFR 232.402 PART 233 -- REDUCTION IN THE WINDFALL BENEFIT ANNUITY
COMPONENT
Sec.
233.1 When reduction must be made.
233.2 Computation of reduction.
233.3 Reduction of retroactive and other similar payments.
233.4 Reconsideration of the reduction computation.
Authority: Sec. 1122(c), Pub. L. 97-35, 95 Stat. 638 (45 U.S.C.
231f).
Source: 46 FR 50786, Oct. 15, 1981, unless otherwise noted.
20 CFR 233.1 When reduction must be made.
On or before August 31 of each fiscal year, the Board shall, in
accordance with this section, determine the amount of the reduction, if
any that will have to be made in the following fiscal year in the amount
of the windfall benefit components of persons entitled to such benefit
components under the Railroad Retirement Act. A reduction must be made
where it is determined that the balance in the Dual Benefits Payments
Account, comprised of such funds as will be available for the payment of
windfall benefits in the following fiscal year including the enacted or
estimated appropriation to the Account for the next succeeding fiscal
year, disregarding any interest which may be earned by the moneys in the
Account during the next fiscal year, is less than the estimate of the
amount of the windfall benefits that would be payable under the Railroad
Retirement Act during such fiscal year if no reduction were to be
applicable. The amount of the windfall benefit as determined by the
Board and paid to a person under this section shall constitute full and
complete payment of the person's windfall component and there shall be
no further liability on the part of the Board, the U.S. Government, or
any other person or entity for the amount of any reduction imposed.
20 CFR 233.2 Computation of reduction.
The amount of the reduction to be made in the windfall benefit
components of annuities shall be determined in the following manner:
the balance in the Dual Benefits Payments Account as determined under
233.1 shall be divided by the amount of the estimated windfall benefits
that would be payable for the fiscal year as determined under 233.1 to
obtain a percentage. This percentage of the unreduced windfall benefit
component shall be the amount of that component to which persons are
entitled under the Railroad Retirement Act. In no event, however, shall
the amount of the windfall benefit exceed the amount that would be
payable under the Railroad Retirement Act without regard to this
section.
20 CFR 233.3 Reduction of retroactive and other similar payments.
If a person is entitled to a retroactive payment for a month or
months in an earlier fiscal year, the reduction factor as imposed with
respect to the windfall component of the person's annuity, including
that portion attributable to an earlier fiscal year, shall be the
reduction factor applicable in the year of payment: Provided, however,
That if the application of the payment year reduction factor would
result in a larger payment than would the application of the earlier
year reduction factor, the earlier year reduction factor shall be
applied. The reduction factor imposed in the case of a replacement
payment shall be that reduction factor which was applicable to the
original payment. The term ''replacement payment'' means a payment made
to a beneficiary to replace a check which was issued to the beneficiary
in an earlier month, but which was not negotiated, and ''replacement
payment'' also means a payment made to the beneficiary for an earlier
month in which his or her annuity was not paid for some reason such as
lack of a current address.
20 CFR 233.4 Reconsideration of the reduction computation.
The Board shall periodically, but at least quarterly, examine the
determinations and calculations made under 233.1 and 233.2, in view of
changes which may occur in the estimates used. If, as a result of this
examination, the Board determines that the balance in the Dual Benefits
Payments Account will be insufficient to pay benefits from that Account
for the balance of the fiscal year at the established rate, the Board
shall establish a new rate of reduction to be applied to benefits to be
paid for the remaining months so that the balance in the Dual Benefits
Payments Account will be sufficient to pay benefits for the remainder of
the fiscal year. If, as a result of this examination, the Board finds
that the balance in the Account is greater than would be required to pay
benefits at the then applicable reduction percentage for the remainder
of the fiscal year, the Board may, at its discretion, decrease the
reduction percentage with respect to benefits to be paid for the
remaining months.
20 CFR 233.4 PART 234 -- LUMP-SUM PAYMENTS
20 CFR 233.4 Subpart A -- General
Sec.
234.1 Introduction.
234.2 Definitions.
20 CFR 233.4 Subpart B -- Lump-Sum Death Payment
234.10 General.
234.11 1974 Act lump-sum death payment.
234.12 1937 Act lump-sum death payment.
234.13 Payment to a funeral home.
234.14 Payment to an equitably entitled person.
234.15 When an employee's estate is entitled.
234.16 When a widow(er) is eligible as an equitably entitled person.
234.17 When an equitably entitled person's estate is payable.
234.18 Payment of a deferred lump-sum to a widow(er).
234.19 Effect of payment on future entitlement.
234.20 Computation of the employee's 1937 Act LSDP basic amount.
234.21 Definitions of ''living with'' and ''living in the same
household.''
20 CFR 233.4 Subpart C -- Annuities Due but Unpaid at Death
234.30 General.
234.31 Regular employee retirement and supplemental annuities.
234.32 Spouse or divorced spouse annuities.
234.33 Survivor annuities.
234.34 When an entitled relative of the employee dies before
receiving payment of a due but unpaid annuity.
20 CFR 233.4 Subpart D -- Residual Lump-Sum Payment
234.40 General.
234.41 Persons to whom an RLS is payable.
234.42 How the employee may designate beneficiaries.
234.43 Payment to designated beneficiaries.
234.44 Payment to surviving relatives.
234.45 Payment to the employee's estate.
234.46 Amount of the RLS payable.
234.47 Election of the RLS by a widow(er) or parent.
234.48 Computation of the gross RLS amount.
20 CFR 233.4 Subpart E -- Lump-Sum Refund Payment
234.50 General.
234.51 Persons to whom a lump-sum refund payment is payable.
234.52 Effect of payment on other benefits.
234.53 Computation of the lump-sum refund payment.
20 CFR 233.4 Subpart F -- Tier II Separation Allowance Lump-Sum Payment
234.55 General.
234.56 Persons to whom a separation allowance lump-sum payment is
payable.
234.57 Effect of payment on other benefits.
234.58 Computation of the separation allowance lump-sum payment.
20 CFR 233.4 Subpart G -- Miscellaneous
234.60 Escheat.
234.61 Assignment of interest by an eligible person.
234.62 Effect of conviction of a felony on entitlement.
Authority: 45 U.S.C. 231f.
Source: 51 FR 3036, Jan. 23, 1986, unless otherwise noted.
20 CFR 233.4 Subpart A -- General
20 CFR 234.1 Introduction.
This part contains information about the various lump-sum payments
payable under sections 6(a)(1) through 6(d)(2) of the 1974 Act.
20 CFR 234.2 Definitions.
As used in this part:
Applicant means the person who signs an application for an annuity or
lump-sum for himself, herself or for some other person.
Apply means to sign a form or statement that the Board accepts as an
application.
Burial expenses means expenses in connection with the actual burial
or other disposition of the remains of the deceased employee.
Eligible means a person meets all the requirements for payment of an
annuity or a lump-sum, but has not yet applied.
Employee means any person who is working or has worked for a railroad
employer.
Entitled means a person who meets all the requirements for an annuity
or a lump-sum, and has applied.
Equitably entitled person means the person whose funds were used to
pay the burial expenses of a deceased employee.
Lump-sum means any non-recurring payment due because of an employee's
or beneficiary's death.
Person means an individual, partnership, trust estate, association,
corporation, government unit, or estate of a deceased individual.
Reimbursable burial expenses means that part of the burial expenses
not previously reimbursed by another federal agency.
20 CFR 234.2 Subpart B -- Lump-Sum Death Payment
20 CFR 234.10 General.
A lump-sum death payment (LSDP) is payable when an employee with ten
or more years of railroad service and a current connection with the
railroad industry dies and is not survived by an individual who is
eligible for a monthly annuity in the month the employee died. The
amount of the LSDP and the priority for payment depend upon when the
employee acquired his or her 120th month of railroad service. If the
employee acquired the 120th month of railroad service after 1974, a 1974
Act lump-sum death payment is payable to the employee's widow(er). If
the employee acquired the 120th month of railroad service before 1975, a
1937 Act lump-sum death payment is payable to the employee's widow(er),
the funeral home or the payer of the employee's burial expenses. An
application for an LSDP must be filed within two years after the
employee's death.
(Approved by the Office of Management and Budget under control number
3220-0031)
(51 FR 3036, Jan. 23, 1986, as amended at 52 FR 11017, Apr. 6, 1987)
20 CFR 234.11 1974 Act lump-sum death payment.
(a) The total amount of the 1974 Act LSDP is payable to the
employee's widow(er), if she or he was ''living in the same household''
as the employee at the time of the employee's death. (Refer to 234.21
for an explanation of ''living in the same household.'')
(b) The amount of the 1974 Act LSDP is equal to three times the
amount of the PIA, as determined by section 215 of the Social Security
Act, or $255.00, whichever is less.
20 CFR 234.12 1937 Act lump-sum death payment.
(a) The 1937 Act LSDP is payable in the following order and amounts:
(1) The employee's ''living with'' widow(er) is paid the total amount
of the LSDP. (Refer to 234.21 for an explanation of ''living with.'')
(2) A funeral home, which has unpaid expenses, is paid the amount of
the unpaid expenses or the total amount of the LSDP, whichever is less.
(3) An equitably entitled person is paid the total amount of the LSDP
or a proportionate share of the LSDP, depending upon the amount of
burial expenses he or she paid.
(b) The 1937 Act LSDP is equal to ten times the basic amount. (Refer
to 234.20 for an explanation of the computation of the employee's basic
amount.)
20 CFR 234.13 Payment to a funeral home.
The 1937 Act LSDP is paid to a funeral home under the following
conditions:
(a) A person who has assumed responsibility for all or part of the
burial expenses files an application authorizing payment to the funeral
home. Usually, the Board considers the person who makes the
arrangements with the funeral home or makes a voluntary payment to the
funeral home to be the person who has assumed responsibility for the
burial expenses.
(b) An official of the funeral home with unpaid expenses files an
application on behalf of the funeral home after 90 days have elapsed
from the date of the employee's death, if during that 90-day period no
one has assumed responsibility for the payment of the burial expenses.
(Approved by the Office of Management and Budget under control number
3220-0031)
20 CFR 234.14 Payment to an equitably entitled person.
(a) An equitably entitled person's funds used to pay burial expenses
may consist of:
(1) The individual's own money;
(2) Money in a joint account with the employee or another individual;
(3) Money paid to an individual who was named beneficiary to receive
the money;
(4) A promissory note; or
(5) Money which several people placed into a pooled fund.
(b) Payment is made to equitably entitled persons in the following
order:
(1) The person who paid the funeral home expenses;
(2) The person who paid the grave opening and closing expenses;
(3) The person who provided the burial plot; and
(4) The person who paid any type of expenses not listed in paragraphs
(b) (1) through (3) of this section.
20 CFR 234.15 When an employee's estate is entitled.
(a) The employee's estate is considered an equitably entitled person
if the funds used to pay burial expenses consisted of:
(1) Money in the employee's single-ownership bank account;
(2) Money paid directly to the funeral home by the employee before
death;
(3) Money paid by the employee under a contract, plan, system or
general practice where no beneficiary was named to receive the money;
(4) Money found among the employee's effects;
(5) Unpaid salary due the employee by the employee's employer;
(6) Money obtained by selling the employee's real or personal
property; or
(7) Money from a trust fund.
(b) If the employee's estate is the equitably entitled person, the
Board will pay the LSDP to the legal representative of the employee's
estate. When no legal representative of the employee's estate has been
or is expected to be appointed, the Board will pay the LSDP according to
state statutory procedures applicable when no formal probate or
administration occurs.
20 CFR 234.16 When a widow(er) is eligible as an equitably entitled
person.
When a widow(er) files for an LSDP and the ''living with''
requirement (described in 234.21) is not met, the widow(er) could be
paid as an equitably entitled person.
20 CFR 234.17 When an equitably entitled person's estate is payable.
When an equitably entitled person dies before negotiating the LSDP
check, that person's share is payable to his or her estate.
20 CFR 234.18 Payment of a deferred lump-sum to a widow(er).
In certain cases, a deferred LSDP may be payable to the employee's
widow(er), even if someone may be entitled to a monthly annuity in the
month of the employee's death. A deferred LSDP is the difference
between the amount of the LSDP and the total of the monthly survivor
annuities paid during the 12-month period which begins in the month of
the employee's death.
20 CFR 234.19 Effect of payment on future entitlement.
Payment of an LSDP does not affect the entitlement of survivors to
monthly annuities at a later date.
20 CFR 234.20 Computation of the employee's 1937 Act LSDP basic amount.
(a) Definition of terms used in this section:
Average monthly remuneration (AMR) means the amount obtained by
adding together the creditable compensation and wages earned by the
employee after 1936 and before the LSDP closing date and dividing that
sum by three times the number of calendar quarters in that period.
(Refer to Part 211 of this chapter for a definition of creditable
compensation and Section 209 of the Social Security Act for a definition
of creditable wages.)
Closing date means whichever of the following produce the highest
AMR:
(1) The first day of the calendar year in which the employee both
attained age 65 and was completely insured;
(2) The first day of the calendar year in which the employee died;
or
(3) The first day of the calendar year following the year in which
the employee died;
(4) However, if paragraphs (a)(1) through (3) of this definition do
not occur before January 1, 1975, the closing date is January 1, 1975.
(b) LSDP basic amount formula. The basic amount is computed using
the following formula:
(1) Determine 52.4% of the AMR up to and including $75.00;
(2) Determine 12.8% of the AMR exceeding $75.00;
(3) Determine 1% of the sum of paragraphs (b) (1) and (2) of this
section;
(4) Multiply the result of paragraph (b)(3) of this section by the
number of years after 1936 through 1974 in which the employee earned
$200 or more;
(5) Add the results of paragraphs (b) (1), (2) and (3) of this
section. If the resulting basic amount is less than $18.14, increase it
to $18.14.
20 CFR 234.21 Definitions of ''living with'' and ''living in the same
household.''
(a) Living with. A widow(er) is considered ''living with'' the
employee at the time of the employee's death, if one of the following
conditions applies:
(1) The employee and spouse were members of the same household;
(2) The spouse was receiving regular contributions for support from
the employee; or
(3) The employee was under court order to contribute to the spouse's
support.
(b)(1) Living in the same household. An employee and spouse were
''living in the same household'' if they lived together as a married
couple in the same residence. However, an employee and spouse, who were
temporarily living apart, will be considered ''living in the same
household'' if there was intent to share the same residence had the
employee not died. The Board will usually assume that a married couple
was living apart temporarily, if the separation was caused by
circumstances beyond their control, for example, ill health, financial
difficulties, service with the Armed Forces, or confinement in a
curative, custodial, or penal institution.
(2) If the employee and spouse were separated solely for medical
reasons, the Board will consider them ''living in the same household,''
even if the separation was likely to be permanent.
20 CFR 234.21 Subpart C -- Annuities Due but Unpaid at Death
20 CFR 234.30 General.
When an applicant or an annuitant dies before being paid any
annuities that may be due, the total of those annuities become payable
to certain survivors in a lump-sum. Refer to 234.31 through 234.34
for information about when and to whom each type of unpaid annuity is
payable. An application for an unpaid annuity must be filed within two
years after the death of the person originally entitled to the annuity.
(Approved by the Office of Management and Budget under control
numbers 3220-0031 and 3220-0032 and 3220-0042)
(51 FR 3036, Jan. 23, 1986, as amended at 52 FR 11017, Apr. 6, 1987)
20 CFR 234.31 Regular employee retirement and supplemental annuities.
A regular employee retirement annuity or a supplemental annuity which
is unpaid at the death of the employee is payable in the following order
and amounts:
(a) A surviving spouse, who was ''living with'' (see 234.21) the
employee at the time of the employee's death, receives the full amount
of the unpaid annuity.
(b) Each person who paid the employee's burial expenses receives a
share of the unpaid annuities in the same proportion that he or she paid
the burial expenses, but only to the extent that he or she is not
reimbursed by the LSDP. If a payer of the employee's burial expenses
dies before negotiating his or her check, that payment becomes payable
to his or her estate.
(c) Surviving children of the employee receive equal shares.
(d) Surviving grandchildren of the employee receive equal shares.
(e) Surviving parents of the employee each receive equal shares.
(f) Surviving brothers and sisters of the employee receive equal
shares. Half blood brothers and sisters share equally with full blood
brothers and sisters.
20 CFR 234.32 Spouse or divorced spouse annuities.
A spouse annuity or divorced spouse annuity which is unpaid at the
death of the spouse or divorced spouse is paid in the following order
and amounts:
(a) The employee receives the full amount.
(b) If the employee died before negotiating the check in payment of
the unpaid annuities, the unpaid spouse annuity or divorced spouse
annuity is paid in the same order and amounts as described in 234.31
(b) through (f).
20 CFR 234.33 Survivor annuities.
Any survivor annuity which is unpaid at the death of the survivor is
paid in the same order and amounts as described in 234.31(a) and
234.31(c) through 234.31(f).
20 CFR 234.34 When an entitled relative of the employee dies before
receiving payment of a due but unpaid annuity.
If a person, who is entitled to unpaid annuities based upon his or
her relationship to the employee, dies before negotiating the check in
payment of the unpaid annuities, the amount to which he or she was
entitled becomes payable to other relatives of the employee in the same
degree of relationship. If no relatives in that degree of relationship
survive, the amount becomes payable to relatives in the next degree of
relationship.
20 CFR 234.34 Subpart D -- Residual Lump-Sum Payment
20 CFR 234.40 General.
The residual lump-sum (RLS) is the means by which railroad employees
and their survivors are guaranteed to receive at least as much in
benefits as the employee paid in railroad retirement taxes during the
years 1937 through 1974. An RLS payment can be made only if it appears
that no other benefits based at least in part on railroad service will
be payable under either the Railroad Retirement Act or Social Security
Act in the future. The residual is reduced for any retirement benefits
that were paid on the basis of the employee's railroad service, and for
any survivor benefits based on the employee's earnings already paid by
either the Board or the Social Security Administration. A widow(er) or
dependent parent can, before attaining age 60, elect to waive future
rights to monthly benefits based on the employee's railroad service in
order to receive the RLS.
20 CFR 234.41 Persons to whom an RLS is payable.
After the death of an employee, the RLS is payable, in the following
order, to: beneficiaries designated by the employee; surviving
relatives of the employee in order provided by law (see 234.44); or
the employee's estate.
20 CFR 234.42 How the employee may designate beneficiaries.
The employee may designate one or more persons as beneficiaries of
the RLS on a form available at any Board office. The employee may
specify the share that each beneficiary is to receive. Also, the
employee may designate alternate beneficiaries in the event that all
primary beneficiaries die before the RLS becomes payable.
(Approved by the Office of Mangement and Budget under Control No.
3220-0031)
20 CFR 234.43 Payment to designated beneficiaries.
(a) How designated beneficiaries are paid. Primary beneficiaries are
paid the RLS to the exclusion of alternate beneficiaries. If a
designated beneficiary dies before the date on which the RLS becomes
payable, his or her share of the RLS becomes payable to any other
designated beneficiaries. If an entitled designated beneficiary dies
before negotiating the RLS check, that share is payable to his or her
estate.
(b) Amount designated beneficiaries are paid. If the employee
specified the share that each beneficiary is to receive, payment is made
in the proportion specified. Otherwise, if there is more than one
designated beneficiary, each is paid an equal share of the RLS.
20 CFR 234.44 Payment to surviving relatives.
(a) How surviving relatives are paid. If the employee either did not
designate a beneficiary or was not survived by a designated beneficiary,
the RLS is payable to surviving relatives of the employee in the
following order of relationship to the employee:
(1) Widow(er) who was ''living with'' the employee at the time of the
employee's death (see 234.21 for a definition of ''living with'');
(2) Child;
(3) Grandchild;
(4) Parent;
(5) Brother or sister, including half blood brother or sister.
(b) Amount surviving relatives are paid. If more than one relative
in an equal degree of relationship survives the employee, each one is
paid an equal share of the RLS. If an entitled relative of the employee
dies before negotiating the RLS check, that share becomes payable to
other surviving relatives of the employee in the same degree of
relationship. If no relatives in that degree of relationship survive,
relatives in the next degree of relationship are payable.
20 CFR 234.45 Payment to the employee's estate.
(a) When the employee's estate is paid. If no designated
beneficiaries or relatives survive the employee when the RLS becomes
payable, the employee's estate may be paid the RLS. Employees may also
designate their estates to receive all or a share of the RLS as
beneficiaries.
(b) How the employee's estate is paid. If a legal representative of
the employee's estate has been appointed and has not been discharged,
the Board will pay the RLS to the legal representative. When no legal
representative of the employee's estate has been or is expected to be
appointed, or the estate of the deceased employee has been closed and
reopening is not expected, the Board will pay the RLS according to state
statutory procedures applicable when no formal probate or administration
occurs.
20 CFR 234.46 Amount of the RLS payable.
The gross RLS amount is equal to certain percentages of the
employee's creditable compensation, including military service, as
described in section 234.48. (Creditable compensation and military
service are discussed in Parts 211 and 212 of this chapter,
respectively.) The amount of the RLS payable is equal to the gross RLS
minus the sum of all retirement benefits that have been paid on the
basis of the employee's railroad service and all survivor benefits based
on the employee's earnings previously paid by either the Board or the
Social Security Administration.
20 CFR 234.47 Election of the RLS by a widow(er) or parent.
(a) An RLS cannot be paid if it appears that there are immediate or
future monthly survivor benefits payable to anyone other than a
widow(er) or parent. A widow(er) or parent can elect to have the RLS
paid in lieu of future monthly benefits based on the employee's railroad
earnings under either the Railroad Retirement Act or Social Security
Act.
(b) When an election must be filed. An election to have the RLS paid
must be filed before the widow(er) or parent attains age 60 if he or she
would be entitled to benefits under the Railroad Retirement Act, or
before the age of eligibility if he or she would be entitled to future
benefits under the Social Security Act instead of the Railroad
Retirement Act.
(c) Filing an election. An election to have the RLS paid must be
made on the certification provided by the Board for that purpose, and
must contain an irrevocable election to have the RLS paid in lieu of all
benefits based on the employee's railroad service to which the widow(er)
or parent might otherwise become entitled. Once the RLS check is
negotiated, the election cannot be revoked.
20 CFR 234.48 Computation of the gross RLS amount.
The amount of the gross RLS is equal to the percentages of the
employee's creditable compensation shown in Table I. However,
compensation may only be credited up to the maximum amounts shown in
Table II.
(a) Percentages of the employee's creditable compensation and the
periods to which those percentages apply:
(b) Maximum compensation which may be credited per month:
20 CFR 234.48 Subpart E -- Lump-Sum Refund Payment
20 CFR 234.50 General.
Under the 1974 Act, railroad employees with 10 or more years of
railroad service, who are not entitled to a vested dual benefit payment,
may be eligible for a lump-sum refund payment if they had concurrent
railroad and social security earnings within the period 1951 through
1974. The combined earnings from the railroad retirement and social
security systems in any of those years must exceed the maximums given in
234.53. The lump-sum refund is payable to either the employee or the
employee's survivors.
20 CFR 234.51 Persons to whom a lump-sum refund payment is payable.
Employees receive their lump-sum refund payment from the Board,
without applying for it, at the time their regular annuity is awarded.
If an employee dies without receiving payment of a regular annuity, the
lump-sum refund payment is payable to the employee's survivors in the
same order of priority as shown for the RLS in 234.44.
20 CFR 234.52 Effect of payment on other benefits.
The lump-sum refund payment is deductible from the RLS; however, it
has no effect on the payment of other benefits.
20 CFR 234.53 Computation of the lump-sum refund payment.
(a) The lump-sum refund payment is calculated as follows:
(1) Combine the railroad employee's creditable earnings, including
military service, under the Social Security Act and Railroad Retirement
Act for each of the years 1951 through 1974;
(2) Determine the amount of the employee's creditable earnings in
excess of the amounts for each year shown in the chart in paragraph (b)
of this section;
(3) Multiply the results of paragraph (a)(2) of this section by the
percentage shown in the chart in paragraph (b) of this section; and
(4) Add the results of paragraph (a)(3) of this section. The total
is the amount of the lump-sum refund payment.
(b) Chart for calculation of lump-sum refund payment.
20 CFR 234.53 Subpart F -- Tier II Separation Allowance Lump-Sum
Payment
Source: 56 FR 1573, Jan. 16, 1991, unless otherwise noted.
20 CFR 234.55 General.
Under the Railroad Retirement Act certain railroad employees who have
received separation or severance payments may be entitled to a lump-sum
payment if tier II railroad retirement taxes were deducted from these
payments. This part sets forth the conditions for entitlement to the
lump-sum payment and explains how the payment is computed.
20 CFR 234.56 Persons to whom a separation allowance lump-sum payment
is payable.
(a) An employee who has completed 10 years of service at the time of
his or her retirement or death and who has received on or after January
1, 1985, a separation allowance or severance payment (see 210.11 of
this chapter) which would have been used to increase his or her tier II
benefit, except for the fact that he or she was neither in an employment
relation to one or more employers as defined in part 204 of this chapter
nor an employee representative (see part 205 of this chapter), shall be
entitled to a lump sum in the amount provided for in 234.58.
(b) If an employee, otherwise eligible for the lump sum provided for
in this section, dies before he or she becomes entitled to a regular
annuity or before he or she receives payment of the lump sum, the lump
sum is payable to the employee's widow or widower who will not have died
before receiving payment. If the employee is not survived by a widow or
widower who will not have died before receiving payment, the lump sum is
payable to the employee's survivors in the same order of priority as
shown for the residual lump-sum (RLS) in 234.44.
20 CFR 234.57 Effect of payment on other benefits.
The tier II separation allowance lump-sum payment has no effect on
the payment of other benefits.
20 CFR 234.58 Computation of the separation allowance lump-sum payment.
The separation allowance lump-sum payment is calculated as follows:
(a) Determine the amount of the compensation due to the receipt of
separation or severance pay that could not be considered in the
computation of tier II;
(b) Multiply this amount by the rate or rates of tax imposed by
section 3201(b) of the Internal Revenue Code of 1954 or 1986 on the
compensation (tier II tax); and
(c) The product is the amount of the separation allowance lump-sum
payment.
Example. In January of 1988 an employee with 10 years of railroad
service relinquished his seniority rights in order to receive a
separation allowance of $20,000, thereby severing his employment
relation. This was the only creditable railroad compensation earned by
the employee in 1988. Both the employer and employee would have paid
their share of railroad retirement taxes on this amount. With respect
to the employee tier II tax, the tax rate for 1988 was 4.9% under
section 3201(b) of the Internal Revenue Code of 1986. Although the full
$20,000 was creditable under the Railroad Retirement Act for tier I
benefit computation purposes, only one month's compensation, $2,800,
one-twelfth of the annual tier II earnings base of $33,600 for 1988, was
creditable for tier II benefit purposes. This is because section
3(i)(4) of the Railroad Retirement Act does not permit crediting of
compensation for tier II computation purposes after the employment
relation has been severed. Under the lump-sum provision discussed
above, the employee in this example would, upon award of his employee
annuity, receive a payment of $842.80 ($20,000 minus $2,800, the amount
of separation allowance that was creditable, or $17,200 times 4.9%).
20 CFR 234.58 Subpart G -- Miscellaneous
Source: 51 FR 3036, Jan. 23, 1986. Redesignated at 56 FR 1573,
Jan. 16, 1991.
20 CFR 234.60 Escheat.
Any payment under this part which would be payable to any state,
political subdivision of a state, the U.S. government or a foreign
government because of the lack of a legal heir, shall remain in the
Railroad Retirement Account.
20 CFR 234.61 Assignment of interest by an eligible person.
(a) Any person who is eligible to receive a share of a lump-sum
payment may assign his or her share to another eligible applicant,
provided the share is not more than $500.
(b) If an LSDP or accrued annuity is payable, the request that a
share be assigned must be received at a Board office no later than two
years after the death of the employee or the originally entitled person.
(Approved by the Office of Management and Budget under control number
3220-0031)
20 CFR 234.62 Effect of conviction of a felony on entitlement.
A person who has been convicted of a felony or an act in the nature
of a felony of intentionally causing the employee's death shall not be
entitled to any benefits under the Railroad Retirement Act. If a charge
of felony is pending against an applicant for a lump-sum payment, the
Board will make no payment until the applicant submits proof that the
charge has been withdrawn, that no further action will be taken on the
charge, or that he or she has been cleared of the charge.
20 CFR 234.62 PART 235 -- PAYMENT OF SOCIAL SECURITY BENEFITS BY THE
RAILROAD RETIREMENT BOARD
Sec.
235.1 Basis and purpose.
235.2 Other regulations related to this part.
235.3 Who is paid social security benefits by the Board.
235.4 How the Board pays social security benefits.
Authority: 45 U.S.C. 231f.
Source: 54 FR 5225, Feb. 2, 1989, unless otherwise noted.
20 CFR 235.1 Basis and purpose.
Effective January 1, 1975, the Railroad Retirement Act of 1974 (Act)
requires the Railroad Retirement Board (Board) to provide for the
payment of monthly social security benefit payments on behalf of the
Social Security Administration to certain individuals as described in
235.3 of this part. However, any such individual who was receiving
benefits from the Social Security Administration prior to January 1,
1975, will continue to receive benefits from that agency unless he or
she becomes eligible for a different type of social security benefit
after that date and files a new application with the Social Security
Administration for that benefit. Benefits under the new entitlement
will be paid by the Board. The Act provides an offset in the railroad
retirement benefits of individuals who are also eligible for social
security benefits. Because the Board is required to make this offset,
the payment of social security benefits by the Board is authorized for
the purpose of convenience in the administration of the Act.
20 CFR 235.2 Other regulations related to this part.
This part is related to a number of other parts in this chapter:
(a) Part 216 describes when a person is eligible for an annuity under
the Railroad Retirement Act.
(b) Part 222 defines family relationships (for example, who is the
wife or widow of an employee) for use when it is necessary to establish
such a relationship in order to receive a benefit under the Railroad
Retirement Act.
20 CFR 235.3 Who is paid social security benefits by the Board.
The following individuals, if entitled to social security benefits,
are paid such benefits by the Board:
(a) A railroad employee who has been credited with at least 120
months of railroad service;
(b) A wife or husband of a railroad employee who has been credited
with at least 120 months of railroad service;
(c) A divorced wife or husband of a railroad employee who has been
credited with at least 120 months of railroad service, but only if the
divorced wife or husband is claiming social security benefits based upon
the railroad employee's social security wages;
(d) A survivor of a railroad employee, including a surviving divorced
spouse, remarried widow(er), surviving divorced mother or father, who is
entitled, or upon application would be entitled, to an annuity under the
Railroad Retirement Act;
(e) Any other person entitled to benefits under Title II of the
Social Security Act based on the social security wages of a railroad
employee who has been credited with at least 120 months of railroad
service, except survivors of a railroad employee when the Social
Security Administration has jurisdiction for survivor benefits. See
Part 221 of this title.
20 CFR 235.4 How the Board pays social security benefits.
(a) When an individual described in 235.3 of this part is determined
by the Social Security Administration to be entitled to social security
benefits, the Social Security Administration certifies such benefits to
the Board for payment by the Board. Once social security entitlement is
certified to the Board, the Board then certifies the amount of the
social security benefit to the Department of the Treasury for payment
and makes any necessary adjustments in the individual's railroad
retirement benefit.
(b) The Board has no authority with respect to the adjudication of
the benefit to be paid under the Social Security Act. Entitlement to
and the computation of such benefits is a matter solely within the
jurisdiction of the Social Security Administration.
20 CFR 235.4 PART 236 -- (RESERVED)
20 CFR 235.4 PART 237 -- INSURANCE ANNUITIES FOR SURVIVORS
20 CFR 235.4 Subpart A -- Insured Status
Sec.
237.101 Statutory provisions.
237.102 Completely insured status.
237.103 Partially insured status.
237.104 Alternative method of determining insured status.
20 CFR 235.4 Subparts B-E -- (Reserved)
20 CFR 235.4 Subpart F -- Maximum and Minimum Insurance Annuity Totals
237.601 Statutory provisions.
237.602 Application of maximum and minimum and basis for computation.
237.603 Reduction.
237.604 Increase.
237.605 Monthly application of provisions.
237.606 Relation to provisions for deductions and adjustments.
237.607 Overall minimum based on Social Security Act formula.
20 CFR 235.4 Subpart G -- Deductions
237.701 Statutory provisions.
237.702 Deductions because an individual works or a widow fails to
have a child in her care.
237.703 Deductions because of death-benefit payments.
20 CFR 235.4 Subpart H -- (Reserved)
20 CFR 235.4 Subpart I -- Miscellaneous
237.901 Statutory provisions.
237.902 Act of March 7, 1942 (56 Stat. 143, 144).
237.903 Payment of insurance annuity in lump sum.
237.904 Meaning of ''retirement annuity''.
237.905 Proof of continuance of disability of child age 18 or over.
237.906 Rounding of insurance annuity.
237.907 Effect of felonious homicide.
237.908 Escheat.
Authority: 45 U.S.C. 231f.
20 CFR 235.4 Subpart A -- Insured Status
20 CFR 237.101 Statutory provisions.
An employee will have been ''completely insured'' if it appears to
the satisfaction of the Board that at the time of his death, whether
before or after the enactment of this section, he will have completed
ten years of service and will have had the qualifications set forth in
any one of the following paragraphs:
(i) A current connection with the railroad industry; and a number of
quarters of coverage, not less than six, and at least equal to one-half
of the number of quarters, elapsing in the period after 1936, or after
the quarter in which he will have attained the age of twenty-one,
whichever is later, and up to but excluding the quarter in which he will
have attained the age of sixty-five years or died, whichever will first
have occurred (excluding from the elapsed quarters any quarter which is
not a quarter of coverage and during any part of which a retirement
annuity will have been payable to him); and if the number of such
elapsed quarters is an odd number such number shall be reduced by one;
or
(ii) A current connection with the railroad industry; and either
will have had forty or more quarters of coverage or would be fully
insured under title II of the Social Security Act if his service as an
employee after December 31, 1936, were included in the term
''employment'' as defined in that Act; or
(iii) A pension will have been payable to him; or a retirement
annuity based on service of not less than ten years (as computed in
awarding the annuity) will have begun to accrue to him before 1948.
(Section 5(1)(7) of the act.)
An employee will have been ''partially insured'' at the time of his
death, whether before or after the enactment of this section, if it
appears to the satisfaction of the Board that he will have completed ten
years of service and (i) will have had a current connection with the
railroad industry; and (ii) either will have had six or more quarters
of coverage in the period ending with the quarter in which he will have
died or in which a retirement annuity will have begun to accrue to him
and beginning with the third calendar year next preceding the year in
which such event occurs, or would be currently insured under title II of
the Social Security Act if his service as an employee after December 31,
1936, were included in the term ''employment'' as defined in that Act.
(Section 5(1)(8) of the act.)
An individual shall be deemed to have ''a current connection with the
railroad industry'' at the time an annuity begins to accrue to him and
at death if, in any thirty consecutive calendar months before the month
in which an annuity under section 2 begins to accrue to him (or the
month in which he dies if that first occurs), he will have been in
service as an employee in not less than twelve calendar months and, if
such thirty calendar months do not immediately precede such month, he
will not have been engaged in any regular employment other than
employment for an employer in the period before such month and after the
end of such thirty months. For the purposes of section 5 only, an
individual shall be deemed also to have a ''current connection with the
railroad industry'' if he is in all other respects completely insured
but would not be fully insured under the Social Security Act, or if he
is in all other respects partially insured but would be neither fully
nor currently insured under the Social Security Act, or if he has no
wage quarters of coverage. (Section 1(o) of the act.)
The term ''quarter of coverage'' shall mean a compensation quarter of
coverage or a wage quarter of coverage, and the term ''quarters of
coverage'' shall mean compensation quarters of coverage, or wage
quarters of coverage, or both: Provided, That there shall be for a
single employee no more than four quarters of coverage for a single
calendar year. (Section 5(1)(3) of the act.)
The term ''compensation quarter of coverage'' shall mean any quarter
of coverage computed with respect to compensation paid to an employee
after 1936 in accordance with the following table.
If upon computation of the compensation quarters of coverage in
accordance with the above table an employee is found to lack a
completely or partially insured status which he would have if
compensation paid in a calendar year were presumed to have been paid in
equal proportions with respect to all months in the year in which the
employee will have been in service as an employee, such presumption
shall be made. (Section 5(1)(4) of the act.)
The term ''wage quarter of coverage'' shall mean any quarter of
coverage determined in accordance with the provisions of Title II of the
Social Security Act. (Section 5(1)(5) of the act.)
(Board Order 59-232, 25 FR 479, Jan. 21, 1960; 25 FR 1073, Feb. 6,
1960)
20 CFR 237.102 Completely insured status.
(a) Payments based upon, and existence of, completely insured status.
(1) All insurance annuities and lump sums, other than a residual lump
sum, for survivors are conditioned upon an employee's insured status.
This status is determined by the employee's service, compensation, and
wage history. Unless the employee was completely insured at death, his
widow cannot become entitled to a widow's insurance annuity, her widower
cannot become entitled to a widower's insurance annuity, and his or her
surviving parent cannot become entitled to a parent's insurance annuity
on the basis of the employee's earnings.
(2) For the purpose of determining whether an employee was completely
insured at death, it is immaterial whether his death occurred before,
on, or after the enactment date of section 5 of the act.
(3) An employee was completely insured at death if:
(i) He had completed at least 10 years of service, had acquired the
number of quarters of coverage specified in paragraph (d) of this
section, and had a current connection with the railroad industry at the
time of his death; or
(ii) He had completed at least 10 years of service, would be fully
insured under title II of the Social Security Act if his service after
1936 were included in the term ''employment'' as defined in that act,
and had a current connection with the railroad industry at the time of
his death, provided that his death occurred on or after September 6,
1958 (or before that date if none of his survivors became entitled
earlier to monthly benefits under title II of the Social Security Act by
reason of his death); or
(iii) There had been payable to him a pension under section 6 of the
act; or
(iv) There had begun to accrue to him before 1948 a retirement
annuity based on not less than 10 years of service (as computed in
awarding the annuity).
(b) Quarter of coverage. A quarter of coverage may be either a
compensation quarter of coverage or a wage quarter of coverage. A
compensation quarter of coverage is a quarter of coverage computed, with
respect to compensation paid an employee after 1936, regardless of his
age, in accordance with the table contained in section 5(1)(4) of the
act. A wage quarter of coverage is a quarter of coverage determined in
accordance with the provisions of Title II of the Social Security Act.
The term ''quarters of coverage'' includes compensation quarters of
coverage, wage quarters of coverage, or both. However, no employee may
acquire more than four quarters of coverage for a single calendar year.
(c) (Reserved)
(d) Determination of completely insured status on basis of quarters
of coverage and current connection. An employee, whether or not he was
completely insured at death by virtue of having been a pensioner or an
annuitant, could have been completely insured at the time of his death
if at that time he had completed at least 10 years of service, had a
current connection with the railroad industry, and had at least 40
quarters of coverage; or had quarters of coverage at least equal to
one-half the number of elapsed quarters after 1936 but not less than
six; or had sufficient quarters of coverage to be fully insured under
Title II of the Social Security Act if his service after 1936 were
included in the term ''employment'' as defined in that act, provided
that his death occurred on or after September 6, 1958 (or before that
date if none of his survivors became entitled earlier to monthly
benefits under Title II of the Social Security Act by reason of his
death). In the case of an employee who, at the time of his death, had
completed at least 10 years of service and had a current connection with
the railroad industry, the determination of required quarters of
coverage under provisions other than those of Title II of the Social
Security Act is made as follows:
(1) Elapsed quarters. Take the number of calendar quarters which
have elapsed after 1936, or after the quarter in which the employee
attained the age of 21 if he attained such age after 1936, and up to but
excluding the quarter in which the employee attained the age of 65 or
died, whichever occurred first. Subtract from that number of elapsed
quarters the number of such quarters which is not a wage quarter of
coverage and during any part of which a retirement annuity was payable
to the employee. If the resulting number of elapsed quarters is an odd
number, subtract one. Take one-half of the number of elapsed quarters
thus obtained, and the resulting number, if six or more, is the number
of quarters of coverage required; if the resulting number is less than
six, the number of quarters of coverage required is six.
(2) Quarters of coverage determined. (i) Determine the number of
quarters of coverage the employee had acquired. If this number equals
or exceeds the number required, the employee was completely insured.
(ii) A quarter of coverage may be acquired at any time subsequent to
December 31, 1936, regardless of whether there are any elapsed quarters
under paragraph (d)(1) of this section and regardless of the age of the
employee.
(iii) Quarters of coverage need not be consecutive and no particular
order of their acquisition is required.
(12 FR 2018, Mar. 27, 1947, as amended by Board Order 59-232, 25 FR
479, Jan. 21, 1960; 25 FR 1073, Feb. 6, 1960; Board Order 60-99, 25 FR
5765, June 23, 1960; 44 FR 37907, June 29, 1979)
20 CFR 237.103 Partially insured status.
(a) Payments based upon partially insured status. An employee who
was not completely insured at death may nevertheless have had a service,
compensation, and wage history which, upon his death, will give him the
status of a partially insured employee. Unless he was either completely
insured or partially insured at death, his widow cannot become entitled
to a widow's current insurance annuity, his surviving child cannot
become entitled to a child's insurance annuity, and no person can become
entitled to a lump-sum payment under section 5(f)(1) of the act, on the
basis of his earnings. For the purpose of determining whether an
employee was a partially insured employee at death it is immaterial
whether his death occurred before, on, or after the enactment date of
section 5 of the act.
(b) Determination of partially insured status. (1) An employee was
partially insured at death if he had completed at least 10 years of
service, had a current connection with the railroad industry, and:
(i) Had at least six quarters of coverage in the period beginning
with the third year before the year of retirement or death and ending
with the quarter in which such event occurred; or
(ii) Had sufficient quarters of coverage to be currently insured
under Title II of the Social Security Act if his service after 1936 were
included in the term ''employment'' as defined in that act, provided
that his death occurred on or after September 6, 1958 (or before that
date if none of his survivors became entitled earlier to monthly
benefits under Title II of the Social Security Act by reason of his
death).
(2) Quarters of coverage need not be consecutive and no particular
order of their acquisition is required.
(Board Order 55-89, 20 FR 3714, May 27, 1955, as amended by Board
Order 59-232, 25 FR 480, Jan. 21, 1960)
20 CFR 237.104 Alternative method of determining insured status.
Where application of the table in section 5(1)(4) of the act (see
237.101) does not result in an employee's having a completely or
partially insured status, it shall be presumed that the compensation
paid him in a calendar year was paid in equal proportions with respect
to all months in the year and the last line of the table applied to the
result. This alternative method shall be applied to the most recent
calendar year in which the employee received compensation and each
preceding calendar year until an insured status is obtained, if at all,
but not beyond 1937. This alternative method is to be applied only with
respect to benefits accruing under the 1951 amendments, that is, in
determining the insured status of a deceased employee and in determining
whether a child would be otherwise entitled to a child's insurance
annuity.
(Board Order 55-89, 20 FR 3714, May 27, 1955; 20 FR 6004, Aug. 18,
1955)
20 CFR 237.104 Subparts B-E -- (Reserved)
20 CFR 237.104 Subpart F -- Maximum and Minimum Insurance Annuity Totals
20 CFR 237.601 Statutory provisions.
Maximum and minimum annuity totals. Whenever according to the
provisions of this section as to annuities, payable for a month with
respect to the death of an employee, the total of annuities is more than
$36.30 and exceeds either (a) $193.60, or (b) an amount equal to two and
two-thirds times such employee's basic amount, whichever of such amounts
is the lesser, such total of annuities shall, after any deductions under
subsection (i), be reduced to such lesser amount or to $36.30, whichever
is greater. Whenever such total of annuities is less than $16.95, such
total shall, prior to any deductions under subsection (i), be increased
to $16.95. (Section 5(h) of the act.)
In the case of an individual having a current connection with the
railroad industry, * * * if for any entire month * * * the total of
survivor annuities under this Act deriving from the same employee, is
less than 110 per centum of the amount, or 110 per centum of the
additional amount, which would have been payable to all persons for such
month under the Social Security Act (deeming completely and partially
insured individuals to be fully and currently insured, respectively,
individuals entitled to insurance annuities under subsections (a) and
(d) of section 5 to have attained age sixty-five, * * * and individuals
entitled to insurance annuities under subsection (c) of section 5 on the
basis of disability to be less than eighteen years of age, and
disregarding any possible deductions under subsections (f) and (g)(2) of
section 203 of the Social Security Act) if such employee's service as an
employee after December 31, 1936, were included in the term
''employment'' as defined in that Act and quarters of coverage were
determined in accordance with section 5(1)(4) of this Act, such annuity
or annuities, shall be increased proportionately to a total of 110 per
centum of such amount or 110 per centum of such additional amount. * *
* (Section 3(e) of the act.)
(Board Order 60-50, 25 FR 2890, Apr. 6, 1960)
20 CFR 237.602 Application of maximum and minimum and basis for
computation.
(a) Application of maximum and minimum. The reductions and increases
provided for in this subpart apply only to insurance annuities for
survivors. Lump sums under section 5(f) of the act are not subject to
reductions or increases under this subpart.
(b) Basis for computing reductions and increases. Whether there is
to be a reduction or increases in any insurance annuity or annuities,
and the extent of such reduction or increase, depends upon the total
amount of insurance annuities for a month as calculated under section 5
of the act with respect to the insured status of a deceased employee.
(12 FR 2024, Mar. 27, 1947)
20 CFR 237.603 Reduction.
(a) Conditions requiring reduction. Reductions are made only when
there are two or more insurance annuities based upon the insured status
of a deceased employee and when the total of such annuities, as
calculated under Subpart D* of this part:
(1) For a month after June 1956 and before June 1959 is more than $33
and exceeds either (i) $176, or (ii) an amount equal to two and
two-thirds times the basic amount of the employee.
(2) For a month after May 1959 is more than $36.30 and exceeds either
(i) $193.60, or (ii) an amount equal to two and two-thirds times the
basic amount of the employee.
(b) Amount of reduction. If the conditions described in paragraph
(a) of this section exist, each of the insurance annuities must be
proportionately reduced so that the total of the insurance annuities:
(1) For a month after June 1956 and before June 1959 will be
whichever is the least of the amounts stated in paragraph (a)(1) (i) and
(ii) of this section. If, however, such least amount is under $33, the
total is reduced only to $33.
(2) For a month after May 1959 will be whichever is the least of the
amounts stated in paragraph (a)(2) (i) and (ii) of this section. If,
however, such least amount is under $36.30, the total is reduced only to
$36.30.
(Board Order 60-50, 25 FR 2891, Apr. 6, 1960)
20 CFR 237.604 Increase.
(a) Conditions requiring increase. An increase is made when the
insurance annuity or total of insurance annuities calculated under
Subpart D* of this part on the basis of the insured status of a deceased
employee is less than $15.40 for a month after June 1956 and before June
1959, and less than $16.95 for a month after May 1959.
(b) Amount of increase. If the condition described in paragraph (a)
of this section exists, the insurance annuity or total of insurance
annuities is increased to $15.40 for a month after June 1956 and before
June 1959, and to $16.95 for a month after May 1959.
(Board Order 60-50, 25 FR 2891, Apr. 6, 1960)
20 CFR 237.605 Monthly application of provisions.
The total amount of insurance annuities based on the insured status
of a deceased employee, as calculated under Subpart D* of this part, may
be different in one month than in another. Accordingly, a reduction or
increase may be required in one month and not in another, or the amount
of the reduction or increase may be greater or less in one month than in
another.
(12 FR 2024, Mar. 27, 1947)
*Editorial Note: At 47 FR 7656, Feb. 22, 1982, Subpart D of Part
237 was removed.
20 CFR 237.606 Relation to provisions for deductions and adjustments.
(a) Reductions under this subpart are made after making any
deductions which may be required under Subpart G of this part and before
making any adjustments under Part 255 of this chapter.
(b) Increases under this subpart are made before making any
deductions which may be required under Subpart G of this part and before
making any adjustments under Part 255 of this chapter.
(Board Order 60-50, 25 FR 2891, Apr. 6, 1960)
20 CFR 237.607 Overall minimum based on Social Security Act formula.
(a) When the total amount of insurance annuities payable for an
entire month after May 1959, based on the insured status of a deceased
individual, is less than 110 percent of the amount or 110 percent of the
additional amount of insurance benefits which would be payable for that
month under the Social Security Act if the individual's service as an
employee after 1936 were included with ''employment'' as defined in the
Social Security Act, the amount of such insurance annuities shall be
increased proportionately to 110 percent of such amount or 110 percent
of such additional amount.
(b) For the purpose of this section:
(1) Completely and partially insured individuals shall be deemed to
be fully and currently insured, respectively, under the Social Security
Act;
(2) An individual who has attained the age of 60 but not the age of
65 and is entitled to a widow's, widower's, or parent's insurance
annuity shall be deemed to have attained the age of 65;
(3) An individual entitled to a child's insurance annuity when 18
years of age or over shall be deemed to be less than 18 years of age;
and
(4) The amount of any deduction which would be applied under
subsections (f) and (g)(2) of section 203 of the Social Security Act for
failure to report an event which would cause a deduction under that act
shall be disregarded.
(Board Order 60-50, 25 FR 2891, Apr. 6, 1960; 25 FR 3396, Apr. 20,
1960)
20 CFR 237.607 Subpart G -- Deductions
20 CFR 237.701 Statutory provisions.
Deductions from annuities. (1) Deductions shall be made from any
payments under this section to which an individual is entitled, until
the total of such deductions equals such individual's annuity or
annuities under this section for any month in which such individual --
(i) Will have rendered compensated service within or without the
United States to an employer;
(ii) Will have been under the age of seventy-two and for which month
he is charged with any excess earnings under section 203(f) of the
Social Security Act or, having engaged in any activity outside the
United States, would be charged under such section 203(f) with any
excess earnings derived from such activity if it had been an activity
within the United States; and for purposes of this subdivision the
Board shall have the authority to make such determinations and such
suspensions of payment of benefits in the manner and to the extent that
the Secretary of Health, Education, and Welfare would be authorized to
do so under section 203(h)(3) of the Social Security Act if the
individuals to whom this subdivision applies were entitled to benefits
under section 202 of such Act; or
(iii) If a widow otherwise entitled to an annuity under subsection
(b) will not have had in her care a child of the deceased employee
entitled to receive an annuity under subsection (c).
(2) The total of deductions for all events described in paragraph (1)
occurring in the same month shall be limited to the amount of such
individual's annuity or annuities for that month. Such individual (or
anyone in receipt of an annuity in his behalf) shall report to the Board
the occurrence of any event described in paragraph (1).
(3) Deductions shall also be made from any payments under this
section with respect to the death of any employee until such deductions
total --
(i) Any death benefit, paid with respect to the death of such
employee, under section 5 of the Retirement Acts (other than a survivor
annuity pursuant to an election); and
(ii) Any lump sum paid, with respect to the death of such employee,
under title II of the Social Security Act.
(4) The deductions provided in this subsection shall be made in such
amounts and at such time or times as the Board shall determine.
Decreases or increases in the total of annuities payable for a month
with respect to the death of an employee shall be equally apportioned
among all annuities in such total. * * * (Section 5(i) of the act)
(Board Order 60-12, 25 FR 1674, Feb. 26, 1960, as amended by Board
Order 63-149, 28 FR 9525, Aug. 30, 1963)
20 CFR 237.702 Deductions because an individual works or a widow fails
to have a child in her care.
Section 5(i)(1) of the act provides for deductions from an
individual's insurance annuity or annuities upon the occurrence of
certain events, which are enumerated in paragraphs (a), (b), and (c) of
this section.
(a) Employer service. Deductions are to be made from any annuity or
annuities payable to an individual under this part for any month in
which such individual renders compensated service (see Parts 220 and 222
of this chapter) within or without the United States to an ''employer''
(see Part 202 of this chapter). The amount to be deducted is equal to
the amount of such individual's insurance annuity or annuities for the
month in which the compensated service was rendered.
(b) Work other than employer service -- (1) When deductions imposed.
Deductions are to be made from any annuity or annuities payable to an
individual under this part for any month in which the individual is
under age 72 and is charged, in accordance with the provisions of
paragraph (b)(3) of this section, with excess earnings determined in the
following manner:
(i) Excess earnings for a taxable year beginning after December 1960
and ending on or before June 30, 1961, are those ''earnings,'' as that
term is defined in paragraph (b)(6) of this section, which are in excess
of $100 times the number of months in such year, except that one-half of
the first $300 of such excess (or one-half of all such excess if it is
less than $300) shall not be included. The excess earnings so
determined, if not a multiple of $1, shall be reduced to the next lower
multiple of $1.
(ii) Excess earnings for a taxable year ending after June 30, 1961,
are those ''earnings,'' as that term is defined in paragraph (b)(6) of
this section, which are in excess of $100 times the number of months in
such year, except that one-half of the first $500 of such excess (or
one-half of all such excess if it is less than $500) shall not be
included. The excess earnings so determined, if not a multiple of $1,
shall be reduced to the next lower multiple of $1.
(2) Amount of deductions. The amount to be deducted shall be equal
to the annuity or total of annuities payable to the individual in the
month in which such individual is charged, in accordance with the
provisions of paragraph (b)(3) of this section, with excess earnings
equal to such annuity or annuities. If the excess earnings to be
charged are less than the annuity or annuities, the deduction with
respect to such month shall be equal only to the amount of such excess
earnings.
(3) Charging of excess earnings. The amount of an individual's
excess earnings in a taxable year, as determined in accordance with the
provisions of paragraph (b)(1) of this section, shall be charged to the
first month of the taxable year in an amount equal to the annuity
payable for such month (or all of the excess earnings shall be charged
to such month if such excess is less than the annuity payable for such
month). The balance of the excess earnings, if any, shall be charged to
each succeeding month in such year to the extent of the annuity payable
for such month until the total of such excess earnings has been so
charged or until every month to which the excess earnings are chargeable
has been charged with such excess earnings. The phrase ''first month of
the taxable year'' means the earliest month in such year to which the
charging of excess earnings is not prohibited by the provisions of
paragraph (b)(4) of this section.
(4) Months to which excess earnings cannot be charged.
Notwithstanding the provisions of paragraph (b)(3) of this section,
excess earnings determined in accordance with paragraph (b)(1) of this
section shall not be charged to any month:
(i) In which the individual was not entitled to an annuity;
(ii) In which the individual was 72 years of age or over;
(iii) In which the individual was entitled to a child's insurance
annuity under 237.409 based on a disability; or
(iv) In which the individual did not engage in self-employment and
did not render services for wages, as defined in paragraph (b)(6)(ii) of
this section, of more than $100. (An individual shall be deemed to have
engaged in self-employment in any month if in such month he renders
substantial services, as defined in paragraph (b)(5) of this section, in
operating a trade or business as owner or partner, even though there may
be no earnings or net earnings from self-employment attributable to his
services for such month; and he will be presumed with respect to any
month to have rendered services for wages, as defined in paragraph
(b)(6)(ii) of this section, of more than $100 until it is shown to the
satisfaction of the Board that he did not render services in such month
for more than such amount.)
(5) Definition of ''substantial services.'' For the purposes of
paragraph (b)(4) of this section, an individual engaged in
self-employment is presumed to have rendered substantial services in
each month in his taxable year. However, he may submit evidence to
establish that in any month in such taxable year he did not render
substantial services with respect to any trade or business the net
income or loss of which is includible in computing his earnings (but
without regard to paragraph (b)(6)(ii) of this section) for any taxable
year if such taxable year begins after 1956. In determining whether an
individual has rendered such substantial services in a month, the
particular facts in his case will be examined. The following factors,
among others, will be considered in making the determination:
(i) The amount of time devoted to the trade or business;
(ii) The nature of the services rendered by the individual;
(iii) The relationship of the activity performed prior to the period
of retirement with that performed subsequent to retirement;
(iv) The setting in which the services were performed, including:
(a) The presence or absence of a paid manager, a partner, or a family
member who manages the business;
(b) The type of business establishment that is involved;
(c) The amount of capital invested in the trade or business; and
(d) The seasonal nature of the trade or business.
(6) Definition of earnings. When the term ''earnings'' is used in
this paragraph and not as a part of the phrase ''net earnings from
self-employment'' and not as a part of the term ''excess earnings,'' it
shall mean an individual's earnings with respect to a taxable year
beginning after 1956 and includes the sum of his wages, as defined in
paragraph (b)(6)(ii) of this section, for services rendered in such year
and his net earnings from self-employment, as defined in paragraph
(b)(6)(i) of this section, for such year minus any net loss from
self-employment, as defined in paragraph (b)(6)(i) of this section, for
such year. With respect to a taxable year beginning after 1958 an
individual's earnings from an activity performed outside the United
States shall be determined in the same manner as if such activity were
performed within the United States.
(i) Net earnings from self-employment and net loss from
self-employment. An individual's net earnings from self-employment and
his net loss from self-employment for the purposes of this paragraph and
paragraph (b)(5) of this section, shall be determined under the
provisions of section 211 of the Social Security Act (but without regard
to the provisions in paragraphs (1), (4), and (5) of subsections (c) of
such section); any excess of income over deductions so resulting from
such computation shall be his net earnings from self-employment and any
excess of deductions over income so resulting shall be his net loss from
self-employment.
(ii) Wages. For purposes of this paragraph and paragraph (b)(4) of
this section, an individual's wages shall be determined under section
209 of the Social Security Act (but without regard to the limitations as
to amounts of remuneration specified in subsections (a), (g)(2), (g)(3),
(h)(2), and (j) of such section); and in making such computation,
services which do not constitute ''employment'' as that term is defined
in section 210 of the Social Security Act performed within the United
States by an individual as an employee or performed outside the United
States in the active military or naval service of the United States,
shall be deemed to be employment as so defined if the remuneration for
such services is not includible in computing his net earnings from
self-employment or net loss from self-employment, as defined in
paragraph (b)(6)(i) of this section.
(iii) Presumptions concerning wages. For purposes of this paragraph,
wages, as determined under paragraph (b)(6)(ii) of this section, which
according to reports received by the Board are paid to an individual
during a taxable year shall be presumed to have been paid to him for
services rendered in such year until it is shown to the satisfaction of
the Board that they were paid for services rendered in another taxable
year. If such reports with respect to an individual show his wages for
a calendar year, such individual's taxable year shall be presumed to be
a calendar year for purposes of this section until it is shown to the
satisfaction of the Board that his taxable year is not a calendar year.
(c) Failure of a widow to have a child in her care. (1) Deductions
are to be made from any annuity or annuities payable to a widow under
section 237.408 for any month in which such widow does not have in her
care a child of her deceased husband entitled to a child's insurance
annuity for such month. The amount to be deducted is equal to the
amount of the widow's current insurance annuity to which she was
entitled for the month in which she did not have such a child in her
care.
(2) The fact that a child's insurance annuity for a particular month
is withheld to effect a deduction under any of the other paragraphs of
this section, or under 237.703, or an adjustment under Part 255 of this
chapter, does not affect the right of a widow, who has the child in her
care, to a widow's current insurance annuity, since the child is
nevertheless ''entitled'' to a child's insurance annuity.
(d) Manner of making deductions. (1) Deductions as provided for in
this section are made by withholding insurance annuities in whole or in
part, depending upon the amount to be deducted. If the amount to be
deducted is not withheld from the insurance annuity or annuities for the
month in which the event occurred which occasioned the deduction (if,
for example, the occurrence has not been brought to the attention of the
Board), such amount will be withheld from the insurance annuity or
annuities for one or more subsequent months. The total amount to be
deducted may, therefore, at the time of withholding, be greater or less
than any insurance annuity or annuities for a month from which such
amount is to be withheld.
(2) When it is determined that a deduction is required under
paragraph (a), (b), or (c) of this section, no insurance annuity to
which the individual in question is entitled for any month will be paid
until a total amount equal to the amount to be deducted has been
withheld. If the amount of the required deduction is less than any such
insurance annuity, or the total of such insurance annuities, for a
month, the amount to be deducted will be withheld from such insurance
annuity or annuities.
(e) Deductions where more than one deduction event in a month occurs.
Section 5(i)(2) of the act prevents duplication of deductions described
in paragraphs (a), (b) and (c) of this section, by reason of the
occurrence of more than one of the events enumerated in such paragraphs
in a particular month. If more than one such event occurs in a month,
the total amount of the deduction is the same as if only one such event
had occurred. Section 5(i)(2) of the act has no application to any
other deductions or adjustments under the act (see paragraph (h) of this
section).
(f) Total amount to be deducted. If, however, any of the events
occasioning the deduction under paragraph (a), (b), or (c) of this
section occurs in more than one month, the total amount to be deducted
is equal to the sum of the deductions for all months in which any such
event occurred. With respect to earnings under paragraph (b)(1) of this
section, a deduction event is deemed to have occurred in any month to
which excess earnings are charged (see paragraph (b)(3) of this
section).
(g) Relation to maximum and minimum insurance annuity totals. In
effecting a deduction, no amount can be considered as having been
withheld from an insurance annuity for a particular month which is in
excess of the amount of such insurance annuity as reduced or increased
(if required) under section 5(h) of the act (see Subpart F of this
part). Likewise, the amount of an insurance annuity by which a
deduction is measured (i.e., an insurance annuity for the month in which
the event occasioning the deduction occurred) is the amount of such
insurance annuity as so reduced or increased.
(h) Relation to other provisions for deductions and adjustments. A
deduction required under section 5(i)(1) of the act is made prior to and
in addition to any deductions under section 5(i)(3) of the act (see
237.703), and prior to and in addition to any adjustments under Part 255
of this chapter.
(i) Reports to the Board of certain events occasioning deductions.
Section 5(i)(2) of the act imposes upon an individual the obligation to
report to the Board the occurrence of any of the events enumerated in
paragraph (a), (b), or (c) of this section if such individual is in
receipt of an insurance annuity or annuities (on his own behalf or on
behalf of another) from which a deduction is to be made under such
paragraphs.
(Board Order 55-89, 20 FR 3720, May 27, 1955, as amended by Board
Order 60-12, 25 FR 1675, Apr. 6, 1960; Board Order 63-149, 28 FR 9525,
Aug. 30, 1963)
20 CFR 237.703 Deductions because of death-benefit payments.
Section 5(i)(3) of the act provides for certain deductions from any
insurance annuities or lump-sum death payments under section 5 on the
basis of the insured status of a deceased employee. The basis for and
the amount of each of these deductions are set out in paragraphs (a) and
(b) of this section.
(a) Death benefits under Retirement Acts. Prior to the amendments
approved July 31, 1946, effective January 1, 1947, with regard to the
matters here involved, section 5 of the Railroad Retirement Act of 1935,
and section 5 of the Railroad Retirement Act of 1937, provided for
certain payments upon the death of an employee. Those provisions are
superseded, effective January 1, 1947, by the provisions of section 5 of
the Railroad Retirement Act as amended. The amendatory act provides
that payments upon death as provided in section 5 of the 1935 and 1937
acts, other than survivor annuities pursuant to an election, shall be
made only with respect to deaths occurring before January 1, 1947. The
total amount paid under the unamended section 5 with respect to the
death of an employee, except survivor annuity payments made pursuant to
an election, must be deducted from any insurance annuities under this
part based on the insured status of that deceased employee.
(b) Lump-sum death payments under Social Security Act. The total
amount of any lump sum paid under title II of the Social Security Act
with respect to the death of an employee must be deducted from any
insurance annuities under this part based on the insured status of that
deceased employee.
(c) Manner of making deductions. (1) If more than one person is
entitled to any insurance annuity or annuities under this part on the
basis of the insured status of the same deceased employee, the deduction
required under paragraph (a) or (b) of this section is made from the
insurance annuity or annuities to which each such person is entitled in
the proportion that his insurance annuity or annuities for a month bears
to the total of such insurance annuities for a month.
(2) In any case in which a deduction under paragraph (a) or (b) of
this section is to be made, the deduction of the amount designated in
paragraph (a) or (b) of this section is made by actuarial recovery from
any insurance annuity under this part to which such individual is or
becomes entitled on the basis of the insured status of the employee
referred to in such paragraph: Provided, however, That the deduction is
not less than the amount of the insurance annuity for a month: Provided
further, That the actuarial reduction does not exceed the amount of the
insurance annuity for a month: And provided further, That such
individual does not request the withholding of the entire monthly
insurance annuity until the total amount withheld equals the total
amount to be recovered. If the deduction is less than the amount of the
insurance annuity, or if the actuarial reduction exceeds the amount of
the insurance annuity for a month, or if the individual specifically so
requests, the deduction is made by withholding until the accumulated
withholdings equal the total amount to be recovered.
(d) Relation to other provisions. (1) When deductions are to be made
under this section from an insurance annuity or insurance annuities, the
amounts to be deducted are measured by and are withheld from the amount
of the insurance annuity, or the amounts of the insurance annuities, as
reduced or increased under section 5(h) of the act (see Subpart F of
this part).
(2) A deduction required under this section is made in addition to
any deductions required under section 5(i)(1) of the act (see 237.702),
and in addition to any adjustment under Part 255 of this chapter.
(e) Manner of making deductions. If more than one person is entitled
to any insurance annuity or annuities, or to any lump-sum death payment,
under this part, on the basis of the insured status of the same deceased
employee, the deduction required under paragraph (a), (b), (c), or (d)
of this section is made from the insurance annuity or annuities, or from
the share of the lump sum, to which each such person is entitled, in the
proportion that his insurance annuity or annuities for a month, or his
share of the lump sum, bears to the total of such insurance annuities
for a month, or the total of such lump sum.
In any case in which a deduction under paragraph (a), (b), (c), or
(d) of this section is to be made from an insurance annuity under this
part, such deduction is made in the following manner:
(1) If the individual had been receiving an insurance benefit under
the Social Security Act, and ceased to be entitled thereto because of
the provisions of section 5(g)(1) of the Railroad Retirement Act, as
amended, the deduction is made by withholding, to the extent hereinafter
indicated, the amount designated in such paragraph (a), (b), (c), or (d)
of this section, from any such insurance annuity under this part to
which such individual is or becomes entitled on the basis of the insured
status of the employee referred to in such paragraph. Upon
determination that such a deduction is required, there will be withheld
from the insurance annuity the amount by which such insurance annuity
exceeds the amount of the insurance benefit to which the individual had
been so entitled under the Social Security Act; this withholding will
be continued until such time as the total of the amounts thus withheld
from the insurance annuity equals the amount to be deducted from such
insurance annuity.
(2) If the case is not within the purview of paragraph (e)(1) of this
section, the deduction is made by withholding, to the extent hereinafter
indicated, the amount designated in such paragraph (a), (b), (c), or (d)
of this section, from any such insurance annuity under this part to
which such individual is or becomes entitled on the basis of the insured
status of the employee referred to in such paragraph. Upon
determination that such a deduction is required, no such insurance
annuity for any month will be paid until a total amount equal to the
amount to be deducted has been withheld. If the amount to be deducted
is less than the amount of any such insurance annuity for a month, the
amount to be deducted will be withheld from the amount of such insurance
annuity.
In any case in which a deduction under paragraph (c) or (d) of this
section is to be made from lump-sum death payments under this part, such
deduction is made by withholding the amount designated in such paragraph
from any such lump-sum death payments to which any individual is or
becomes entitled on the basis of the insured status of the employee
referred to in such paragraph. Upon determination that such a deduction
is required, no such lump-sum death payment will be paid until a total
amount equal to the amount to be deducted has been withheld. If the
amount to be deducted is less than the lump sum then payable, the amount
to be deducted will be withheld from such lump sum.
(f) Relation to other provisions. When deductions are to be made
under this section from an insurance annuity or insurance annuities, the
amounts to be deducted are measured by and are withheld from the amount
of the insurance annuity, or the amounts of the insurance annuities, as
reduced or increased under section 5(h) of the act (see Subpart F of
this part).
A deduction required under this section is made in addition to any
deductions required under section 5(i)(1) of the act (see 237.702), and
in addition to any adjustment under Part 255 of this chapter.
(12 FR 2025, Mar. 27, 1947, as amended by Board Order 60-12, 25 FR
1676, Feb. 26, 1960; Board Order 63-149, 28 FR 9526, Aug. 30, 1963)
20 CFR 237.703 Subpart H -- (Reserved)
20 CFR 237.703 Subpart I -- Miscellaneous
20 CFR 237.901 Statutory provisions.
(See last sentence of section 5(f)(1) of the act, quoted in
237.501.)
* * * An annuity under this section which is not in excess of $5 may,
in the discretion of the Board, be paid in a lump sum equal to its
commuted value as the Board shall determine. (60 Stat. 732; 45 U.S.C.
228e)
(Board Order 55-89, 20 FR 3723, May 27, 1955)
20 CFR 237.902 Act of March 7, 1942 (56 Stat. 143, 144).
(a) Provisions. The act of March 7, 1942 (56 Stat. 143, 144) is
entitled ''An Act to provide for continuing payment of pay and
allowances of personnel of the Army, Navy, Marine Corps, and Coast
Guard, including the retired and reserve components thereof; the Coast
and Geodetic Survey and the Public Health Service, and civilian
employees of the executive departments, independent establishments, and
agencies, during periods of absence from post of duty, and for other
purposes.'' Section 2 of that act relates to ''Any person who is in
active service and is officially reported as missing, missing in action,
interned in a neutral country, or captured by an enemy.'' Section 5 of
that act provides that ''Upon the expiration of 12 months from the date
the person is reported as missing, or missing in action, in the absence
of an official report of the death of the missing person, the head of
the department concerned is authorized to make a finding of death of
such person.''
(b) Relation to application for lump-sum death payments. For the
purposes of 237.502(a)(3) and 237.503(a)(3), if the deceased employee
is a person to whom section 2 of the act of March 7, 1942, is
applicable, the two-year period of limitation for the filing of an
application runs from the date on which he was determined, under that
act, to be dead.
(c) Relation to other matters. Except as provided in paragraph (b)
of this section, if the deceased employee is a person to whom section 2
of the act of March 7, 1942, is applicable, he is, for all purposes of
this part, deemed to have died on the date determined pursuant to that
act to be the date or presumptive date of his death, so long as it does
not appear that he is in fact alive.
(12 FR 2027, Mar. 27, 1947, as amended by Board Order 60-12, 25 FR
1677, Feb. 26, 1960)
20 CFR 237.903 Payment of insurance annuity in lump sum.
If an insurance annuity is not more than $5, it may, in the
discretion of the Board, be paid in a lump sum equal to its commuted
value as determined by the Board.
(12 FR 2027, Mar. 27, 1947)
20 CFR 237.904 Meaning of ''retirement annuity''.
As used in this part, the term ''retirement annuity'' means an
annuity under section 2 of the act awarded before or after its
amendment, but not including an annuity to a survivor pursuant to an
election of a joint and survivor annuity.
(Board Order 55-89, 20 FR 3722, May 27, 1955)
20 CFR 237.905 Proof of continuance of disability of child age 18 or
over.
(a) A child age 18 or over whose entitlement to a child's insurance
annuity is based, in part, on his having a permanent physical or mental
condition which is such that he is unable to engage in any regular
employment, which disability began before he attained age 18, shall, as
and whenever notified by the Board, submit additional proof of the
continuance of his disability.
(b) The Board may at any time or times, while the child is in receipt
of such an annuity, require that he submit to an examination to be made
by a physician, or physicians, or a board of physicians, designated by
the Board.
(c) The Board may also at any time or times, while the child is in
receipt of such an annuity, require that he submit information relating
to his employment, including self-employment, and earnings therefrom.
(d) If, while in receipt of an annuity, such individual fails to
comply with the requirements prescribed in paragraphs (a) and (b) of
this section, his right to an annuity shall, except for good cause shown
to the Board, cease.
(Board Order 55-89, 20 FR 3723, May 27, 1955)
20 CFR 237.906 Rounding of insurance annuity.
When awarded on or after September 6, 1958, a monthly insurance
annuity that is not a multiple of $0.10 shall be rounded to the next
higher multiple of $0.10.
(Board Order 60-12, 25 FR 1677, Feb. 26, 1960)
20 CFR 237.907 Effect of felonious homicide.
An individual who has been finally convicted by any court of
competent jurisdiction of the felonious homicide of an employee shall
not be entitled to any benefits under the act by reason of the death of
such employee, and shall be considered non-existent in determining the
entitlement of others to benefits based on the earnings of such
employee.
(Board Order 60-12, 25 FR 1677, Feb. 26, 1960)
20 CFR 237.908 Escheat.
Any part of a payment under section 5 of the act which would
otherwise escheat to a State shall not be allowed.
(Board Order 60-12, 25 FR 1677, Feb. 26, 1960)
20 CFR 237.908 PART 238 -- (RESERVED)
20 CFR 237.908 PART 240 -- (RESERVED)
20 CFR 237.908 PART 243 -- TRANSFER, ASSIGNMENT, OR WAIVER OF PAYMENTS
Sec.
243.1 Prohibition against garnishment.
243.2 Legal process for the enforcement of child support and alimony
obligations.
243.3 Payments pursuant to court decree or court-approved property
settlement.
243.4 Taxation of benefits.
243.5 Assignment of a portion of an annuity paid under the social
security overall minimum provision.
243.6 Waiver of annuity payments.
Authority: 45 U.S.C. 231f(b)(5).
Source: 53 FR 35806, Sept. 15, 1988, unless otherwise noted.
20 CFR 243.1 Prohibition against garnishment.
Except as hereinafter provided in this part, no benefits paid under
the Railroad Retirement Act are assignable or subject to any tax or to
garnishment, attachment, or other legal process (including any order
issued by any court in connection with a bankruptcy proceeding), nor
shall any payment be anticipated.
20 CFR 243.2 Legal process for the enforcement of child support and
alimony obligations.
Benefits paid by the Board are subject to legal process brought for
the enforcement of legal obligations to provide child support or to make
alimony payments, as provided in Part 350 of this chapter.
20 CFR 243.3 Payments pursuant to court decree or court-approved
property settlement.
Certain annuity components are subject to division pursuant to a
court decree or to a court-approved property settlement incident to any
such decree, as provided in Part 295 of this chapter.
20 CFR 243.4 Taxation of benefits.
(a) Annuities paid by the Board are subject to Federal income tax in
accord with the Internal Revenue Code. The annuity portion equivalent
to the amount of the benefit that the person would have actually
received under the Social Security Act if railroad service had been
creditable under that Act is treated for Federal income tax purposes the
same way as a social security benefit. Annuity payments computed under
the social security overall minimum provision contained in section
3(f)(3) of the Railroad Retirement Act (see 243.5 of this Part) are
also treated as social security benefits for Federal income tax
purposes. Railroad retirement annuity amounts exceeding social security
equivalent payments, vested dual benefits, and supplemental annuities
are taxed in the same manner as benefits provided under an employer plan
which meets the requirements of section 401(a) of the Internal Revenue
Code.
(b) Pursuant to section 14 of the Railroad Retirement Act, no annuity
or supplemental annuity, in whole or in part, is subject to any tax by
any state or any political subdivision thereof.
20 CFR 243.5 Assignment of a portion of an annuity paid under the
social security overall minimum provision.
Section 3(f)(3) of the Railroad Retirement Act, the social security
overall minimum provision, guarantees that an annuitant will receive, in
combined benefits under the Railroad Retirement and Social Security
Acts, not less than the amount which would have been paid to the
employee and to members of his or her family under the Social Security
Act if the employee's railroad service had been creditable under that
Act. An annuitant whose annuity is computed under that provision may
assign all or any portion of that annuity to any of the members of his
or her family who are or who could be included in the computation of the
annuity. Any assignment issued pursuant to this section will terminate:
(a) When revoked by the annuitant by notification to the Board; or
(b) When the annuity is no longer computed under the social security
overall minimum provision.
20 CFR 243.6 Waiver of annuity payments.
(a) Any individual who has been awarded an annuity under the Railroad
Retirement Act shall have the right to waive such annuity in whole or in
part by filing with the Board a statement to that effect signed by him
or her.
(b) Such a waiver shall be effective as of the date specified in the
waiver statement, except that if an annuity has been awarded, a waiver
shall not be effective before the first day of the month after the month
in which the waiver form is received at an office of the Board and shall
not be effective as to any annuity payment which has already been made
or which cannot be prevented.
(c) For the period during which a waiver is in effect, no payment of
the amount of the annuity waived can ever be made to any person. A
waiver of an annuity shall not, however, have any effect on the amount
of a spouse's annuity otherwise payable or on a lump sum under section
6(c) of the Act otherwise due, nor shall it serve to make an individual
eligible for a lump-sum death benefit under section 6(b) of the Act or
any insurance benefit under the Social Security Act on the basis of the
wages of the same deceased employee.
(d) A waiver once made shall continue in effect until the annuitant
requests in writing that it be terminated.
20 CFR 243.6 PART 250 -- (RESERVED)
20 CFR 243.6 PART 255 -- RECOVERY OF ERRONEOUS PAYMENTS
Sec.
255.1 Statutory provisions.
255.2 Erroneous payments.
255.3 When erroneous payments to be recovered.
255.4 Methods of recovering erroneous payments.
255.5 Recovery by cash payment.
255.6 Recovery by setoff.
255.7 Recovery by deduction in computation of death benefit under
1937 act.
255.8 Recovery by adjustment in connection with subsequent payments.
255.9 Effect of adjustment in connection with subsequent payments.
255.10 Waiver of recovery.
255.11 Waiver of methods of recovery.
255.12 Waiver not a matter of right; factors considered.
255.13 Compromise of erroneous payments.
255.14 Factors due to be considered in a compromise.
255.15 Suspension or termination of collection action.
Authority: Secs. 9, 10, 50 Stat. 314, as amended; 45 U.S.C. 228i,
228j.
Note: The Board may require reimbursement for annuity or pension
payments made on basis of erroneous or fraudulent information (see
240.6(e)).
20 CFR 255.1 Statutory provisions.
(a) If the Board finds that at any time more than the correct amount
of annuities, pensions, or death benefits has been paid to any
individual under this Act or the Railroad Retirement Act of 1935 or a
payment has been made to an individual not entitled thereto (including
payments made prior to July 1, 1940), recovery by adjustments in
subsequent payments to which such individual or, on the basis of the
same compensation, any other individual, is entitled under this Act or
any other Act administered by the Board may, except as otherwise
provided in this section, be made under regulations prescribed by the
Board. If the individual to whom more than the correct amount has been
paid dies before recovery is completed, recovery may be made by setoff
or adjustments, under regulations prescribed by the Board, in subsequent
payments due, under this Act or any other Act administered by the Board,
to the estate, designee, next of kin, legal representative, or surviving
spouse of such individual, with respect to the employment of such
individual.
(b) Adjustments under this section may be made either by deductions
from subsequent payments or, with respect to payments which are to be
made during a lifetime or lifetimes, by subtracting the total amount of
annuities, pensions, or death benefits paid in excess of the proper
amount from the actuarial value, as determined by the Board, of such
payments to be made during a lifetime or lifetimes and recertifying such
payments on the basis of the reduced actuarial value. In the latter
case, recovery shall be deemed to have been completed upon such
recertification.
(c) There shall be no recovery in any case in which more than the
correct amount of annuities, pensions, or death benefits under this Act
or the Railroad Retirement Act of 1935 has been paid to an individual or
payment has been made to an individual not entitled thereto (including
payments made prior to July 1, 1940) who, in the judgment of the Board,
is without fault when, in the judgment of the Board, recovery would be
contrary to the purpose of the Acts or would be against equity or good
conscience.
(d) No certifying or disbursing officer shall be held liable for any
amount certified or paid by him in good faith to any person where the
recovery of such amount is waived under subsection (c) of this section
or has been begun but cannot be completed under subsection (a) of this
section. (50 Stat. 314, as amended; 45 U.S.C. 228i)
(e) Section 3, Pub. L. 89-508, 80 Stat. 308, provides:
(a) The head of an agency or his designee, pursuant to regulations
prescribed by him and in conformity with such standards as may be
promulgated jointly by the Attorney General and the Comptroller General,
shall attempt collection of all claims of the United States for money or
property arising out of the activities of, or referred to, his agency.
(b) With respect to such claims of the United States that have not
been referred to another agency, including the General Accounting
Office, for further collection action and that do not exceed $20,000,
exclusive of interest, the head of an agency or his designee, pursuant
to regulations prescribed by him and in conformity with such standards
as may be promulgated jointly by the Attorney General and the
Comptroller General, may (1) compromise any such claim, or (2) cause
collection action on any such claim to be terminated or suspended where
it appears that no person liable on the claim has the present or
prospective financial ability to pay any significant sum thereon or that
the cost of collecting the claim is likely to exceed the amount of
recovery. The Comptroller General or his designee shall have the
foregoing authority with respect to claims referred to the General
Accounting Office by another agency for further collection action. The
head of an agency or his designee shall not exercise the foregoing
authority with respect to a claim as to which there is an indication of
fraud, the presentation of a false claim, or misrepresentation on the
part of the debtor or any other party having an interest in the claim,
or a claim based in whole or in part on conduct in violation of the
antitrust laws; nor shall the head of an agency, other than the
Comptroller General of the United States, have authority to compromise a
claim that arises from an exception made by the General Accounting
Office in the account of an accountable officer.
(c) A compromise effected pursuant to authority conferred by
subsection (b) of this section shall be final and conclusive on the
debtor and on all officials, agencies, and courts of the United States,
except if procured by fraud, misrepresentation, the presentation of a
false claim, or mutual mistake of fact. No accountable officer shall be
liable for any amount paid or for the value of property lost, damaged,
or destroyed, where the recovery of such amount or value may not be had
because of a compromise with a person primarily responsible under
subsection (b).
(Board Order 41-526, 7 FR 97, Jan. 6, 1942, as amended by Board Order
67-21, 32 FR 3224, Feb. 24, 1967)
20 CFR 255.2 Erroneous payments.
An ''erroneous payment,'' within the meaning of this part, shall have
been made in any case in which an individual receives, as a payment
under the 1937 act or the 1935 act, a payment all or part of which he is
not entitled to receive.
(4 FR 1501, Apr. 7, 1939)
20 CFR 255.3 When erroneous payments to be recovered.
Erroneous payments shall be recovered in all cases except those in
which recovery is waived under 255.10 or a compromise is approved under
255.13.
(Board Order 67-21, 32 FR 3224, Feb. 24, 1967)
20 CFR 255.4 Methods of recovering erroneous payments.
Erroneous payments may be recovered by any one or any combination of
the methods described in 255.6, 255.7, 255.8.
(4 FR 1501, Apr. 7, 1939)
20 CFR 255.5 Recovery by cash payment.
The Board shall have the right to require that erroneous payments be
immediately and fully repaid in cash and any individual shall have the
absolute right to repay such erroneous payments in this manner.
However, if the individual is financially unable to pay the indebtedness
in a lump sum, payment may be accepted in regular installments. The
amount and frequency of such installment payments should bear a
reasonable relation to the size of the debt and the debtor's ability to
pay. Whenever possible installment payments should be sufficient in
amounts and frequency to liquidate the debt in not more than 3 years.
(Board Order 67-21, 32 FR 3224, Feb. 24, 1967)
20 CFR 255.6 Recovery by setoff.
An erroneous payment made to an individual may be recovered from any
subsequent payment determined payable, on the basis of the same
compensation, under any Act administered by the Board. In any case in
which full recovery is not effected by setoff, the balance due may be
recovered by one or more of the other methods described in this part.
If the overpaid individual dies before recovery is completed, such
recovery shall be made from his estate or heirs.
(Board Order 67-21, 32 FR 3224, Feb. 24, 1967)
20 CFR 255.7 Recovery by deduction in computation of death benefit
under 1937 act.
In computing the benefit under section 5(f)(2) of the 1937 act with
respect to the death of an individual, the Board shall include in the
benefits to be deducted from the applicable percentages of the aggregate
compensation mentioned in that section all erroneous payments, not
otherwise recovered, that were paid to the individual or to his spouse
or to his survivors with respect to the individual's employment.
(Board Order 60-51, 25 FR 2891, Apr. 6, 1960)
20 CFR 255.8 Recovery by adjustment in connection with subsequent
payments.
Adjustment with respect to erroneous payments received by any
individual may be made by subtracting the total amount of the erroneous
payments from the actuarial value, as determined by the Board, of any
annuity or pension payments due and becoming due to any individual on
the basis of the same compensation and recertifying such annuity or
pension on the basis of the reduced actuarial value. The adjustment
described in this section may not be made unless all of the following
conditions are shown to exist:
(a) That the person or persons whose annuities or pensions are being
adjusted are alive on the date that the annuity or pension is
recertified and on the due date of the first annuity or pension payment
affected by the adjustment;
(b) That, on the dates mentioned in paragraph (a) of this section,
there are annuities accruing or pensions becoming due to one of such
persons;
(c) That the Board has waived in accordance with 255.11, any right
to recover by the methods described in 255.5 and 255.6, but has not
waived recovery in accordance with 255.10.
(Board Order 67-21, 32 FR 3224, Feb. 24, 1967)
20 CFR 255.9 Effect of adjustment in connection with subsequent
payments.
Adjustment by the method described in 255.8 shall constitute a
recovery of the amount of erroneous payments included in the adjustment.
(4 FR 1501, Apr. 7, 1939)
20 CFR 255.10 Waiver of recovery.
Recovery of erroneous payments may be waived in whole or in part if,
in the judgment of the Board, the individual who received the erroneous
payments is without fault and if, in the judgment of the Board, such
recovery by any of the methods described in 255.5, 255.6, 255.7, 255.8
would be against equity and good conscience.
(4 FR 1501, Apr. 7, 1939)
20 CFR 255.11 Waiver of methods of recovery.
The Board may waive any right to recover all or any part of the
erroneous payments by any one or more methods without waiving the right
to recover by some other method or methods if, in the judgment of the
Board, the individual is without fault and if, in the judgment of the
Board, recovery by the methods waived would be against equity and good
conscience and recovery by such other methods would not be against
equity and good conscience.
(4 FR 1501, Apr. 7, 1939)
20 CFR 255.12 Waiver not a matter of right; factors considered.
A waiver under 255.10 or 255.11 is not a matter of right, but is at
all times within the judgment of the Board. The following, while
neither controlling nor fully measuring the discretion of the Board,
indicate the character of reasons which will be considered:
(a) Whether the erroneous payment was caused by an incorrect
statement made by the individual receiving such payment, and the
individual knew or should have known it was incorrect;
(b) Whether the erroneous payment was caused by the failure of the
individual to disclose facts or make a statement which he knew or should
have known to be material;
(c) Whether, at the time or times of receipt of payments the
individual knew or should have known the amount thereof to be incorrect
and failed to inquire or advise the Board of the incorrectness of the
amount of the payment or payments;
(d) The extent to which the individual is dependent upon the current
payment of his annuity or pension for the necessities of life;
(e) Whether the individual has, by reason of the erroneous payment,
changed his position in such manner as to make recovery a severe
hardship.
(4 FR 1502, Apr. 7, 1939)
20 CFR 255.13 Compromise of erroneous payments.
The Board or its designee may compromise an erroneous payment,
provided such payment does not exceed $20,000. Compromise of an
erroneous payment may not be considered in any case in which there is an
indication of fraud, the presentation of a false claim or
misrepresentation on the part of the overpaid individual or his
representative. Compromise is at all times within the discretionary
authority of the Board or its designee.
(Board Order 67-21, 32 FR 3224, Feb. 24, 1967)
20 CFR 255.14 Factors due to be considered in a compromise.
The following indicate the character of reasons which will be
considered in approving a compromise:
(a) The debtor's ability to repay the full amount within a reasonable
time;
(b) The debtor's refusal to pay the claim in full and the Board's
inability to effect collection in full within a reasonable time by other
collection methods;
(c) Doubt concerning the Board's ability to prove its case in court
for the full amount because of a bona fide dispute as to the facts or
because of the legal issues involved;
(d) The cost of collecting the erroneous payment does not justify the
enforced collection of the full amount.
(Board Order 67-21, 32 FR 3224, Feb. 24, 1967)
20 CFR 255.15 Suspension or termination of collection action.
Collection action on a Board claim may be suspended or terminated
under the following conditions:
(a) Collection action on a Board claim may be suspended temporarily
when the debtor cannot be located and there is reason to believe future
collection action may be productive or collection may be effected by
offset in the near future.
(b) Collection action may be terminated when:
(1) The debtor is unable to make any substantial payment;
(2) The debtor cannot be located and offset is too remote to justify
retention of the claim;
(3) The cost of collection action will exceed the amount recoverable;
(4) The claim is legally without merit or cannot be substantiated by
the evidence.
(Board Order 67-21, 32 FR 3224, Feb. 24, 1967)
20 CFR 255.15 PART 258 -- HEARINGS BEFORE THE BOARD OR DESIGNATED
EXAMINERS
Sec.
258.1 Hearings.
258.2 Witnesses.
258.3 Application for witnesses.
258.4 Service of subpoenas.
258.5 Exhibits.
258.6 Procedure when examiner appointed.
258.7 Board decisions and opinions and dissenting opinions.
Authority: Sec. 10, 50 Stat. 314, as amended; 45 U.S.C. 228j,
unless otherwise noted.
Source: 43 FR 56888, Dec. 5, 1978, unless otherwise noted.
20 CFR 258.1 Hearings.
(a) To such extent as may be necessary to determine (1) the employee
status of any individual or group of individuals, (2) the employer
status of any person, and (3) any other matter arising out of or
necessary for the administration of the Railroad Unemployment Insurance
Act and the Railroad Retirement Acts of 1935, 1937, and 1974, other than
those matters specifically provided for in Parts 260 and 320 of this
chapter, the Board may itself or through one of its members or a
designated examiner, conduct hearings, require and compel the attendance
of witnesses and the production of records and documents, administer
oaths, take testimony, make all pertinent investigations and findings of
fact, and render decisions upon such findings.
(b) Where the Board determines that an oral hearing is necessary to
the determination of a matter before it, the Board shall notify all
parties to the proceeding that a hearing will be conducted, and, if the
hearing is to be before a single Board member or a designated examiner,
the notice shall identify the member or examiner authorized to conduct
the hearing. The Board or the person authorized to conduct the hearing
shall fix a time and place for the holding of the hearing and shall
notify all parties thereof.
20 CFR 258.2 Witnesses.
(a) In any hearing held pursuant to the provisions of this part,
witnesses may be compelled to appear, give testimony, and produce
records and documents.
(b) Designation by the Board of any person as an examiner to preside
at and conduct such hearings shall constitute a delegation of authority
to such examiner to require and compel the attendance of witnesses and
the production of records and documents, to administer oaths, and to
take testimony.
20 CFR 258.3 Application for witnesses.
(a) Any person or persons conducting a hearing pursuant to the
provisions of this part or Part 260 of this chapter may, upon such
person's or persons' own motion or upon application of any party to such
hearing, issue a subpoena for a witness or witnesses. An application
for a subpoena shall be by affidavit filed with the person or persons
conducting the hearing within such period of time as will permit service
and return of a subpoena prior to the date set for the hearing at which
the witness is to appear, but in no case shall such application be filed
later than 10 days prior to the date of hearing. The application shall
set forth:
(1) The name and address of the witness;
(2) The title of the matter to be heard, i.e., names of parties;
(3) The issue to which the testimony of the witness will be directed;
(4) The substance of the testimony which such witness is expected to
give or the facts to which such witness will testify; and
(5) The specific books, papers or documents which are requested, if a
subpoena duces tecum is applied for.
(b) In addition to the above, the party filing such application
shall, at the time of filing, deposit therewith a sum of money
sufficient to cover the fees and transportation allowance of the
witness, or, in lieu thereof, shall state in the application that
satisfactory arrangements have been made with the witness for the direct
payment of his or her fees and transportation allowance and any other
allowable expense.
20 CFR 258.4 Service of subpoenas.
Service of subpoenas issued under 258.3 may be made by any
individual designated by the Board. Such individual shall deliver a
copy of the subpoena to the person or persons named therein, and shall
at that time tender to that person or persons the fees for one day's
attendance and the transportation allowance authorized by law;
Provided, however, That if the witness or witnesses be summoned to
appear upon motion of the person or persons designated to conduct the
hearing, no fees or transportation allowance need be tendered. Fees and
transportation allowances shall be in the same amount as is allowed to
witnesses in the courts of the United States. The person serving the
subpoena shall make certification of the manner and time of service on
the original subpoena and shall file such original subpoena with the
person or persons by whom it was issued.
20 CFR 258.5 Exhibits.
Copies of all exhibits admitted in evidence at any hearing held
pursuant to the provisions of this part shall be furnished by the party
offering the same to all other parties participating in the proceedings.
20 CFR 258.6 Procedure when examiner appointed.
(a) Where an examiner has been designated by the Board under this
part to conduct a hearing with respect to a matter before it, the
examiner shall preside at the hearing and shall cause all testimony to
be recorded. The examiner shall, as soon as practicable following the
conclusion of the hearing, mail to each party at the address stated in
his or her appearance a free transcript of the record of the proceedings
had before the examiner. Thereafter, the examiner shall give all
parties participating in the hearing the opportunity to present argument
upon both law and facts. Upon conclusion of the proceedings before him
or her, the examiner shall prepare a report which, together with the
record of the proceedings before him or her, shall be submitted to the
Board. The report shall set forth the examiner's findings of fact,
conclusions of law, and recommendations as to decision. The report may
also contain such discussion of the question raised, both legal and
factual, as the examiner may desire to present to the Board. A copy of
the examiner's report shall be served by the examiner upon each party
participating in the hearing by mailing such copy to each such party at
the address stated in his or her appearance. Each party shall, within
30 days after the date of mailing to him or her of the examiner's
report, file with the Board and serve upon other parties by mailing to
their addresses as stated in their appearances such exceptions in
writing as he or she desires to make to the examiner's findings of fact
and conclusions of law. Each exception shall specifically designate the
particular findings of fact or conclusions of law to which objection is
taken, and shall set forth in detail the grounds for the objection.
General exceptions and exceptions not specifically directed to
particular findings of fact or conclusions of law will not be considered
by the Board. Exceptions to findings of fact shall make specific
reference by page numbers to those portions of the record upon which
reliance is placed.
(b) Each party shall have 10 days after receipt of exceptions taken
by other parties in which to file with the Board replies to those
exceptions. Replies to exceptions to findings of fact shall make
specific reference by page number to those portions of the record upon
which reliance is placed.
(c) The Board may, upon the application of a party and for cause
shown, extend the time for filing and serving of exceptions or filing of
replies thereto. The Board will render its decision upon the record,
the examiner's report, and such exceptions and replies thereto as are
made.
(d) The examiner's report shall be advisory only and the Board may,
in any case, exercise its right to reject or adopt the examiner's report
in whole or in part or adopt such report with modifications. Findings
of fact to which no exceptions are taken will, subject only to the power
of the Board upon its own consideration to reject or modify, be presumed
to be correct.
(e) The decision of the Board shall be communicated to the parties
participating in the hearing within 30 days of the date upon which the
decision of the Board is entered upon its records.
20 CFR 258.7 Board decisions and opinions and dissenting opinions.
The following shall apply to all decisions of the Board except
decisions relating to matters of internal administration:
A decision made by at least two members of the Board shall constitute
the decision of the Board. The decision of the Board shall be stated in
a written opinion filed in the record of the proceedings. A dissenting
opinion may be stated by a member of the Board who disagrees with the
decision of the Board and any such dissenting opinion shall also be
filed in the record of the proceedings.
20 CFR 258.7 PART 259 -- INITIAL DETERMINATIONS AND APPEALS FROM
INITIAL DETERMINATIONS WITH RESPECT TO EMPLOYER STATUS AND EMPLOYEE
STATUS
Sec.
259.1 Initial determinations with respect to employer and employee
status.
259.2 Parties to determinations with respect to employer and employee
status.
259.3 Reconsideration of initial determinations with respect to
employer or employee status.
259.4 Authority to conduct investigations.
259.5 Appeals from decisions of the Board.
259.6 Finality of determinations issued under this part.
Authority: 45 U.S.C. 231f; 45 U.S.C. 362(l).
Source: 43 FR 56889, Dec. 5, 1978, unless otherwise noted.
20 CFR 259.1 Initial determinations with respect to employer and
employee status.
(a) All requests for a determination with respect to employer or
employee status shall be filed with the Secretary to the Board.
(b) The General Counsel of the Railroad Retirement Board or his or
her designee shall make the initial investigations with respect to:
(1) The status of any person as an employer under the Railroad
Retirement Act and the Railroad Unemployment Insurance Act and the rules
and regulations issued thereunder; and
(2) The status of any individual or group of individuals as an
employee or employees of an employer covered under the Railroad
Retirement Act and the Railroad Unemployment Insurance Act.
(c) Upon completion of this investigation the General Counsel, or his
or her designee, shall submit to the Board the results of the
investigation together with a recommendation concerning the coverage
determination. The Board shall make the initial determination with
respect to the status of any person as an employer or as an employee
under the Railroad Retirement Act and Railroad Unemployment Insurance
Act. The Secretary to the Board shall promptly notify the party or
parties, as defined in 259.2 of this part, and other interested persons
or entities of the Board's determination.
(57 FR 4366, Feb. 5, 1992)
20 CFR 259.2 Parties to determinations with respect to employer and
employee status.
(a) With respect to any determination under this Part concerning the
status of a person as an employer under the Railroad Retirement Act and
the Railroad Unemployment Insurance Act, that person shall be a party to
such determination and may submit written briefs or argument, as well as
any documentary evidence pertinent to the matter at issue, to the
decision maker to be considered in the rendition of a determination.
The employees of such person may submit written briefs or argument with
respect to such determination, but shall not be parties thereto.
(b) With respect to any determination under this part concerning the
status of an individual or group of individuals as an employee or
employees of an employer covered by the Railroad Retirement Act and the
Railroad Unemployment Insurance Act, the employer alleged to be the
employer of the individual or group of individuals and the individual or
group of individuals shall each be considered a party to such
determination and may submit written briefs or argument, and documentary
evidence pertinent to the matter at issue, to the decision maker to be
considered in the rendition of a determination.
20 CFR 259.3 Reconsideration of initial determinations with respect to
employer or employee status.
(a) A party to an initial decision issued under 259.1 shall have the
right to request reconsideration of that decision. A request for
reconsideration shall be in writing and must be filed with the Secretary
to the Board within one year following the date on which the initial
determination was issued. Where a request for reconsideration has been
timely filed, the Secretary to the Board shall notify all other parties
to the initial determination of such request. The party who requested
reconsideration and any other party shall have the right to submit
briefs or written argument, as well as any documentary evidence
pertinent to the issue under consideration. The General Counsel or his
or her designee shall review the material furnished all parties and
shall submit it to the Board with a recommendation as to the
determination upon reconsideration. The Board shall then issue a
determination with respect to the request for reconsideration. The
Secretary to the Board shall promptly notify all parties and other
interested persons or entities of the determination upon
reconsideration.
(b) A party who claims to be aggrieved by an initial decision of the
Board but who fails to timely request reconsideration under this section
shall forfeit any further right to appeal under this part.
(57 FR 4366, Feb. 5, 1992)
20 CFR 259.4 Authority to conduct investigations.
In performing his or her responsibilites under 259.1 or 259.3, the
General Counsel or his or her designee shall have the authority and the
power to conduct any investigations he deems necessary. In addition,
the General Counsel or his or her designee shall have the power to
compel, by subpoena, any person, company, corporation, or other entity
to produce any records or other documents pertinent to the matter under
consideration.
(45 U.S.C. 231f(b)(5))
(43 FR 56889, Dec. 5, 1978, as amended at 48 FR 51447, Nov. 9, 1983;
57 FR 4366, Feb. 5, 1992)
20 CFR 259.5 Appeals from decisions of the Board.
A party who claims to be aggrieved by a decision of the Board under
this Part may obtain review of such decision by filing a petition for
review in the United States court of appeals for the circuit in which
the party resides or has its principal place of business or principal
executive office, in the United States Court of Appeals for the Seventh
Circuit, or in the United States Court of Appeals for the District of
Columbia. The petition for review must be filed within 90 days
following the date on which the notice of the Board's decision was
mailed to that party.
(43 FR 56889, Dec. 5, 1978. Redesignated at 57 FR 4366, Feb. 5, 1992)
20 CFR 259.6 Finality of determinations issued under this part.
Any determination rendered by the Board at the initial or
reconsideration stages shall be considered a final determination and
shall be binding with respect to all parties unless reversed on
reconsideration or upon judicial review. A final determination may be
reopened at the request of a party who was, or could have been, a party
to the final determination when the party alleges that the law or the
facts upon which the final determination was based have changed
sufficiently to warrant a contrary determination. Such a request shall
be submitted to the Secretary to the Board, who shall consider such
request as a request for an initial determination under 259.1.
(57 FR 4366, Feb. 5, 1992)
20 CFR 259.6 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
Sec.
260.1 Initial decisions by the Bureau of Disability and Medicare
Operations, Bureau of Retirement Benefits, Bureau of Survivor Benefits
and Office of Retirement and Survivor Programs.
260.2 Initial decisions by the Bureau of Research and Employment
Accounts.
260.3 Request for reconsideration of initial decision of the Bureau
of Disability and Medicare Operations, Bureau of Retirement Benefits,
Bureau of Survivor Benefits, Office of Retirement and Survivor Programs,
or Bureau of Research and Employment Accounts.
260.4 Request for waiver of recovery of an erroneous payment and/or
for reconsideration of an initial erroneous payment decision of the
Bureau of Disability and Medicare Operations, Bureau of Retirement
Benefits, Bureau of Survivor Benefits or Office of Retirement and
Survivor Programs.
260.5 Appeal from a reconsideration decision of the Bureau of
Disability and Medicare Operations, Bureau of Retirement Benefits,
Bureau of Survivor Benefits, Office of Retirement and Survivor Programs
or the Bureau of Research and Employment Accounts.
260.6 Time limits for issuing a hearing decision.
260.7 Time limits for issuing a decision when a hearing is not held.
260.8 Pre-hearing case review.
260.9 Final appeal from a decision of the hearings officer.
260.10 Determination of date of filing of appeal.
Authority: 45 U.S.C. 231f; 45 U.S.C. 231g; 45 U.S.C. 355.
Source: 47 FR 36809, Aug. 24, 1982, unless otherwise noted.
20 CFR 260.1 Initial decisions by the Bureau of Disability and Medicare
Operations, Bureau of Retirement Benefits, Bureau of Survivor Benefits
and Office of Retirement and Survivor Programs.
(a) General. Claims shall be adjudicated and initial decisions made
by the Bureau of Disability and Medicare Operations, Bureau of
Retirement Benefits, Bureau of Survivor Benefits and Office of
Retirement and Survivor Programs concerning:
(1) Applications for benefits under the Railroad Retirement Act;
(2) The withdrawal of an application;
(3) A change in an annuity beginning date;
(4) The termination of an annuity;
(5) The modification of the amount of an annuity or lump-sum benefit;
(6) The reinstatement of an annuity which had been terminated or
modified;
(7) The existence of an erroneous payment;
(8) The recovery of the amount of an erroneous payment;
(9) The eligibility of an individual for a supplemental annuity or
the amount of such supplemental annuity;
(10) Whether representative payment shall serve the best interests of
an annuitant as a result of that individual's incapacity to manage his
annuity payments; and
(11) Who shall be designated or continued as representative payee on
behalf of an annuitant.
(b) Adjudication of claim and the issuance of initial decision.
Adjudication of a claim and the issuance of an initial decision shall be
in accordance with instructions issued by the Director of the
appropriate bureau or office and shall be made upon the basis of
evidence submitted by the claimant and evidence otherwise available.
(c) Recovery of erroneous payment. A decision to recover the amount
of an erroneous payment under paragraph (a)(8) of this section by
suspension or reduction of a monthly benefit payable by the Board shall
not be made prior to a date 30 calendar days after the date on which
notice of the erroneous payment decision is sent to the beneficiary or
payee of the benefit as provided in 260.1(d)(6).
(d) Notice of initial decision. (1) In all cases except those
described in paragraph (d) (2) through (4) and (6) of this section,
written notice of an initial decision shall be mailed by the appropriate
bureau or office to the claimant, annuitant or payee of an annuity at
the individual's last known address within 30 calendar days after such
decision is made. Such notice shall inform the claimant, annuitant or
payee of an annuity of the reason(s) for the decision and such
individual's right to reconsideration of such initial decision as
provided in 260.3.
(2) No notice of an initial decision by the appropriate bureau or
office shall be required when the death of an annuitant causes the
entitlement to an annuity to cease.
(3) When an initial decision is made that an annuitant's entitlement
to a disability has ended, written notice of the decision shall be
mailed to the annuitant or payee of an annuity at the annuitant's or
payee's last known address. Such notice shall inform the annuitant or
payee of an annuity:
(i) Of the date on which the recovery from disability is found to
have occurred;
(ii) Of the reason(s) supporting such a finding of recovery;
(iii) That entitlement to the annuity ends on the last day of the
second month after the month in which disability ends as described in
220.181;
(iv) That the Board will stop payment of the annuitant's disability
annuity with the last day of the second month following the month in
which disability ends as described in 220.181, or the last day of the
first month following the month in which the notice provided by this
paragraph is sent by the Board, whichever date is later:
(v) That any annuity payments received after entitlement has ended
will have to be repaid unless waiver of recovery is appropriate;
(vi) That prior to the termination date of the annuity the annuitant
or payee of an annuity may submit to the Board any information in
writing which the annuitant or payee desires to be considered by the
Board in its review;
(vii) That if no information in writing is received by the Board
before the termination date the annuity will be terminated as scheduled
on that date; and
(viii) That the annuitant or payee has the right to reconsideration
of such decision as provided in 260.3.
(4) When an initial decision would result in the termination of an
annuity for which there are competing claims or as a result of the
receipt by the Board of information from a source other than the
annuitant or payee of an annuity, written notice of the proposed
decision shall be mailed to the annuitant or payee of an annuity at such
annuitant's or payee's last known address. Such notice shall inform the
annuitant or payee of an annuity:
(i) Of the reason(s) for the annuity termination;
(ii) That the annuitant or payee has 30 calendar days from the date
of the notice to submit to the Board any information in writing which
such annuitant or payee desires to be considered by the Board in its
review;
(iii) That payment of the annuity will either cease or a decision to
continue payment of such annuity shall be made after the Board has
considered any information in writing which may be submitted to the
Board within 30 calendar days from the date of the notice;
(iv) That if no information in writing is received within 30 calendar
days from the date of the notice, payment of the annuity will cease at
the end of that 30-day period; and
(v) That the annuitant or payee has the right to reconsideration of
such decision as provided in 260.3.
(5) Whenever the Board receives any significant information in
writing from an annuitant or payee of an annuity as a result of mailing
the notice described in paragraph (d)(4) of this section, the Board
shall forward a copy of such information to each of the individuals who
has filed a competing claim for such annuity informing them that:
(i) The annuity will either be terminated at the specified time or a
decision to continue payment of the annuity will be made by the Board;
and
(ii) They may respond to such information and their response will be
considered by the Board provided that it is received by the Board within
a reasonable time. When the Board decision in such case is to continue
payment of the annuity, the Board shall send notice of such initial
decision to each of the competing claimants in accordance with paragraph
(d)(1) of this section.
(6) When an initial decision that an erroneous payment has been made
to a beneficiary is made under paragraph (a)(7) of this section, written
notice of that decision shall be mailed to the beneficiary or payee of
the benefit at such beneficiary's or payee's last known address within
30 calendar days after such decision is made. Such notice shall inform
the beneficiary or payee:
(i) Of the reason(s) for the decision;
(ii) Of the methods by which recovery may be made;
(iii) Of the possibility of waiver of recovery of the erroneous
payment;
(iv) Of the conditions which must be met before waiver of recovery
could be granted;
(v) That the beneficiary may request waiver of recovery of the
erroneous payment and/or reconsideration of the erroneous payment
decision as provided in 260.4; and
(vi) Of the possibility of an oral hearing with respect to the issues
of waiver of recovery and reconsideration of the erroneous payment
decision.
(47 FR 36809, Aug. 24, 1982, as amended at 55 FR 39146, Sept. 25,
1990; 56 FR 13040, Mar. 28, 1991)
20 CFR 260.2 Initial decisions by the Bureau of Research and Employment
Accounts.
Within 30 days after receipt of a timely request by an employee for
an amendment with respect to the amount of compensation credited to the
employee by the Board under the Railroad Retirement Act and the Railroad
Unemployment Insurance Act, the Director of Research and Employment
Accounts shall appoint a qualified Board employee to make a
determination with respect to such matter. The Board employee appointed
by the director shall promptly render a decision. Written notice of
such decision shall be communicated by the Director of Research and
Employment Accounts to the employee within 30 days after such decision
is made. Such notice shall include notification of the employee's right
to reconsideration of the initial decision as provided in 260.3. For
purposes of this section, a timely request to amend an employee's record
of compensation maintained under the Railroad Retirement Act shall be
filed within four years after the date on which the return of
compensation was required to be made to the Board by the employee's
employer. For purposes of this section, a timely request to amend an
employee's record of compensation maintained under the Railroad
Unemployment Insurance Act shall be filed within 18 months after the
date on which the last return of compensation was required to be made
covering any portion of the calendar year which includes the period
during which the challenged payment was made.
(47 FR 36809, Aug. 24, 1982, as amended at 48 FR 51448, Nov. 9, 1983)
20 CFR 260.3 Request for reconsideration of initial decision of the
Bureau of Disability and Medicare Operations, Bureau of Retirement
Benefits, Bureau of Survivor Benefits, Office of Retirement and Survivor
Programs, or Bureau of Research and Employment Accounts.
(a) Right to file requests for reconsideration. Every claimant shall
have the right to file a request for reconsideration of an initial
decision of the Bureau of Disability and Medicare Operations, Bureau of
Retirement Benefits, Bureau of Survivor Benefits or Office of Retirement
and Survivor Programs described in 260.1(a) or an initial decision of
the Bureau of Research and Employment Accounts described in 260.2.
Provided, however, That:
(1) An individual under age 18 shall not have the right to
reconsideration of a finding of incapacity to manage his or her annuity
payments, but shall have the right to contest the finding that he or she
is, in fact, under age 18;
(2) An individual who has been adjudged legally incompetent shall not
have the right to reconsideration of a finding of incapacity to manage
his or her annuity payments, but shall have the right to contest the
fact of his or her having been adjudged legally incompetent; and
(3) An individual shall not have the right to reconsideration of a
denial of his or her application to serve as representative payee on
behalf of an annuitant. Such request for reconsideration shall be filed
and disposed of in the manner prescribed in this section, except that a
request for reconsideration of an initial erroneous payment decision
under 260.1(a)(7) shall be filed and disposed of in the manner
prescribed in 260.4.
(b) Written request for reconsideration. A written request for
reconsideration must be filed with the appropriate bureau within 60 days
from the date upon 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 by the bureau conducting the reconsideration.
(c) Right to further review of initial decision. The right to
further review of an initial decision of the Bureau of Disability and
Medicare Operations, Bureau of Retirement Benefits, Bureau of Survivor
Benefits, Office of Retirement and Survivor Programs or Bureau of
Research and Employment Accounts 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; or
(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.
(e) Impartial review. The reconsideration of the initial decision
shall be conducted by a person who shall not have any interest in the
parties or in the outcome of the proceedings, shall not have directly
participated in the initial decision which has been requested to be
reconsidered and shall not have any other interest in the matter which
might prevent a fair and impartial decision.
(f) Timely review. The director of the bureau to whom a request for
reconsideration is directed 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 request for reconsideration is
filed.
(g) Right to appeal adverse decision. If the reconsideration
decision is adverse to the claimant, annuitant or payee, he or she shall
be notifed of his or her right to appeal the decision to the Bureau of
Hearings and Appeals, as provided in 260.5.
(47 FR 36809, Aug. 24, 1982, as amended at 48 FR 51448, Nov. 9, 1983;
55 FR 39146, Sept. 25, 1990)
20 CFR 260.4 Request for waiver of recovery of an erroneous payment
and/or for reconsideration of an initial erroneous payment decision of
the Bureau of Disability and Medicare Operations, Bureau of Retirement
Benefits, Bureau of Survivor Benefits or Office of Retirement and
Survivor Programs.
(a) General. A beneficiary who has been determined to have received
an erroneous payment under 260.1(a)(7) shall have the right, upon the
filing of a timely request in accordance with the requirements of this
section, to request waiver of recovery of the erroneous payment and/or
reconsideration of the erroneous payment decision. The beneficiary
shall have the right to an informal oral hearing on the issue of waiver
of recovery and/or reconsideration of the erroneous payment decision,
before an employee of the Board designated to conduct such a hearing,
prior to commencement of recovery by suspension or reduction of a
monthly benefit.
(b) Request for waiver of recovery and/or reconsideration of an
erroneous payment decision and for an oral hearing. A request for
waiver of recovery and/or reconsideration of an erroneous payment
decision and for an oral hearing under this section shall be in writing
and addressed to the district office of the Board set forth in the
initial decision letter or to the Director of the bureau or office which
issued the erroneous payment decision. The request must be received by
either the appropriate district office or the Director of the bureau or
office which issued the erroneous payment decision within 30 calendar
days from the date on which notice of the erroneous payment decision was
sent to the beneficiary. The beneficiary shall state in the request
whether he or she elects to have an oral hearing. If the beneficiary
does not elect to have an oral hearing with respect to his or her
request for waiver of recovery or for reconsideration of the erroneous
payment 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 erroneous payment decision.
The right to further review of an initial erroneous payment decision of
the Bureau of Disability and Medicare Operations, Bureau of Retirement
Benefits, Bureau of Survivor Benefits or Office of Retirement and
Survivor Programs 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 beneficiary for failing to file a
timely request for reconsideration. Good cause for failure to file a
timely request shall be determined by the Director of the bureau or
office which issued the erroneous payment decision in the manner
described in 260.3(d).
(d) Delay in the commencement of recovery of erroneous payment.
Where a timely request for waiver or reconsideration is filed as
provided in this section, the Director of the bureau or office which
issued the erroneous payment decision 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 an oral
hearing under this section, the Director of the bureau or office which
issued the erroneous payment decision or his or her delegatee shall
promptly arrange for the selection of a Board employee to conduct a
hearing in the case. The employee designated to conduct a hearing under
this section shall not have had any prior involvement with the initial
erroneous payment decision and shall conduct the hearing in a fair and
impartial manner. The employee designated to conduct a hearing under
this section shall promptly schedule a time and place for the hearing
and promptly notify the beneficiary of such.
(f) Oral hearing. The beneficiary shall upon request have the
opportunity to review, prior to the hearing, his or her claim folder and
all documents pertinent to the issues raised. A hearing conducted under
this section shall be informal. At the hearing 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 hearing;
and
(3) To be represented by counsel or other person.
(g) Preparation of recommended decision. Upon completion of the
hearing, the employee who conducts the hearing 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. The summary of the case
shall then be submitted to the Director of the bureau or office which
issued the erroneous payment decision.
(h) Timely review. The Director of the bureau or office which issued
the erroneous payment decision 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 is filed or the date that the
summary of the case is received from the employee who conducts the
hearing, whichever is later.
(i) Right to appeal adverse decision. If the Director of the bureau
or office which issued the erroneous payment decision renders a decision
adverse to the beneficiary, he or she shall further notify the
beneficiary of the basis for such determination and that the beneficiary
may appeal the decision to the Bureau of Hearings and Appeals, as
provided in 260.5.
(j) Repayment is not a bar to requesting waiver and/or
reconsideration. The fact that a beneficiary may have notified the
Board with respect to the method by which he or she could choose to have
the recovery made, or the fact that such beneficiary may have actually
tendered to the Board a portion or all of the amount of the erroneous
payment, shall in no way operate to prejudice his or her right to
request reconsideration of the initial erroneous payment determination
or to request waiver of recovery.
(47 FR 36809, Aug. 24, 1982, as amended at 55 FR 39146, Sept. 25,
1990)
20 CFR 260.5 Appeal from a reconsideration decision of the Bureau of
Disability and Medicare Operations, Bureau of Retirement Benefits,
Bureau of Survivor Benefits, Office of Retirement and Survivor Programs
or the Bureau of Research and Employment Accounts.
(a) General. Every claimant shall have a right to appeal to the
Bureau of Hearings and Appeals from any reconsideration decision of the
Bureau of Disability and Medicare Operations, Bureau of Retirement
Benefits, Bureau of Survivor Benefits, Office of Retirement and Survivor
Programs or the Bureau of Research and Employment Accounts by which he
or she claims to be aggrieved.
(b) Appeal from a reconsideration decision. Appeal from a
reconsideration decision of the Bureau of Disability and Medicare
Operations, Bureau of Retirement Benefits, Bureau of Survivor Benefits,
Office of Retirement and Survivor Programs or the Bureau of Research and
Employment Accounts 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.
(c) Right to review of a reconsideration decision. The right to
review of a reconsideration decision of the Bureau of Disability and
Medicare Operations, Bureau of Retirement Benefits, Bureau of Survivor
Benefits, Office of Retirement and Survivor Programs or the Bureau of
Research and Employment Accounts 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 before 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 described in 260.3(d).
(d) 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 and
Appeals 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 hearings
officer with respect to a case. Such hearings officer 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.
(e) 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.
(f) Evidence presented in support of appeal. The appellant, 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. 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 subsequent to an oral hearing, other than evidence
submitted by the appellant or his or her representative, the hearings
officer shall notify the appellant or his or her representative that
such evidence was obtained and shall describe the nature of the evidence
in question. 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. The
hearings officer shall protect the record against scandal, impertinence,
and irrelevancies, but the technical rules of evidence shall not apply.
(g) Submission of written argument in lieu of oral hearing. 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.
(h) Conduct of oral hearing. (1) In any case in which an oral
hearing is to be held pursuant to the provisions of this section, the
hearings officer shall schedule a time and place for the conduct of the
hearing. The hearings officer shall promptly notify the party or
parties to the proceeding by mail as to said 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) A party to the proceeding may object to the time and place of the
hearing or as to the stated issues to be resolved by filing a written
notice of objection with the hearings officer. The notice of objection
shall clearly set forth the matter objected to and the reasons for such
objection, and, if the matter objected to is the time and place of the
hearing, said notice shall further state that party's choice as to the
time and place for the hearing. Said notice of objection shall be filed
at the earliest practicable time, but in no event shall said notice be
filed later than five business days prior to the scheduled date of the
hearing.
(3) The hearings officer shall rule on any objection timely filed by
a party under this subsection 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.
(i) Preservation of evidence presented. All evidence presented by
the appellant and all evidence developed by the hearings officer shall
be preserved. Such evidence, together with a record of the arguments,
oral or written and the file previously created in the adjudication of
the claim, shall constitute the record on appeal. After an appeal is
filed, the compilation of the record shall be initiated by the inclusion
therein of the file created in the adjudication of the claim; the
compilation of the record shall be kept up-to-date by the prompt
addition thereto of all parts of the record subsequently developed. The
entire record shall be available for examination by the appellant or his
or her representative at any time during the pendency of the appeal.
(j) 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 move for
an extension of time to submit evidence and the hearings officer may
grant the motion 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.
(The information collection requirements contained in paragraph (b)
were approved by the Office of Management and Budget under control
number 3220-0007)
(47 FR 36809, Aug. 24, 1982, as amended at 48 FR 51448, Nov. 9, 1983;
52 FR 11017, Apr. 6, 1987; 55 FR 39146, Sept. 25, 1990)
20 CFR 260.6 Time limits for issuing a hearing decision.
(a) General. The hearings officer shall make every effort to issue a
decision within 45 days after the hearing is held.
(b) Submission of additional evidence. If the hearings officer
requests additional evidence, he or she shall do so within 30 days after
the hearing is held and he or she shall make every effort to issue the
hearing decision within 45 days after the additional evidence is
received and the period for comment has ended. If the claimant wishes
to submit additional evidence or written statements of fact or law, the
hearings officer shall make every effort to issue the hearing decision
within 45 days after the written statements are received or the
additional evidence is received and the period for comment has ended.
(c) Supplemental hearing. If on the basis of additional evidence the
hearings officer decides a supplemental hearing is necessary, the
supplemental hearing will be held within 30 days after the receipt of
the additional evidence and the hearings officer shall make every effort
to issue a decision within 30 days after the supplemental hearing is
held.
(d) Reassignment of case to another hearings officer. If, after a
hearing has been held, it is necessary to reassign a case to another
hearings officer due to the unavailability of the original hearings
officer (e.g., resignation, retirement, illness), the case will be
promptly reassigned. The new hearings officer shall make every effort
to issue a hearing decision within 30 days after the reassignment.
(47 FR 36809, Aug. 24, 1982)
20 CFR 260.7 Time limits for issuing a decision when a hearing is not
held.
If a claimant waives his or her right to appear at a hearing and the
hearings officer does not schedule the case for hearing, or the evidence
in the record supports a favorable decision without a hearing, or a
hearing is not required pursuant to 260.5(g), the hearings officer
shall make every effort to issue a decision within 90 days from the date
the appeal is filed: Provided, however, that if the hearings officer
requests additional evidence it shall be requested within 45 days of the
filing of the appeal and the hearings officer shall make every effort to
issue a decision within 30 days after the additional evidence is
received and the appellant comments on the evidence, or if no comment is
received after the close of the comment period.
20 CFR 260.8 Pre-hearing case review.
(a) General. The hearings officer assigned to a case may, prior to
an oral hearing, upon his or her own motion, refer the case back to the
bureau of the Board which issued the initial decision for the purpose of
reconsideration of that decision, where the hearings officer finds that:
(1) Additional evidence pertinent to the resolution of the issues on
appeal was submitted by the appellant at the time the appeal was filed,
or subsequent thereto; or
(2) Additional evidence pertinent to the resolution of the issues on
appeal is available and should be procured; or
(3) There is some other indication in the record that the initial
decision may be revised in a manner favorable to the appellant.
(b) Referral of case for further review by initial adjudicating unit.
Where the hearings officer finds that referral of a case back to the
bureau which issued the initial decision for the purpose of
reconsideration of that decision would be warranted, the hearings
officer shall give that bureau the reason for such referral, together
with specific directions as to the handling of the case on
reconsideration.
(c) Reconsideration of case by initial adjudicating unit. The bureau
to which a case is referred shall promptly undertake any additional
development required, and shall make a determination as to whether the
initial determination may be revised in whole or in part in a manner
favorable to the appellant. Upon issuance of its determination, the
bureau in question shall return the case along with a copy of its
decision to the hearings officer.
(d) Revision of initial decision in whole or in part. Where the
bureau to which a case is referred determines to revise its initial
decision in whole or in part, that bureau shall notify the appellant of
such determination. If the revised determination is wholly favorable to
the appellant, he or she shall be notified that the appeal to the Bureau
of Hearings and Appeals will be dismissed by the hearings officer
assigned to the case. If the revised decision is partially favorable to
the appellant, the notice shall inform the appellant that the hearings
officer will proceed with the portion of the appellant's case not
revised in his or her favor, unless the appellant should request
dismissal of the appeal.
(e) Timely conduct of oral hearing. The fact that a case on appeal
has been referred back to the bureau which issued the initial decision
in the case shall not delay the conduct of a hearing scheduled with
respect to the appeal, unless the appellant agrees to a delay. If it
appears that the bureau to which a case has been referred will not have
completed its reconsideration of the case prior to the date of a
scheduled hearing on an appeal and the appellant has not agreed to a
delay in the conduct of the hearing, the hearings officer shall proceed
with the hearing and the handling of the case as though the case had not
been referred back to the bureau.
20 CFR 260.9 Final appeal from a decision of the hearings officer.
(a) General. Every appellant shall have a right to a final appeal to
the Railroad Retirement Board from any decision of a hearings officer by
which he or she claims to be aggrieved.
(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.
(c) Timely filing. 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 260.9(b). However,
when a claimant 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 form, the appellant in writing requests an
extension of time. 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 appellant had good cause for not filing the
final appeal form within the time prescribed, the Board will consider
the appeal to have been filed in a timely manner. The Board will use
the standards found in 260.3(d) of this chapter in determining if good
cause exists.
(d) Submission of additional evidence. Upon final appeal to the
Board, the appellant shall not have the right to submit additional
evidence: Provided, however, that if upon final appeal to the Board the
Board finds that new or better evidence is available, the Board may
obtain such evidence in which event the appellant shall be advised with
respect to such evidence and given an opportunity to submit rebuttal
evidence and argument: Provided further, that in the event that
pursuant to the preceding proviso, material evidence is developed which
tends to show facts contrary to those found by the hearings officer, or
in the event that the appellant shows that he is ready to present
further material evidence, which for good reason he was not able to
present to the hearings officer, the claim may be referred back to the
hearings officer. Thereupon, the hearings officer shall develop
additional evidence for inclusion in the record, review the entire case,
and shall:
(1) Issue his or her decision on remand or
(2) Transmit the entire record to the Board together with his or her
recommendation to the Board for final decision. All remand decisions
are final intermediate level administrative decisions which dispose of
the appeal before the Board and if an appellant is dissatisfied with a
remand decision he or she must appeal that decision to the Board in the
manner described in 260.9(b).
(e) Decision of the Board. The decision of the Board shall be made
upon the record of evidence and argument which has been made in the
handling of the case before final appeal to the Board, with such
additions as may be made pursuant to this section. Further argument
will not be permitted except upon a showing by the appellant that he or
she has argument to present which for valid reasons he or she was unable
to present at an earlier stage or in cases in which the Board requests
further elaboration of the appellant's arguments. In such cases, the
further argument shall be submitted orally or in writing, as the Board
may indicate in each case, and shall be subject to such restrictions as
to form, subject matter, length and time as the Board may indicate to
the appellant.
(f) Issuance of decision. The Board shall make every effort to issue
a decision within 90 days after the later of:
(1) The date the final appeal is filed;
(2) The date new or better evidence is obtained in accordance with
260.9(d) and the appellant has commented on it;
(3) The date new or better evidence is obtained in accordance with
260.9(d) and after the close of the comment period;
(4) The date further argument submitted in accordance with 260.9(e)
is received; or
(5) The date the record is returned to the Board following referral
back to the hearings officer.
(g) Review of decisions rendered prior to appeal to Board. The Board
may, on its own motion, review or cause to be reviewed any decision
issued by a subordinate official or employee under this part.
(The information collection requirements contained in paragraph (b)
were approved by the Office of Management and Budget under control
number 3220-0007)
(47 FR 36809, Aug. 24, 1982, as amended at 50 FR 19523, May 9, 1985;
52 FR 11017, Apr. 6, 1987)
20 CFR 260.10 Determination of date of filing of appeal.
In determining whether an appeal has been made in accordance with the
regulations in this part, the date of filing a duly executed appeal form
prescribed by the Board shall be the date of its receipt at an office of
the Board or the date of delivery for the purpose of transmission to the
Board's main office in Chicago, Illinois, to any field agent
specificially authorized by a regional director to receive custody
thereof in the district where delivery is made, whichever date is
earlier.
20 CFR 260.10 PART 262 -- (RESERVED)
20 CFR 260.10 PART 266 -- INCOMPETENCE
Sec.
266.1 Statutory provisions.
266.2 Presumption of competency.
266.3 Evidence of authority of legal guardian, etc.
266.4 Effect of matters or actions submitted or taken by guardian,
etc.
266.5 Recognition by the Board of a person to act in behalf of
another.
266.6 Responsibility of representative payee.
266.7 Use of benefits for current maintenance.
266.8 Conservation and investment of payments.
266.9 Use of benefits for annuitant in institution.
266.10 Support of legally dependent spouse, child, or parent.
266.11 Claims of creditors.
266.12 Accountability.
266.13 Transfer of accumulated benefit payments.
Authority: Sec. 10, 50 Stat. 314, as amended, sec. 19, 56 Stat.
207; 45 U.S.C. 228j, 228s.
Source: Board Order 45-204, 10 FR 7159, June 15, 1945, unless
otherwise noted.
20 CFR 266.1 Statutory provisions.
(a) Subsection (a) of section 12 of the Railroad Retirement Act of
1974 provides as follows:
Every individual receiving or claiming benefits, or to whom any right
or privilege is extended, under this Act or any other Act of Congress
now or hereafter administered in whole or in part, by the Board shall be
conclusively presumed to have been competent until the date on which the
Board receives written notice, in a form and manner acceptable to the
Board, that he is an incompetent, or a minor, for whom a guardian or
other person legally vested with the care of his person or estate has
been appointed: Provided, however, That, regardless of the legal
competency or incompetency of an individual entitled to a benefit
administered by the Board, the Board may, if it finds the interest of
such individual to be served thereby, recognize actions by, and conduct
transactions with, and make payments to, such individual, or recognize
actions by, and conduct transactions with, and make payments to, a
relative or some other person for such individual's use and benefit.
(b) Subsection (b) of section 12 of the Railroad Retirement Act of
1974 provides as follows:
Every guardian or other person legally vested with the care of the
person or estate of an incompetent or minor who is receiving or claiming
benefits, or to whom any right or privilege is extended, under this Act
or any other Act of Congress now or hereafter administered, in whole or
in part, by the Board shall have power everywhere, in the manner and to
the extent prescribed by the Board, but subject to the provisions of the
preceding subsection, to take any action necessary or appropriate to
perfect any right or exercise any privilege of the incompetent or minor
and to conduct all transactions on his behalf under this or any other
Act of Congress now or hereafter administered, in whole or in part, by
the Board. Any payment made pursuant to the provisions of this section
shall be a complete settlement and satisfaction of any claim, right, or
interest in and to such payment.
(41 FR 22558, June 4, 1976)
20 CFR 266.2 Presumption of competency.
Every individual shall be conclusively presumed to have been
competent until the date on which the Board receives a notice in writing
that a legal guardian or other person legally vested with the care of
the person or estate of an incompetent or a minor has been appointed:
Provided, however, That, despite receiving notice in writing that a
legal guardian or other person legally vested with the care of the
person or estate of an individual has been appointed, the Board may, if
it finds the interests of such individual to be served thereby,
recognize actions by, conduct transactions with, and make payments to
such individual.
(41 FR 22558, June 4, 1976)
20 CFR 266.3 Evidence of authority of legal guardian, etc.
Evidence of the appointment of a legal guardian or other person
legally vested with the care of the person or estate of an incompetent
or a minor shall be in the form of a certificate executed by the proper
official of the court of appointment.
20 CFR 266.4 Effect of matters or actions submitted or taken by
guardian, etc.
All matters and actions in connection with an annuity submitted or
taken by the guardian or other person legally vested with the care of
the person or estate of an incompetent or a minor shall be considered by
the Board in the same manner and with the same effect as though such
matters or actions had been submitted or taken by the ward, if the ward
had capacity to act in his own behalf; Provided, however, That the
Board may, if it deems it necessary require the guardian or other person
legally vested with the care of the person or estate of an incompetent
or a minor to submit a certified copy of an order from the court of
appointment authorizing some particular action which the guardian or
other person legally vested with the care of the person or estate
desires to take in connection with the application.
20 CFR 266.5 Recognition by the Board of a person to act in behalf of
another.
(a) Regardless of the receipt of written notice of the appointment of
a guardian or other person legally vested with the care of the person or
estate of an incompetent or a minor who is receiving or claiming
benefits or to whom any right or privilege is extended under the law,
the Board may, in its discretion, validly recognize actions by and
conduct transactions with others acting in behalf of the individual
found by the Board to be a minor or to be unable to manage his affairs,
if the Board finds such actions or transactions to be in the best
interest of such individual.
(b) In the absence of a written notice of the appointment of a
guardian or other person legally vested with the care of the person or
estate of an incompetent or minor, the Board shall, except where special
circumstances appear, recognize a person to act on behalf of an
individual under the following circumstances:
(1) When the individual has been adjudged mentally incompetent by a
court having jurisdiction to do so;
(2) When the individual has been committed to a mental institution by
a court having jurisdiction to do so;
(3) When the individual is an inmate of a mental institution;
(4) When the individual is less than 16 years of age;
(5) When the individual is between 16 and 18 years of age and is in
the care of another person and does not have the capacity to act on his
own behalf.
(c) In the absence of special circumstances, consideration of the
proper party with whom to conduct transactions on behalf of an
incompetent should be limited to the following persons, who are listed
in order of preference: (1) The legal guardian or other person legally
vested with the care of the person or estate of the incompetent; (2)
the spouse; (3) any relative, individual, or agency caring for the
incompetent.
(d) In the absence of special circumstances, the proper party with
whom to conduct transactions, including the certifying of payments, on
behalf of a minor beneficiary should be one of the following, who are
listed in order of preference:
(1) The legal guardian or other person legally vested with the care
of the person or estate of the minor beneficiary;
(2) A parent (including an adopting parent), or stepparent with whom
the minor beneficiary is living;
(3) Any relative, individual, or agency caring for the minor
beneficiary.
(41 FR 22558, June 4, 1976)
20 CFR 266.6 Responsibility of representative payee.
An individual to whom payment is made as representative payee on
behalf of an annuitant shall, subject to review by the Board and to such
requirements as it may from time to time prescribe, apply the payments
to him on behalf of the annuitant only for the use and benefit of such
annuitant, and in a manner and for purposes which are in the annuitant's
best interests.
(41 FR 22559, June 4, 1976)
20 CFR 266.7 Use of benefits for current maintenance.
Payments made to an individual as representative payee on behalf of
an annuitant shall be considered as having been applied for the use and
benefit of the annuitant when they are used for the annuitant's current
maintenance, that is, to replace current income lost because of the
disability, retirement, or death of the insured individual. Where an
annuitant is receiving care in an institution, current maintenance shall
include the customary charges made by the institution to individuals to
whom it provides care and services substantially similar to those which
it provides to the annuitant and charges made for current and
foreseeable needs of the annuitant which are not met by the institution.
(41 FR 22559, June 4, 1976)
20 CFR 266.8 Conservation and investment of payments.
Payments made to an individual as representative payee on behalf of
an annuitant which are not needed for the current maintenance of the
annuitant, except as they may be used pursuant to 266.10 or used to pay
current creditors consistent with 266.11, shall be conserved or
invested on the annuitant's behalf. Such funds must be invested in
accordance with the rules applicable to investment of trust estates by
trustees. For example, surplus funds may be deposited in an interest or
dividend-bearing account in a bank or trust company or in a savings and
loan association if the account is either federally insured or is
otherwise insured in accordance with the requirements of State law.
Surplus funds deposited in an interest or dividend-bearing account in a
bank or trust company or in a savings and loan association must be in a
form of account which clearly shows that the representative payee has
only a fiduciary, and not a personal, interest in the funds. The
preferred forms of such accounts are as follows:
---------------------------------- (Name of annuitant), by
------------------------------ (Name of representative payee)
representative payee; or -------------------- (Name of annuitant) by
------------------------------ (Name of representative payee), trustee.
United State Savings Bonds purchased with surplus funds by a
representative payee for a minor should be registered as follows:
---------------------------------- (Name of annuitant),
---------------- (Social Security No.), a minor beneficiary for whom
-------------------- (Name of payee) has been designated representative
payee by the Railroad Retirement Board.
United States Savings Bonds purchased with surplus funds by a
representative payee for an incapacitated adult annuitant should be
registered as follows:
---------------------------------- (Name of annuitant),
---------------- (Social Security No.), an incapacitated adult
beneficiary, for whom ---------------- (Name of payee) has been
designated representative payee by the Railroad Retirement Board.
A representative payee who is the legally appointed guardian or
fiduciary of the annuitant may also register U.S. Savings Bonds
purchased with funds from railroad retirement payments in accordance
with applicable regulations of the U.S. Treasury Department (31 CFR
315.5 through 315.8). Any other approved investment of the annuitant's
funds made by the representative payee must clearly show that the payee
holds the property in trust for the annuitant.
(41 FR 22559, June 4, 1976)
20 CFR 266.9 Use of benefits for annuitant in institution.
Where an annuitant is confined in a Federal, State or private
institution because of mental or physical incapacity, the individual to
whom payments are made as representative payee on behalf of the
annuitant shall give the highest priority to expenditure of the payments
for the current maintenance needs of the annuitant, including the
customary charges made by the institution in providing care and
maintenance. It is considered to be in the best interests of the
annuitant for the individual to whom payments are made on the
annuitant's behalf to allocate expenditures of the payments so made in a
manner which will facilitate the annuitant's earliest possible
rehabilitation or release from the institution, or which otherwise will
help him live as normal a life as practicable in the institutional
environment.
(41 FR 22559, June 4, 1976)
20 CFR 266.10 Support of legally dependent spouse, child, or parent.
If the current maintenance needs of an annuitant are being reasonably
met, an individual to whom payments are made as representative payee on
behalf of the annuitant may use part of the payments so made for the
support of the legally dependent spouse, a legally dependent child, or a
legally dependent parent of the annuitant.
(41 FR 22559, June 4, 1976)
20 CFR 266.11 Claims of creditors.
An individual to whom payments are made as representative payee on
behalf of an annuitant may not be required to use such payments to
discharge an indebtedness of the annuitant which was incurred before the
first month for which payments are made to a representative payee on the
annuitant's behalf. In no case, however, may such payee use such
payments to discharge such indebtedness of the annuitant unless the
current and reasonably foreseeable future needs of the annuitant are
otherwise provided for.
(41 FR 22559, June 4, 1976)
20 CFR 266.12 Accountability.
An individual to whom payments are certified as representative payee
on behalf of an annuitant shall submit a written report in such form and
at such times as the Board may require, accounting for the payments
certified to him on behalf of the annuitant unless such payee is a
court-appointed fiduciary and, as such, is required to make an annual
accounting to the court, in which case a true copy of each such account
filed with the court may be submitted in lieu of the accounting form
prescribed by the Board. If any representative payee fails to submit
the required accounting within a reasonable period of time after it is
requested, no further payments shall be made to him on behalf of the
annuitant unless for good cause shown, the default of the representative
payee is excused by the Board, and the required accounting is thereafter
submitted.
(Approved by the Office of Management and Budget under control
numbers 3220-0052 and 3220-0151)
(41 FR 22559, June 4, 1976, as amended at 52 FR 11017, Apr. 6, 1987)
20 CFR 266.13 Transfer of accumulated benefit payments.
A representative payee who has conserved or invested funds from
railroad retirement payments made to him on behalf of an annuitant
shall, upon direction of the Board, transfer any such funds (including
interest earned from investment of such funds) to a successor payee
appointed by the Board, or, at the option of the Board, shall transfer
such funds, including interest, to the Board for payment to a successor
payee or to the annuitant.
(41 FR 22559, June 4, 1976)
20 CFR 266.13 PART 295 -- PAYMENTS PURSUANT TO COURT DECREE OR
COURT-APPROVED PROPERTY SETTLEMENT
Sec.
295.1 Introduction.
295.2 Definitions.
295.3 Documentation and service.
295.4 Review of documentation.
295.5 Limitations.
295.6 Disclosure of information.
295.7 Miscellaneous.
Authority: 45 U.S.C. 231f; 45 U.S.C. 231m.
Source: 51 FR 12845, Apr. 16, 1986, unless otherwise noted.
20 CFR 295.1 Introduction.
(a) Purpose. This part implements section 419 of Pub. L. 98-76 (97
Stat. 438), which amended section 14 of the Railroad Retirement Act to
provide that, with respect to annuity amounts payable for months
beginning with September 1983, the Board must comply with a court decree
of divorce, annulment or legal separation, or with the terms of any
court-approved property settlement incident to any such decree, which
characterizes specified benefits as property subject to distribution.
Garnishment of benefits for alimony or child support is dealt with in
Part 350 of this chapter.
(b) Benefits subject to this part. Only the following benefits or
portions of benefits under the Railroad Retirement Act are subject to
this part:
(1) Employee annuity net tier II benefit component as provided under
section 3(b) of the Railroad Retirement Act;
(2) Employee annuity vested dual benefit component as provided under
section 3(h) of the Act;
(3) Employee annuity net proportionate share of the annuity increases
as provided under section 3(f) of the Act; and
(4) Supplemental annuities as provided under section 2(b) of the Act.
20 CFR 295.2 Definitions.
As used in this part --
Act means the Railroad Retirement Act.
Court means any court of competent jurisdiction of any state, the
District of Columbia, the Commonwealth of Puerto Rico, Guam, American
Samoa, the Virgin Islands, the Northern Mariana Islands, and the Trust
Territory of the Pacific Islands; any court of the United States (as
defined in section 451 of title 28 of the United States Code) having
competent jurisdiction; any Indian court as defined by section 1301 of
title 25 of the United States Code; or any court of competent
jurisdiction of a foreign country with which the United States has an
agreement requiring the United States to honor any court order of such
country.
Court decree means a final decree of divorce, dissolution, annulment,
or legal separation issued by a court (including a final decree or order
modifying the terms of a previously issued decree of divorce,
dissolution, annulment, or legal separation), which is issued in
accordance with the laws of the jurisdiction of that court and which
provides for the division of property.
Division of property means any transfer of property or its value by
an individual to his or her spouse or former spouse in compliance with
any community property settlement, equitable distribution of property,
or other distribution of property between spouses or former spouses,
which is intended as a present and complete settlement of the property
rights of the parties.
Employee means an individual who is or was formerly an employee as
defined by Part 203 of this chapter.
Final decree means a decree from which no appeal may be taken or from
which no appeal has been taken within the time allowed for taking such
appeals under the laws applicable to such appeals, or a decree from
which timely appeal has been taken and such appeal has been finally
decided under the laws applicable to such appeals.
Property settlement means an agreement between the parties to a suit
for divorce, dissolution, annulment or legal separation in which they
expressly agree to a division of their property rights, and which is
incorporated in the final decree; is filed with the court in connection
with a suit for divorce, dissolution, annulment or legal separation; or
is otherwise presented to the court in a suit in accordance with the law
of the jurisdiction. An agreement assigning or transferring property
between spouses is not within the purview of this part unless it is
subsequently approved by a court in connection with a suit for divorce,
dissolution, annulment or legal separation.
Spouse or former spouse means the husband or wife, or former husband
or wife, respectively, of an employee who, on or before the date of a
court order, was married to the employee.
20 CFR 295.3 Documentation and service.
(a) Court decree or property settlement. The Board will honor a
court decree or a property settlement which meets the following
criteria:
(1) The court decree or property settlement must provide that the
spouse or former spouse is awarded payments from railroad retirement
annuities payable to the railroad employee.
(2) The court decree or property settlement must specify an amount to
be paid to the spouse or former spouse.
(3) The court decree or property settlement must obligate the Board
to make payments directly to the spouse or former spouse.
(4) The court decree or property settlement must clearly identify
both the employee and the spouse or former spouse to whom payments are
to be made.
(5) The court decree or property settlement submitted to the Board
must be a recently certified copy of the document filed with the court.
Where the award is made in an order modifying and earlier court decree,
copies of both the original decree and the subsequent order must be
furnished. In the case of a court-approved property settlement, both
the settlement and any decree or order incorporating or approving the
settlement must be provided.
(b) Date of decree. While only benefits payable for months after
August, 1983 are subject to this part, the date the decree is entered or
the property settlement is approved may precede September 1, 1983. A
subsequent modification of a decree which was entered or a property
settlement which was approved prior to September 1, 1983 must be in
accord which the law of the jurisdiction in which the original decree
was entered or the property settlement was approved.
(c) Supporting documentation. The spouse or former spouse shall
submit such additional documentation as the Board shall require,
including but not limited to:
(1) Identifying information concerning the employee such as social
security number, railroad retirement claim number, full name, date of
birth, and current address.
(2) Identifying information concerning the spouse or former spouse
such as social security number, full name, and current address.
(3) A statement that --
(i) No condition of the law of the jurisdiction in which the decree
was entered or the property settlement approved and no condition
contained in the decree or agreement which requires termination of
payment has occurred;
(ii) If any such condition does occur, the spouse or former spouse
will immediately notify the Board; and
(iii) The spouse or former spouse agrees to repay any erroneous
payment arising from occurrence of any such condition.
(d) Delivery. Any court decree or property settlement must be
delivered by certified or registered mail, return receipt requested, or
by personal service, to the Deputy General Counsel of the Railroad
Retirement Board, 844 Rush Street, Chicago, Illinois 60611. Where the
decree or property settlement is delivered to any other office of the
Board, it shall not be considered delivered until the date it is
received by the Deputy General Counsel. Where the decree or property
settlement was furnished to any office of the Board prior to September
1, 1983, delivery is not accomplished unitl a copy is received by the
Deputy General Counsel subsequent to August 30, 1983.
(Approved by the Office of Management and Budget under control number
3220-0042)
20 CFR 295.4 Review of documentation.
(a) Regularity. The Deputy General Counsel or his or her designee
shall review the court decree or property settlement to determine that
it complies with both the law of the jurisdiction, and with Federal law
and these regulations.
(b) Amount. Ambiguities in the amount to be paid the spouse or
former spouse shall be resolved in accord with expressed indications of
the court's intent, except that:
(1) Where the amount is expressed in terms of a dollar figure:
(i) If the figure exceeds the total benefits which may be allocated
under this part, the excess will be disregarded, provided that any
future increase in the benefits subject to this part will be
prospectively applied to the excess effective with the date of the
benefit increase.
(ii) If the figure is less than the total benefits which may be
allocated under this part, only the amount specified will be paid.
(2) Where the amount is expressed as a fraction, percentage, or
ratio:
(i) The amount specified shall be applied only against benefits
subject to this part, irrespective of the wording of the decree or
property settlement.
(ii) When the amount is expressed in terms of a fraction or ratio
referring to the length of railroad service, years shall be converted
into the equivalent months. If the length of railroad service specified
in the decreee or property settlement exceeds the number of creditable
service months used by the Board to determine the employee's years of
service for calculating an annuity, the actual number used by the Board
shall bs substituted. If the decree understates the actual number of
creditable railroad service months, the number of years or months set
forth in the decree or property settlement will be used.
(3) An amount may be expressed in any other fashion only to the
extent to which it may be readily ascertained from records maintained by
the Board in the regular course of administration of the Act.
(c) Notification. The Deputy General Counsel or his or her designee
shall make reasonable effort to notify the spouse or former spouse and
the employee of a determination that the decree or property settlement
does or does not qualify as a decree or property settlement which will
be honored pursuant to this part. This notice will be mailed to the
most recent address of each party or representative of each party as
shown in the Board's records. A copy of the decree or property
settlement will be provided to the employee with this notice. The
notice must state:
(1) The rationale for a determination that the decree or property
settlement does not comply with this part; or
(2) The dollar amount or proportion of benefits which will be paid to
the spouse or former spouse.
(d) Withholding after notification. (1) Where the Deputy General
Counsel or his or her designee has notified the spouse or former spouse
that a decree or property settlement will be honored under this part,
but where the employee is not then entitled to any benefits subject to
division under this part, the Associate Executive Director for
Retirement Claims will notate the Board's records to reflect both the
amount of benefits awarded to the spouse or former spouse pursuant to
the decree or property settlement and his or her current address. Where
the employee is currently entitled to benefits subject to this part, and
the spouse or former spouse has furnished all additional documentation
required, the Associate Executive Director for Retirement Claims will
take action to withhold from the employee's monthly benefit the amount
stated in the Deputy General Counsel's notice under paragraph (c) of
this section that the Board will honor the decree or property
settlement.
(2) Where the employee was not entitled to benefits subject to this
part at the time of the notice by the Deputy General Counsel that the
Board will honor the decree or property settlement, but the employee
becomes so entitled at a later time, the Board will attempt to contact
the spouse or former spouse at the most recent address shown in the
Board's records. The notice will inform the spouse or former spouse
that an annuity has been awarded, that the spouse or former spouse may,
upon submission of all required documentation, receive a portion of the
annuity, and that the spouse or former spouse should contact the Board
within three months from the date of the notice. The Associate
Executive Director for Retirement Claims will initiate withholding of
the amount awarded to the spouse or former spouse from the employee's
monthly benefit, and will continue to withhold this amount for three
successive months; provided, that an initial annuity payment for a
retroactive period shall count as one monthly benefit payment. If after
the third month's payment has been withheld the Board has received no
response from the spouse or former spouse, the amount withheld from the
employee's benefit shall be paid to the employee, and the Board take no
further action regarding the decree until the spouse or former spouse
contacts the board.
(3) Benefits withheld from the employee may not be paid to a spouse
or former spouse until the spouse or former spouse has furnished all
supporting documentation required pursuant to 295.3 of this part. The
Board shall allow a reasonable time, not to exceed three months from the
date of the initial response from the spouse or former spouse, for the
submission of all required documentation. If the documentation is not
furnished within the time allowed, payment of the amounts withheld shall
be made to the employee.
(4) Any payments made to the employee subsequent to the three-month
notice period specified in paragraphs (d) (2) and (3) of this section,
and prior to receipt of a response or required documentation from the
spouse or former spouse, shall be considered properly paid to the
employee and the board shall have no further liability to the spouse or
former spouse with respect to such amounts.
20 CFR 295.5 Limitations.
(a) Employee benefit entitlement. Payments will be made to a spouse
or former spouse under this part only if the employee has been awarded
an annuity under the Railroad Retirement Act. Payments to a spouse or
former spouse shall be made only for months and from such amounts with
respect to which an annuity is payable to the employee, and shall be
suspended or terminated for any month in which the annuity of the
employee is suspended or terminated. No arrearage accrues to the spouse
or former spouse with respect to any month for which the annuity of the
employee is suspended or reduced as required under the Act.
(b) Minimum amount. The amount of payment to a spouse or former
spouse may not be less than one dollar per month.
(c) Prospective payment. Payment to a spouse or former spouse may
accrue no earlier than the later of the date of delivery, pursuant to
295.3 of this part, of a court decree or property settlement which will
be honored under this part, or from October 1, 1983. The amount to be
paid the spouse or former spouse under this part will not be increased
to satisfy an arrearage due from the employee.
(d) Payees. Payment of an amount awarded to a spouse or former
spouse by a court decree or property settlement will be made only to the
spouse or former spouse except where the Board determines that another
person shall be recognized to act in behalf of the spouse or former
spouse as provided by Part 266 of this chapter, relating to
incompetence. Payment will not be made to the heirs, legatees,
creditors or assignees of a spouse or former spouse, except that where
an amount is payable to a spouse or former spouse pursuant to this part,
but is unpaid at the death of that spouse or former spouse, the unpaid
amount may be paid in accordance with 234.1 of this chapter, pertaining
to employee annuities unpaid at death.
(e) Net amount of benefits. Notwithstanding the terms of the decree
or property settlement, the amount of benefits payable to the employee
which are subject to this part shall not include:
(1) Amounts deducted to satisfy a debt due the United States,
including any amount withheld to recover erroneous payments under the
Railroad Retirement Act, Railroad Unemployment Insurance Act, or any
other acts administered by the Board, and the amount of any Medicare
Part B premium; and
(2) Benefits which are waived pursuant to 243.6 of this chapter.
(f) Termination. Payments to a spouse or former spouse terminate on
the earlier of --
(1) The date on which the employee annuity terminates;
(2) The date required by the court decree or property settlement or
the law of the jurisdiction in which the court decree or property
settlement was entered; or
(3) The last day of the month before the month in which the spouse or
former spouse dies.
(g) Priority. In the event that the Deputy General Counsel receives
more than one decree or property settlement from competing parties,
benefits shall be available to satisfy the decrees or property
settlements on a first come, first served basis governed by the date of
receipt by the Deputy General Counsel. Conflicting decrees or property
settlements received on the same day shall be accorded priority based
upon the earliest date upon which the decree or property settlement
became final.
(51 FR 12845, Apr. 16, 1986, as amended at 53 FR 35807, Sept. 15,
1988)
20 CFR 295.6 Disclosure of information.
(a) Immunity from process. The provision for the payment of benefits
under this part pursuant to a court decree or property settlement shall
not be construed to be a waiver of the sovereign immunity of the
Railroad Retirement Board as an agency of the U.S. Government. The
Board may not be joined in a suit for divorce, dissolution, annulment or
legal separation, or otherwise subjected to the jurisdiction of any
state court. Subpoenas, notices of joinder, interrogatories, orders for
production of documents, and like state process issued in connection
with a suit for divorce, dissolution, annulment or legal separation will
be treated as requests for disclosure of information under this section.
(b) Request for information. A response to request for information
to be used in connection with a suit for divorce, dissolution, annulment
or legal separation may be made by the Deputy General Counsel or his or
her designee, by the Associate Executive Director for Retirement Claims,
or by a contact representative of the Board's field service.
(c) Information available. In the absence of signed authorization
from the employee, a spouse or former spouse who is a party to a suit
for divorce, dissolution, annulment or legal separation, or his or her
legal representative, may be furnished the amount of benefits the
employee is currently receiving. If the employee is not currently
entitled to benefits, the Board may furnish the amount of any estimated
benefit to which the employee would be entitled if he or she were of
retirement age at the time of the request, as reflected by the records
of the Board, to the extent it is possible for the Board to compute such
amount. The Board shall not be required to furnish the present value of
future benefits, the amount of benefits payable at a future date, or any
other computations based on statistics or procedures not maintained by
the Board in the normal course of administration of the Act.
(d) Certification. A letter or statement prepared by a Board
official in the regular course of duty from the official records of the
Board, which refers to the authority of this section and bears his or
her signature, shall be a sufficient response for purposes of
discharging the responsibilities of the Board under this section. A
certification in accordance with this section may be considered a public
document for purposes of admissibility as evidence of present or
potential benefits under the Act for use in a divorce, dissolution,
annulment or legal separation proceeding.
20 CFR 295.7 Miscellaneous.
(a) Disbursement cycle. In honoring and complying with a court
decree or property settlement, the Board shall not be required to
disrupt its normal disbursement cycle, despite any special schedule of
accrual or payment of amounts due the spouse or former spouse set forth
in the decree or settlement. A decree or settlement received too late
to be honored during the disbursement cycle in which it was received
shall be honored with respect to the next payment due the employee.
(b) Liability for payments. Neither the Board nor any of its
employees shall be liable with respect to any payment made to any
individual from moneys due from or payable by the Board pursuant to a
court decree or property settlement regular on its face, if such payment
is made in accordance with this part.
(c) Liability for disclosures. No employee of the Board whose duties
include responding to requirements contained in this part shall be
subject under any law to any disciplinary action or civil or criminal
liability or penalty for, or on account of, any disclosure of
information made by such employee in connection with the performance of
the employee's duties in making such response.
(d) Applicable law. For purposes of a proceeding under this part,
the Board will apply the law of the jurisdiction in which the court
decree or property settlement was issued unless it comes to the
attention of the Board that the state of issuance has no contact with
the plaintiff or defendant in the action; in which case, the Board may,
in its sole discretion, apply the law of any jurisdiction with
significant interest in the matter.
(e) Erroneous payments. If a spouse or former spouse receives a
payment pursuant to this part from an employee's benefit, and the Board
later determines that the employee was not entitled to all or part of
those benefits for any month, the amount of the employee's benefits
which was paid to the spouse or former spouse in excess of the amount
which was actually payable shall be an erroneous payment to the spouse
or former spouse within the meaning of section 10 of the Railroad
Retirement Act.
20 CFR 295.7 SUBCHAPTER C -- REGULATIONS UNDER THE RAILROAD UNEMPLOYMENT INSURANCE ACT
20 CFR 295.7 PART 300 -- DEFINITIONS
Authority: Sec. 12, 52 Stat. 1107, as amended; 45 U.S.C. 362.
Interprets or applies sec. 1, 52 Stat. 1094, as amended; 45 U.S.C.
351.
20 CFR 300.1 Words and phrases.
For the purposes of the regulations in this part, except where the
language or context indicates otherwise:
(a) The term ''act'' means the Railroad Unemployment Insurance act.
(b) The term ''employer'' means an employer as defined in the act and
Part 201 of this chapter.
(c) The term ''Board'' means the Railroad Retirement Board.
(d) The term ''person'' includes an individual, trust, estate,
partnership, association, joint stock company, company, corporation, and
institution.
(e) The term ''United States'', when used in a geographical sense,
means the States and the District of Columbia.
(f) The term ''State'' means any of the States or the District of
Columbia.
(g) The term ''employment'' means service performed as an employee.
(h) The term ''local lodges and divisions'' and the term ''local
lodge or division'' as used in section 1(a) and 1(d), respectively, of
the act, shall be construed to include any subordinate unit of a
national railway labor organization defined as an ''employer'' under the
act, which unit functions in the same manner as, or similar to ''local
lodges'' as that term is ordinarily used, irrespective of the
designation of such unit by its national organization.
(Board Order 40-368 and Board Order 40-385, 5 FR 2717, Aug. 1, 1940,
as amended by Board Order 68-72, 33 FR 11114, Aug. 6, 1968)
20 CFR 300.1 PART 301 -- EMPLOYERS UNDER THE ACT
Sec.
301.1 Statutory provisions.
301.4 Who are employers.
Authority: 45 U.S.C. 362(1).
20 CFR 301.1 Statutory provisions.
(a) The term ''employer'' means any carrier (as defined in subsection
(b) of this section), and any company which is directly or indirectly
owned or controlled by one or more such carriers or under common control
therewith, and which operates any equipment or facility or performs any
service (except trucking service, casual service, and the casual
operation of equipment or facilities) in connection with the
transportation of passengers or property by railroad, or the receipt,
delivery, elevation, transfer in transit, refrigeration or icing,
storage, or handling of property transported by railroad, and any
receiver, trustee, or other individual or body, judicial or otherwise,
when in the possession of the property or operating all or any part of
the business of any such employer: Provided, however, That the term
''employer'' shall not include any street, interurban, or suburban
electric railway, unless such railway is operating as a part of a
general steam-railroad system of transportation, but shall not exclude
any part of the general steam-railroad system of transportation now or
hereafter operated by any other motive power. The Interstate Commerce
Commission is hereby authorized and directed upon request of the Board,
or upon complaint of any party interested, to determine after hearing
whether any line operated by electric power falls within the terms of
this proviso. The term ''employer'' shall also include railroad
associations, traffic associations, tariff bureaus, demurrage bureaus,
weighing and inspection bureaus, collection agencies, and other
associations, bureaus, agencies, or organizations controlled and
maintained wholly or principally by two or more employers as
hereinbefore defined and engaged in the performance of services in
connection with or incidental to railroad transportation; and railway
labor organizations, national in scope, which have been or may be
organized in accordance with the provisions of the Railway Labor Act,
and their State and National legislative committees and their general
committees and their insurance departments and their local lodges and
divisions, established pursuant to the constitution and bylaws of such
organizations.
The term ''employer'' shall not include any company by reason of its
being engaged in the mining of coal, the supplying of coal to an
employer where delivery is not beyond the mine tipple, and the operation
of equipment or facilities therefor, or in any of such activities. * *
*
(b) The term ''carrier'' means an express company, sleeping-car
company, or carrier by railroad, subject to part I of the Interstate
Commerce Act.
(Board Order 40-368, 5 FR 2718, Aug. 1, 1940, as amended by Board
Order 41-526, 7 FR 97, Jan. 6, 1942)
20 CFR 301.4 Who are employers.
The provisions of 201.1(k) and the provisions of 202.2 through
202.15 of this chapter shall be applicable to the determination of who
are employers under the Railroad Unemployment Insurance Act to the same
extent and in the same manner as they are applicable to the
determination of who are employers under the Railroad Retirement Act of
1937.
(Board Order 40-368, 5 FR 2718, Aug. 1, 1940)
20 CFR 301.4 PART 302 -- QUALIFIED EMPLOYEE
Sec.
302.1 Introduction.
302.2 Definitions.
302.3 Qualifying conditions.
302.4 Nonqualifying earnings or payments.
302.5 Accelerated benefit year.
302.6 Publication requirements.
302.7 Establishing base year service and compensation.
Authority: 45 U.S.C. 362(1).
Source: 56 FR 6966, Feb. 21, 1991, unless otherwise noted.
20 CFR 302.1 Introduction.
This part sets forth the base year service and compensation required
of an employee to qualify for benefits under the Railroad Unemployment
Insurance Act with respect to a benefit year. Under the Act, only
employees who satisfy the qualifying conditions of section 3 of the Act
may be paid benefits. No provision is made for payment of dependents
benefits for an employee's spouse or children. A qualified employee who
claims benefits must demonstrate that he or she is eligible for benefits
in accordance with the other provisions of the Act and this chapter.
However, a qualified employee who is disqualified under any of the
provisions of section 4 of the Act does not forfeit his or her status as
a qualified employee.
20 CFR 302.2 Definitions.
Base year. The term ''base year'' means the completed calendar year
immediately preceding the beginning of the benefit year.
Benefit year. The term ''benefit year'' means the 12-month period
beginning July 1 of any year and ending June 30 of the next year. If a
registration period begins in June and ends in July, the benefit year
ending date is deemed to be the last day of such registration period.
If an employee is eligible for payment of extended benefits, the benefit
year ending date for such employee will be June 30, or the last day of
his or her extended benefit period, whichever date is later.
Compensation. The term ''compensation'' means generally any form of
earnings or money remuneration earned on the basis of railroad
employment during any month, excluding any amount in excess of the
monthly compensation base for that month and also excluding payments of
the character described in 302.4 of this part.
Monthly compensation base. The term ''monthly compensation base''
means the greater of $600, or the amount calculated using the following
formula:
For the purpose of this formula, ''MCB'' is the dollar amount of the
monthly compensation base, and ''A'' is the amount of the Tier I tax
base under section 3231(e)(2) of the Internal Revenue Code for the
calendar year for which the monthly compensation base is being computed.
If the dollar amount computed under this formula is not a multiple of
$5, it shall be rounded to the nearest multiple of $5. If the dollar
amount computed is equidistant between two multiples of $5, it shall be
rounded up the nearest multiple of $5.
Registration period. With respect to unemployment benefits, the term
''registration period'' has the meaning given in 325.1(c) of this
chapter. With respect to sickness benefits, the term ''registration
period'' has the meaning given in 335.1(d) of this chapter.
(56 FR 6966, Feb. 21, 1991; 56 FR 10302, Mar. 11, 1991)
20 CFR 302.3 Qualifying conditions.
(a) Basic requirements. To qualify for benefits with respect to a
benefit year, an employee:
(1) Must have earned compensation in an amount equal to at least 2.5
times the amount of the monthly compensation base during his or her base
year; and
(2) If such employee has earned no compensation prior to such base
year, he or she must have earned compensation in at least five months
during his or her base year.
(b) Deemed service months disregarded. For purposes of paragraph (a)
of this section, service months deemed under 210.3 of this chapter
shall be disregarded.
20 CFR 302.4 Nonqualifying earnings or payments.
The following types of earnings or payments do not count as
compensation for the purpose of determining whether an employee has
satisfied the base year qualifying conditions:
(a) Compensation earned as an employee representative, as defined in
part 205 of this chapter, or as an employee of a local lodge or division
of a railway labor organization;
(b) Tips;
(c) Payments under nongovernmental plans for unemployment, maternity
or sickness insurance;
(d) Personal injury settlements or judgments, unless a portion
thereof represents pay for time lost;
(e) Wages from employment that is subject to the Federal Unemployment
Tax Act;
(f) Earnings from self-employment or investments;
(g) Pay for military service;
(h) Remuneration for service which is performed by a nonresident
alien individual for the period he or she is temporarily present in the
United States as a nonimmigrant under subparagraph (F) or (J) of section
101(a)(15) of the Immigration and Nationality Act, as amended, and which
is performed to carry out the purpose specified in subparagraph (F) or
(J), as the case may be; and
(i) Any payment that is not subject to contributions under section 8
of the Railroad Unemployment Insurance Act.
(56 FR 6966, Feb. 21, 1991; 56 FR 10302, Mar. 11, 1991)
20 CFR 302.5 Accelerated benefit year.
(a) Eligibility conditions. An employee who is not a qualified
employee with respect to the benefit year in effect at the time of his
or her application for benefits may be eligible for an ''accelerated''
benefit year if he or she meets all of the following conditions.
(1) The employee has 10 or more years of service, as defined in part
210 of this chapter, prior to the beginning of his or her current period
of unemployment or sickness;
(2) The employee has satisfied the qualifying conditions as defined
in 302.3 of this part with respect to the next succeeding benefit year;
(3) The employee's current period of unemployment or sickness
includes at least 14 consecutive days of unemployment or 14 consecutive
days of sickness; and
(4)(i) If the applicant is claiming unemployment benefits, he or she
did not voluntarily leave work without good cause or did not voluntarily
retire, or
(ii) If the applicant is claiming sickness benefits, he or she has
not attained age 65 or has not voluntarily retired.
(b) Beginning date of benefit year. An accelerated benefit year
begins on the first day of the month during which the employee's period
of 14 consecutive days of unemployment or 14 consecutive days of
sickness begins. Thus, for example, if an eligible employee has 14
consecutive days of unemployment from May 29-June 11, his or her benefit
year beginning date is May 1, that is, he or she does not have to wait
until July 1 to begin receiving benefits. If such employee also had a
claim for the period May 15 to May 28, such claim may then be
compensable or may serve as the waiting period even though the claim did
not consist of 14 days of unemployment. His or her benefit year ends
June 30 of the following year.
(c) Effect of attaining age 65. If a benefit year begins early for
the purpose of paying sickness benefits and the employee attains age 65
before July 1 of the general benefit year, sickness benefits may not be
paid for any day from the day on which the employee attained age 65 up
to and including June 30, but unemployment benefits may be paid in this
interim period if the employee is otherwise eligible. Sickness benefits
may be paid for days of sickness beginning July 1 or later. If a
benefit year begins early for the purpose of paying unemployment
benefits, attainment of age 65 will have no effect on the employee's
rights to sickness benefits, other than extended sickness benefits, in
the accelerated benefit year. An employee is deemed to attain age 65 on
the day before his or her sixty-fifth birthday.
20 CFR 302.6 Publication requirements.
(a) Publication of base year compensation requirement. On or before
December 1 of each year, the Railroad Retirement Board will compute the
amount of base year compensation that an employee must have during the
following calendar year in order to be a qualified employee on the basis
of such compensation. Within 10 days of such computation, the Board
will publish a notice in the Federal Register of the amount so computed
and will notify each employer of that amount. Information as to such
qualifying amount may also be obtained from any district or regional
office of the Railroad Retirement Board or from the Bureau of
Unemployment and Sickness Insurance.
(b) Notices. The Board will provide employers with notices of their
employees' rights to benefits under the Railroad Unemployment Insurance
Act. The Board will arrange with employers to post such notices in such
numbers and in such places as may be necessary to ensure that they will
be seen by the greatest number of employees.
20 CFR 302.7 Establishing base year service and compensation.
(a) Employer reports. In determining whether an applicant for
benefits is a qualified employee, the Board will rely initially upon
reports of base year service and compensation provided by employers in
accordance with part 209 of this chapter.
(b) No employer report located. If the Board cannot locate the
employer's report of base year service and compensation for an
applicant, the applicant will be afforded an opportunity, by completing
the form prescribed by the Board, to provide such other statement,
information, evidence or documentation to establish his or her status as
a qualified employee. An employee's claim for credit for service or
compensation that is not shown in the Board's records of service and
compensation shall be verified in accordance with 210.7 and 211.14 of
this chapter.
(c) Employer fails to report. When an employer has failed or refuses
to file a report under part 209 of this chapter, an employee may
establish his or her base year service and compensation by submitting:
(1) Statements, under oath or otherwise, signed by an official or
duly authorized employee of a Federal or State governmental agency,
based upon reports to the agency by the employer; or
(2) Statements, under oath or otherwise, signed by an officer or a
duly authorized employee of the employer, or if not so signed, on forms
prepared by the employer.
(Approved by the Office of Management and Budget under control
numbers 3220-0025 and 3220-0070)
20 CFR 302.7 PART 319 -- PROCEDURE FOR DETERMINING LIABILITY FOR
CONTRIBUTIONS OR REPAYMENTS OF BENEFITS
Sec.
319.1 Statutory provisions.
319.2 Procedure for determining entitlement to benefits awarded where
employer status is denied, and for determining liability for
contributions.
Authority: Sec. 12, 52 Stat. 1107, as amended; 45 U.S.C. 362.
20 CFR 319.1 Statutory provisions.
* * * In any case in which benefits are awarded to a claimant in
whole or in part upon the basis of pay earned in the service of a person
or company found by the Board to be an employer as defined in this Act
but which denies that it is such an employer, such benefits awarded on
such basis shall be paid to such claimant subject to a right of recovery
of such benefits. The Board shall thereupon designate one of its
officers or employees to receive evidence and to report to the Board on
whether such benefits should be repaid. The Board may also designate
one of its officers or employees to receive evidence and report to the
Board whether or not any person or company is entitled to a refund of
contributions or should be required to pay contributions under this Act,
regardless of whether or not any claims for benefits will have been
filed upon the basis of service in the employ of such person or company,
and shall follow such procedure if contributions are assessed and
payment is refused or payment is made and a refund claimed upon the
basis that such person or company is or will not have been liable for
such contributions. In any such case the Board or the person so
designated shall, by publication or otherwise, notify all parties
properly interested of their right to participate in the proceeding and,
if a hearing is to be held, of the time and place of the hearing. At
the request of any party properly interested the Board shall provide for
a hearing, and may provide for a hearing on its own motion. The Board
shall prescribe regulations governing the proceedings provided for in
this paragraph and for decisions upon such proceedings.
Final decision of the Board in the cases provided for in the
preceding two paragraphs shall be communicated to the claimant and to
the other interested parties within fifteen days after it is made. Any
properly interested party notified, as hereinabove provided, of his
right to participate in the proceedings may obtain a review of any such
decision by which he claims to be aggrieved or the determination of any
issue therein in the manner provided in subsection (f) of this section
with respect to the review of the Board's decisions upon claims for
benefits and subject to all provisions of law applicable to the review
of such decisions. Subject only to such review, the decision of the
Board upon all issues determined in such decision shall be final and
conclusive for all purposes and shall conclusively establish all rights
and obligations, arising under this Act, of every party notified as
hereinabove provided of his right to participate in the proceedings.
Any issue determinable pursuant to this subsection and subsection (f)
of this section shall not be determined in any manner other than
pursuant to this subsection and subsection (f). (Section 5(c), Railroad
Unemployment Insurance Act.)
In any proceeding other than a court proceeding, the rules of
evidence prevailing in courts of law or equity shall not be controlling,
but a full and complete record shall be kept of all proceedings and
testimony, and the Board's final determination, together with its
findings of fact and conclusions of law in connection therewith, shall
be communicated to the parties within fifteen days after the date of
such final determinations.
(Section 5(e), Railroad Unemployment Insurance Act.)
Any claimant, or any railway labor organization organized in
accordance with the provisions of the Railway Labor Act, of which
claimant is a member, or any other party aggrieved by a final decision
under subsection (c) of this section, may, only after all administrative
remedies within the Board will have been availed of and exhausted,
obtain a review of any final decision of the Board by filing a petition
for review within ninety days after the mailing of notice of such
decision to the claimant or other party, or within such further time as
the Board may allow, in the United States court of appeals for the
circuit in which the claimant or other party resides or will have had
his principal place of business or principal executive office, or in the
United States Court of Appeals for the Seventh Circuit or in the Court
of Appeals for the District of Columbia. * * * (Section 5(f), Railroad
Unemployment Insurance Act.)
(Board Order 58-142, 23 FR 9089, Nov. 22, 1958)
20 CFR 319.2 Procedure for determining entitlement to benefits awarded
where employer status is denied, and for determining liability for
contributions.
(a) The Board may designate one of its officers or employees as
examiner to receive evidence and report to the Board (1) whether or not
a claimant should repay benefits awarded in whole or in part upon the
basis of pay earned in the service of a person or company found by the
Board to be an employer as defined in the Railroad Unemployment
Insurance Act, but which denies that it is such an employer, or (2)
whether or not any person or company is entitled to a refund of
contributions or should be required to pay contributions under the Act.
Such procedure shall be followed if contributions are assessed and
payment is refused or payment is made and a refund claimed upon the
basis that such person or company is or will not have been liable for
such contributions. The examiner shall have power to hold hearings,
require and compel the attendance of witnesses, administer oaths, take
testimony, and make all necessary investigations. At the request of any
party properly interested, the Board shall provide for a hearing before
such examiner, and may provide for a hearing on its own motion. The
examiner shall, by publication or otherwise, notify all parties properly
interested of their right to participate in the proceeding and if a
hearing is to be held, of the time and place of the hearing.
(b) All evidence and argument presented by any party, and all
evidence developed by the examiner, shall be preserved and shall
constitute a part of the record. All oral evidence presented at any
hearing, and all oral argument, shall be reduced to writing. The record
at any time shall be available for examination by any properly
interested party or his representative.
(c) Upon the completion of any proceeding, the examiner shall upon
the basis of the entire record, render a report to the Board as soon as
practicable, and within five days after the making thereof shall send a
copy of the report to each party appearing in the proceeding by mailing
such copy to him at the address stated in his appearance. Such report
shall contain a statement of (1) the issue or issues raised, (2) the
evidence submitted, (3) findings of fact, (4) conclusions of law, and
(5) a recommended determination.
(d) Any party to the proceeding may, within twenty days after the
mailing to him of a copy of the examiner's report, file with the Board,
and serve upon other parties by mailing to their addresses as stated in
their appearances, such exceptions in writing as he desires to make to
the examiner's findings of fact and conclusions of law. Each exception
shall specifically designate the particular finding of fact or
conclusion of law to which exception is taken, and shall set forth in
detail the grounds of the exception. General exceptions and exceptions
not specifically directed to particular findings of fact or conclusions
of law will not be considered. Each party shall have ten days after the
receipt of exceptions taken by other parties in which to file with the
Board replies to the exceptions. The Board may, upon the application of
any party and for cause shown, extend the time for filing and serving of
exceptions or filing of replies thereto. The examiner's report shall be
advisory but shall be presumed to be correct. Findings of fact to which
no exceptions are taken will, subject only to the power of the Board to
reject or modify, stand confirmed.
(e) The Board will render its decision upon the record and upon the
basis of the examiner's report and such exceptions and replies thereto
as are made. Further argument will not be permitted except upon a
showing by any party that he has arguments to present which for valid
reasons he was unable to present at an earlier stage, and in cases in
which the Board requests further elaboration of arguments. In such
cases, the further argument shall be submitted orally or in writing, as
the Board may indicate in each case, and shall be subject to such
restrictions as to form, subject matter, length, and time as the Board
may indicate. The decision of the Board will be communicated to all
parties to the proceeding within fifteen days after it has been made by
mailing a copy of the decision to each such party at the address
furnished by him.
(f) The decision of the Board, with respect to all issues determined
therein, shall be final and conclusive for all purposes, and shall
conclusively establish all rights and obligations, arising under any act
administered by the Board, of every person notified of his right to
participate in the proceeding.
(g) Any properly interested party notified of his right to
participate in the proceeding may, as provided in section 5(c) of the
Railroad Unemployment Insurance Act, and in accordance with the
provisions of section 5(f) of the Act, obtain judicial review of a final
decision of the Board, under this section, by which he claims to be
aggrieved, by filing a petition for review in the proper court within
ninety days after the mailing to him of notice of such decision, or
within such further time as the Board may allow. Such petition for
review must be filed in the U.S. Court of Appeals for the circuit in
which the party resides or will have had his principal place of business
or principal executive office, or in the U.S. Court of Appeals for the
Seventh Circuit or in the Court of Appeals for the District of Columbia.
(h) Insofar as applicable and not inconsistent with the preceding
provisions of this section, the provisions of 250.7 to 250.16 of this
chapter shall be followed in any proceeding under this section.
(Board Order 58-142, 23 FR 9089, Nov. 22, 1958)
20 CFR 319.2 PART 320 -- INITIAL DETERMINATIONS UNDER THE RAILROAD
UNEMPLOYMENT INSURANCE ACT AND REVIEWS OF AND APPEALS FROM SUCH
DETERMINATIONS
Sec.
320.1 Introduction.
320.2 Definitions.
320.5 Initial determinations.
320.6 Adjudicating office.
320.8 Notice of initial determination.
320.9 Notice of erroneous benefit payment.
320.10 Reconsideration of initial determination.
320.11 Request for waiver of recovery.
320.12 Appeal to the Bureau of Hearings and Appeals.
320.18 Hearings officer.
320.19 Election to participate.
320.20 Powers of hearings officer.
320.22 Notice of hearing.
320.25 Hearing of appeal.
320.28 Development of record.
320.30 Decision or report of hearings officer.
320.32 Effect of decision of hearings officer.
320.35 Review of decision of hearings officer on motion of Board.
320.38 Appeal to Board from decision of hearings officer.
320.39 Execution and filing of appeal to Board from decision of
hearings officer.
320.40 Procedure before Board on appeal from decision of hearings
officer.
320.41 Procedure before Board after submission of report by hearings
officer.
320.42 Decision of Board.
320.45 Judicial review.
320.48 Representatives of parties.
320.49 Determination of date of filing.
Authority: 45 U.S.C. 355 and 362(1).
Source: Board Order 58-142, 23 FR 9090, Nov. 22, 1958, unless
otherwise noted.
20 CFR 320.1 Introduction.
This part explains which units of the Board are authorized to make
initial determinations with respect to entitlement to benefits under the
Railroad Unemployment Insurance Act and waiver of recovery of
overpayments under that Act. This part explains how notice of such
determinations is to be communicated to the claimant and to his or her
base-year employer(s) and how these determinations may be appealed.
(56 FR 65679, Dec. 18, 1991)
20 CFR 320.2 Definitions.
As used in this part --
Base-year employer means the railroad employer(s) for whom a claimant
worked and earned compensation creditable under the Railroad
Unemployment Insurance Act during the base year. The base year is the
calendar year immediately preceding the benefit year for which a claim
is being filed. A benefit year is generally the period July 1 through
the following June 30.
Party means the claimant, the base-year employer(s), or any person so
designated under this part.
(56 FR 65679, Dec. 18, 1991)
20 CFR 320.5 Initial determinations.
An initial determination shall be made with respect to each claim for
unemployment or sickness benefits by the appropriate adjudicating office
as provided by 320.6 of this part. Prior to making an initial
determination the Board shall provide the claimant's base-year
employer(s) and most recent employer if different with notice that a
claim has been filed and that the employer(s) has an opportunity to
submit information which may be pertinent to the adjudication of the
claim. The adjudicating office shall make its determination on the
basis of the claimant's application and claim and any relevant
information or evidence including any information received from the
base-year employer(s). A determination allowing payment of an initial
claim shall not establish a presumption that benefits for subsequent
claims in the same period of unemployment or sickness are also payable.
The Director of Unemployment and Sickness Insurance shall issue
instructions with respect to the adjudication of claims and initial
determination on such claims. If it is found that only part of the
benefits claimed may initially be paid, a partial payment shall be made
prior to a final decision on the whole claim.
(56 FR 65679, Dec. 18, 1991)
20 CFR 320.6 Adjudicating office.
(a) The term ''adjudicating office'' means any subordinate office of
the Board which is authorized to make initial determinations and
reconsideration decisions with respect to claims for benefits. The
following paragraphs state which offices of the Board are adjudicating
offices and define their authority to make determinations or decisions.
(b) District offices. Board district offices are authorized to make
initial determinations on the following issues of eligibility for
unemployment benefits:
(1) Availability for work;
(2) Voluntary leaving of work, with or without good cause;
(3) Failure to accept work or apply for work or failure to report to
an employment office;
(4) Timely registration for benefits;
(5) Receipt of remuneration for claimed days of unemployment;
(6) Mileage or work restrictions and stand-by or lay-over rules;
(7) Whether the claimant's unemployment is due to a strike.
(c) Regional offices. Board regional offices are authorized to make
determinations on any of the issues listed in paragraph (b) of this
section. In addition, regional offices are authorized to make initial
determinations on the following issues:
(1) Erroneous payment of benefits, including fraud;
(2) 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 non-railroad employer by which he is
employed;
(3) Determination of the amount of the Board's claim for
reimbursement from pay for time lost payments under section 2(f) of the
Railroad Unemployment Insurance Act or damages for personal injury under
section 12(o) of the Railroad Unemployment Insurance Act.
(d) Division of Program Operations. The Division of Program
Operations, Bureau of Unemployment and Sickness Insurance, is authorized
to make initial determinations on all issues of eligibility for
unemployment and sickness benefits, and recovery of benefits, as set
forth above, not reserved to the Director by paragraph (e) of this
section.
(e) Bureau of Unemployment and Sickness Insurance. The Director of
Unemployment and Sickness Insurance, or his designee, shall adjudicate:
(1) All requests for waiver of recovery of an erroneous payment;
(2) 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 is
employed; and
(3) Offers of compromise of debts arising out of the benefit
provisions of the Railroad Unemployment Insurance Act. The decision to
waive recovery or to accept a compromise shall be made only by the
Director. The Director shall also decide whether a plan submitted by an
employer or other person or company qualifies as a nongovernmental plan
for unemployment, sickness or maternity insurance, within the meaning of
section 1(j) of the Railroad Unemployment Insurance Act.
(53 FR 2486, Jan. 28, 1988)
20 CFR 320.8 Notice of initial determination.
(a) Benefits payable. If benefits are payable for a claim, no
special notice of the award will be issued to the claimant. A notice of
the award will be sent to the base-year employer(s). The amount of
benefits due will be certified to the United States Treasury Department
for payment.
(b) Benefits not payable. If an initial determination results in
denial of a claim, either in whole or in part, the adjudicating office
shall issue a notice of the denial within 15 days of the date that it
makes its determination. The notice shall explain the basis for the
denial of benefits and shall set forth what steps the claimant can take
to contest the denial.
(c) Communication of notice of denial. When the adjudicating office
mails the denial notice to the claimant's address of record, it shall be
considered that notice of the denial has been communicated to the
claimant on the date of mailing such notice. If the adjudicating office
has been notified that a claimant has an attorney or other
representative helping him or her with the claim, a copy of the denial
notice shall be sent to the attorney or such other representative.
(53 FR 2486, Jan. 28, 1988, as amended at 56 FR 65679, Dec. 18, 1991)
20 CFR 320.9 Notice of erroneous benefit payment.
(a) Content of notice. When an adjudicating office determines that
benefits were paid erroneously, that office shall issue to the claimant
a notice of the amount of the erroneous payment and the basis for the
determination. The notice shall include a statement telling the
claimant of his or her right to request reconsideration of the
determination, of the provisions for waiver and of his or her right to
request waiver.
(b) Communication of notice of erroneous payment. When the
adjudicating office mails the erroneous payment notice to the claimant's
address of record, it shall be considered that notice of the erroneous
payment has been communicated to the claimant on the date of mailing
such notice. If the adjudicating office has been notified that a
claimant has an attorney or other representative helping him or her with
the claim, a copy of the erroneous payment notice shall be sent to the
attorney or such other representative.
(53 FR 2486, Jan. 28, 1988)
20 CFR 320.10 Reconsideration of initial determination.
(a) Request. A claimant shall have the right to request
reconsideration of an initial determination under 320.5 of this part
which denies in whole or in part his or her claim for benefits. A
claimant shall have the right to request reconsideration of a notice of
overpayment under 320.9 of this part. The base-year employer(s) shall
have the right to request reconsideration of an initial determination
under 320.5 of this part which awards in whole or in part a claimant's
claim for benefits. A reconsideration request shall be made in writing
and addressed to the adjudicating office that issued the initial
determination and must be received by the adjudicating office no later
than 60 days from the date of the notice of the initial decision.
(b) Review of evidence. Upon request, the party requesting
reconsideration shall have an opportunity to review all evidence and
documents that pertain to the initial determination. The Board shall
made all reasonable efforts to protect the identity of the source of
adverse evidence.
(c) Notice of decision. The adjudicating office shall, as soon as
possible, render a decision on the request for reconsideration. If a
decision rendered by a district office, as the adjudicating office,
sustains the initial determination, either in whole or in part, the
decision shall be referred to the appropriate regional office for review
prior to issuance. The party who requested reconsideration shall be
notified, in writing, of the decision on reconsideration no later than
15 days from the date of the decision or, where the regional office has
conducted a review of the decision, within 7 days following the
completion of the review. If the decision results in denial of
benefits, the claimant shall be notified of the right to appeal as
provided in 310.12 of this part. If the decision results in payment of
benefits, the base-year employer(s) shall be notified of the right to
appeal as provided in 310.12 of this part.
(d) Right to further review of initial determination. The right to
further review of a determination made under 310.5 or 320.6 of this
part 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 party requesting reconsideration for failing to file a
timely request for reconsideration.
(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; or
(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.
(56 FR 65679, Dec. 18, 1991)
20 CFR 320.11 Request for waiver of recovery.
(a) Time limitation. The claimant shall have 30 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 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 320.10 of this part.
(b) Recovery action. Where a claimant has made a timely request for
waiver of recovery, no action will be taken to recover the erroneous
payment by setoff against current benefits prior to a decision on such
request; provided however, That the Board may, prior to a decision,
withhold the amount of the erroneous payment from benefit payments under
any of the following circumstances:
(1) The claimant admits he or she was at fault in causing the
overpayment;
(2) The claimant is found to have committed fraud;
(3) The claimant authorizes recovery by setoff or agrees to
repayment; or
(4) The amount of erroneous payment is not subject to waiver or
provided for in 340.10(e) of this chapter.
(c) Review of evidence. Upon request, the claimant shall have an
opportunity to review all evidence and documents that pertain to the
erroneous payment determination.
(d) Decision. The Director of Unemployment and Sickness Insurance
shall make a decision on the claimant's request for waiver of recovery
and shall notify the claimant accordingly. The decision of the Director
shall include the basis of the decision, setting forth his or her
reasons for the decision including the impact, if any, of any evidence
submitted by the base-year or last employer. If the Director decides
that waiver of recovery is not appropriate, the adjudicating office
shall wait 15 days from the date of the notification of the waiver
decision before taking any action to recover the erroneous payment. If
the Director decides that recovery should be waived, any amount of the
erroneous payment so waived but previously recovered by setoff shall be
refunded to the claimant.
(e) Appeal. If the Director of Unemployment and Sickness Insurance
decides that waiver of recovery is not appropriate, the claimant shall
have the right to appeal such decision as provided under 320.12 of this
part.
(f) Requests made after 30 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 30 days, but
action to recover the erroneous payment will not be deferred if such a
request is not timely filed. Further, it shall not be considered that a
claimant prejudices his or her request for waiver by tendering all or a
portion of the erroneous payment or by selecting a particular method for
repaying the debt. However, no waiver consideration will be given to
any debt which is settled by compromise.
(g) Evidence provided by base-year employer(s) and most recent
employer, if different. In making a decision under paragraph (d) of
this section, the Director of Unemployment and Sickness Insurance shall
consider all evidence of record including any evidence submitted by the
claimant's base-year employer(s) and the most recent employer, if
different. Where a claimant has requested waiver the Director shall
notify his or her base-year employer(s) and the most recent employer, if
different, of the right to submit, within 30 days, any information which
may be pertinent to the waiver decision.
(56 FR 65680, Dec. 18, 1991)
20 CFR 320.12 Appeal to the Bureau of Hearings and Appeals.
Any party aggrieved by a decision under 320.10 of this part or a
claimant aggrieved by decision under 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. The appeal
must be filed with the Bureau of Hearings and Appeals within 60 days
from the date upon which the notice of the decision on reconsideration
or waiver of recovery was mailed to either a claimant or the base-year
employer(s). If no appeal is filed within the time limits specified in
this section, the decision of the adjudicating office under 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 320.10 of this part.
(56 FR 65680, Dec. 18, 1991)
20 CFR 320.18 Hearings officer.
Within a reasonable time after a party has filed a properly executed
appeal, the Director of Hearings and Appeals shall appoint a hearings
officer to act in the appeal. Such hearings officer shall not have any
interest in the parties or in the outcome of the proceeding, shall not
have directly participated in the initial determination from which the
appeal is made, and shall not have any other interest in the matter
which might prevent a fair and impartial hearing. In any case in which
employee status or creditability of compensation is an issue, the
hearings officer shall receive evidence and report to the Board thereon
with recommendations. In all other cases, the hearings officer shall
consider and decide the appeal; in each such case where the hearings
officer determines that an issue of fact exists, the parties shall have
the right to a hearing.
(56 FR 65680, Dec. 18, 1991)
20 CFR 320.19 Election to participate.
(a) Claimant files an appeal. Where the claimant has filed an appeal
under 320.12 of this part the hearings officer shall notify the
claimant's base-year employer(s) that such an appeal has been filed and
shall provide the base-year employer with a statement of issues on
appeal. The hearings officer shall inform the base-year employer(s)
that such employer(s) shall have a right to be present at any hearing
which is to be held under this part and the right to submit evidence
with respect to the issues on appeal. Within 30 days of the date of
such notice a base-year employer shall provide the hearings officer with
a statement in writing which summarizes the evidence which such employer
intends to present with respect to the issues on appeal, which indicates
whether the employer wishes to be present at any hearing which may be
held, and which designates who will represent the employer with respect
to the appeal. An employer who fails to respond in the time prescribed
shall be barred from further participation in the appeal and shall
forfeit any further right to review as provided for in this part.
(b) Base-year employer files an appeal. Where a base-year employer
files an appeal under 320.12 of this part, the hearings officer shall
notify the claimant that such an appeal has been filed and shall provide
the claimant with a statement of issues on appeal. The hearings officer
shall inform the claimant that he or she or a duly authorized
representative shall have a right to be present at any hearing which is
to be held under this part and the right to submit evidence with respect
to the issues on appeal. Within 30 days of the date of such notice the
claimant shall file with the hearings officer an election to participate
in the appeal. A claimant who fails to file an election in the time
prescribed shall be barred from further participation in the appeal and
shall forfeit any right of review as provided for in this part.
(56 FR 65680, Dec. 18, 1991)
20 CFR 320.20 Powers of hearings officer.
In the development of an appeal, the hearings officer shall have the
power to hold hearings, require and compel the attendance of witnesses,
administer oaths, take testimony, and make all necessary investigations.
20 CFR 320.22 Notice of hearing.
(a) Notification of parties. 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 hearings officer shall promptly notify the
party or parties to the proceeding by mail as to said 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.
(b) Notice of objection. A party to the proceeding may object to the
time and place of the hearing, or as to the stated issues to be
resolved, by filing a written notice of objection with the hearings
officer. The notice of objection shall clearly set forth the matter
objected to and the reasons for such objection, and, if the matter
objected to is the time and place of the hearing, said notice shall
further state that party's choice as to the time and place for the
hearing. Said notice of objection shall be filed at the earliest
practicable time, but in no event shall said notice be filed later than
five business days prior to the scheduled date of the hearing.
(c) Ruling on objection. The hearings officer shall rule on any
objection timely filed by a party under 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.
(d) Failure to appear or to file objection. 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.
(e) Rescheduling the hearing. 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.
(53 FR 2488, Jan. 28, 1988)
20 CFR 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.
(b) Compilation of evidence. Any party, or his duly authorized
representative, shall be afforded full opportunity to present further
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. If, in the judgment of the hearings officer, evidence
not offered is available and relevant, and is material to the merits of
the appeal, the hearings officer shall obtain such evidence upon his own
initiative. The hearings officer shall protect the record against
scandal, impertinence and irrelevancies, but the technical rules of
evidence shall not apply.
(c) Where no oral hearing required. Where the hearings officer finds
that no factual issues are presented by an appeal, and the only issues
raised by the parties are issues concerning the application or
interpretation of law, the parties or their representatives shall be
afforded full opportunity to submit written argument in support of their
position but no oral hearing shall be held.
(d) Hearing by telephone. In the discretion of the hearings officer
and with the approval of the Director of Hearings and Appeals and
agreement of all parties, any hearing required under this part may be
conducted by telephone conference.
(Board Order 58-142, 23 FR 9090, Nov. 22, 1958, as amended at 56 FR
65681, Dec. 18, 1991)
20 CFR 320.28 Development of record.
All evidence presented by any party or by his duly authorized
representative, and all evidence developed by the hearings officer,
shall be preserved. Such evidence, together with a record of the
arguments, oral or written, and the file previously made in the
adjudication of the claim, shall constitute the record. After an appeal
from an initial determination is filed, the compilation of the record
shall be initiated by the inclusion therein of the file made in the
adjudication of the claim; the compilation of the record shall be kept
up to date by the prompt addition thereto of all parts of the record
subsequently developed. The entire record at any time during the
pendency of an appeal shall be available for examination by any party or
by his duly authorized representative.
(42 FR 29302, June 8, 1977, as amended at 56 FR 65681, Dec. 18, 1991)
20 CFR 320.30 Decision or report of hearings officer.
As soon as practicable after the completion of the record, the
hearings officer shall render his decision, or submit his report to the
Board, as may be appropriate in the case. The decision or report shall
be based on the record and shall be in writing. Such decision shall
contain a brief statement of (a) the issue or issues raised, (b) the
evidence submitted, (c) findings of fact, (d) the decision made, and (e)
the reasons therefor. Such report shall contain a statement of (1) the
issue or issues raised, (2) the evidence submitted, (3) findings of
fact, (4) conclusions of law, (5) recommendations as to the decision to
be made by the Board, and (6) such discussion of the foregoing as the
hearings officer may desire to present to the Board. Within 15 days
after rendition of the decision or submission of the report, a copy of
the decision or report shall be mailed to each party at the last address
of record. In the case of a report, a copy of the transcript of the
hearing, if any was held, shall also be mailed to each party.
(Board Order 66-84, 31 FR 10181, July 28, 1966, as amended at 56 FR
65681, Dec. 18, 1991)
20 CFR 320.32 Effect of decision of hearings officer.
A decision of the hearings officer, subject to review as hereinafter
provided, shall be binding upon any adjudicating office and upon all
parties;
(a) With respect to the initial determination involved, and
(b) With respect to other initial determinations, irrespective of
whether they have been appealed, which involved the same parties and
which were based upon the same issue or issues determined in the
decision of the hearings officer.
(56 FR 65681, Dec. 18, 1991)
20 CFR 320.35 Review of decision of hearings officer on motion of
Board.
The Board may, on its own motion, review a decision of the hearings
officer on the basis of the evidence previously submitted in the case,
and may designate any employee of the Board to take additional evidence
and to report his findings to the Board.
20 CFR 320.38 Appeal to Board from decision of hearings officer.
Any claimant aggrieved by a decision of the hearings officer and any
base-year employer(s) whose employee was awarded benefits, who
participated in the appeal before the hearings officer, may appeal to
the Board for review of the decision.
(56 FR 65681, Dec. 18, 1991)
20 CFR 320.39 Execution and filing of appeal to Board from decision of
hearings officer.
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. 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. 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 320.10(e) of
this chapter in determining if good cause exists.
(Approved by the Office of Management and Budget under control number
3220-0020)
(56 FR 65681, Dec. 18, 1991)
20 CFR 320.40 Procedure before Board on appeal from decision of
hearings officer.
Upon the filing of an appeal to the Board from a decision of a
hearings officer, the Secretary to the Board shall notify all parties to
the decision of the hearings officer that an appeal has been filed. The
parties shall not have the right to submit additional evidence, except
that:
(a) The Board may permit the submission of additional evidence upon a
showing by a party that he or she has additional evidence to present
which, for valid reasons, he or she was unable to present at an earlier
stage;
(b) The Board may request the submission of additional evidence; and
(c) The Board may designate any employee of the Board to take
additional evidence and to report his or her findings to the Board. Any
such additional evidence shall be submitted in such manner as the Board
may indicate and shall be included in the record.
(56 FR 65681, Dec. 18, 1991)
20 CFR 320.41 Procedure before Board after submission of report by
hearings officer.
(a) After submission to the Board of a hearings officer's report, in
an appeal involving employee status or the creditability of
compensation, any party to the proceeding may, within twenty days after
the mailing to him of a copy of the report, file with the Board and
serve upon other parties by mailing to their last addresses of record
such exceptions in writing as he desires to make to the hearings
officer's findings of fact and conclusions of law. Each exception shall
specifically designate the particular finding of fact or conclusion of
law to which exception is taken, and shall set forth in detail the
grounds of the exception. General exceptions and exceptions not
specifically directed to particular findings of fact or conclusions of
law will not be considered. Each party shall have ten days after the
receipt of exceptions taken by other parties in which to file with the
Board replies to the exceptions. The Board may, upon the application of
any party and for cause shown, extend the time for filing and serving of
exceptions or filing of replies thereto. The hearings officer's report
shall be advisory but shall be presumed to be correct. Findings of fact
to which no exceptions are taken will, subject only to the power of the
Board to reject or modify, stand confirmed.
(b) Further argument will not be permitted except upon a showing by
any party that he has arguments to present which for valid reasons he
was unable to present at an earlier stage, and in cases in which the
Board requests further elaboration of arguments. In such cases, the
further argument shall be submitted orally or in writing, as the Board
may indicate in each case, and shall be subject to such restrictions as
to form, subject matter, length, and time as the Board may indicate.
20 CFR 320.42 Decision of Board.
The decision of the Board, whether on an appeal to the Board from a
decision of a hearings officer, or after submission of a report by a
hearings officer, shall be made upon the basis of the record established
in accordance with the foregoing sections. Notice of such decision,
together with the Board's findings of fact and conclusions of law in
connection therewith, shall, within 15 days from the date on which the
decision is made, be mailed to the parties at the latest addresses
furnished by them. Subject only to judicial review in accordance with
320.45, the decision of the Board shall be final and conclusive for all
purposes:
(a) With respect to the initial determination involved, and
(b) With respect to other initial determinations, irrespective of
whether they have been appealed, which involve the same parties and
which were based on the same issue or issues determined in the decision
of the Board. In a case in which there has been a hearings officer's
report, in an appeal involving employee status or the creditability of
compensation, the decision of the Board on all issues determined in such
decision shall be final and conclusively establish all rights and
obligations, arising under the Act, of every party notified as
hereinabove provided of his or her right to participate in the
proceedings.
(Board Order 66-84, 31 FR 10181, July 28, 1966, as amended at 56 FR
65681, Dec. 18, 1991)
20 CFR 320.45 Judicial review.
Upon being notified of a decision of the Board made (a) upon review,
on the Board's own motion, of a decision of a hearings officer, or (b)
upon an appeal to the Board, an aggrieved party may obtain judicial
review of such final decision, by filing a petition for review within
ninety days after the date on which notice of such decision was mailed
to him, or within such further time as the Board may allow, in the U.S.
Court of Appeals for the circuit in which the party resides or will have
had his principal place of business or principal executive office, or in
the U.S. Court of Appeals for the Seventh Circuit or in the Court of
Appeals for the District of Columbia.
(Board Order 58-142, 23 FR 9090, Nov. 22, 1958, as amended at 56 FR
65682, Dec. 18, 1991)
20 CFR 320.48 Representatives of parties.
In the event a party to any proceeding within the Board, under the
preceding regulations in this part, desires to be represented by another
person, he shall file with the Board prior to the time of such
representation a power of attorney signed by him and naming such other
person as the person authorized to represent him: Provided, however,
That without requiring such power of attorney the Board may recognize as
the duly authorized representative of the claimant the person designated
by the claimant's railway labor organization to act in behalf of members
of that organization on such matters whenever such representative acts
or appears for such claimant.
20 CFR 320.49 Determination of date of filing.
For purposes of this part the date of filing of any document or form
shall be the date of receipt at an office of the Board. 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.
(56 FR 65682, Dec. 18, 1991)
20 CFR 320.49 PART 322 -- REMUNERATION
Sec.
322.1 Statutory provisions.
322.2 General definition of ''remuneration''.
322.3 Determining the days with respect to which remuneration is
payable or accrues.
322.4 Consideration of evidence.
322.5 Payments under vacation agreements.
322.6 Pay for time lost.
322.7 Allowances resulting from abandonment or coordination of
employer facilities.
322.8 Miscellaneous income.
Authority: 45 U.S.C. 362l.
Source: Board Order 59-73, 24 FR 2487, Mar. 31, 1959, unless
otherwise noted.
20 CFR 322.1 Statutory provisions.
Subject to the provisions of section 4 of this act, (1) a day of
unemployment, with respect to any employee, means a calendar day * * *
with respect to which * * * no remuneration is payable or accrues to him
* * *; and (2) a ''day of sickness'', with respect to any employee,
means a calendar day * * * with respect to which * * * no remuneration
is payable or accrues to him * * * Provided, however, That ''subsidiary
remuneration'', as hereinafter defined in this subsection, shall not be
considered remuneration for the purpose of this subsection except with
respect to an employee whose base-year compensation, exclusive of
earnings from the position or occupation in which he earned such
subsidiary remuneration, is less than $1,000 * * *.
For the purpose of this subsection, the term ''subsidiary
remuneration'' means, with respect to any employee, remuneration not in
excess of an average of three dollars a day for the period with respect
to which such remuneration is payable or accrues, if the work from which
the remuneration is derived (i) requires substantially less than full
time as determined by generally prevailing standards, and (ii) is
susceptible of performance at such times and under such circumstances as
not to be inconsistent with the holding of normal full-time employment
in another occupation. (Section 1(k), Railroad Unemployment Insurance
Act.)
The term ''compensation'' means any form of money remuneration,
including pay for time lost but excluding tips, paid for services
rendered as an employee to one or more employers, or as an employee
representative * * *. A payment made by an employer to an individual
through the employer's payroll shall be presumed, in the absence of
evidence to the contrary, to be compensation for service rendered by
such individual as an employee of the employer in the period with
respect to which the payment is made. An employee shall be deemed to be
paid, ''for time lost'' the amount he is paid by an employer with
respect to an identifiable period of absence from the active service of
the employer, including absence on account of personal injury, and the
amount he is paid by the employer for loss of earnings resulting from
his displacement to a less remunerative position or occupation. If a
payment is made by an employer with respect to a personal injury and
includes pay for time lost, the total payment shall be deemed to be paid
for time lost unless, at the time of payment, a part of such payment is
specifically apportioned to factors other than time lost, in which event
only such part of the payment as is not so apportioned shall be deemed
to be paid for time lost. * * * (Section 1(i), Railroad Unemployment
Insurance Act.)
The term ''remuneration'' means pay for services for hire, including
pay for time lost, and tips, but pay for time lost shall be deemed
earned on the day on which such time is lost. The term ''remuneration''
includes also earned income other than for services for hire if the
accrual thereof in whole or in part is ascertainable with respect to a
particular day or particular days. The term ''remuneration'' does not
include (i) the voluntary payment by another, without deduction from the
pay of an employee, of any tax or contribution now or hereafter imposed
with respect to the remuneration of such employee, or (ii) any money
payments received pursuant to any nongovernmental plan for unemployment
insurance, maternity insurance, or sickness insurance. (Section 1(j),
Railroad Unemployment Insurance Act.)
(Board Order 59-73, 24 FR 2487, Mar. 31, 1959, as amended by Board
Order 59-199, 24 FR 9478, Nov. 25, 1959; Board Order 68-72, 33 FR
11114, Aug. 6, 1968)
20 CFR 322.2 General definition of ''remuneration''.
Remuneration includes all pay for services for hire and all other
earned income payable or accruing with respect to any day. Income shall
be deemed earned if it is payable or accrues in consideration of
services and if such services were in turn rendered in consideration of
the income payable or accruing. ''Remuneration'' shall include income
in the form of a commodity, service, or privilege if, before the
performance of the service for which it is payment, the parties have
agreed (a) upon the value of such commodity, service, or privilege, and
(b) that such part of the amount agreed upon to be paid may be paid in
the form of such commodity, service, or privilege.
20 CFR 322.3 Determining the days with respect to which remuneration is
payable or accrues.
(a) Payable or accrues. In determining whether remuneration is
''payable'' or ''accrues'' to an employee with respect to a claimed day
or days, consideration shall be given to such factors as
(1) The intention of the parties with respect to the remuneration as
indicated in employment contracts, in any expressed or implied
agreements between the parties, and by the actions of the parties;
(2) Any evidence, such as vouchers or agreement of the parties,
relating the remuneration to a particular period of time or indicating
that the remuneration accrued or became payable without reference to any
particular period of time;
(3) The measure by which the amount of remuneration was determined;
(4) Whether the amount of the remuneration is proportionate to the
length of time needed to render the service for which it is payment;
(5) Whether the service for which the remuneration accrues is
required to be rendered on any particular day or particular days; and
(6) Whether a specified amount of the remuneration is contingent upon
a result accomplished on a particular day or particular days.
(b) Layover days. Remuneration shall not be regarded as payable or
accruing with respect to ''layover'' days, solely because they are
termed ''layover'' days.
(c) Guaranteed earnings. A payment under a plan which guarantees an
amount of earnings or mileage in a specified period is remuneration with
respect to each day in the specified period.
20 CFR 322.4 Consideration of evidence.
(a) Initial proof. A claimant's certification or statement on a
claim form provided by the Board to the effect that he did not work on
any day claimed and did not receive income such as vacation pay or pay
for time lost for any day claimed on such form shall constitute
sufficient evidence that no remuneration is payable or has accrued to
him with respect to such day, unless there is conflicting evidence.
(b) Investigation. When there is a question as to whether or not
remuneration is payable or has accrued to a claimant with respect to a
claimed day or days, investigation shall be made with a view to
obtaining information sufficient for a finding.
(Approved by the Office of Management and Budget under control number
3220-0049)
(Board Order 59-73, 24, 2487, Mar. 31, 1959, as amended at 52 FR
11017, Apr. 6, 1987)
20 CFR 322.5 Payments under vacation agreements.
(a) General. In ascertaining the accrual of remuneration under a
vacation agreement, consideration shall be given to the applicable
agreements and practices, the interpretations of such agreements and
practices developed by the parties, and the actions of the parties
pursuant thereto. When there is information that an employee has
received or is to receive payment under a vacation agreement, such
payment shall, in the absence of evidence to the contrary, be considered
to be remuneration with respect to the days to which the payment is
assigned.
(b) Vacation pay. If an employee takes a vacation in accordance with
a vacation agreement, the payment for such vacation shall constitute
remuneration with respect to the days in the vacation period for which
the payment is made. An employee shall be regarded as taking a vacation
when, in accordance with the applicable agreements and practices (1) he
is absent from work during a scheduled or assigned vacation period; (2)
he is required to take his vacation with pay while he is on furlough;
or (3) he chooses to take his vacation with pay while he is unemployed
or absent from work due to illness or other personal circumstances.
(c) Pay in lieu of vacation. If a payment in lieu of vacation is
made to an employee under a vacation agreement such payment shall not
constitute remuneration with respect to any particular day or days. A
payment under a vacation agreement shall be regarded as in lieu of
vacation if:
(1) The payment is made at the end of the vacation year to an
employee who did not take his vacation during such year; or
(2) The payment is made after the employee's death, or after he
ceased service for the purpose of receiving an annuity, and the payment
is credited to the employee's last day of service in accordance with
222.3(h) of this chapter; or
(3) It is otherwise established that the parties intended the payment
to be in lieu of vacation, without reference to any particular period.
20 CFR 322.6 Pay for time lost.
(a) Payments included. A payment shall be regarded as ''pay for time
lost'' if it is made with respect to an identifiable period of absence
from the active service of the person or company making such payment,
including absence on account of personal injury. The entire amount of a
payment made by an employer with respect to a personal injury shall be
deemed to be pay for time lost if such amount includes pay for time lost
and is not, at the time of payment, specifically apportioned to factors
other than time lost. If an amount paid with respect to personal injury
is, at the time of payment, apportioned to factors other than time lost,
only that part of the amount not so apportioned shall be deemed to be
pay for time lost.
(b) Employment relationship required. Pay for time lost shall not be
deemed to have been earned on any day after the day of the employee's
resignation or other termination of his employment relationship.
(c) Initial evidence. A report that an employee has received or is
to receive pay for time lost shall, in the absence of evidence to the
contrary, be considered sufficient for a finding that remuneration is
payable with respect to each day in the period to which the pay is
assigned.
20 CFR 322.7 Allowances resulting from abandonment or coordination of
employer facilities.
(a) Coordination or dismissal allowance. A coordination or dismissal
allowance, payable to an employee who is unemployed as a result of an
abandonment or coordination, but who does not sever his employment
relationship and who remains subject to call, is remuneration with
respect to each day in the period for which the allowance is paid.
Pursuant to instructions issued by the Associate Executive Director for
Unemployment and Sickness Insurance, any Board office that is
adjudicating a claim for unemployment benefits is authorized to deny
such claim if that office finds that the employee is receiving or is
eligible to receive a monthly dismissal or coordination allowance or any
comparable payment of remuneration with respect to any of the days
covered by the claim for benefits. It shall be the duty of each
employer to provide such information as the Board may need to adjudicate
the claim for benefits made by an employee who is receiving or is
eligible to receive such allowances or other pay for time lost.
(b) Separation allowance. A separation allowance, payable to an
employee who, in accordance with the applicable agreement, elects to
sever his employment relationship and receive a lump-sum settlement in
lieu of a coordination allowance is not remuneration with respect to any
day after the employment relationship is severed.
(Board Order 59-73, 24 FR 2487, Mar. 31, 1959, as amended at 50 FR
36872, Sept. 10, 1985)
20 CFR 322.8 Miscellaneous income.
(a) Income from self-employment. In determining whether income from
self-employment is remuneration with respect to a particular day or
particular days, consideration shall be given to whether, and to what
extent, (1) such income can be related to services performed on the day
or days and (2) the expenses of the self-employment can be attributed to
the day or days. Income from services performed by an individual on a
farm which he owns or rents, or in his own mercantile establishment,
ordinarily is not remuneration with respect to any day.
(b) Income from investment. Income in the form of interest,
dividends, and other returns on invested capital which is not coupled
with the rendition of personal services shall not be regarded as
remuneration.
(c) Commissions on sales. Commissions on sales shall be regarded as
remuneration with respect to the day or days on which sales are made.
(d) Payments for service as a public official. In determining
whether income for service as a public official is remuneration and, if
so, the particular day or days with respect to which such remuneration
is payable or accrues, consideration shall be given to such factors as
(1) the amount of the income; (2) the terms and conditions of payment;
(3) the character and extent of the services rendered; (4) the
importance, prestige, and responsibilities attached to the position;
(5) the day or days on which services, or readiness to perform services,
are required; and (6) the provisions of the applicable statutes.
(e) Payments to local lodge officials. A payment by a local lodge of
a labor organization to an employee for services as a local lodge
official shall be regarded as subsidiary remuneration if such payment
does not exceed an average of three dollars a day for the period with
respect to which it is payable or accrues, unless there is information
that the work from which the payment is derived does not require
substantially less than full time as determined by generally prevailing
standards, or is not susceptible of performance at such times and under
such circumstances as not to be inconsistent with the holding of normal
full-time employment in another occupation.
(f) Public relief payments. Public relief payments made in
consideration of need shall not be regarded as remuneration.
20 CFR 322.8 PART 323 -- NONGOVERNMENTAL PLANS FOR UNEMPLOYMENT OR
SICKNESS INSURANCE
Sec.
323.1 Introduction.
323.2 Definition of nongovernmental plan for unemployment or sickness
insurance.
323.3 Standards for Board approval of a nongovernmental plan.
323.4 Guidelines for content of a nongovernmental plan.
323.5 Submitting proposed plan for Board approval.
323.6 Treatment of benefit payments under a nongovernmental plan for
purposes of contributions.
323.7 Effective date.
Authority: 45 U.S.C. 362(1).
Source: 56 FR 26328, June 7, 1991, unless otherwise noted.
20 CFR 323.1 Introduction.
(a) This part defines the phrase nongovernmental plan for
unemployment or sickness insurance and sets forth the procedure by which
an employer may obtain a determination by the Railroad Retirement Board
as to whether a particular plan that such employer maintains for its
employees qualifies as a nongovernmental plan. In general, any payment
by an employer to an employee for services rendered as an employee will
be considered to be remuneration within the meaning of section 1(j) of
the Railroad Unemployment Insurance Act and part 322 of this chapter.
This includes employer payments that relate to an employee's loss of
earnings during a period of time when the employee is unemployed or
sick, including sickness resulting from injury. The exception is when
an employer pays an employee a benefit pursuant to the provisions of a
nongovernmental plan for unemployment or sickness insurance established
by an employer for the benefit of its employees. Benefit payments under
such plans are not remuneration and do not affect an employee's
eligibility for unemployment or sickness benefits under the Railroad
Unemployment Insurance Act.
(b) This part does not have any general applicability to private
insurance contracts under which an insurance company, pursuant to a
policy of insurance maintained by or for an employee, pays medical or
hospital expenses or other cash benefits to or in behalf of an employee.
Nor does this part apply to any private plan for relief of unemployment
established by a party other than an employer such as, for example, a
plan established by a labor union under which it undertakes to pay
benefits to striking members of the union out of a strike insurance
fund. Insurance policy benefits and strike unemployment benefits,
although paid under plans that are nongovernmental in nature, are not
considered remuneration for services under the general definition of
remuneration. See part 322 of this chapter.
20 CFR 323.2 Definition of nongovernmental plan for unemployment or
sickness insurance.
A nongovernmental plan for unemployment or sickness insurance is a
benefit plan, program or policy that is in the nature of insurance and
is designed and established by an employer for the purpose of
supplementing the benefits that an employee of such employer may receive
under the Railroad Unemployment Insurance Act during a period of
unemployment or sickness. A nongovernmental plan may be established by
labor-management agreement or by unilateral employer action. Payments
under such plans are referred to as supplemental unemployment benefits
(SUB pay) or supplemental sickness benefits, rather than as wages,
salary or pay for time lost, because their inherent nature is to
supplement benefit payments under the Railroad Unemployment Insurance
Act rather than to replace or duplicate such payments.
20 CFR 323.3 Standards for Board approval of a nongovernmental plan.
An unemployment or sickness benefit plan qualifies as a
nongovernmental plan if it conforms to the following standards:
(a) The plan is in writing and has been published or otherwise
communicated to covered employees prior to the inception of the plan;
(b) Benefits under the plan are payable only to employees who are
involuntarily laid off or separated from the service of the employer or
who are absent from work on account of illness or injury;
(c) Payment of benefits under the plan is conditioned upon a covered
employee's meeting the eligibility conditions governing payment of
benefits under the Railroad Unemployment Insurance Act. However, a plan
will not be disqualified merely because it:
(1) Provides benefits during any waiting period required under the
Railroad Unemployment Insurance Act, or
(2) Provides benefits after an employee has exhausted rights to
benefits under the Railroad Unemployment Insurance Act, or
(3) Provides benefits during a period when the employee is not a
''qualified employee'', within the meaning of part 302 of this chapter;
(d) Payment of benefits under the plan is coordinated with benefit
payments to which the employee may be entitled under the Railroad
Unemployment Insurance Act. In general, plan benefit payments will be
considered coordinated with Railroad Unemployment Insurance Act benefit
payments when computation of the plan benefits takes Railroad
Unemployment Insurance Act benefit entitlement into consideration in
such a way as to make it clear that the plan is supplementing Railroad
Unemployment Insurance Act benefit payments for days of unemployment or
days of sickness. For example, a plan that provides for payment of a
specified daily benefit amount is considered coordinated with Railroad
Unemployment Insurance Act benefit payments if the plan provides that
the daily benefit amount otherwise payable to the employee is reduced by
the amount of benefits that the employee received or could receive under
the Railroad Unemployment Insurance Act for the same day if the employee
had met all the eligibility criteria for such benefit. Similarly, there
is acceptable coordination if the plan simply provides for payment of an
amount as an ''add-on'' benefit to the amount of Railroad Unemployment
Insurance Act benefits paid or payable. On the other hand, a plan that
allows payment so as to compensate an employee for railroad or
non-railroad earnings that are lower in amount than what the employee
would get under the plan if he or she were not employed is not
considered coordinated with benefit payments under the Railroad
Unemployment Insurance Act because an employer payment made under such
circumstances supplements earnings rather than benefit payments under
the Railroad Unemployment Insurance Act. No Railroad Unemployment
Insurance Act benefits are payable to an employee who is earning
remuneration from railroad or non-railroad employment. Employer
payments that make up for low earnings are pay for time lost and
therefore are compensation and remuneration;
(e) The plan confers upon covered employees an enforceable right to
the benefits under the plan. The plan may not commit to management
discretion any decision as to whether such employee will actually be
paid the benefits to which he is entitled under the plan or the amount
to be paid;
(f) The plan may not provide benefits to a covered employee in an
amount that, when added to his or her Railroad Unemployment Insurance
Act benefits, is greater than the wages of salary that would have been
paid if the employee were employed; and
(g) The plan incorporates the features set forth in 323.4 of this
part and has been approved by the Board's Director of Unemployment and
Sickness Insurance as a nongovernmental plan for unemployment or
sickness insurance.
20 CFR 323.4 Guidelines for content of a nongovernmental plan.
At a minimum, a nongovernmental plan for unemployment or sickness
insurance should contain the following features:
(a) The title of the plan (e.g., Supplemental Unemployment Benefit
Plan or Supplemental Sickness Benefit Plan);
(b) A statement of purpose, such as the following:
There is hereby established a nongovernmental plan for (unemployment
insurance) (sickness insurance) (specify which one) within the meaning
of section 1(j) of the Railroad Unemployment Insurance Act. The purpose
of this plan is to supplement the benefits that an eligible employee may
receive under that Act and not to replace or duplicate such benefits.
Payments under this plan are designed as one of the benefits of
employment with (name of employer) and are not intended as pay for time
lost or any other form of remuneration for services rendered as an
employee;
(c) A statement as to which class or craft of employees, or other
specified group of employees, is covered by the plan;
(d) The criteria governing a particular covered employee's
eligibility for supplemental benefits under the plan;
(e) The dollar amount of supplemental benefits payable on a periodic
basis to an eligible employee, the duration of supplemental benefits,
how such benefits will be computed, and the conditions under which an
employee will be disqualified or benefit payments reduced or terminated;
and
(f) The identity of the plan administrator and the procedure by which
a covered employee may claim supplemental benefits under the plan,
including forms to be filed (if any), how to file, the time limit for
filing, and how an employee may appeal from a denial of supplemental
benefits.
20 CFR 323.5 Submitting proposed plan for Board approval.
An employer shall submit each proposed plan, or a proposed revision
to an existing plan, to the Director of Unemployment and Sickness
Insurance, Railroad Retirement Board, 844 Rush Street, Chicago, Illinois
60611. The Director shall determine whether the plan or revision
conforms to this part. Approval shall be effective as of the effective
date of the plan. If not approved, the Director will advise the
employer in which particular respects the proposed plan or revision does
not conform to this part.
20 CFR 323.6 Treatment of benefit payments under a nongovernmental plan
for purposes of contributions.
Benefit payments under nongovernmental plans approved by the Board
under this part are not compensation as defined in section 1(i) of the
Railroad Unemployment Insurance Act, and therefore they are not subject
to contribution under part 345 of this chapter.
20 CFR 323.7 Effective date.
(a) This part shall not apply to a plan approved by the Director of
Unemployment and Sickness Insurance prior to the effective date of this
part. However, it shall apply to any proposed revision to such plan.
(b) Any plan in effect on the effective date of this part that has
not been approved by the Director of Unemployment and Sickness Insurance
shall be considered a proposed plan for purposes of 323.5.
20 CFR 323.7 PART 325 -- REGISTRATION FOR RAILROAD UNEMPLOYMENT
BENEFITS
Sec.
325.1 General.
325.2 Procedure for registering for unemployment benefits.
325.3 Application for unemployment benefits and employment service.
325.4 Claim for unemployment benefits.
325.5 Death of employee.
325.6 Verification procedures.
Authority: 45 U.S.C. 362(i) and 362(l).
Source: 54 FR 24551, June 8, 1989, unless otherwise noted.
20 CFR 325.1 General.
(a) Statutory basis. The Railroad Unemployment Insurance Act (Act)
provides for the payment of unemployment benefits to qualified railroad
employees for days of unemployment. The term ''day of unemployment'' is
defined in section l(k) of the Act. Section 12(i) of the Act authorizes
and requires the Board to establish a procedure by which unemployed
employees may register for unemployment benefits for days on which they
are unemployed, able to work, and available for work and to pay benefits
when such employees have complied with the Board's procedures.
(b) Day of unemployment. The amount of unemployment benefits payable
to a qualified employee will be computed in accordance with section 2(a)
of the Act. Under that section, benefits are payable to a qualified
employee for each day of unemployment over four in each registration
period, generally a period of 14 consecutive days, in a benefit year
except that no benefits are payable for any day of unemployment during
the employee's waiting period in each benefit year.
(c) Registration period. Except for registration periods in extended
unemployment benefit periods, a ''registration period'' means a period
of 14 consecutive days beginning with the first day for which an
employee registers following:
(1) His or her last day of work, or
(2) The last day of the employee's last preceding registration
period, and with respect to which the employee properly files a claim
for benefits on such form and in such manner as the Board prescribes.
With respect to an extended benefit period, each of the successive
14-day periods in the extended unemployment benefit period is a
registration period.
(d) Waiting period. An employee's first registration period in any
benefit year is his or her waiting period, provided that such employee
has at least five days of unemployment in such registration period and
has complied with the requirements of this part. When the Board finds
that an employee's unemployment is due to a stoppage of work because of
a strike in the establishment, premises, or enterprise at which he was
last employed, no benefits are payable for the first 14 days of
unemployment due to such stoppage of work. For subsequent days of
unemployment due to such stoppage of work, benefits shall be payable for
days of unemployment in excess of four during any registration period
within the same benefit year.
(e) Pay for time lost. An employee may claim unemployment benefits
in accordance with this part even though he or she is also pursuing a
claim for pay for time lost or other remuneration. If such pay is
awarded to the employee with respect to any day for which the Board has
paid him or her unemployment benefits, the Board will recover the amount
of unemployment benefits that was paid for any day or days for which he
or she was awarded pay for time lost. See Part 322 of this chapter. It
is the employee's responsibility to tell the Board that he or she has
filed or intends to file a claim for time lost.
20 CFR 325.2 Procedure for registering for unemployment benefits.
(a) Registering as unemployed. To claim unemployment benefits for
any day, an employee must register as unemployed by doing the following:
(1) Apply for unemployment benefits and employment service in
accordance with 325.3;
(2) File a claim in accordance with 325.4; and
(3) Provide any other information that the Board needs to properly
adjudicate his or her right to unemployment benefits.
(b) No benefits payable without registration. No unemployment
benefits shall be paid to any otherwise qualified employee with respect
to any day claimed as a day of unemployment, and no waiting period
credit shall be allowed, until such time as the employee has complied
with the requirements of paragraph (a) of this section.
(c) When a registration period may begin. When registering for
unemployment benefits, an employee may claim benefits for any calendar
day on which he or she is unemployed and believes himself or herself to
be eligible for benefits. A registration period may begin as early as
the first calendar day on which an employee is unemployed following his
or her last day of work even though such first calendar day would have
been a rest day if the employee had not become unemployed. However, a
registration period may not begin with any calendar day with respect to
which an employee has received or will receive remuneration.
Example 1. An employee whose rest days are Saturday and Sunday is
laid off on Friday, September 2 afrer working his regular shift on that
day. His first 14-day registration period could start as early as
Saturday, September 3. A registration period starting on September 3
would end on September 16. If he continues to be unemployed, his next
registration period could begin September 17 and end September 30, and
so forth.
Example 2. An employee whose rest days are Saturday and Sunday is
laid off on Friday, September 2, but he decides to take two weeks'
vacation pay covering days through Friday, September 16. Because he
will have received remuneration for days through September 16, his claim
for unemployment benefits could begin on Saturday, September 17, if he
continues to be unemployed after his vacation ends.
Example 3. An employee whose rest days are Saturday and Sunday is
laid off on Monday, September 5, after working his regular shift on that
day. His first 14-day registration period could begin on Tuesday,
September 6, the first day on which he was unemployed following his last
day of work.
(Approved by the Office of Management and Budget under control number
3220-0166)
20 CFR 325.3 Application for unemployment benefits and employment
service.
(a) Requirement. An unemployed employee who wishes to claim
unemployment benefits shall apply for such benefits by completing the
form prescribed by the Board for that purpose. Such form shall also
constitute an application for employment service. An application will
be required at the beginning of each period of unemployment in a benefit
year unless:
(1) The employee filed an application for an initial period of
unemployment in a benefit year and has a subsequent period of
unemployment within the same benefit year; or
(2) The employee had filed an application for benefits for a period
of unemployment that began in the preceding benefit year and the period
of unemployment continued into the next ensuing benefit year.
In either of these circumstances, the initial application will be
treated as an application for days in the subsequent period of
unemployment or as an application for days in the next ensuing benefit
year, as the case may be.
(b) Purpose of application. An application for unemployment benefits
and employment service is a document that serves three purposes. First,
it identifies an employee who has become unemployed and wishes to begin
receiving unemployment benefits. Second, it assists the Board in
determining whether the applicant is a qualified employee and if so,
whether any of the information reported on the application affects his
or her eligibility for payment of benefits. Third, it assists the Board
in placing the employee in any suitable employment that may be
available.
(c) Time for filing application. An employee may deliver or mail his
or her application to any Board office, but such application must be
received at a Board office within 30 calendar days of the first day that
the employee intends to claim as a day of unemployment. For example, if
an employee becomes unemployed on October 31 and intends to claim
unemployment benefits for days starting November 1, the application must
reach a Board office no later than November 30. If the application is
received December 1, the employee may not be paid unemployment benefits
for November 1 as such day would not be considered as a ''day of
unemployment''. If an employee returns to work and then becomes
unemployed again within the same benefit year, he or she is not required
to file a new application for benefits and employment service but need
only contact the nearest Board office to obtain a claim form and file
such form as described in 325.4.
(d) Extension of time for filing. Notwithstanding paragraph (c) of
this section, the Board will consider an application for unemployment
benefits as timely filed if:
(1) The employee can show that he or she made a reasonable effort to
file the form on time but was prevented from doing so by circumstances
beyond his or her control; provided, however, that lack of diligence,
forgetfulness or lack of knowledge of the time limit for applying shall
not be considered to be a circumstance beyond the employee's control;
and
(2) The employee files an application within one year of the day or
days that he or she claims as a day or days of unemployment.
20 CFR 325.4 Claim for unemployment benefits.
(a) Requirement. After an unemployed employee has applied for
unemployment benefits in accordance with 325.3, he or she shall claim a
day as a day of unemployment by registering with respect to such day.
Registration shall be made on the claim form provided by the Board to
the employee.
(b) Claim. A claim for unemployment benefits shall cover a period of
14 consecutive calendar days. Each such 14-day period shall be a
registration period. An employee shall provide the information called
for by the claim form and shall file his or her claim in accordance with
paragraph (c) of this section.
(c) Time for filing. A claim for unemployment benefits shall be
filed at any Board office no later than 15 calendar days after the last
day claimed or 15 calendar days after the date on which the claim form
was mailed to the employee, whichever is later. In determining whether
the time for filing the claim may be extended, the standards set forth
in 325.3(d) shall be applied. None of the days included in a claim
that is not timely filed shall be considered a day of unemployment.
(d) Claim for new period of unemployment. An employee who has
complied with the application requirement under 325.3 with respect to a
period of unemployment in a benefit year, and who again becomes
unemployed in the same benefit year, need not file a new application but
may initiate a claim for benefits for days in such subsequent period by
calling or visiting the nearest district office of the Board to request
a claim form. Such request shall be made no later than 9 calendar days
after the first day for which the employee wishes to claim benefits.
Upon receipt of a request under this paragraph, the district office
shall provide the employee with a claim form which shall show the
beginning and ending dates of the registration period covered by the
claim form, with the first day shown on the claim form being no earlier
than the 9th day before the date on which the employee requested the
claim form, unless the delay may be excused by applying the standards
set forth in 325.3(d).
(e) Delayed claims. If an employee makes an initial application and
claim for benefits in accordance with this part but does not continue to
file ongoing claims because he or she receives an initial determination
denying his or her application or claim for benefits and if, upon
review, the denial is reversed by an appeals referee or other authorized
reviewing official, the employee shall have 30 days from the date of the
notice of the reversal in which to file a claim or claims for benefits
for the days that he or she would have claimed as days of unemployment
but for the initial determination denying benefits. The appeals referee
or other reviewing official, as appropriate, shall notify the employee
of the 30-day time limit imposed by this paragraph. An employee whose
claim for benefits has been denied may continue to claim any additional
day or days for which he or she believes that he or she is eligible for
benefits.
(f) Claim required for waiting period. The requirement to file a
claim for unemployment benefits includes a requirement to file a claim
for the non-compensable waiting period described in 325.1(d), except
that the Director of Unemployment and Sickness Insurance may waive such
requirement in connection with unemployment resulting from a work
stoppage or other labor dispute.
(g) Withdrawal of claim. An employee may withdraw his or her claim
for unemployment benefits by submitting a written statement to that
effect and by repaying any benefits paid on the claim, unless the
employee's claim was intentionally false or fraudulent.
20 CFR 325.5 Death of employee.
If an employee dies before filing one or more of the required forms,
the form or forms may be filed by or in behalf of the person or persons
to whom benefits would be payable pursuant to section 2(g) of the Act.
Such form or forms shall be filed within the time prescribed in 325.3.
Under these circumstances, the word ''employee'', as used in this part,
shall include the individual or individuals by or in behalf of whom the
form is filed.
20 CFR 325.6 Verification procedures.
The Board's procedures for adjudicating and processing applications
and claims for unemployment benefits filed pursuant to this part will
include both pre-payment and post-payment procedures for verifying the
validity of such applications and claims. Such procedures shall be
designed with a view to obtaining substantial evidence as to the days of
unemployment of the employees who register in accordance with this part.
The verification procedures shall include, but are not limited to:
(a) Pre-payment contacts with railroad employers, utilizing data
processing techniques to the extent feasible so as not to delay unduly
the payment of valid claims; and
(b) Computer matching programs with state agencies or other entities
that may have relevant data concerning non-railroad employment and
benefit payments under state unemployment compensation laws.
20 CFR 325.6 PART 327 -- AVAILABLE FOR WORK
Sec.
327.1 Introduction.
327.5 Meaning of ''available for work''.
327.10 Consideration of availability.
327.15 Reasonable efforts to obtain work.
Authority: 45 U.S.C. 362(i), 362(l).
20 CFR 327.1 Introduction.
The Railroad Unemployment Insurance Act provides for the payment of
unemployment benefits to qualified railroad employees for days of
unemployment. Under section 1(k) of the Act, an unemployed employee
must be ''available for work'' as a condition of eligibility for
unemployment benefits for any day claimed as a day of unemployment.
This part defines the phrase ''available for work'' and explains how the
Board will apply that phrase to claims for unemployment benefits.
(55 FR 1811, Jan. 19, 1990)
20 CFR 327.5 Meaning of ''available for work''.
(a) General definition. A claimant for unemployment benefits is
available for work if he is willing and ready to work.
(b) Willing to work. A claimant is willing to work if he is willing
to accept and perform for hire such work as is reasonably appropriate to
his circumstances in view of factors such as:
(1) The current practices recognized by management and labor with
respect to such work;
(2) The degree of risk involved to the claimant's health, safety, and
morals;
(3) His physical fitness and prior training;
(4) His experience and prior earnings;
(5) His length of unemployment and prospects for obtaining work; and
(6) The distance of the work from his residence and from his most
recent work.
(c) Ready to work. A claimant is ready to work if he:
(1) Is in a position to receive notice of work which he is willing to
accept and perform, and
(2) Is prepared to be present with the customary equipment at the
location of such work within the time usually allotted.
(Board Order 53-296, 18 FR 8157, Dec. 12, 1953)
20 CFR 327.10 Consideration of availability.
(a) Initial proof. A claimant who registers for unemployment
benefits in accordance with the provisions of part 325 of this chapter
shall, absent any evidence to the contrary, initially be considered
available for work. Evidence that a claimant may not be available for
work shall include any evidence provided by the claimant's base year
employer(s) pursuant to section 5(b) of the Railroad Unemployment
Insurance Act.
(b) Information indicating unavailability. If the office of the
Board which is adjudicating a claimant's claims for benefits receives
information indicating that the claimant may not be available for work,
he shall be required to submit evidence of his availability for work,
and no benefits shall thereafter be paid with respect to any day in the
period of the claimant's unemployment unless sufficient evidence of the
claimant's availability for work on such day is presented.
(c) Employee who has retired voluntarily. An employee who has
retired voluntarily shall be presumed not to be eligible for
unemployment benefits. An employee shall be regarded as having retired
voluntarily if his not being in the active service of his employer is
due to an agreement between his labor organization and his employer
requiring retirement upon attaining a certain age.
(d) Equivalent of full-time work. (1) A claimant who is continuously
employed from week to week under a work schedule that provides the
equivalent of full-time employment shall not be considered available for
work with respect to any rest day or other non-work day within a 14-day
registration period.
(2) The application of paragraph (d) may be illustrated by the
following examples:
Example (1): A claimant's regular work schedule requires him or her
to work five nine-hour days one week followed by three nine-hour days
and one eight-hour day in the next week. The claimant has five non-work
days within this two-week period. The claimant is not considered
available for work on those non-work days.
Example (2): On Monday an employee who has been working a shift
which has Saturdays and Sundays off changes to a shift which normally
has Wednesdays and Thursdays off. As a consequence, the employee has
six non-work days within a 14-day period. The employee is not
considered available for work with respect to any of the six non-work
days.
Example (3): An employee regularly receives remuneration for 40
hours per week by working 10 hours on each of four days per week, thus
giving him or her six rest days in a 14-day period. The employee will
not be considered available for work on the rest days.
(e) Attendance in school or training course. (1) A claimant who has
voluntarily left work to enroll as a student in an educational
institution shall be presumed not to be available for work. For the
purpose of this provision, leaving work is considered voluntary when the
claimant on his or her own initiative left work that he or she could
have continued to perform but for the claimant's decision to attend
school. In all other cases, this presumption shall not apply, but
eligibility shall instead be determined on the basis of the facts of
each case. In each such case, the claimant shall be given an
opportunity to establish that he or she remains ready and willing to
engage in full-time employment for hire, notwithstanding his or her
school attendance. If a claimant is enrolled in a vocational training
program at a trade or technical school, he or she shall be considered
available for work if his or her current prospects for work are poor and
the vocational training can reasonably be expected to increase his or
her prospects for obtaining new employment.
(2) Examples. The application of paragraph (e) may be illustrated by
the following examples:
Example (1): An individual is laid off by his or her railroad
employer. Instead of looking for other employment, the individual
decides to enter college in order to become a teacher. He or she is
enrolled as a full-time day student. The individual is not available
for work.
Example (2): An employee is furloughed by his or her railroad
employer and will not likely be able to return to railroad work. After
making a reasonable effort to obtain work and finding none, the
individual enrolls in a six-month course of training, which upon
completion would permit him or her to obtain an entry level job in the
data processing industry. The individual is considered available for
work while training for the data processing job.
(f) Failure to work in anticipation of maximum mileage. (1) An
employee in train and engine service who voluntarily lays off work in
anticipation of reaching the maximum mileage or earnings permitted under
an agreement with his or her employer shall not be considered available
for work.
(2) Example. Halfway through the month an engineer has worked in
train service covering 2,000 miles. By agreement with his or her
employer he or she may not operate a train in excess of 3,000 miles per
month. In order to allow engineers with less seniority to perform
service, the engineer lays off work for five days. The engineer is not
considered available for work on those days.
(g) Confinement. A claimant who is confined in a penal institution
or is in the custody of a Federal, State or local governmental unit or
official thereof shall not be considered available for work. An
individual shall not be considered in the custody of a governmental unit
or official thereof if he or she has been released on bail and is
awaiting trial or he or she has been placed on probation or parole.
However, an individual who has been released from custody by a
governmental unit or official thereof under a program that permits leave
from custody of a short duration, after which he or she must return to
custody, shall not be considered available for work on those days on
which he or she is on furlough from confinement.
(h) Missed turns in pool service. A train and engine service
employee assigned to pool service shall not be considered as ready to
work, within the meaning of 327.5(c) of this part, with respect to any
day on which such employee would have worked if he or she had not missed
his or her turn in pool service employment.
(Board Order 53-296, 18 FR 8157, Dec. 12, 1953, as amended by Board
Order 55-30, 20 FR 1015, Feb. 17, 1955; 55 FR 1811, Jan. 19, 1990)
20 CFR 327.15 Reasonable efforts to obtain work.
(a) Requirement. A claimant may be required at any time to show, as
evidence of willingness to work, that he is making reasonable efforts to
obtain work which he professes to be willing to accept and perform,
unless he has good prospects of obtaining such work or his circumstances
are such that any efforts to obtain work other than by making
application for employment service pursuant to 325.3 of this chapter
would be fruitless to the claimant.
(b) Failure to comply with requirement. When the office of the Board
which is adjudicating claims for benefits has information that the
claimant has failed to comply with the requirements set forth in
paragraph (a) of this section, no benefits shall be paid with respect to
any days in the period of the claimant's unemployment unless sufficient
evidence of the claimant's availability for work on such days is
presented.
(c) ''What constitutes reasonable efforts.'' A claimant shall be
considered as making reasonable efforts to obtain work when he takes
such steps toward obtaining work as are appropriate to his
circumstances. In determining what steps are appropriate to a
claimant's circumstances, consideration shall be given to actions such
as:
(1) Registering with a union hiring or placement facility;
(2) Applying for employment with former employers;
(3) Making application with employers including individuals and
companies not covered by the act, who may reasonably be expected to have
openings in work suitable for him;
(4) Responding to appropriate ''want ads'' for work which appears
suitable for him;
(5) Actively prosecuting his claim for reinstatement in his former
work;
(6) Any other action reasonably directed toward obtaining work.
(Board Order 53-296, 18 FR 8157, Dec. 12, 1953, as amended at 55 FR
1812, Jan. 19, 1990)
20 CFR 327.15 PART 330 -- DETERMINATION OF DAILY BENEFIT RATES
Sec.
330.1 Introduction.
330.2 Computation of daily benefit rate.
330.3 Daily rate of compensation.
330.4 Last railroad employment in the base year.
330.5 Procedure for obtaining and using information about daily rate
of compensation.
Authority: 45 U.S.C. 362(1).
Source: 56 FR 28702, June 24, 1991, unless otherwise noted.
20 CFR 330.1 Introduction.
The Railroad Unemployment Insurance Act provides for the payment of
benefits, at a specified daily benefit rate, to any qualified employee
for his or her days of unemployment or days of sickness, subject to a
maximum amount per day. The ''daily benefit rate'' for an employee is
the amount of benefits that he or she may receive for each compensable
day of unemployment or sickness in any registration period, not counting
days of unemployment or sickness in the employee's non-compensable
waiting period. This part explains how the daily benefit rate is
determined.
20 CFR 330.2 Computation of daily benefit rate.
(a) Basic formula. A qualified employee's daily benefit rate for a
given benefit year, as defined in part 302 of this chapter, is an amount
equal to 60 percent of the employee's daily rate of compensation for his
or her last railroad employment in the applicable base year, but such
rate will not exceed the maximum amount set forth in paragraph (b) of
this section nor will it be less than $12.70 per day.
(b) Maximum daily benefit rate. The maximum daily benefit rate is
the greater of $30.00, or the amount computed on the basis of this
formula:
In this formula, ''BR'' represents the maximum daily benefit rate,
and ''A'' represents the amount obtained by dividing, by 60, the amount
of the tier I Railroad Retirement Tax Act earnings base as provided for
in section 3231(e)(2) of the Internal Revenue Code of 1986 (26 U.S.C.
3231(e)(2)) for the calendar year in which the benefit year begins, with
this quotient being rounded down to the nearest multiple of $100.00. If
the maximum daily benefit rate so computed is not a multiple of $1.00,
the Board will round it to the nearest multiple of $1.00. Such rounding
will be upward if the amount so computed is equidistant between two
multiples of $1.00.
(c) When increase effective. Whenever the annual application of the
formula in paragraph (b) of this section triggers an increase in the
maximum daily benefit rate, such increase will apply to days of
unemployment or days of sickness in registration periods beginning after
June 30 of the calendar year involved in the computation of ''A'' in
that formula.
(d) Notice. Whenever the annual application of the formula in
paragraph (b) of this section triggers an increase in the maximum daily
benefit rate, or if the annual application of the formula does not
trigger an increase, the Board will publish a notice in the Federal
Register explaining how it computed the maximum daily benefit rate for
the year. The Board will also notify each employer of the maximum
amount of the daily benefit rate. The Board will make the computation
as soon as it knows the amount of the tier I Railroad Retirement Tax Act
earnings base under section 3231(e)(2) of the Internal Revenue Code of
1986 for each calendar year and will publish notice as soon as possible
thereafter but in no event later than June 1 of each year. Information
as to the current amount of the maximum daily benefit rate will also be
available in any Board district or regional office or from the Bureau of
Unemployment and Sickness Insurance.
(e) Sources of information. In determining an employee's daily rate
of compensation for the purpose of computing his or her daily benefit
rate, the Board will rely on information furnished by the employee and
his or her last employer in the base year. An employee's earnings from
employment not covered by the Railroad Unemployment Insurance Act are
not considered in computing his or her daily benefit rate.
20 CFR 330.3 Daily rate of compensation.
(a) Definition. An employee's daily rate of compensation is his or
her straight-time rate of pay, including any cost-of-living allowance
provided in any applicable working agreement. It does not include any
overtime pay, penalty payment, or other special allowance except as
hereinafter provided. An employer's or employee's report of the daily
rate of compensation shall, in the absence of information to the
contrary, and subject to the considerations set forth in this section
and 330.4 and 330.5, be considered to show the daily rate of
compensation of the employee by or for whom the report has been
furnished. Where a rate other than a daily rate is reported, the Board
will convert it to a daily rate.
(b) Hourly, weekly or monthly rate. An hourly rate shall be
converted to a daily rate by multiplying such hourly rate by the number
of hours constituting a working day for the employee's occupation or
class of service. A weekly or monthly rate shall be converted to a
daily rate by dividing such rate by the number of working days
constituting the work week or work month, as the case may be, for the
employee's occupation or class of service.
(c) Mileage rate. When a collective bargaining agreement provides
for payment of compensation on a mileage basis, the employee's daily
rate of compensation is his or her rate of pay for the number of miles
constituting a basic day, including any allowance, as prescribed by the
agreement, that is added to his or her basic rate of pay for the number
of miles constituting a basic day.
(d) Piece rate or tonnage rate. Where a piece rate or tonnage rate
is reported, the daily rate of compensation shall be determined by
computing the employee's average earnings per day for the days on which
he or she worked substantially full time (excluding any overtime pay or
penalty rates) at such piece rate or tonnage rate during the last two
pay periods in which he or she engaged in such work in the base year.
(e) Commissions or percentage of sales. Where the compensation
reported consists of or includes commissions or percentages of sales,
the daily rate of such commissions or percentage of sales shall be
determined by computing the employee's average net commissions or
percentage earnings (excluding any amounts he or she received to
compensate him or her for expenses) per day for the days in the last two
pay periods in which he or she worked on a commission or percentage
basis in the base year.
(f) International service. In the case of an employee who, on his
last day of employment in the base year, worked partly outside the
United States and partly in the United States for an employer not
conducting the principal part of its business in the United States, the
employee's daily rate of compensation shall be determined in the same
manner as it would if all his service on that day had been rendered in
the United States.
20 CFR 330.4 Last railroad employment in the base year.
The phrase ''last railroad employment in the applicable base year,''
as used in 330.2(a) of this part, means generally the employee's last
''service performed as an employee,'' within the meaning of section 1(g)
of the Railroad Unemployment Insurance Act. If an employee did not
actually perform any service as an employee in the applicable base year
(the calendar year preceding a benefit year) but did receive qualifying
compensation such as vacation pay or pay for time lost for days in such
base year, the Board will consider that his or her last railroad
employment in the base year was the employment on which the qualifying
compensation was based. The daily rate of such compensation shall be
deemed to be the employee's daily rate of compensation for purposes of
this part. If an employee's last railroad employment in the base year
was casual or temporary work and was performed while on furlough from
other base year railroad employment, the Board will disregard the daily
rate of compensation paid for the casual or temporary work if such rate
of compensation produces a daily benefit rate lower than the daily
benefit rate based on the daily rate of compensation for the employment
from which the employee was furloughed.
20 CFR 330.5 Procedure for obtaining and using information about daily
rate of compensation.
(a) Information furnished by employers. Every employer, as defined
in part 301 of this chapter, shall furnish information to the Board with
respect to the daily rate of compensation of each employee for his or
her last employment in the applicable base year. The employer shall
make such report when it files its annual report of compensation in
accordance with part 209 of this chapter and shall use the form
prescribed by the Board for that purpose. If an employee's last daily
rate of compensation in the base year is $99.99 or more, the employer
may report such rate as $99.99 instead of the employee's actual last
daily rate of compensation. In the absence of evidence to the contrary
or a challenge by the employee, the daily rate of compensation provided
by an employer under this section shall be used to compute a qualified
employee's daily benefit rate. If an employer fails to report the last
daily rate of compensation for a qualified employee who has applied for
benefits or if an employee challenges the daily rate reported by an
employer, the procedure in paragraphs (b) and (c) of this section will
apply.
(b) Information furnished by employee. The Board will afford an
employee an opportunity to establish his or her last daily rate of
compensation if the base year employer did not report a rate for the
employee on its annual report of compensation or if the employee
challenges the accuracy of the rate reported by the employer. Unless
deemed unreasonable, a daily rate of compensation reported by an
employee under this paragraph will be used provisionally to compute his
or her daily benefit rate, but such rate will be verified in accordance
with paragraph (c) of this section. In any case in which the employee's
report is deemed unreasonable and no employer report has been provided,
the employee's report shall be disregarded, and the Board will seek to
verify the employee's last daily pay rate in accordance with paragraph
(c) of this section. Pending receipt of such verification, the
employee's daily benefit rate shall be set at $12.70. When an unverified
and uncorrected pay rate has been verified or corrected, appropriate
redetermination of the daily benefit rate shall be made, and such
redetermined benefit rate shall be applied to all the employee's days of
unemployment or sickness in the benefit year.
(c) Employer verification. Whenever an employee has established a
daily rate of compensation under paragraph (b) of this section, the
Board will request the employee's base year employer to verify such rate
within 30 days. If such verification is not received within 30 days,
the employee's daily rate of compensation may be based upon other
evidence gathered by the Board if such evidence is reasonable in light
of compensation rates reported for other employees of the base year
employer in the same occupation or class of service as the employer or
in light of previous compensation rates reported by the base year
employer for its employees. A daily benefit rate established under this
paragraph may not exceed the maximum daily benefit rate established
under this part.
(d) Protest. An employee who is dissatisfied with the daily benefit
rate computed under this part may contest such computation in accordance
with part 320 of this chapter.
(Approved by the Office of Management and Budget under control
numbers 3220-0007, 3220-0008 and 3220-0097)
20 CFR 330.5 PART 332 -- MILEAGE OR WORK RESTRICTIONS AND STAND-BY OR
LAY-OVER RULES
Sec.
332.1 Statutory provisions.
332.2 General considerations.
332.3 Mileage and work restrictions.
332.4 Restrictions in extra service.
332.5 Equivalent of full-time work.
332.6 Standing by for and laying over between regularly assigned
trips or tours of duty.
332.7 Consideration of evidence.
Authority: 45 U.S.C. 362(l).
Source: Board Order 59-95, 24 FR 3372, Apr. 30, 1959, unless
otherwise noted.
20 CFR 332.1 Statutory provisions.
* * * (1) a day of unemployment with respect to any employee, means a
calendar day on which he is able to work and is available for work and
with respect to which * * * no remuneration is payable or accrues to him
* * * and (2) a ''day of sickness'', with respect to any employee, means
a calendar day on which because of any physical, mental, psychological,
or nervous injury, illness, sickness, or disease he is not able to work,
or, with respect to a female employee, a calendar day on which, because
of pregnancy, miscarriage, or the birth of a child, (i) she is unable to
work or (ii) working would be injurious to her health, and with respect
to which * * * no remuneration is payable or accrues to him * * *
Provided, further, That any calendar day on which no remuneration is
payable to or accrues to an employee solely because of the application
to him of mileage or work restrictions agreed upon in schedule
agreements between employers and employees or solely because he is
standing by for or laying over between regularly assigned trips or tours
of duty shall not be considered either a day of unemployment or a day of
sickness. (Section 1(k), Railroad Unemployment Insurance Act)
(Board Order 68-72, 33 FR 11115, Aug. 6, 1968)
20 CFR 332.2 General considerations.
(a) Classes of service covered. Conditions under which remuneration
with respect to a day may not be payable to or accrue to an employee
solely because of the application to him of a mileage or work
restriction exist in train-and-engine service, yard service, dining-car
service, sleeping-car service, and other Pullman-car service, and
similar service, and express service on trains. In the determination of
a claim for benefits of an employee in any other service, the employee's
lack of remuneration with respect to any claimed day shall be presumed
not to be due solely to the application of a mileage or work
restriction. Conditions under which remuneration with respect to a day
may not be payable to or accrue to an employee solely because he is
standing by for or laying over between regularly assigned trips or tours
of duty exist in train-and-engine service, dining-car service,
sleeping-car service, and other Pullman-car service, and similar
service, and express service on trains. In the determination of a claim
for benefits of an employee in any other service, the employee's lack of
remuneration with respect to any claimed day shall be presumed not to be
due solely to his standing by for or laying over between regularly
assigned trips or tours of duty.
(b) Sickness claims. An employee who, in connection with a claim to
a day as a day of sickness, is held to be not able to work because of
any physical, mental, psychological, or nervous injury, illness,
sickness, or disease shall not be considered to lack remuneration with
respect to such day solely because of the application to him of mileage
or work restrictions or solely because he is standing by for or laying
over between regularly assigned trips or tours of duty. Nor shall a
female employee be considered to lack remuneration with respect to a day
solely because of the application to her of mileage or work restrictions
or solely because she is standing by for or laying over between
regularly assigned trips or tours of duty if the day is one on which,
because of pregnancy, miscarriage, or the birth of a child, (1) she is
unable to work or (2) working would be injurious to her health.
(Board Order 59-95, 24 FR 3372, Apr. 30, 1959, as amended at 26 FR
8593, Sept. 14, 1961; Board Order 68-72, 33 FR 11115, Aug. 6, 1968)
20 CFR 332.3 Mileage and work restrictions.
Subject to the provisions of 332.2(b), a day shall not be considered
as a day of unemployment or as a day of sickness with respect to an
employee if no remuneration is payable or accrues to him solely because
of the application to him of a mileage or work restriction agreed upon
in a written agreement between his employer and employees of his
employer, or authorized pursuant to such written agreement. Provisions
of agreements setting overtime or other premium rates of pay shall not
be regarded as work restrictions. Mileage or work restrictions shall be
considered as applicable to an employee with respect to any day on which
he is out of service because of having reached or exceeded the maximum
mileage, earnings, or hours of work prescribed in such an agreement, or
authorized pursuant to such an agreement. Performance of other work by
an employee while he is out of service because of having reached or
exceeded the maximum mileage, earnings, or hours of work shall not serve
to make the mileage or work restriction inapplicable to him.
20 CFR 332.4 Restrictions in extra service.
Mileage or work restrictions shall be considered to exist in rotating
extra board, pool, or chain gang service when there is in effect an
arrangement between the employer and its employees for increasing or
decreasing the number of employees in such service according to the
amount of work available. When the arrangement is such that an employee
in extra board, pool, or chain gang service gets the equivalent of
full-time work, his lack of remuneration on any non-work day shall,
subject to the provisions of 332.2(b), be considered as due solely to
the application to him of a mileage or work restriction.
20 CFR 332.5 Equivalent of full-time work.
An employee who has the equivalent of full-time work with respect to
service on days within a registration period is not eligible for
unemployment benefits for any non-work days within such registration
period. In determining whether an employee has the equivalent of
full-time work, the Board will consider the provisions of
labor-management agreements that prescribe the number of miles or hours
of credit constituting a basic work day, week, or month in the
employee's occupation or service. The Board will consider that an
employee had the equivalent of full-time work if the number of miles or
hours credited to the employee for service in the registration period is
at least 10 times the number of miles or hours constituting a basic day
in the employee's occupation or service. For this purpose, any miles or
hours of credit not earned because the employee missed his or her turn
and any penalty miles assessed to the employee shall be added to the
miles or hours of credit actually earned on the basis of service on days
within the registration period.
(55 FR 1813, Jan. 19, 1990)
20 CFR 332.6 Standing by for and laying over between regularly assigned
trips or tours of duty.
Subject to the provisions of 332.2(b), a day shall not be considered
as a day of unemployment or as a day of sickness with respect to an
employee if no remuneration is payable or accrues to him solely because
he is standing by for or laying over between regularly assigned trips or
tours of duty. Only employees who hold regular assignments may be
regarded as standing by for or laying over between regularly assigned
trips or tours of duty. In determining whether an employee has a
regular assignment, consideration shall be given to whether the trips or
tours of duty have definite starting times; whether there are a
definite number of trips or tours of duty, either periodically or for
the whole duration of the assignment; and whether there is a definite
route of each trip or definite duration of each tour of duty. An
employee who is separated from a regular assignment shall not be
regarded as standing by for or laying over between regularly assigned
trips or tours of duty. An employee shall be deemed separated from a
regular assignment when he is suspended or discharged from service or
displaced by a senior employee or held out of service for investigation
or discipline, or when his regular assignment is abolished or
discontinued.
20 CFR 332.7 Consideration of evidence.
An employee shall be requested to furnish such information as to any
mileage or work restrictions or as to lay-over or stand-by status as may
be necessary for the determination of his claim. An employee's
statement in connection with his claim that he was not out of service
because of a lay-over or stand-by rule or because of a mileage or work
restriction shall, in the absence of evidence to the contrary, be
accepted as sufficient for a finding on that point. An employee's
report of the number of miles or hours' credit earned in rotating extra
board, pool, or chain gang service shall, in the absence of evidence to
the contrary, be accepted as correct for purposes of determining whether
he had the equivalent of full-time work during the period covered by his
claim. When it appears clear that an employee in rotating extra board,
pool, or chain gang service who fails to report the number of miles or
hours' credit earned on days in the period covered by his claim form was
not employed on enough days to have had the equivalent of full-time work
in the period, no additional information as to mileage or work
restrictions shall be deemed necessary for the determination of his
claim.
20 CFR 332.7 PART 335 -- SICKNESS BENEFITS
Sec.
335.1 General.
335.2 Manner of claiming sickness benefits.
335.3 Execution of statement of sickness and supplemental doctor's
statement.
335.4 Filing statement of sickness and claim for sickness benefits.
335.5 Death of employee.
335.6 Payment of sickness benefits.
Authority: 45 U.S.C. 362(i) and 362(l).
Source: 54 FR 43057, Oct. 20, 1989, unless otherwise noted.
20 CFR 335.1 General.
(a) Statutory basis. The Railroad Unemployment Insurance Act
provides for the payment of sickness benefits to a qualified railroad
employee for days of sickness within a period of continuing sickness.
To establish basic eligibility for sickness benefits, a qualified
employee must have at least four consecutive days of sickness with
respect to each period of continuing sickness. The terms ''day of
sickness'' and ''period of continuing sickness'' as used in this part,
are defined in sections 1(k) and 2(a) of the Act, respectively, and
paragraphs (b) and (c) of this section. As evidence of days of sickness
based upon illness or injury or upon pregnancy, miscarriage or
childbirth, section 1(k) requires an employee to file a statement of
sickness. Other information that is required to identify an employee's
days of sickness is obtained by means of an application for sickness
benefits at the beginning of each period of continuing sickness and by
means of a claim for sickness benefits which is filed for each
registration period within a period of continuing sickness. The term
''registration period'', generally refers to a period of 14 consecutive
days and is defined in paragraph (d) of this section.
(b) Day of sickness. The term ''day of sickness'' means, in general,
any calendar day, including days that would normally be rest days, on
which an employee is not able to work because of any physical or mental
illness or injury. With respect to a female employee, a ''day of
sickness'' also includes any calendar day on which she is not able to
work, or working would be injurious to her health, because of pregnancy,
miscarriage or childbirth.
(c) Period of continuing sickness. (1) The term ''period of
continuing sickness'' refers to a period of time when an employee is not
able to work on account of illness, injury, sickness or disease,
including inability caused by pregnancy, miscarriage or childbirth. An
employee has a period of continuing sickness under either of these
circumstances:
(i) He or she has any number of ''consecutive'' days of sickness
based on one or more infirmities; or
(ii) He or she has any number of ''successive'' days of sickness
based on a single infirmity and there is no interruption of more than 90
''consecutive'' days which are not days of sickness.
(2) Days of sickness are ''consecutive'' when they occur one after
another continuously and without interruption by any day that is not a
day of sickness. Days of sickness are ''successive'' when one or more
days of sickness follow any day of sickness with an interval of one or
more days that are not days of sickness.
Example: An employee is sick for 11 ''consecutive'' days from
October 1 through October 11, meaning that each day in the period
October 1 through October 11 is a day of sickness and there is no day in
that period that is not a day of sickness. If the employee also had
days of sickness on October 16, 17, 18, 21 and 22, those five days are
considered ''successive'' days of sickness.
(3) A period of continuing sickness with respect to any employee
begins with the first day of a number of consecutive days of sickness or
with the first day of a number of successive days of sickness
attributable to a single cause with no interval of more than 90 days
that are not days of sickness. In the example given in paragraph (c)(2)
of this section, October 1 begins a period of continuing sickness. The
days October 16, 17, 18, 21, and 22 are in the period of continuing
sickness beginning October 1, and benefits are payable for them,
provided that the employee's inability to work on those five days is due
to one or more of the same infirmities that caused the employee to be
unable to work on the days from October 1 through October 11.
Otherwise, October 16 begins another period of continuing sickness.
(4) A period of continuing sickness ends when either of these
circumstances occurs:
(i) 91 consecutive days have elapsed none of which is a day of
sickness resulting from the infirmity that was the basis for the
preceding days of sickness; or
(ii) One or more days that are not days of sickness have elapsed and
a statement of sickness is filed with respect to a day of sickness based
on an infirmity other than any infirmity causing inability on the
preceding days of sickness. The end of a benefit year, generally the
12-month period beginning July 1 of any year and ending June 30 of the
next year (see 45 U.S.C. 351(m)), does not end a period of continuing
sickness. In the example in paragraph (c)(2) of this section, if the
inability to work on October 16 was not due to an infirmity or
infirmities that caused the inability to work on October 11, then a
period of continuing sickness ends on October 11. A new application and
statement of sickness would be required in order for the employee to be
paid sickness benefits for days beginning October 16. See 335.2 of
this part.
(5) A period of continuing sickness can be interrupted, provided
that:
(i) The interruption is for not more than 90 consecutive days; and
(ii) The days of sickness after the interruption are due to one or
more of the same causes as the days of sickness before the interruption.
A period of continuing sickness can be interrupted any number of times
so long as each interruption is not more than 90 days and the days of
sickness are all due to the same cause. If a period of continuing
sickness is caused by more than one infirmity, any one of the
infirmities can be considered as the single continuing cause that will
permit the interruption of the period of continuing sickness for not
more than 90 days without ending it.
(d) Registration period. The term ''registration period'' means,
with respect to any employee, the period which begins with the first day
with respect to which a statement of sickness for a period of continuing
sickness is filed in his or her behalf in accordance with this part, or
the first such day after the end of a registration period which will
have begun with a day with respect to which a statement of sickness for
a period of continuing sickness was filed in his or her behalf, and ends
with whichever is the earlier of:
(1) The thirteenth day thereafter; or
(2) The day immediately preceding the day with respect to which a
statement of sickness for a new period of continuing sickness is filed
in his or her behalf. However, each of the successive 14-day periods in
an extended sickness benefit period shall constitute a registration
period.
(e) Liability for infirmity. When sickness benefits are paid to an
employee on the basis of an infirmity for which he or she recovers a
personal injury settlement or judgment, the Board shall receive
reimbursement for the sickness benefits in accordance with part 341 of
this chapter.
20 CFR 335.2 Manner of claiming sickness benefits.
(a) Forms required for claiming benefits. To claim sickness benefits
for a period of inability to work due to an illness or injury, or in the
case of a female employee, pregnancy, miscarriage, or childbirth, an
employee must file the following forms:
(1) An application for sickness benefits at the beginning of each
period of continuing sickness;
(2) A statement of sickness to accompany the employee's application;
(3) A claim for sickness benefits for each 14-day registration period
during the employee's period of continuing sickness; and
(4) A supplemental doctor's statement, if the adjudicating office
requests additional proof of the employee's inability to work.
(b) Mailing or delivering the forms. The forms required by paragraph
(a) of this section may be mailed or delivered to any Board office. If
the Board is satisfied that the employee is too sick or injured to
execute the required forms, the Board may accept forms executed by
someone in the employee's behalf. Instructions for completing and
filing the forms are printed on the forms themselves.
(Approved by the Office of Management and Budget under control
numbers 3220-0034, 3220-0039 and 3220-0045)
20 CFR 335.3 Execution of statement of sickness and supplemental
doctor's statement.
(a) Who may execute. A statement of sickness and any required
supplemental doctor's statement shall be executed by any of the
following individuals:
(1) A licensed medical doctor;
(2) A licensed dentist if the infirmity relates to the teeth or gums;
(3) A licensed podiatrist or chiropodist if the infirmity relates to
the feet or toes;
(4) A licensed chiropractor;
(5) A clinical psychologist;
(6) A certified nurse mid-wife; or
(7) The superintendent or other supervisory official of a hospital,
clinic, or group health association, or similar organization, in which
all examinations and treatment are conducted under the supervision of
licensed medical doctors or under the supervision of licensed
chiropractors, and in which medical records are maintained for each
patient.
(b) Use of Board form or other form. The statement of sickness and
supplemental doctor's statement referred to in paragraph (a) of this
section shall be completed on the forms prescribed by the Board, except
that other standardized medical forms may be substituted if they provide
the same information as that called for by the Board's forms.
20 CFR 335.4 Filing statement of sickness and claim for sickness
benefits.
(a) General requirement. Except as provided in paragraph (e) of this
section, statements of sickness and claims for sickness benefits must be
filed within the time limits specified by this section. Failure to
comply with the time restrictions on filing claims will result in a
denial of benefits for days for which timely statements and claims are
not filed, as such days would not be considered days of sickness.
(b) Statement of sickness. An employee shall file a statement of
sickness within ten calendar days of the first day that he or she wishes
to claim as a day of sickness. For example, if an employee wishes to
claim sickness benefits for days starting November 1, the statement of
sickness should reach the Board no later than November 10. If the
statement of sickness is received November 11, the employee cannot be
paid sickness benefits for November 1. Such day would not be considered
as a ''day of sickness'', unless the form may be considered as timely
filed under paragraph (d) (3), (4) or (5) of this section.
(c) Claim for sickness benefits. An employee shall file a claim for
sickness benefits within 30 days after the ending date shown on the
claim form, or within 30 days after the date on which the Board mails
the claim form to the employee, whichever date is later. Failure to
comply with this provision shall bar the payment of sickness benefits
with respect to any day included within the calendar period covered by
the claim form.
Example: If a form for claiming sickness benefits is mailed to an
employee on July 13, for the period from July 1 to July 14, the employee
must file the claim within 30 days after July 14 (on or before August
13), to be paid benefits for the period July 1 to July 14. If the claim
form was not mailed to the employee until July 16, the claim must be
filed within 30 days after July 16 (on or before August 15).
(d) When form considered timely filed. The Board will consider a
statement of sickness or a claim for sickness benefits as timely filed
if:
(1) The statement or form was received in a Board office within the
prescribed time; or
(2) The statement or form was mailed to a Board office in accordance
with instructions printed on the form and was received at such office;
or
(3) The employee made a reasonable effort to file the statement of
sickness or claim form within the prescribed time but was prevented from
doing so by circumstances beyond his or her control, and such statement
or claim was received at a Board office within a reasonable time
following the removal of the circumstances that prevented the employee
from filing the form. The phrase ''circumstances beyond his or her
control'' shall not include an employee's forgetfulness or lack of
knowledge of the sickness benefit program or the time limit for filing
for sickness benefits or any other lack of diligence by the employee.
For the purposes of this provision, if a statement of sickness is not
received within the prescribed time but is received within 30 days of
the first day that an employee intends to claim as a day of sickness,
the Board will consider that the employee made a reasonable effort to
file the statement within the prescribed time, unless it is clear on the
basis of affirmative evidence that the delay was not the result of
circumstances beyond the employee's control; or
(4) The employee mistakenly registered for unemployment benefits when
he or she should have applied for sickness benefits for the day or days
claimed and the appropriate statement of sickness was then received at
an office of the Board within a reasonable time after unemployment
benefits were denied; or
(5) A female employee not able to work because of pregnancy,
miscarriage, or childbirth filed an incorrect statement of sickness form
within the prescribed time and after being so informed, filed the
correct statement of sickness form within a reasonable period of time
thereafter. Notwithstanding the foregoing, any claim that is not filed
within two years of the day or days claimed shall not be considered as
timely filed, and such day or days shall not be considered as days of
sickness.
(e) Days for which no statement of sickness deemed filed. A
statement of sickness shall not be deemed to be filed with respect to
any day in a benefit year in which the employee is not a qualified
employee as defined in section 3 of the Railroad Unemployment Insurance
Act or has exhausted his or her rights to sickness benefits under the
Act. See part 336 of this chapter.
(54 FR 43057, Oct. 20, 1989, as amended at 57 FR 807, Jan. 9, 1992)
20 CFR 335.5 Death of employee.
If an employee dies before filing one or more of the required forms,
the form or forms may be filed by or in behalf of the person or persons
to whom benefits would be payable pursuant to section 2(g) of the
Railroad Unemployment Insurance Act. Such form or forms shall be filed
within the time prescribed in 335.4 of this part. Under these
circumstances, the word ''employee'' as used in 335.4(b) of this part
and as used in 335.4(d)(3) of this part shall include the individual or
individuals by or in behalf of whom the form is filed. The order of
distribution for benefits due but unpaid as of the date of an employee's
death is the same as the order of distribution for annuities unpaid at
death under the Railroad Retirement Act and may be found at 234.31 of
this title.
20 CFR 335.6 Payment of sickness benefits.
(a) Waiting period. A qualified employee's first registration period
in any benefit year is his or her waiting period, provided that such
employee has at least five days of sickness in such registration period,
four of which must be consecutive, and files a timely claim for sickness
benefits for such period. No benefits are payable for any day of
sickness in such registration period.
(b) Subsequent registration period. With respect to any subsequent
registration period in the same benefit year and the same period of
continuing sickness, the Board will pay benefits for each day of
sickness in excess of four during such registration period.
(c) (1) Example 1. An employee has a period of continuing sickness
running from May 1 through May 31. All of those days are days of
sickness. The employee returned to work June 1. His first registration
period in that period of continuing sickness is May l to May 14. That
registration period, if it is the employee's first one in the benefit
year, is a waiting period, and no benefits are payable for any day of
sickness therein. The employee's second registration period is May 15
to May 28, and benefits will be paid for each day of sickness in excess
of four during such period. The employee's third registration period is
May 29 to June 11, but since he or she returned to work on June 1 the
employee has only three days of sickness (May 29, 30 and 31), and hence
no sickness benefits are payable for that period.
(2) Example 2. An employee has a period of continuing sickness
beginning on May 1 and ending on July 31, with all days in the period
being days of sickness. The employee's first registration period in the
period of sickness is May 1 to May 14. Because that registration period
is the employee's first one in the benefit year, the period is the
employee's waiting period and no benefits are payable for any of the
days therein. Benefits are payable for each day in excess of four
during each of the employee's next four registration periods of May 15
to May 28, May 29 to June 11, June 12 to June 25, and June 26 to July 9.
July 10 is the beginning date of a new benefit year for the employee.
Because the registration period July 10 to July 23 is the employee's
first one in the new benefit year, the period is the employee's waiting
period and no benefits are payable for any of the days of sickness in
the period. The employee's second registration period in the new
benefit year is July 24 to August 6. The employee has eight days of
sickness in that period, having been found able to return to work as of
August 1. Benefits are payable for four days of sickness in that
period.
(d) The gross amount of sickness benefits for any registration period
in a benefit year, following the waiting period for such year, shall be
computed by multiplying the number of days of sickness in excess of four
by the employee's daily benefit rate, as computed under part 330 of this
chapter. From such gross amount the Board will deduct the amount of any
social insurance payment apportionable to days of sickness in the
registration period, any tier I railroad retirement employment tax
imposed under chapter 22 of the Internal Revenue Code of 1986, and the
amount of any overpayment being recovered under part 340 of this
chapter. The net amount remaining shall then be certified to the United
States Treasury Department for payment to the employee, unless a portion
of such amount has been attached in accordance with part 350 of this
chapter.
(e) Sickness benefits shall continue to be certified for payment
pursuant to the foregoing paragraphs for the duration of the employee's
period of continuing sickness, subject to the statutory maximums
prescribed in section 2(c) of the Railroad Unemployment Insurance Act.
See also part 336 of this chapter.
20 CFR 335.6 PART 336 -- EXHAUSTION OF RIGHTS TO BENEFITS
Sec.
336.1 Statutory provisions.
336.2 Exhaustion of rights to unemployment benefits.
336.3 Exhaustion of right to benefits within meaning of Temporary
Extended Railroad Unemployment Insurance Benefits Act of 1961.
336.4 Exhaustion of rights to sickness benefits.
Authority: Sec. 12, 52 Stat. 1107, as amended; 45 U.S.C. 362.
Source: Board Order 59-131, 24 FR 5019, June 20, 1959; 24 FR 5118,
June 23, 1959, unless otherwise noted.
20 CFR 336.1 Statutory provisions.
Section 2(c) of the Railroad Unemployment Insurance Act, as amended,
provides that:
* * * with respect to an employee who has 10 or more years of service
as defined in section 1(f) of the Railroad Retirement Act of 1937, who
did not voluntarily retire and (in a case involving exhaustion of rights
to benefits for days of unemployment) did not voluntarily leave work
without good cause, and who had current rights to normal benefits for
days of unemployment or days of sickness in a benefit year but has
exhausted such rights, the benefit year in which such rights are
exhausted shall be deemed not to be ended until the last days of the
extended benefit period determined under the following schedule, and the
maximum number of days of, and amount of payment for, unemployment or
sickness (depending on the type of benefit rights exhausted) within such
benefit year for which benefits may be paid to the employee shall be
enlarged to include all compensable days of unemployment or days of
sickness, as the case may be, within such extended benefit period:
Section 303(b) of Pub. L. 86-28, 73 Stat. 31, provides that:
An employee who has less than ten years of service as defined in
section 1(f) of the Railroad Retirement Act of 1937, and who has after
June 30, 1957, and before April 1, 1959, exhausted (within the meaning
prescribed by the Railroad Retirement Board by regulation) his rights to
unemployment benefits, shall be paid unemployment benefits for days of
unemployment, not exceeding sixty-five, which occur in registration
periods beginning on or after June 19, 1958, and before July 1, 1959,
and which would not be days with respect to which he would be held
entitled otherwise to receive unemployment benefits under the Railroad
Unemployment Insurance Act * * *
Section 2 of the Temporary Extended Railroad Unemployment Insurance
Benefits Act of 1961 provides that:
An employee as defined in the Railroad Unemployment Insurance Act who
has, after June 30, 1960, and before April 1, 1962, exhausted (within
the meaning prescribed by the Railroad Retirement Board by regulation)
his right to unemployment benefits under the Railroad Unemployment
Insurance Act, shall be paid unemployment benefits in accordance
otherwise with the provisions of such Act for days of unemployment, not
exceeding sixty-five, and not exceeding in the aggregate, an amount
equal to 50 per centum of the total amount of unemployment benefits
which were payable to him in the benefit year in which he last exhausted
his rights before making his first claim under this Act, which occur in
registration periods, as defined in the Railroad Unemployment Insurance
Act, beginning on or after (April 8, 1961) the fifteenth day after the
date of enactment of the Temporary Extended Unemployment Compensation
Act of 1961, and before April 1, 1962, and which would not be days with
respect to which he would be held entitled otherwise to receive
unemployment benefits under the Railroad Unemployment Insurance Act * *
*.
(Board Order 59-131, 24 FR 5019, June 20, 1959, as amended by Board
Order 61-50, 26 FR 3607, Apr. 27, 1961; Board Order 68-72, 33 FR 11116,
Aug. 6, 1968)
20 CFR 336.2 Exhaustion of rights to unemployment benefits.
An employee shall be deemed to have exhausted his current rights to
normal benefits for days of unemployment, within the meaning of Section
2(c) of the Railroad Unemployment Insurance Act, and to have exhausted
his rights to unemployment benefits, within the meaning of Section
303(b) of Pub. L. 86-28, 73 Stat. 31, if:
(a) He has received unemployment benefits for 130 days of
unemployment in the benefit year, or
(b) He has received unemployment benefits in the benefit year equal
to his base-year compensation, or
(c) At the end of a normal benefit year during which he was qualified
for benefits he has received less than the maximum unemployment benefits
for the benefit year and he is not qualified for benefits in the next
succeeding benefit year.
(Board Order 59-131, 24 FR 5019, June 20, 1959; 24 FR 5118, June 23,
1959, as amended by Board Order 68-72, 33 FR 11116, Aug. 6, 1968)
20 CFR 336.3 Exhaustion of right to benefits within meaning of
Temporary Extended Railroad Unemployment Insurance Benefits Act of 1961.
An employee shall be deemed to have exhausted his right to
unemployment benefits under the Railroad Unemployment Insurance Act
after June 30, 1960, and before April 1, 1962, within the meaning of the
Temporary Extended Railroad Unemployment Insurance Benefits Act of 1961,
if:
(a) He has exhausted his current rights to normal benefits for days
of unemployment in accordance with 336.2(a) or (b), an extended benefit
period is not established under section 2(c) of the Railroad
Unemployment Insurance Act because he has less than ten years of service
or because he voluntarily left work without good cause or voluntarily
retired, and the last day for which unemployment benefits were paid is
after June 30, 1960, and before April 1, 1962; or
(b) He has exhausted his current rights to normal benefits for days
of unemployment in accordance with 336.2(c), an extended benefit period
is not established under section 2(c) of the Railroad Unemployment
Insurance Act because he has less than ten years of service or because
he voluntarily left work without good cause or voluntarily retired, and
the last day of the benefit year, or the last day in the benefit year
for which unemployment benefits were paid, whichever is later, is after
June 30, 1960, and before April 1, 1962; or
(c) An extended benefit period established under section 2(c) of the
Railroad Unemployment Insurance Act in his case has ended, he has no
current rights to normal benefits for days of unemployment, and the last
day of the extended benefit period is after June 30, 1960, and before
April 1, 1962; or
(d) Benefits have been held to be payable for 65 days in an extended
benefit period of seven registration periods established under section
2(c) of the Railroad Unemployment Insurance Act in his case, and the
last day for which benefits are payable is before the last day of the
extended benefit period and is after June 30, 1960, and before April 1,
1962.
(Board Order 61-50, 26 FR 3607, Apr. 27, 1961, as amended by Board
Order 61-113, 26 FR 6270, July 13, 1961)
20 CFR 336.4 Exhaustion of rights to sickness benefits.
An employee shall be deemed to have exhausted his current rights to
normal benefits for days of sickness, within the meaning of section 2(c)
of the Act, if:
(a) He has received sickness benefits for 130 days of sickness in the
benefit year, or
(b) He has received sickness benefits in the benefit year equal to
his base-year compensation, or
(c) At the end of a normal benefit year during which he was qualified
for benefits he has received less than the maximum sickness benefits for
the benefit year and he is not qualified for benefits in the next
succeeding benefit year.
(Board Order 68-72, 33 FR 11116, Aug. 6, 1968)
20 CFR 336.4 PART 337 -- (RESERVED)
20 CFR 336.4 PART 340 -- RECOVERY OF BENEFITS
Sec.
340.1 Statutory provisions.
340.2 Amount recoverable.
340.3 When amounts recoverable to be recovered.
340.4 Methods of recovery of amounts recoverable.
340.5 Recovery by cash payment.
340.6 Recovery by setoff.
340.7 Deduction in computation of death benefit.
340.8 Recovery by adjustment in connection with subsequent payments
under the Railroad Retirement Act.
340.9 Effect of adjustment in connection with the subsequent
payments.
340.10 Waiver of recovery of erroneous payments.
340.11 Waiver of methods of recovery.
340.12 Waiver not a matter of right.
340.13 Compromise of amounts recoverable.
340.14 Factors due to be considered in a compromise.
340.15 Suspension or termination of collection action.
340.16 Debt collection.
Authority: 45 U.S.C. 362(l).
Source: Board Order 27-22, 32 FR 3341, Feb. 28, 1967, unless
otherwise noted.
20 CFR 340.1 Statutory provisions.
(a) Section 2(d) of the Railroad Unemployment Insurance Act provides
that:
If the Board finds that at any time more than the correct amount of
benefits has been paid to any individual under this Act or a payment has
been made to an individual not entitled thereto (including payments made
prior to July 1, 1940) recovery by adjustments in subsequent payments to
which such individual is entitled under this Act or any other Act
administered by the Board may, except as otherwise provided in this
subsection, be made under regulations prescribed by the Board. If such
individual dies before recovery is completed, recovery may be made by
setoff or adjustments, under regulations prescribed by the Board, in
subsequent payments due, under this Act or any other Act administered by
the Board to the estate, designee, next of kin, legal representative, or
surviving spouse of such individual, with respect to the employment of
such individual.
Adjustments under this subsection may be made either by deductions
from subsequent payments or, with respect to payments which are to be
made during a lifetime or lifetimes, by subtracting the total amount of
benefits paid in excess of the proper amount from the actuarial value,
as determined by the Board, of such payments to be made during a
lifetime or lifetimes and recertifying such payments on the basis of the
reduced actuarial value. In the latter case recovery shall be deemed to
have been completed upon such recertification.
There shall be no recovery in any case in which more than the correct
amount of benefits has been paid to an individual or payment has been
made to an individual not entitled thereto (including payments made
prior to July 1, 1940) who, in the judgment of the Board, is without
fault when, in the judgment of the Board, recovery would be contrary to
the purpose of this Act or would be against equity or good conscience.
No certifying or disbursing officer shall be held liable for any
amount certified or paid by him in good faith to any person where the
recovery of such amount is waived under the third paragraph of this
subsection or has been begun but cannot be completed under the first
paragraph of this subsection.
(b) Section 2(f) of the Act provides, in part, that:
If (i) benefits are paid to any employee with respect to unemployment
or sickness in any registration period, and it is later determined that
remuneration is payable to such employee with respect to any period
which includes days in such registration period which had been
determined to be days of unemployment or sickness, and (ii) the person
or company from which such remuneration is payable has, before payment
thereof, notice of the payment of benefits upon the basis of days of
unemployment or sickness included in such period, the remuneration so
payable shall not be reduced by reason of such benefits but the
remuneration so payable, to the extent to which benefits were paid upon
the basis of days which had been determined to be days of unemployment
or sickness and which are included in the period for which such
remuneration is payable, shall be held to be a special fund in trust for
the Board. * * *
(c) Section 4(a-1) of the Act provides, in part, that:
There shall not be considered as a day of unemployment or as a day of
sickness, with respect to any employee -- * * *
(ii) Any day in any period with respect to which the Board finds that
he is receiving or will have received annuity payments or pensions under
the Railroad Retirement Act of 1935 or the Railroad Retirement Act of
1937, or insurance benefits under Title II of the Social Security Act,
or unemployment, maternity, or sickness benefits under an unemployment,
maternity, or sickness compensation law other than this Act, or any
other social insurance payments under any law: Provided, That if an
employee receives or is held entitled to receive any such payments,
other than unemployment, maternity, or sickness payments, with respect
to any period which include days of unemployment or sickness in a
registration period, after benefits under this Act for such registration
period will have been paid, the amount by which such benefits under this
Act will have been increased by including such days as days of
unemployment or as days of sickness shall be recoverable by the Board:
Provided further, That, if that part of any such payment or payments,
other than unemployment, maternity, or sickness payments, which is
apportionable to such days of unemployment or days of sickness is less
in amount than the benefits under this Act which, but for this
paragraph, would be payable and not recoverable with respect to such
days of unemployment or days of sickness, the preceding provisions of
this paragraph shall not apply but such benefits under this Act for such
days of unemployment or days of sickness shall be diminished or
recoverable in the amount of such part of such other payment or
payments;
(d) Section 12(o) of the Act provides that:
Benefits payable to an employee with respect to days of sickness
shall be payable regardless of the liability of any person to pay
damages for such infirmity. The Board shall be entitled to
reimbursement from any sum or damages paid or payable to such employee
or other person through suit, compromise, settlement, judgment, or
otherwise on account of any liability (other than a liability under a
health, sickness, accident, or similar insurance policy) based upon such
infirmity, to the extent that it will have paid or will pay benefits for
days of sickness resulting from such infirmity. Upon notice to the
person against whom such right or claim exists or is asserted, the Board
shall have a lien upon such right or claim, any judgment obtained
thereunder, and any sum or damages paid under such right or claim, to
the extent of the amount to which the Board is entitled by way of
reimbursement.
(e) Section 3, Pub. L. 89-508, 80 Stat. 308, provides that:
(a) The head of an agency or his designee, pursuant to regulations
prescribed by him and in conformity with such standards as may be
promulgated jointly by the Attorney General and the Comptroller General,
shall attempt collection of all claims of the United States for money or
property arising out of the activities of, or referred to, his agency.
(b) With respect to such claims of the United States that have not
been referred to another agency, including the General Accounting
Office, for further collection action and that do not exceed $20,000,
exclusive of interest, the head of an agency or his designee, pursuant
to regulations prescribed by him and in conformity with such standards
as may be promulgated jointly by the Attorney General and the
Comptroller General, may (1) compromise any such claim, or (2) cause
collection action on any such claim to be terminated or suspended where
it appears that no person liable on the claim has the present or
prospective financial ability to pay any significant sum thereon or that
the cost of collecting the claim is likely to exceed the amount of
recovery. The Comptroller General or his designee shall have the
foregoing authority with respect to claims referred to the General
Accounting Office by another agency for further collection action. The
head of an agency or his designee shall not exercise the foregoing
authority with respect to a claim as to which there is an indication of
fraud, the presentation of a false claim, or misrepresentation on the
part of the debtor or any other party having an interest in the claim,
or a claim based in whole or in part on conduct in violation of the
antitrust laws; nor shall the head of an agency, other than the
Comptroller General of the United States, have authority to compromise a
claim that arises from an exception made by the General Accounting
Office in the account of an accountable officer.
(c) A compromise effected pursuant to authority conferred by
subsection (b) of this section shall be final and conclusive on the
debtor and on all officials, agencies, and courts of the United States,
except if procured by fraud, misrepresentation, the presentation of a
false claim, or mutual mistake of fact. No accountable officer shall be
liable for any amount paid or for the value of property lost, damaged,
or destroyed, where the recovery of such amount or value may not be had
because of a compromise with a person primarily responsible under
subsection (b).
20 CFR 340.2 Amount recoverable.
For purposes of this part, an ''amount recoverable'' is an amount of
unemployment, sickness, or maternity benefits paid under the Railroad
Unemployment Insurance Act which is:
(a) Determined to have been paid erroneously;
(b) Recoverable under section 2(f) of the Act because remuneration is
found to be payable with respect to a period which includes days which
had been determined to be days of unemployment or sickness;
(c) Recoverable under section 4(a-1)(ii) of the Act because of the
employee's having received or been held entitled to receive annuity
payments under the Railroad Retirement Act, insurance benefits under
Title II of the Social Security Act, unemployment, sickness or maternity
benefits under any law other than the Railroad Unemployment Insurance
Act, or any other social insurance payments under any law; or
(d) Recoverable under section 12(o) of the Act by virtue of the
Board's right to reimbursement from any sum or damages payable through
suit, compromise, settlement, judgment, or otherwise on account of
liability based upon an infirmity, to the extent that it will have paid
or will pay benefits for days of sickness resulting from that infirmity.
20 CFR 340.3 When amounts recoverable to be recovered.
Amounts recoverable shall be recovered in all cases except those in
which recovery is waived under 340.10 or a compromise is approved under
340.13.
20 CFR 340.4 Methods of recovery of amounts recoverable.
An amount recoverable may be recovered by any one or a combination of
the methods described in 340.5, 340.6, 340.7, and 340.8.
20 CFR 340.5 Recovery by cash payment.
The Board shall have the right to require that amounts recoverable be
immediately and fully repaid in cash and any debtor shall have the
absolute right to repay such amount recoverable in this manner. However
if the debtor is financially unable to pay the indebtedness in a lump
sum, payment may be accepted in regular installments. The amount and
frequency of such installment payments should bear a reasonable relation
to the size of the debt and the debtor's ability to pay. Whenever
possible installment payments should be sufficient in amounts and
frequency to liquidate the debt in not more than three years.
20 CFR 340.6 Recovery by setoff.
An amount recoverable may be recovered by setoff against any
subsequent payments to which the individual from whom the amount is
recoverable is entitled under the Railroad Unemployment Insurance Act,
the Railroad Retirement Act, or any other Act administered by the Board,
or, in the case of that individual's death, from any payments due under
those Acts to his or her estate, designee, next of kin, legal
representative, or surviving spouse. In any case in which full recovery
is not effected by setoff, the balance due may be recovered by one or
more of the other methods described in this part. If the individual
dies before recovery is completed, such recovery shall be made from his
estate or heirs.
(53 FR 2489, Jan. 28, 1988)
20 CFR 340.7 Deduction in computation of death benefit.
In computing the residual lump sum provided for in part 234, subpart
D, of this chapter, the Board shall include in the benefits to be
deducted from the gross residual all amounts recoverable under this
part, but not recovered, including amounts where recovery was waived,
that were paid to the individual or paid to others as benefits accrued
to the individual but not paid at death.
(57 FR 1379, Jan. 14, 1992)
20 CFR 340.8 Recovery by adjustment in connection with subsequent
payments under the Railroad Retirement Act.
Recovery under this part may be made by permanently reducing the
amount of any annuity payable to the overpaid individual (or an
individual receiving an annuity based upon the same compensation record
as that of the overpaid individual) under the Railroad Retirement Act.
This method of recovery is called an actuarial adjustment of the
annuity. The Board cannot require any individual to take an actuarial
adjustment in order to recover an overpayment nor is an actuarial
adjustment available as a matter of right. An actuarial adjustment does
not become effective until the overpaid individual negotiates the first
annuity check which reflects the annuity rate after actuarial
adjustment.
Example. An individual agrees to recovery of a $5,000 overpayment
made to him by actuarial adjustment to an annuity awarded him under the
Railroad Retirement Act. However, he dies before negotiating the first
annuity check reflecting his actuarially reduced rate. The $5,000 is
not considered recovered.
(57 FR 1379, Jan. 14, 1992)
20 CFR 340.9 Effect of adjustment in connection with subsequent
payments.
Adjustment by the method described in 340.8 shall constitute
recovery of the amount recoverable.
20 CFR 340.10 Waiver of recovery of erroneous payments.
(a) When waiver of recovery may be applied. Section 2(d) of the Act
provides that there shall be no recovery in any case where more than the
correct amount of benefits has been paid to an individual or where
payment has been made to an individual not entitled to benefits if, in
the judgment of the Board:
(1) The individual is without fault; and
(2) Recovery would be contrary to the purpose of the Act or would be
against equity or good conscience.
(b) Fault. (1) Fault means a defect of judgment or conduct arising
from inattention or bad faith. Judgment or conduct is defective when it
deviates from a prudent standard of care taken to comply wih the
entitlement provisions of the Act. Conduct includes both action and
inaction. Unlike fraud, fault does not require a deliberate intent to
deceive.
(2) Whether an individual is at fault in causing erroneous payments
generally depends on all circumstances surrounding the erroneous
payments. Among the factors the Board will consider are: the ability
of the overpaid individual to understand the reporting requirements of
the Act or to realize that he or she is being overpaid (e.g., age,
comprehension, memory, physical and mental condition); the particular
cause of benefit non-entitlement; and the number of claims on which the
individual made erroneous statements.
(3) Circumstances in which the Board will find an individual at fault
include but are not limited to:
(i) Failure to furnish information which the individual knew or
should have known was material;
(ii) An incorrect statement made by the individual which he or she
knew or should have known was incorrect (including furnishing an opinion
or conclusion when asked for facts);
(iii) Failure to return a payment which the individual knew or should
have known was incorrect.
(c) When recovery defeats the purpose of the Railroad Unemployment
Insurance Act. (1) The purpose of the Railroad Unemployment Insurance
Act is to furnish some replacement for an individual's railroad earnings
lost because of days of sickness or unemployment. The purpose of the
Act is defeated when an erroneous payment is recovered from income and
resources which the individual requires to meet ordinary and necessary
living expenses. If either income or resources are sufficient to meet
expenses, the purpose of the Act is not defeated by recovery of an
erroneous payment.
(2) For purposes of this section, income includes any funds which may
reasonably be considered available for the individual's use, regardless
of source. Income to the individual's spouse or dependents is available
if the spouse or dependent lived with the individual at the time waiver
is considered. Types of income include, but are not limited to:
(i) Government benefits such as Black Lung, Social Security, Workers'
Compensation, and Unemployment Compensation benefits;
(ii) Wages and self-employment income;
(iii) Regular payments such as rent or pensions; and
(iv) Investment income.
(3) For purposes of this section, resources include, but are not
limited to, liquid assets such as cash on hand, the value of stocks,
bonds, savings accounts, mutual funds, any accrual benefit payable by
the United States of America or any other source.
(4) Whether an individual has sufficient income and resources to meet
ordinary and necessary living expenses depends not only on the amount of
his or her income and resources, but also on whether the expenses are
''ordinary and necessary.'' While the level of expenses which is
''ordinary and necessary'' may vary between individuals, it must be held
at a level reasonable for an individual who is temporarily unemployed or
incapacitated due to sickness. The Board will consider the
discretionary nature of an expense in determining whether it is
reasonable. Ordinary and necessary living expenses include:
(i) Fixed living expenses, such as food and clothing, rent, mortgage
payments, utilities, maintenance, insurance (e.g., life, accident, and
health insurance), taxes, installment payments, etc.;
(ii) Medical, hospitalization, and other similar expenses;
(iii) Expenses for the support of others for whom the individual is
legally responsible; and
(iv) Miscellaneous expenses (e.g., newspapers, haircuts).
(5) Where recovery of the full amount of an erroneous payment would
be made from income and resources required to meet ordinary and
necessary living expenses, but recovery of a lesser amount would leave
income or resources sufficient to meet expenses, recovery of the lesser
amount does not defeat the purpose of the Act.
(d) When recovery is against equity or good conscience. Recovery is
considered to be against equity or good conscience when a person, in
reliance on such payments or on notice that such payment would be made,
relinquished a valuable right or changed his or her position for the
worse.
(e) Recoveries not subject to waiver. (1) Where an amount is
recoverable pursuant to section 2(f) of the Act from remuneration
payable to an employee by a person or company, or where a lien for
reimbursement of sickness benefits has arisen pursuant to section 12(o)
of the Act, and in either case recovery is sought from a person other
than the employee, no right to waiver of recovery exists.
(2) Where the amount recoverable is equal to or less than 10 times
the current maximum daily benefit rate under the Railroad Unemployment
Insurance Act it shall not be considered contrary to the purpose of the
Act or against equity or good conscience to recover such payment.
Consequently, the amount recoverable is not subject to waiver under this
part.
(3) Where the amount recoverable is the result of an overpayment of
benefits payable under the Railroad Unemployment Insurance Act due to
entitlement to annuities under the Railroad Retirement Act for the same
days for which benefits were payable, and recovery of such overpayment
may be made by offset against an accrual of the annuities, it shall not
be considered contrary to the purpose of the Act or against equity or
good conscience to recover the erroneous payment by offset against such
accrual. Consequently, the amount recoverable is not subject to waiver
under this part.
(4) Where there exists accumulated Federal benefits payable by any
executive agency of the United States, any amount recoverable which is
equal to or less than the accumulated Federal benefits is not subject to
waiver. Any amount recoverable which is greater than the identified
accumulated Federal benefits may be considered for waiver in accordance
with the provisions of this part and part 320 of this chapter.
(53 FR 2489, Jan. 28, 1988, as amended at 57 FR 1379, Jan. 14, 1992)
20 CFR 340.11 Waiver of methods of recovery.
The Board may waive any right to recover all or any part of an amount
recoverable by any one or more methods without waiving the right to
recover by some other method or methods if, in the judgment of the
Board, the individual is without fault and if, in the judgment of the
Board, recovery by the methods waived would be against equity and good
conscience and recovery by such other methods would not be against
equity and good conscience.
20 CFR 340.12 Waiver not a matter of right.
A waiver under 340.10 or 340.11 is not a matter of right, but is at
all times within the judgment of the Board.
20 CFR 340.13 Compromise of amounts recoverable.
The Board or its designee may compromise an amount recoverable,
provided such amount does not exceed $20,000. Compromise of an amount
recoverable may not be considered in any case in which there is an
indication of fraud, the presentation of a false claim or
misrepresentation on the part of the debtor or his representative.
Compromise is at all times within the discretionary authority of the
Board or its designee.
20 CFR 340.14 Factors due to be considered in a compromise.
The following indicate the character of reasons which will be
considered in approving a compromise:
(a) The debtor's ability to repay the full amount within a reasonable
time;
(b) The debtor's refusal to pay the claim in full and the Board's
inability to effect collection in full within a reasonable time by other
collection methods;
(c) Doubt concerning the Board's ability to prove its case in court
for the full amount because of a bona fide dispute as to the facts or
because of the legal issues involved;
(d) The cost of collecting the amount recoverable does not justify
the enforced collection of the full amount.
20 CFR 340.15 Suspension or termination of collection action.
Collection action on a Board claim may be suspended or terminated
under the following conditions:
(a) Collection action on a Board claim may be suspended temporarily
when the debtor cannot be located and there is reason to believe future
collection action may be productive or collection may be effected by
offset in the near future.
(b) Collection action may be terminated when:
(1) The debtor is unable to make any substantial payment;
(2) The debtor cannot be located and offset is too remote to justify
retention of the claim;
(3) The cost of collection action will exceed the amount recoverable;
(4) The claim is legally without merit or cannot be substantiated by
the evidence.
20 CFR 340.16 Debt collection.
(a) The Associate Executive Director for Unemployment and Sickness
Insurance shall take steps to collect all delinquent debts due the Board
under the benefit provisions of the Act, except those that have been
classed as uncollectible. Such steps shall commence not later than July
1, 1985 and shall include notice to each debtor of the time limit for
paying the debt and the consequences of failure to pay on time.
(b) It shall be the duty of every employer or other person paying
remuneration for time lost or any sum or damages for personal injury to
remit the amount of reimbursement due the Board, if any, within 30 days
of the date of the payment of remuneration or damages to an employee.
Failure to remit the amount due within 30 days shall subject the
employer or other person to interest and penalties, in addition to the
principal amount due the Board.
(50 FR 36872, Sept. 10, 1985)
20 CFR 340.16 PART 341 -- STATUTORY LIEN WHERE SICKNESS BENEFITS PAID
Sec.
341.1 Lien.
341.2 Sum or damages paid or payable.
341.3 Notice of lien.
341.4 Information required to be furnished by the employee.
341.5 Amount of reimbursement.
341.6 Report of settlement or judgment.
341.7 Liability on Board's claim.
341.8 Termination of sickness benefits due to a settlement.
341.9 Board as a party; attorney's fee.
Authority: Sec. 323, Pub. L. 79-572, 60 Stat. 740, 741; 45 U.S.C.
362(o).
Source: 49 FR 570, Jan. 5, 1984, unless otherwise noted.
20 CFR 341.1 Lien.
After notice in accordance with this part, the Board shall have a
lien upon any sum or damages paid or payable to an employee based upon
an infirmity for which the employee received sickness benefits.
20 CFR 341.2 Sum or damages paid or payable.
(a) The term ''sum or damages paid or payable'' means the amount of
money that an employee recovers because of any claim of liability based
upon his or her injury or illness.
(b) The term ''sum or damages paid or payable'' does not include:
(1) An amount specified in a settlement or award as payment for any
loss of property, or the amount of a settlement or award specifically
apportioned as pay for lost time.
(2) An amount paid as a result of a lawsuit based on wrongful death.
(3) Workers' compensation payments.
(4) ''No-Fault'' personal-injury protection benefits or any other
benefits paid under a health, sickness, accident or similar insurance
policy carried by an employee.
(5) Payments made to an employee under the terms of his or her
insurance policy providing for payment of all amounts that the employee
is legally entitled to recover for bodily injury from the owner or
operator of an uninsured motor vehicle.
20 CFR 341.3 Notice of lien.
(a) Notice to alleged tortfeasor. The Board shall mail a ''Notice of
Lien'' to each person or company identified as liable or potentially
liable for causing the employee's infirmity. The ''Notice of Lien''
will notify the person or company of the Board's right to reimbursement.
The notice shall include:
(1) The employee's name, address and social security number;
(2) The date and place of the accident; and
(3) The employee's occupation, if injured on duty.
(b) Notice to employee. A notice regarding repayment of sickness
benefits shall be sent to an employee who names a party other than a
railroad as the alleged tortfeasor.
(c) Notice of amount of lien. The amount of the Board's lien shall
be reported, upon request, to a railroad or other person or company that
may be liable for paying damages, or to the employee, or to an attorney
representing any of those parties. The amount of the lien shall be
reported whether or not the terms of a settlement have been agreed upon.
When requested, a list showing the sickness benefits paid for each
claim period may be furnished.
20 CFR 341.4 Information required to be furnished by the employee.
(a) When applying for sickness benefits, an employee shall report the
name and address of the person or company, if any, who is alleged to
have caused his or her infirmity. The employee shall also provide
whatever other details are reasonably needed so that the Board may
establish its lien.
(b) The employee shall, upon request, tell the Board whether and from
whom he or she has collected any damages for the infirmity.
(Approved by the Office of Management and Budget under control number
3220-0036)
(49 FR 570, Jan. 5, 1984, as amended at 52 FR 11018, Apr. 6, 1987)
20 CFR 341.5 Amount of reimbursement.
(a) The Board shall receive as reimbursement the lesser of:
(1) The amount of sickness benefits paid to the employee for the
infirmity for which he or she recovers any sum or damages; or
(2) The net amount of the sum or damages paid to the employee for the
infirmity, after substracting the amount of the expenses listed in
paragraph (b) of this section.
(b) The expenses that may be subtracted from the amount of damages
recovered are:
(1) The medical and hospital expenses that the employee incurred
because of his or her injury. These expenses are deductible even if
they are paid under an insurance policy covering the employee or are
covered by his or her membership in a medical or hospital plan or
association. But such expenses are not deductible if they are not
covered by insurance or by membership in a medical or hospital plan or
association and are consequently paid by a railroad or other person
directly to the doctor, clinic or hospital that provided the medical
care or services.
(2) The cost of litigation. This includes both the amount of the fee
to which the attorney and the employee have agreed and the other
expenses that the employee incurred in the conduct of the litigation
itself.
20 CFR 341.6 Report of settlement or judgment.
(a) When a person or company makes a settlement or must satisfy a
final judgment based on an injury for which the employee received
sickness benefits, the person or company shall notify the Board of the
settlement or judgment. That notice shall be in writing and submitted
within five days of the settlement or final judgment. That notification
shall contain:
(1) The amount of the settlement or final judgment;
(2) The date of the settlement or final judgment; and
(3) The amount withheld from the settlement or final judgment to
satisfy the Board's lien.
(b) Payment of the amount due the Board shall be delivered to the
Board within 30 days after the date of the settlement agreement or the
entry of final judgment.
(c) If the damages payable are to be paid directly to the court to
satisfy a final judgment, thus making it impossible for the person or
company to remit the amount of reimbursement due the Board, the person
or company shall immediately notify the Board of the situation.
20 CFR 341.7 Liability on Board's claim.
(a) A person or company paying any sum or damages to an employee who
has received sickness benefits from the Board shall, upon receipt of
notice as provided in 341.3(a), be liable to the Board for the amount
of reimbursement computed under 341.5. This liability may be relieved
by either:
(1) Withholding the amount reimbursable to the Board from the sum or
damages payable to the employee, and subsequently paying that amount to
the Board; or
(2) Including the U.S. Railroad Retirement Board as a payee on the
check or draft along with the employee and any others who have an
interest in the damages.
(b) If the person or company paying the damages does not protect the
Board's lien or attempts to protect the Board's lien in some manner
other than those described in paragraph (a) of this section, that person
or company shall remain liable to the Board until the Board is
reimbursed in full.
20 CFR 341.8 Termination of sickness benefits due to a settlement.
(a) Sickness benefits payable to an eligible employee shall be paid
without regard to whether any person or company may be liable for
causing the employee's infirmity. However, the Board will terminate the
payment of sickness benefits upon receipt of an oral or written report
that a settlement or final judgment for the infirmity has been made.
(b) A report of settlement shall be made to the Division of Claims
Operations, Bureau of Unemployment and Sickness Insurance, and shall
include the information required in 341.6. Where the report is an oral
report, and the informant is neither the employee nor his or her
representative, the informant shall be told that written confirmation
containing the information called for by 341.6 must be submitted to the
Board within five days from the date of the oral report.
(c) If, in the case of an oral report, the written confirmation as
described in paragraph (b) of this section is not received within five
days, the Division of Claims Operations shall take steps within five
additional working days to verify whether there has been a settlement or
final judgment. If there has been no settlement or final judgment, the
payment of sickness benefits shall be reinstated.
(d) Within five days of the notification of a settlement or final
judgment, the Board shall inform the employee of the report of the
settlement or final judgment. The notice to the employee shall state
how the employee may inform the Board that there has not been a
settlement or final judgment. If the employee states that there has not
been a settlement or final judgment, the adjudicating office shall,
within 10 days after the receipt of such a statement, make a
determination as to the employee's rights to future sickness benefits
and shall notify him or her accordingly.
(e) An employee shall have the right to appeal from the determination
of the amount of sickness benefits recoverable from the settlement or
judgment.
An employee shall also have the right to appeal the termination of
his or her sickness benefits after the report of a settlement or final
judgment made in accordance with the procedures provided in paragraphs
(b), (c) and (d) of this section. Such appeals shall be filed and
processed in accordance with Part 320 of these regulations.
20 CFR 341.9 Board as a party; attorney's fee.
(a) The Board shall not participate in the prosecution of a
personal-injury claim of an employee eligible for sickness benefits and
shall neither encourage nor discourage such employee with respect to the
pursuit of a claim for damages.
(b) The Board shall not be a party in any action for damages brought
by an employee claiming sickness benefits under the Railroad
Unemployment Insurance Act. The Board's right of reimbursement under
section 12(o) of the Railroad Unemployment Insurance Act shall not be
construed as giving the Board a right of subrogation or other cause of
action for damages against an alleged tortfeasor. The Board shall
intervene in such an action only when it is apparent that intervention
may be required to protect its right of reimbursement.
(c) The Board shall not be liable for the payment of any attorney's
fee or other expenses incurred in connection with such a claim for
damages.
20 CFR 341.9 PART 344 -- CONTRIBUTIONS UNDER SPECIAL TRANSITION RULE
FOR PUBLIC COMMUTER RAILROADS
Sec.
344.1 Purpose.
344.2 Employers subject to this part.
344.3 Attributable benefits.
344.4 Quarterly computation of contributions; Notice to public
commuter railroad.
344.5 Filing of contribution report and payment of contributions.
344.6 Sunset provision.
Authority: 45 U.S.C. 362(i) and 362(l).
Source: 54 FR 25847, June 20, 1989, unless otherwise noted.
20 CFR 344.1 Purpose.
This part implements section 8(a)(1)(B)(vi) of the Railroad
Unemployment Insurance Act, as added by section 7102(a) of the Railroad
Unemployment Insurance and Retirement Improvement Act of 1988 (Title
VII, Subtitle A of Pub. L. 100-647). Section 7102(a) amended section 8
of the Railroad Unemployment Insurance Act (45 U.S.C. 358) to provide
that the unemployment insurance contributions required to be paid by
public commuter railroads for 1989 and 1990 shall be computed under a
special transition rule. Under the special transition rule, the
contributions to be paid to the Railroad Retirement Board for 1989 and
1990 shall be equal to the amount of unemployment and sickness benefits
paid by the Board to employees of public commuter railroad employers
during those two years, if such benefits are attributable to such
employers. Benefit payments will be attributable to a public commuter
railroad under the circumstances described in 344.3 of this part. The
special transition rule also requires public commuter railroads to pay
the Board an additional amount to cover the Board's administrative
expenses. Accordingly, this part describes the Board's procedures for
assessing and collecting contributions and administrative expenses under
the special transition rule.
20 CFR 344.2 Employers subject to this part.
(a) This part applies to public commuter railroads that provide
commuter passenger service by rail and that employ individuals to carry
out such service. A railroad is a public commuter railroad if on
November 10, 1988, it was and continues to be publicly funded and
publicly operated. The term ''commuter service'' means short-haul rail
passenger service operated in metropolitan and suburban areas, whether
within or across the geographical boundaries of a state, and is usually
characterized by reduced fare, multiple-ride, and commutation tickets,
and by morning and evening peak periods of operations and ridership.
The term ''public commuter railroad'' does not include any
privately-owned railroad, or any portion of such railroad's operations,
that provides commuter service pursuant to a contract with a commuter
authority.
(b) Public commuter railroads subject to this part are the Long
Island Railroad Company, the New Jersey Transit Corporation, the
Metro-North Commuter Railroad Company, the Southeastern Pennsylvania
Transportation Authority, the Port Authority Trans-Hudson Corporation,
the Northeast Illinois Regional Commuter Railroad Corporation, and the
Staten Island Rapid Transit Operating Authority.
(c) Any railroad employer not named in paragraph (b) of this section
that believes it is subject to this part should request the Deputy
General Counsel of the Railroad Retirement Board, 844 North Rush Street,
Chicago, Illinois 60611 to make a determination as to whether it is an
employer covered under this part. Such a request shall be treated as a
request for a determination under 259.1 of this chapter.
20 CFR 344.3 Attributable benefits.
(a) General rule. Benefits paid during 1989 and 1990 to an employee
of a public commuter railroad, after adjustment in accordance with
344.4(c) of this part, will be attributed, in whole or in part, to the
public commuter railroad or railroads that employed such employee during
the base year applicable to the benefit year with respect to which the
benefit payments were made. The term ''base year'' means the completed
calendar year immediately preceding the beginning of the benefit year.
The term ''benefit year'' means the 12-month period beginning July 1 of
any year and ending June 30 of the next year, except that a registration
period beginning in June and ending in July shall be deemed to be in the
benefit year ending in such month of June. If an employee's only base
year employer was a public commuter railroad, all of the benefits paid
to such employee during 1989 or 1990 will be attributed to such base
year public commuter railroad. If an employee had more than one base
year public commuter railroad employer, benefit payments will be
attributed in accordance with paragraph (b) of this section.
(b) Multiple base year public commuter railroad employers. All
benefits paid to an employee who had more than one base year public
commuter railroad employer shall be attributed to such base year
employers as follows:
(1) Employer at time of claim was last base year employer. Benefits
are first attributed to this employer up to the amount of compensation
paid by this employer in the base year. Any benefits not attributed to
this employer are then attributed to the employee's previous employer(s)
in the base year in reverse order of employment with those employers.
However, if the benefits attributable under this provision exceed the
employee's total base year compensation, the amount of the attributable
benefits in excess of the total base year compensation shall be
attributed to each base year employer in the same ratio as the
compensation paid to such employee by the employer bears to the total of
such compensation paid to such employee by all such employers in the
base year.
Example. An employee was successively employed by two public commuter
railroads in the base year, during which the employee received a total
of $5,000 in compensation, $2,000 from the first employer and $3,000
from the second. Subsequently, the employee was furloughed by employer
2 and then claimed unemployment benefits. During the benefit year
covered by the claim, the employee received $6,500 in unemployment
benefits. The first $3,000 in benefits paid are attributed to employer
2. The next $2,000 in benefits are attributed to employer 1. The
remaining $1,500 is attributed as follows:
Employer 1:
Employer 2:
(2) Employer at time of claim not last base year employer. Benefits
are attributed to each base year employer in the same ratio as the
compensation paid to such employee by the employer bears to the total of
such compensation paid to such employee by all such employers in the
base year.
Example: If, in the example above, after the base year the employee
was employed by a third employer and then was furloughed, benefits are
attributed to the two base year employers as follows:
Employer 1:
Employer 2:
(c) Other base year employer. If a public commuter railroad
employee's base year compensation includes compensation paid by a
railroad employer other than a public commuter railroad, as well as
compensation paid by public commuter railroad(s), the benefits paid to
such employee to be attributed to the public commuter railroad will be
determined in the same manner as under paragraphs (b)(1) and (b)(2) of
this section treating for purposes of such determination the non-public
commuter railroad employer(s) as if it were a public commuter railroad
employer(s).
(d) Amount to be attributed. The amount of benefits to be attributed
under this part is the gross amount of benefits payable to an employee
with respect to a registration period, as computed prior to the
deduction of:
(1) Any tax imposed under the Internal Revenue Code of 1986,
(2) The amount of any attachment under Part 350 of this chapter, or
(3) The amount recovered by application of 340.6 of this chapter
(Recovery by setoff).
20 CFR 344.4 Quarterly computation of contributions; Notice to public
commuter railroad.
(a) Amount of contribution. The amount of the contribution due under
this part from a public commuter railroad shall consist of:
(1) The amount of benefits attributable to such railroad pursuant to
344.3 of this part, as adjusted pursuant to paragraph (c) of this
section, plus
(2) An additional amount to cover the Board's administrative
expenses, as computed under paragraph (d) of this section.
(b) Quarterly computation and billing of attributable benefits. With
respect to each calendar quarter beginning January 1, 1989, the Director
of Unemployment and Sickness Insurance shall compute the gross amount of
all benefits attributable to each public commuter railroad in accordance
with 344.3 of this part. The Director shall make such computation
within 15 calendar days of the close of each quarter and shall issue a
notice to each such railroad in accordance with paragraph (e) of this
section.
(c) Adjustments. The amount of benefits attributed and billed to
each public commuter railroad on a quarterly basis shall be reduced to
reflect the amounts of any benefits recovered during such quarter if
such benefits were attributed to such railroad in an earlier calendar
quarter. If the Board recovers attributable benefits after December 31,
1990, and is unable to reflect the recovery on the billing for the last
quarter of 1990, the Board will treat the recovery as a subtraction from
the railroad's cumulative benefit balance under section 8(a)(7) of the
Railroad Unemployment Insurance Act.
(d) Administrative expenses. In addition to the amount computed
under paragraph (b) of this section, each public commuter railroad shall
be liable to the Board for payment of a contribution for administrative
expenses. Such contribution shall be equal to 0.65 percent of the total
compensation paid by such railroad on which the railroad's contribution
would be based under section 8(a)(1)(B)(i) of the Railroad Unemployment
Insurance Act, if the railroad's contribution were determined under that
provision.
(e) Notice. Notice to each public commuter railroad of the amount of
benefits attributed with respect to a particular calendar quarter shall
be by Form DC-1/PCRR reflecting the net amount of attributable benefits
for which the public commuter railroad is to pay a contribution under
this part.
20 CFR 344.5 Filing of contribution report and payment of
contributions.
(a) Requirement. Each public commuter railroad that is subject to
this part shall pay contributions to the Railroad Retirement Board in
the amount computed in accordance with 344.4 of this part.
(b) Payment. Payment of the amount due shall be made in accordance
with 345.10 of this chapter.
(c) Payment and Form DC-1/PCRR due date. Each public commuter
railroad paying contributions under this part shall both remit payment
of the amount due and file Form DC-1/PCRR within 30 days of the date on
which the Director of Unemployment and Sickness Insurance notifies each
such railroad of the amount of benefits attributed to it.
(d) Remedies. All provisions of section 8 of the Railroad
Unemployment Insurance Act and Part 345 of this chapter that are not
inconsistent with this part shall apply with respect to the
contributions required by this part.
20 CFR 344.6 Sunset provision.
This part shall be effective with respect to contributions to be paid
for calendar years 1989 and 1990 and shall cease to be effective with
respect to contributions payable for periods after December 31, 1990.
20 CFR 344.6 PART 345 -- EMPLOYERS' CONTRIBUTIONS AND CONTRIBUTION
REPORTS
Sec.
345.1 Statutory provisions.
345.2 Employers' contributions.
345.4 Employers' reports of compensation of employees.
345.5 Employers' contribution reports.
345.6 Final employers' contribution reports.
345.7 Execution of employers' contribution reports.
345.8 Prescribed forms for employers' contribution reports.
345.9 Place and time for filing employers' contribution reports.
345.10 Payment of employers' contributions.
345.11 When fractional part of cent may be disregarded.
345.12 Adjustments.
345.13 Refunds.
345.14 Assessment and collection of contributions or underpayments of
contributions.
345.15 Jeopardy assessment.
345.16 Interest.
345.18 Liens.
345.19 Penalty for delinquent or false employers' contribution
reports.
345.20 Assessments.
345.21 References to forms.
345.22 Appeals.
345.24 Records.
Authority: 45 U.S.C. 358; 45 U.S.C. 362(1).
20 CFR 345.1 Statutory provisions.
Every employer shall pay a contribution, with respect to having
employees in his service, equal to the percentage determined as set
forth below of so much of the compensation as is not in excess of $300
for any calendar month paid by him to any employee for services rendered
to him after June 30, 1939, and before July 1, 1954, and is not in
excess of $350 for any calendar month paid by him to any employee for
services rendered to him after June 30, 1954, and before June 1, 1959,
and is not in excess of $400 for any calendar month paid by him to any
employee for services rendered to him after May 31, 1959: Provided,
however, That if compensation is paid to an employee by more than one
employer with respect to any such calendar month, the contributions
required by this subsection shall apply to not more than $300 for any
month before July 1, 1954, and to not more than $350 for any month after
June 30, 1954, and before June 1, 1959, and to not more than $400 for
any month after May 31, 1959, of the aggregate compensation paid to said
employee by all said employers with respect to such calendar month, and
each employer other than a subordinate unit of a national
railway-labor-organization employer shall be liable for that proportion
of the contribution with respect to such compensation paid by all such
employers which the compensation paid by him after December 31, 1946, to
the employee for services during any calendar month after 1946 bears to
the total compensation paid by all such employers after December 31,
1946, to such employee for services rendered during such month; and in
the event that the compensation so paid by such employers to the
employee for services rendered during such month is less than $300 if
such month is before July 1, 1954, or less than $350 if such month is
after June 30, 1954, and before June 1, 1959, or less than $400 if such
month is after May 31, 1959, each subordinate unit of a national
railway-labor-organization employer shall be liable for such proportion
of any additional contribution as the compensation paid by such employer
after December 31, 1946, to such employee for services rendered during
such month bears to the total compensation paid by all such employers
after December 31, 1946, to such employee for services rendered during
such month:
If the balance to the credit of the railroad unemployment insurance
account as of the close of business on Sept. 30, of any year, as
determined by the Board:
As soon as practicable following the enactment of this Act, the Board
shall determine and proclaim the balance to the credit of the account as
of the close of business on September 30, 1947, and on or before
December 31 of 1948 and of each succeeding year, the Board shall
determine and proclaim the balance to the credit of the account as of
the close of business on September 30 of such year; and in determining
such balance as of September 30 of any year, the balance to the credit
of the railroad unemployment insurance administration fund as of the
close of business on such date shall be deemed to be a part of the
balance to the credit of such account. (Section 8(a) of the Railroad
Unemployment Insurance Act.)
Notwithstanding the provisions of section 8(a)2 of the Railroad
Unemployment Insurance Act, the rate of contribution required to be paid
under the Railroad Unemployment Insurance Act by every employer as
defined in such Act shall be 4 per centum with respect to compensation
as defined in such Act, paid after December 31, 1961, and before January
1, 1964. (Section 5 of the Temporary Extended Railroad Unemployment
Benefits Act of 1961.)
The contributions required by this Act shall be collected and paid
quarterly or at such other times and in such manner and under such
conditions not inconsistent with this Act as may be prescribed by
Regulations of the Board, and shall not be deducted, in whole or in
part, from the compensation of employees in the employer's employ. If a
contribution required by this Act is not paid when due, there shall be
added to the am ount payable (except in the case of adjustments made in
accordance with the provisions of this Act) interest at the rate of 1
per centum per month or fraction of a month from the date the
contribution became due until paid. Any interest collected pursuant to
this subsection shall be credited to the account. (Section 8(g) of the
Railroad Unemployment Insurance Act.)
All provisions of law, including penalties, applicable with respect
to any tax imposed by the provisions of the Railroad Retirement Tax Act,
insofar as applicable and not inconsistent with the provisions of this
Act, shall be applicable with respect to the contributions required by
this Act: Provided, That all authority and functions conferred by or
pursuant to such provisions upon any officer or employee of the United
States, except the authority to institute and prosecute, and the
function of instituting and prosecuting, criminal proceedings, shall,
with respect to such contributions, be vested in and exercised by the
Board or such officers and employees of the Board as it may designate
therefor. (Sec. 8(h) of the Railroad Unemployment Insurance Act.)
* * * For the purposes of determining * * * the amount of
contributions due pursuant to this Act, employment after June 30, 1940,
in the service of a local lodge or division of a
railway-labor-organization employer or as an employee representative
shall be disregarded. For purposes of determining * * * the amount of
contributions due pursuant to this Act, employment as a delegate to a
national or international convention of a railway labor organization
defined as an ''employer'' * * * shall be disregarded if the individual
having such employment has not previously rendered service, other than
as such a delegate, which may be included in his ''years of service''
for the purposes of the Railroad Retirement Act.
(Sec. 1(g), Railroad Unemployment Insurance Act)
(Board Order 59-219, 24 FR 10199, Dec. 17, 1959, as amended by Board
Order 62-17, 27 FR 1415, Feb. 15, 1962; Board Order 63-198, 28 FR
13360, Dec. 10, 1963; Board Order 66-131, 31 FR 16265, Dec. 20, 1966;
41 FR 17538, Apr. 27, 1976)
20 CFR 345.2 Employers' contributions.
The $400 specified in this section is the maximum compensation per
employee per month subject to contributions after May 31, 1959, with
respect to services rendered after that date. Maximum compensation
amounts subject to contributions, and allocations, for prior periods are
shown in 345.1.
(a) Except as provided in paragraph (b) of this section, every
employer shall pay a contribution equal to the following percentages of
the amount of compensation paid to any employee for employment on and
after July 1, 1939:
(b) If compensation is paid by more than one employer to an employee
with respect to employment during the same calendar month, and if the
aggregate compensation paid to such employee by all employers is more
than $400 for the calendar month, then there shall be included in the
measure of each such employer's contribution only that proportion of
$400 which the amount paid by him to the employee for the month bears to
the aggregate compensation paid to such employee by all employers for
that month: Provided, however,
(1) If such aggregate compensation is paid by two or more employers,
only one of whom is an employer other than a subordinate unit of a
national railway-labor-organization employer, and if the compensation
paid to the employee by the employer other than a subordinate unit
equals or exceeds $400 for the month, then no subordinate unit shall be
liable for any contribution with respect to the compensation paid by it
to such employee for that month, and the measure of the contribution of
the employer other than a subordinate unit with respect to the
compensation paid by him to such employee for that month shall be $400.
(2) If such aggregate compensation is paid by two or more employers
other than a subordinate unit of a national railway-labor-organization
employer, and by one or more subordinate units of a national
railway-labor-organization employer, and if the total compensation paid
to the employee by the employers other than a subordinate unit equals or
exceeds $400 for the month, then no subordinate unit shall be liable for
any contribution with respect to the compensation paid by it to such
employee for that month, and the measure of the contribution of each
employer other than a subordinate unit shall be that proportion of $400
which the compensation paid by such employer to the employee for the
month bears to the total compensation paid to such employee by all such
employers other than a subordinate unit for that month.
(3) If such aggregate compensation is paid by two or more employers,
only one of whom is a subordinate unit of a national
railway-labor-organization employer, and if the total compensation paid
to the employee by all employers other than the subordinate unit is less
than $400 for the month, then the measure of the contribution of each
employer other than the subordinate unit shall be the full amount of
compensation paid by him to such employee for that month, and the
measure of the contribution of the subordinate unit of a national
railway-labor-organization employer shall be $400 less the total
compensation paid to such employee for that month by all other
employers.
(4) If such aggregate compensation is paid by one or more employers
other than a subordinate unit of a national railway-labor-organization
employer and by two or more subordinate units of a national
railway-labor-organization employer, and if the total compensation paid
to the employee by all employers other than the subordinate units is
less than $400 for the month, then the measure of the contribution of
each employer other than the subordinate units shall be the full amount
of compensation paid by him to such employee for that month, and the
measure of the contribution of each subordinate unit of the national
railway-labor-organization employer shall be that proportion of $400
less the total compensation paid to such employee for the month by all
employers other than the subordinate units which the compensation paid
by such subordinate unit to the employee for that month bears to the
total compensation paid to such employee by all such subordinate units
for that month.
(Board Order 59-219, 24 FR 10199, Dec. 17, 1959, as amended by Board
Order 62-17, 27 FR 1416, Feb. 15, 1962; 41 FR 17539, Apr. 27, 1976; 41
FR 53475, Dec. 7, 1976)
20 CFR 345.4 Employers' reports of compensation of employees.
Each employer shall continue to file with the Board, in accordance
with the requirements of 250.3 of this chapter, as amended, reports of
the compensation of each employee, consisting of:
(a) A report of compensation for the calendar year on Form BA-3a (or
punched tabulating cards or magnetic tape in lieu thereof),
(b) A monthly report of compensation adjustments, on Form BA-4,
(c) A summary of compensation adjustments reported for the quarter,
on Form BA-5 and
(d) A summary report of compensation for the calendar year, on Form
BA-5.
(Approved by the Office of Management and Budget under control number
3220-0008)
(Board Order 66-123, 31 FR 15238, Dec. 6, 1966, as amended at 52 FR
11018, Apr. 6, 1987)
20 CFR 345.5 Employers' contribution reports.
(a) General. (1) Except as provided in paragraph (a)(2) of this
section, every employer shall, for the period of three calendar months
ending September 30, 1939, and for each subsequent period of three
calendar months ending December 31, March 31, June 30 and September 30,
respectively, of each year, prepare a contribution report, in duplicate,
on Form DC-1.
(2)(i) If an employer was covered by the Act during an entire
calendar year, and if the creditable compensation reported during such
year, multiplied by the contribution rate for the following year
produces an amount of less than $100, the employer may elect to make a
single contribution report for such following year.
(ii) Except as otherwise provided by agreement with the Board, each
employer is required to file a separate contribution report, and
consolidated contribution reports of parent and subsidiary corporations
are not permitted.
(iii) Contribution reports of employers who are required by State
laws to pay compensation on a weekly basis shall include with respect to
such compensation all pay roll weeks in which all or the major part of
the compensation falls within the period for which the reports are
required.
(b) Compensation to be reported on Form DC-1 for employers required
to pay contributions quarterly. Employers shall enter on the employer's
quarterly contribution report, prior to any additions or subtractions,
the amount of creditable compensation appearing on payrolls or other
disbursement documents for the corresponding quarter as the amount of
creditable compensation from which the contribution payable for that
quarter is to be computed.
(c) Compensation to be reported on Form DC-1 for employers qualified
to pay contributions annually. If an employer is qualified and has
elected to pay contributions annually, the total creditable compensation
reported on Form BA-5, prior to any additions or subtractions, shall be
entered on the employer's annual contribution report for the
corresponding calendar year as the amount of creditable compensation
from which the contribution payable for that calendar year is to be
computed.
(Approved by the Office of Management and Budget under control number
3220-0012)
(Board Order 52-61, 17 FR 2303, Mar. 18, 1952, as amended by Board
Order 55-325, 20 FR 9009, Dec. 8, 1955; Board Order 66-123, 31 FR
15239, Dec. 6, 1966; 52 FR 11018, Apr. 6, 1987)
20 CFR 345.6 Final employers' contribution reports.
Upon termination of employer status, as determined under 202.11 and
202.12 of this chapter, the last contribution report of the employer on
Form DC-1 shall be marked ''Final contribution report.'' Such
contribution report shall be filed with the Board on or before the
sixtieth day after the final date for which there is paid compensation
with respect to which contribution is required. The period covered by
each such contribution report shall be plainly written thereon,
indicating the final date for which compensation is paid.
There shall be executed as part of each such final contribution
report a statement giving the address at which compensation records will
be kept and the name of the person keeping the records.
(Approved by the Office of Management and Budget under control number
3220-0012)
(Board Order 47-123, 12 FR 2329, Apr. 9, 1947, as amended at 52 FR
11018, Apr. 6, 1987)
20 CFR 345.7 Execution of employers' contribution reports.
Each contribution report on Form DC-1 shall be signed by (a) the
individual, if the employer is an individual; (b) the president, vice
president, or other duly authorized officer, if the employer is a
corporation; or (c) a responsible and duly authorized member or officer
having knowledge of its affairs if the employer is a partnership or
other unincorporated organization.
(Board Order 54-253, 19 FR 7265, Nov. 9, 1954)
20 CFR 345.8 Prescribed forms for employers' contribution reports.
Each employer's contribution report, together with any prescribed
copies and supporting data, shall be filled out in accordance with the
instructions and regulations applicable thereto. The prescribed forms
may be obtained from the Board. An employer will not be excused from
making a contribution report for the reason that no form has been
furnished to such employer. Application should be made to the Board for
the prescribed forms in ample time to have the contribution report
prepared, verified, and filed with the Board on or before the due date.
Contribution reports shall be carefully prepared so as to set forth
fully and clearly the data called for therein. Contribution reports
which have not been so prepared will not be accepted, and the submission
thereof shall have no effect whatever. In case the prescribed form has
not been obtained, a statement made by the employer disclosing the
period covered and the amount of compensation with respect to which the
contribution is required may be accepted as a tentative contribution
report if accompanied by the amount of contribution due. If filed
within the prescribed time the statements so made will relieve the
employer from liability for the penalty imposed for the delinquent
filing of the contribution report: Provided, That the failure to file a
contribution report on the prescribed form is not attributable to the
fault of the employer: And provided further, That without unnecessary
delay such tentative report is supplemented by a contribution report
made on the proper form.
(Approved by the Office of Management and Budget under control number
3220-0012)
(Board Order 47-123, 12 FR 2329, Apr. 9, 1947, as amended at 52 FR
11018, Apr. 6, 1987)
20 CFR 345.9 Place and time for filing employers' contribution reports.
Each employer's contribution report shall be filed with the Director
of Fiscal and Planning Operations, Railroad Retirement Board, 844 Rush
Street, Chicago 11, Illinois.
(a) Except as provided in paragraph (b) of this section, the
employer's contribution report for each quarterly period shall be filed
on or before the last day of the calendar month following the period for
which it is made. If such last day falls on Saturday, Sunday, or a
national legal holiday, the report may be filed on the next following
business day. If mailed, reports must be postmarked on or before the
date on which the report is required to be filed.
(b) For eligible employers who have elected to report contributions
annually in accordance with 345.5(a)(2), the contribution report shall
be filed on or before the last day of the calendar month following the
close of the calendar year. If such last day falls on Saturday, Sunday,
or a national legal holiday, the report may be filed on the next
following business day. If mailed, reports must be postmarked on or
before the date on which the report is required to be filed.
(c) If there is a delay in the filing of a contribution report, the
Director of Fiscal and Planning Operations may set a later date for
filing, if, in his judgment, (1) the delay is due to reasonable cause,
(2) the amount of interest payable for the delinquency represents a
charge totally disproportionate to the period of delay and, (3) the
employer's previous record for submission of reports warrants such
action.
(Board Order 59-219, 24 FR 10200, Dec. 17, 1959, as amended at 50 FR
5235, Feb. 7, 1985)
20 CFR 345.10 Payment of employers' contributions.
(a) The contribution required to be reported on an employer's
contribution report is due and payable to the Board without assessment
or notice, at the time fixed for filing the contribution report.
(b) An employer shall deposit the contributions under the Railroad
Unemployment Insurance Act required to be deposited for the current
calendar year in accord with instructions issued by the Railroad
Retirement Board. At the direction of the Board, the Secretary of the
Treasury shall credit such contributions to the railroad unemployment
insurance account in accord with section 10 of the Railroad Unemployment
Insurance Act and to the railroad unemployment insurance administration
fund in accord with section 11 of the Railroad Unemployment Insurance
Act.
(50 FR 5235, Feb. 7, 1985, as amended at 57 FR 2677, Jan. 23, 1992)
20 CFR 345.11 When fractional part of cent may be disregarded.
In the payment of employers' contributions to the Board a fractional
part of a cent shall be disregarded unless it amounts to one-half cent
or more, in which case it shall be increased to 1 cent.
(Board Order 39-664, 4 FR 4372, Oct. 26, 1939)
20 CFR 345.12 Adjustments.
(a) In general. Section 8(d) of the act provides that if more or
less than the correct amount of employer's contribution is paid with
respect to any compensation, proper adjustments with respect to the
contribution shall be made, without interest, in subsequent contribution
payments by the same employer, under regulations prescribed by the
Board.
(b) Compensation adjustment. A compensation adjustment is the amount
of any adjustment reported by an employer on Form BA-4 of the
compensation of an individual employee.
(c) Adjustment of contributions. (1) For employers reporting
contributions quarterly, all adjustments of contributions based on
compensation adjustments shall be accounted for by the employer on the
contribution report for the same quarter in which the Form BA-4
reflecting the compensation adjustments is filed with the Board.
(2) For employers reporting contributions annually, the aggregate
total of all adjustments of contributions based on compensation
adjustments shall be accounted for by the employer on the contribution
report for the same calendar year in which Forms BA-4 reflecting the
compensation adjustments are filed with the Board.
(3) If less than the correct amount of contributions is paid for any
previous calendar quarter or calendar year because of an error that does
not constitute a compensation adjustment as defined in paragraph (b) of
this section, the employer shall adjust the error by (i) reporting the
additional amount due and payable by reason of the underpayment as
additional contribution on his next report filed after discovery of the
error and (ii) paying the amount thereof to the Board at the time such
report is filed.
If more than the correct amount of contributions is paid for any
previous calendar quarter or calendar year because of an error that does
not constitute a compensation adjustment as defined in paragraph (b) of
this section, the employer shall adjust the error by applying the excess
payment as a credit against the contribution due on his next report
filed after discovery of the error.
(d) Limitations on adjustments. No overpayment shall be adjusted
under this section after the expiration of 3 years from the time the
contribution report was required to be filed or 2 years from the time
the contribution was paid, whichever of such periods expires the later,
or if no contribution report was filed, 2 years from the time the
contribution was paid. No underpayment shall be adjusted under this
section after the receipt from the Board of formal notice and demand for
payment based upon an assessment, but the entire amount assessed shall
be paid to the Board pursuant to such notice and demand.
(Board Order 52-61, 17 FR 2305, Mar. 18, 1952, as amended by Board
Order 60-114, 25 FR 7486, Aug. 9, 1960)
20 CFR 345.13 Refunds.
(a) In general. Section 8(e) of the act provides that if more than
the correct amount of the employer's contribution is paid with respect
to any compensation and the overpayment cannot be adjusted, the amount
of the overpayment shall be refunded in such manner and at such times
(subject to the statute of limitations properly applicable thereto) as
may be prescribed by regulations of the Board.
(b) When permitted. A claim for refund may be made only when the
overpayments cannot be adjusted in accordance with the procedure set
forth in 345.12.
(c) Form of claim. A claim for refund shall be made on Form DC-3 in
accordance with the instructions and regulations applicable thereto.
The prescribed form may be obtained from the Board. There shall be set
forth all grounds in detail and all facts alleged in support of the
claim, including the amount and date of each payment to the Board of the
contribution for which refund is claimed, the name and address of the
employer who paid the contribution to the Board, and the period covered
by the contribution report on which such contribution was reported.
(d) Claim by fiduciary. If any contribution is paid by or on behalf
of an individual who thereafter dies and a claim for refund or credit is
filed by a legal representative of the deceased, certified copies of the
letters testamentary, letters of administration, or other similar
evidence shall be annexed to the claim, to show the authority of the
executor, administrator, or other fiduciary by whom the claim is filed.
If an executor, administrator, guardian, trustee, receiver, or other
fiduciary pays any contribution and thereafter a claim for refund or
credit is filed by the same fiduciary, documentary evidence to establish
the legal authority of the fiduciary need not accompany the claim,
provided a statement is made in the claim showing that the contribution
was paid by the fiduciary and that he is still acting. In such cases,
if a refund or interest is to be paid, letters testamentary, letters of
administration, or other evidence may be required to be submitted upon
the receipt of a specific request therefor. If a claim is filed by a
fiduciary or employer other than the one by whom the contribution was
paid, the necessary documentary evidence shall accompany the claim. The
claim form may be executed by an agent of the employer on whose behalf
the claim is made, but in such case a power of attorney shall accompany
the claim.
(e) Time limit. No refund shall be allowed after the expiration of 3
years from the time the contribution report was required to be filed or
2 years from the time the contribution was paid, whichever of such
periods expires the later, or if no contribution report was filed, 2
years from the time the contribution was paid.
(Board Order 39-664, 4 FR 4372, Oct. 26, 1939, as amended by Board
Order 51-254, 16 FR 8797, Aug. 30, 1951; Board Order 54-258, 19 FR
7265, Nov. 9, 1954; Board Order 60-114, 25 FR 7486, Aug. 9, 1960)
20 CFR 345.14 Assessment and collection of contributions or
underpayments of contributions.
(a) If any employer's contribution is not paid to the Board when due
or is not paid in full when due, the Board may, as the circumstances
warrant, assess the contribution or the deficiency and interest and
penalty, if any (whether or not the deficiency is adjustable as an
underpayment).
(b) The amount of any such assessment will be collected, in
accordance with the applicable provisions of law. If any employer
liable to pay any contribution neglects or refuses to pay the same
within ten days after notice and demand, the Board may collect such
contribution with such interest and other additional amounts as are
required by law, by distraint and sale in the manner provided by law.
(Board Order 62-17, 27 FR 1416, Feb. 15, 1962)
20 CFR 345.15 Jeopardy assessment.
(a) Whenever in the opinion of the Board it becomes necessary to
protect the interests of the Government by effecting an immediate
reporting and collection of an employer's contribution, the Board will
assess the contribution whether or not the time otherwise prescribed by
law for filing the contribution report and paying such contribution has
expired, together with all penalties and interest thereon. Upon
assessment, such contribution, penalty, and interest shall become
immediately due and payable, and the Board shall thereupon issue
immediately a notice and demand for payment of the contribution,
penalty, and interest.
(b) The collection of the whole or any part of the amount of the
jeopardy assessment may be stayed by filing with the Board a bond in an
amount equal to the amount with respect to which the stay is desired,
and with such sureties as the Board may deem necessary. Such bond shall
be conditioned upon the payment of the amount (together with interest
thereon) the collection of which is stayed, at the time at which, but
for the jeopardy assessment, such amount would be due. In lieu of
surety or sureties the employer may deposit with the Board bonds or
notes of the United States, or bonds or notes fully guaranteed by the
United States as to principal and interest, having a par value not less
than the amount of the bond required to be furnished, together with an
agreement authorizing the Board in case of default to collect or sell
such bonds or notes so deposited. Upon refusal to pay, or failure to
pay or give bond, the Board will immediately upon issuance of notice and
demand for payment proceed to collect the contribution, penalty, and
interest. If any employer liable to pay any contribution neglects or
refuses to pay the same within ten days after notice and demand, the
Board may collect such contribution with such interest and other
additional amounts as are authorized by law, by distraint and sale in
the manner provided by law.
(Board Order 62-17, 27 FR 1416, Feb. 15, 1962)
20 CFR 345.16 Interest.
If the employer's contribution is not paid to the Board when due and
is not adjusted under 345.12, interest accrues at the rate of 1 percent
per month, or fraction of a month. Interest on past due contributions
from the due date thereof until the date paid will be assessed after
payment of the contributions, and notice and demand made upon the
employer for payment thereof, in any case in which payment of the
contributions is made before assessment under 345.14.
(Board Order 54-253, 19 FR 7266, Nov. 9, 1954)
20 CFR 345.18 Liens.
If any employer required to pay a contribution neglects or refuses to
pay the same after demand, the amounts (including any interest,
penalties, additional amount, or additions to such contribution,
together with any costs that may accrue in addition thereto) shall be a
lien in favor of the United States upon all property and rights to
property, whether real or personal, belonging to such employer.
(Board Order 39-664, 4 FR 4373, Oct. 26, 1939)
20 CFR 345.19 Penalty for delinquent or false employers' contribution
reports.
(a) Delinquent reports. (1) Unless the employer required to file a
contribution report establishes to the satisfaction of the Board that a
reasonable cause exists for the delinquency, the failure to file such
contribution report on or before the due date shall cause a penalty to
accrue of 5 percent of the amount of such contribution if the failure is
for not more than one (1) month, with an additional 5 percent for each
additional month or fraction thereof during which such failure
continues, not exceeding 25 percent in the aggregate.
(2) Every employer filing a contribution report after the due date
shall securely attach to the report a signed statement explaining the
reason for the delinquency. This declaration shall become a part of the
contribution report and shall be subject to the same penalties for false
or fraudulent statements as are described on the face of Form DC-1.
Upon receipt of this declaration the Board shall determine whether a
penalty for late filing shall be assessed against the employer.
(b) False reports. If a fraudulent employer's contribution report is
made, the penalty is 50 percent of the underpayment.
(c) Penalty on net amount. For the purpose of paragraph (a) of this
section the amount of contribution required to be shown on Form DC-1
shall be reduced by the amount of any part of the contribution which is
paid on or before the date prescribed for the payment of the
contribution and by the amount of any credit against the contribution
which may be claimed upon the DC-1.
(Board Order 62-17, 27 FR 1416, Feb. 15, 1962)
20 CFR 345.20 Assessments.
The Director of Budget and Fiscal Operations is authorized, on behalf
of the Board, to issue assessments of contributions, interest, and
penalties, and notices and demands for payment thereof.
(Board Order 59-219, 24 FR 10200, Dec. 17, 1959)
20 CFR 345.21 References to forms.
Any reference in the regulations in this part to any prescribed
reporting or other form of the Board includes a reference to any other
form of the Board prescribed in substitution for such prescribed form.
(Board Order 39-664, 4 FR 4374, Oct. 26, 1939)
20 CFR 345.22 Appeals.
Appeals from determinations by employees of the Board with regard to
any matter arising under this part may be had in accordance with such
regulations as the Board may from time to time prescribe.
(Board Order 39-664, 4 FR 4374, Oct. 26, 1939)
20 CFR 345.24 Records.
(a) Every employer subject to contributions for any calendar quarter
shall, with respect to each such quarter, keep such permanent records as
are necessary to establish the total amount of compensation paid to his
employees, during each such quarter for services performed after June
30, 1939. The record should be in such form as to contain the
information required to be shown on the quarterly contribution report.
All records required by the regulations in this part shall be kept at a
safe and convenient location accessible to inspection by the Board or
any of its officers or employees thereto designated. Such records shall
be at all times open for inspection by such officers or employees.
(b) Records required by the regulations in this part shall be
maintained for a period of at least 5 calendar years after the date the
contribution to which they relate becomes due, or the date the
contribution is paid, whichever is later.
(Approved by the Office of Management and Budget under control number
3220-0012)
(Board Order 47-123, 12 FR 2329, Apr. 9, 1947, as amended by Board
Order 67-67, 32 FR 9065, June 27, 1967; 46 FR 63040, Dec. 30, 1981)
20 CFR 345.24 PART 346 -- RAILROAD HIRING
Authority: 45 U.S.C. 362(l).
20 CFR 346.1 Central register.
(a) The Board shall maintain a central register of railroad employees
with at least one year of service who have declared their current
availability for rail industry employment. The register shall indicate
which of those employees claims a first right of hire.
(b) The central register shall be subdivided by class and craft of
prior employment and shall be updated periodically to reflect current
employee availability.
(c) Upon request, listings of employees named in the central register
and selected on the basis of job experience, location of residence,
claimed hiring preference, last railroad employer or other available
selection criteria will be furnished to railroads. Railroads may
provide written notice of job vacancies to selected employees listed on
the register. The railroad notice to the employees should contain job
qualification requirements and application instructions. If the
railroad requests, the Board shall notify the employees of the vacancy.
(53 FR 3201, Feb. 4, 1988)
20 CFR 346.1 PART 348 -- (RESERVED)
20 CFR 346.1 SUBCHAPTER D -- GARNISHMENT OF BENEFITS
20 CFR 346.1 PART 350 -- GARNISHMENT OF BENEFITS PAID UNDER THE
RAILROAD RETIREMENT ACT, THE RAILROAD UNEMPLOYMENT INSURANCE ACT, AND
UNDER ANY OTHER ACT ADMINISTERED BY THE BOARD
Sec.
350.1 Authorization for garnishment of benefits paid by the Board.
350.2 Definitions.
350.3 Procedure.
350.4 Exemptions.
350.5 Miscellaneous.
Authority: 15 U.S.C. 1673(b)(2); 42 U.S.C. 659, 661, and 662; and
45 U.S.C. 231f(b)(5) and 362(1).
20 CFR 350.1 Authorization for garnishment of benefits paid by the
Board.
(a) Annuities and accrued annuities payable under the Railroad
Retirement Act, sickness and unemployment benefits payable under the
Railroad Unemployment Insurance Act, and benefits payable under any
other Act administered by the Board, are subject, in like manner and to
the same extent as if the Board were a private person, to legal process
brought for the enforcement of legal obligations to provide child
support or to make alimony payments.
(b) Lump sums, other than accrued annuities, which are payable under
the Railroad Retirement Act of 1974, such as those payable under
sections 6(b)(1) and 6(c)(1) of that Act, are not subject to legal
process as defined in this subchapter. However, an individual entitled
to a benefit under section 6 of the Railroad Retirement Act of 1974 may
assign the right to receive all or any part of that benefit.
(c) Except as authorized under paragraphs (a) and (b) of this section
and Part 295 of this chapter, no benefit paid by the Board shall be
assignable or be subject to garnishment, attachment, or other legal
process, nor shall the payment thereof be anticipated.
(d) In the absence of law to the contrary, it will be assumed that
''wages,'' ''earnings,'' and analogous terms referred to in relevant
provisions of state law include payments made by a private person which
are analogous to those paid by the Board.
(45 FR 28314, Apr. 29, 1980, as amended at 50 FR 12242, Mar. 28,
1985; 53 FR 35807, Sept. 15, 1988)
20 CFR 350.2 Definitions.
(a) Child support means periodic payments of funds for the support
and maintenance of a child or children; such term also includes
attorney's fees, interest, and court costs, when and to the same extent
that they are expressly made recoverable pursuant to a decree, order, or
judgment issued in accordance with applicable state law by a court of
competent jurisdiction.
(b) Alimony means periodic payments of funds for the support and
maintenance of a spouse or former spouse and, subject to and in accord
with state law, includes but is not limited to, separate maintenance,
alimony pendente lite, maintenance, and spousal support; such term also
includes attorney's fees, interest, and court costs, when and to the
extent that they are expressly made recoverable pursuant to a decree,
order, or judgment issued in accord with applicable State law by a court
of competent jurisdiction. Alimony does not include any payment or
transfer of property or of its value in compliance with any community
property settlement, equitable distribution of property, or other
division of property, nor does it include any payment to an estate.
(c) Legal process means any court order, summons, or other similar
process, including administrative orders, in the nature of garnishment,
which is directed to and the purpose of which is to compel the Board to
make a payment from moneys which are otherwise payable to an individual,
to another party in order to satisfy a legal obligation of such
individual to provide child support or make alimony payments. For
purposes of this subchapter, legal process additionally includes
assignments in lieu of garnishment, but only where grounds for the
issuance of legal process in the nature of garnishment exist. Such
assignments are revocable.
(d) Legal obligation means an obligation to pay alimony or child
support which is enforceable under appropriate state law.
(45FR 28314, Apr. 29, 1980, as amended at 53 FR 35807, Sept. 15,
1988)
20 CFR 350.3 Procedure.
(a) Service of legal process brought for the enforcement of an
individual's obligation to provide child support or make alimony
payments shall be accomplished by certified or registered mail, return
receipt requested, directed to the Deputy General Counsel of the Board,
844 Rush Street, Chicago, Illinois 60611, or by personal service upon
the Deputy General Counsel.
(b) Where the Deputy General Counsel is effectively served with legal
process relating to an individual's legal obligation to provide child
support or to make alimony payments, he shall, as soon as possible and
not later than 15 days after the date of effective service of such
process, send written notice that such process has been so served,
together with a copy thereof, to the individual whose moneys are
affected thereby; and, if response to such process is required, shall
respond within 30 days, or within such longer period as may be
prescribed by state law, after the date effective service is made.
These requirements do not apply in the case of an assignment in lieu of
garnishment or an assignment of a portion, attributable to the existence
of the annuitant's family members, of a railroad retirement annuity
computed under the social security minimum guaranty provision of the
Railroad Retirement Act.
(c) Included with the legal process issued to the Board should be the
name of the individual against whom the legal obligation to provide
child support or to make alimony payments is sought to be enforced and,
if available, the individual's social security or railroad retirement
number, the individual's address, and the type of benefit that the
individual is receiving from the Board.
(d) Legal process which refers to a payment in terms of a percentage
of some other amount must also refer to that payment in terms of a
specific amount or amounts. In connection with any legal process which
does not refer to a payment in terms of a specific amount or amounts,
the Board may compute the amount or may comply with that portion of the
legal process which specifies an amount or amounts and withhold
compliance with the balance of the process pending clarification from
the issuing court or from the party which procured that process.
(45 FR 28314, Apr. 29, 1980, as amended at 48 FR 51448, Nov. 9, 1983)
20 CFR 350.4 Exemptions.
(a) Unless a lower percentage or dollar amount limitation on
garnishment is provided by applicable state or local law, the portion of
any payment due to an individual which is subject to legal process to
enforce any order for the support of any person shall not exceed 65
percent. Where the individual is supporting a spouse or dependent
child, other than a spouse or child with respect to whose support that
legal process is issued, the portion subject to legal process is reduced
by 10 percent. Where the alimony or support arrearage is less than 12
weeks old, the portion subject to legal process is reduced by 5 percent.
If a lower limitation is provided by applicable state or local law,
then that lower limitation shall be applied.
(b) In the absence of some evidence to the contrary, it will be
assumed that the defendant is not supporting a spouse or dependent child
other than a spouse or child with respect to whose support the legal
process is issued.
(c) In any case in which a recurring benefit payment is reduced,
whether due to a recovery by the Board of an overpayment or for some
other reason, below the rate at which it is ordinarily paid, any
applicable exemptions shall be applied to the amount of the reduced
benefit which is actually paid.
(d) For purposes of the applicability of exemptions, amounts deducted
for medicare premiums must first be subtracted from the annuity amount.
(45 FR 28314, Apr. 29, 1980)
20 CFR 350.5 Miscellaneous.
(a) The Board may not be required to vary its normal disbursement
cycles in order to comply with legal process. However, legal process
which is received too late to be honored during the disbursement cycle
in which it is received may be honored to the extent that the legal
process may, in compliance with this part, be satisfied from the next
payment due to the obligor.
(b) Except as provided in these regulations, the Board may not be
required in connection with proceedings under this part to forward
documents which have been sent to the Board, to an individual, whether
or not he is entitled to benefits paid by the Board, or to disclose
information other than that relating to the type, amount (whether actual
or estimated), and dates of payment of benefits paid by the Board to
that individual.
(c) Neither the Board nor any of its employees shall be liable with
respect to any payment made to any individual from moneys due from or
payable by the Board pursuant to legal process regular on its face, if
such payment is made in accordance with this part.
(d) No employee of the Board whose duties include responding to legal
process pursuant to requirements contained in this part shall be subject
under any law to any disciplinary action or civil or criminal liability
or penalty for, or on account of, any disclosure of information made by
such employee in connection with the performance of the employee's
duties in responding to any such process.
(e) For purposes of a proceeding under this part, the Board will
apply the law of the state in which the legal process is issued unless
it comes to the attention of the Board that the state of issuance has no
contact with the plaintiff or defendant in the action; in which case,
the Board may, in its sole discretion, apply the law of any state with
significant interest in the matter.
(f) No acknowledgement or response will be made to legal process
which does not contain the mailing address to which acknowledgement may
be made. No response to any legal process will be notarized or
verified.
(45 FR 28314, Apr. 29, 1980, as amended at 50 FR 12242, Mar. 28,
1985)
20 CFR 350.5 SUBCHAPTER E -- ADMINISTRATIVE REMEDIES FOR FRAUDULENT CLAIMS OR STATEMENTS
20 CFR 350.5 PART 355 -- REGULATIONS UNDER THE PROGRAM FRAUD CIVIL
REMEDIES ACT OF 1986
Sec.
355.1 Basis and purpose.
355.2 Definitions.
355.3 Basis for civil penalties and assessments.
355.4 Investigation.
355.5 Review by the reviewing official.
355.6 Prerequisites for issuing a complaint.
355.7 Complaint.
355.8 Service of complaint.
355.9 Answer.
355.10 Default upon failure to file and answer.
355.11 Referral of complaint and answer to the ALJ.
355.12 Notice of hearing.
355.13 Parties to the hearing.
355.14 Separation of functions.
355.15 Ex parte contracts.
355.16 Disqualification of reviewing official or ALJ.
355.17 Rights of parties.
355.18 Authority of the ALJ.
355.19 Prehearing conferences.
355.20 Disclosure of documents.
355.21 Discovery.
355.22 Exchange of witness lists, statements, and exhibits.
355.23 Subpoenas for attendance at hearing.
355.24 Protective order
355.25 Fees.
355.26 Form, filing and service of papers.
355.27 Computation of time.
355.28 Motions.
355.29 Sanctions.
355.30 The hearing and burden of proof.
355.31 Determining the amount of penalties and assessments.
355.32 Location of hearing.
355.33 Witnesses.
355.34 Evidence.
355.35 The record.
355.36 Post-hearing briefs.
355.37 Initial decision.
355.38 Reconsideration of initial decision.
355.39 Appeal to authority head.
355.40 Stays ordered by the Department of Justice.
355.41 Stay pending appeal.
355.42 Judicial review.
355.43 Collection of civil penalties and assessments.
355.44 Right to administrative offset.
355.45 Deposit in Treasury of United States.
355.46 Compromise or settlement.
355.47 Limitations.
Authority: 31 U.S.C. 3809.
Source: 52 FR 47706, Dec. 16, 1987, unless otherwise noted.
20 CFR 355.1 Basis and purpose.
(a) Basis. This part implements the Program Fraud Civil Remedies Act
of 1986, Pub. L. 99-509, 6101-6104, 100 Stat. 1874 (Oct. 21, 1986), to
be codified at 31 U.S.C. 3801-3812. 31 U.S.C. 3809 of the statute
requires each authority head to promulgate regulations necessary to
implement the provisions of the statute.
(b) Purpose. This part --
(1) Establishes administrative procedures for imposing civil
penalties and assessments against persons who make, submit, or present,
or cause to be made, submitted, or presented, false, fictitious, or
fraudulent claims or written statements to authorities or to their
agents, and
(2) Specifies the hearing and appeal rights of persons subject to
allegations of liability for such penalties and assessments.
20 CFR 355.2 Definitions.
ALJ means an Administrative Law Judge detailed to the authority
pursuant to 5 U.S.C. 3344.
Authority means Railroad Retirement Board.
Authority head means the three-member Railroad Retirement Board.
Benefits means, except as the context otherwise requires, anything of
value, including but not limited to any advantage, preference,
privilege, license, permit, favorable decision, ruling, status, or loan
guarantee.
Board means Railroad Retirement Board.
Claim means any request, demand, or submission --
(a) Made to the authority for property, services, or money (including
money representing grants, loans, insurance, or benefits);
(b) Made to a recipient of property, services, or money from the
authority or to a party to a contract with the authority --
(1) For property or services if the United States --
(i) Provided such property or services;
(ii) Provided any portion of the funds for the purchase of such
property or services; or
(iii) Will reimburse such recipient or party for the purchase of such
property or services; or
(2) For the payment of money (including money representing grants,
loans, insurance, or benefits) if the United States --
(i) Provided any portion of the money requested or demanded; or
(ii) Will reimburse such recipient or party for any portion of the
money paid on such request or demand; or
(c) Made to the authority which has the effect of decreasing an
obligation to pay or account for property, services, or money.
Complaint means the administrative complaint served by the reviewing
official on the defendant under 355.7.
Defendant means any person alleged in a complaint under 355.7 to be
liable for a civil penalty or assessment under 355.3.
Government means the U.S. Government.
Individual means a natural person.
Initial decision means the written decision of the ALJ required by
355.10 or 355.37, and includes a revised initial decision issued
following a remand or a motion for reconsideration.
Investigating official means the Inspector General of the Railroad
Retirement Board or an officer or employee of the Office of the
Inspector General designated by the Inspector General and serving in a
position for which the rate of basic pay is not less than the minimum
rate of basic pay for grade GS-16 under the General Schedule.
Knows or has reason to know means that a person, with respect to a
claim or statement --
(a) Has actual knowledge that the claim or statement is false,
fictitious, or fraudulent;
(b) Acts in deliberate ignorance of the truth or falsity of the claim
or statement; or
(c) Acts in reckless disregard of the truth or falsity of the claim
or statement.
Makes, wherever it appears, shall include the terms presents,
submits, and causes to be made, presented, or submitted. As the context
requires, making or made shall likewise include the corresponding forms
of such terms.
Person means any individual, partnership, corporation, association,
private organization, state, political subdivision of a state,
municipality, county, district, and Indian tribe, and includes the
plural of that term.
Presiding officer means ALJ.
Representative means an attorney who is a member in good standing of
the bar of any state, territory, or possession of the United States or
of the District of Columbia.
Reviewing official means the General Counsel of the Board or his or
her designee who is --
(a) Not subject to supervision by, or required to report to, the
investigating official; and
(b) Not employed in the organizational unit of the authority in which
the investigating official is employed; and
(c) Is serving in a position for which the rate of basic pay is not
less than the minimum rate of basic pay for grade GS-16 under the
General Schedule.
Statement means any representation, certification, affirmation,
document, record, or accounting or bookkeeping entry made --
(a) With respect to a claim or to obtain the approval or payment of a
claim (including relating to eligibility to make a claim); or
(b) With respect to (including relating to eligibility for) --
(1) A contract with, or a bid or proposal for a contract with; or
(2) A grant, loan, or benefit from the authority, or any state,
political subdivision of a state, or other party, if the U.S.
Government provides any portion of the money or property under such
contract or for such grant, loan, or benefit, or if the Government will
reimburse such state, political subdivision, or party for any portion of
the money or property under such contract or for such grant, loan, or
benefit.
20 CFR 355.3 Basis for civil penalties and assessments.
(a) Claims. (1) Except as provided in paragraph (c) of this section,
any person who makes a claim that the person knows or has reason to know
--
(i) Is false, fictitious, or fraudulent;
(ii) Includes or is supported by any written statement which asserts
a material fact which is false, fictitious, or fraudulent;
(iii) Includes or is supported by any written statement that --
(A) Omits a material fact;
(B) Is false, fictitious, or fraudulent as a result of such omission;
and
(C) Is a statement in which the person making such statement has a
duty to include such material fact; or
(iv) Is for payment for the provision of property or services which
the person has not provided as claimed, shall be subject, in addition to
any other remedy that may be prescribed by law, to a civil penalty of
not more than $5,000 for each such claim.
(2) Each voucher, invoice, claim form, or other individual request or
demand for property, services, or money constitutes a separate claim.
(3) A claim shall be considered made to an authority, recipient, or
party when such claim is actually made to an agent, fiscal intermediary,
or other entity, including any state or political subdivision thereof,
acting for or on behalf of such authority, recipient, or party.
(4) Each claim for property, services, or money is subject to a civil
penalty regardless of whether such property, services, or money is
actually delivered or paid.
(5) If the Government has made any payment (including transferred
property or provided services) on a claim, a person subject to a civil
penalty under paragraph (a)(1) of this section shall also be subject to
an assessment of not more than twice the amount of such claim or that
portion thereof that is determined to be in violation of paragraph
(a)(1) of this section. Such assessment shall be in lieu of damages
sustained by the Government because of such claim. However, such
assessment shall not be in lieu of any recovery of erroneous payments as
authorized by section 10 of the Railroad Retirement Act or section 2(d)
of the Railroad Unemployment Insurance Act.
(b) Statements. (1) Except as provided in paragraph (c) of this
section, any person who makes a written statement that --
(i) The person knows or has reason to know --
(A) Asserts a material fact which is false, fictitious, or
fraudulent; or
(B) Is false, fictitious, or fraudulent because it omits a material
fact that the person making the statement has a duty to include in such
statement; and
(ii) Contains or is accompanied by an express certification or
affirmation of the truthfulness and accuracy of the contents of the
statement, shall be subject, in addition to any other remedy that may be
prescribed by law, to a civil penalty of not more than $5,000 for each
such statement.
(2) Each written representation, certification, or affirmation
constitutes a separate statement.
(3) A statement shall be considered made to an authority when such
statement is actually made to an agent, fiscal intermediary, or other
entity, including any state or political subdivision thereof, acting for
or behalf of such authority.
(c)(1) In the case of any claim or statement made by any individual
relating to any of the benefits listed in paragraph (c)(2) of this
section received by such individual, such individual may be held liable
for penalties and assessments under this section only if such claim or
statement is made by such individual in making application for such
benefits with respect to such individual's eligibility to receive such
benefits.
(2) For purposes of this paragraph, the term ''benefits'' means any
annuity or other benefit under the Railroad Retirement Act of 1974 which
are intended for the personal use of the individual who receives the
benefits or for a member of the individual's family.
(d) No proof of specific intent to defraud is required to establish
liability under this section.
(e) In any case in which it is determined that more than one person
is liable for making a claim or statement under this section, each such
person may be held liable for a civil penalty under this section.
(f) In any case in which it is determined that more than one person
is liable for making a claim under this section on which the Government
has made payment (including transferred property or provided services),
an assessment may be imposed against any such person or jointly and
severally against any combination of such persons.
20 CFR 355.4 Investigation.
(a) If an investigating official concludes that a subpoena pursuant
to the authority conferred by 31 U.S.C. 3804(a) is warranted --
(1) The subpoena so issued shall notify the person to whom it is
addressed of the authority under which the subpoena is issued and shall
identify the records or documents sought;
(2) He or she may designate a person to act on his behalf to receive
the documents sought; and
(3) The person receiving such subpoena shall be required to tender to
the investigating official or the person designated to receive the
documents a certification that the documents sought have been produced,
or that such documents are not available and the reasons therefor, or
that such documents, suitably identified, have been withheld based upon
the assertion of an identified privilege.
(b) If the investigating official concludes that an action under the
Program Fraud Civil Remedies Act may be warranted, the investigating
official shall submit a report containing the findings and conclusions
of such investigation to the reviewing official.
(c) Nothing in this section shall preclude or limit an investigating
official's discretion to refer allegations directly to the Department of
Justice for suit under the False Claims Act or other civil relief, or to
preclude or limit such official's discretion to defer or postpone a
report or referral to avoid interference with a criminal investigation
or prosecution.
(d) Nothing in this section modifies any responsibility of an
investigating official to report violations of criminal law to the
Attorney General.
20 CFR 355.5 Review by the reviewing official.
(a) If, based on the report of the investigating official under
355.4(b), the reviewing official determines that there is adequate
evidence to believe that a person is liable under 355.3 of this part,
the reviewing official shall transmit to the Attorney General a written
notice of the reviewing official's intention to issue a complaint under
355.7.
(b) Such notice shall include --
(1) A statement of the reviewing official's reasons for issuing a
complaint;
(2) A statement specifying the evidence that supports the allegations
of liability;
(3) A description of the claims or statements upon which the
allegations of liability are based;
(4) An estimate of the amount of money or the value of property,
services, or other benefits requested or demanded in violation of 355.3
this part;
(5) A statement of any exculpatory or mitigating circumstances that
may relate to the claims or statements known by the reviewing official
or the investigating official; and
(6) A statement that there is a reasonable prospect of collecting an
appropriate amount of penalties and assessments. Such a statement may
be based upon information then known or an absence of any information
indicating that the person may be unable to pay such an amount.
20 CFR 355.6 Prerequisites for issuing a complaint.
(a) The reviewing official may issue a complaint under 355.7 only if
--
(1) The Department of Justice approves the issuance of a complaint in
a written statement described in 31 U.S.C. 3803(b)(1), and
(2) In the case of allegations of liability under 355.3(a) with
respect to a claim, the reviewing official determines that, with respect
to such claim or a group of related claims submitted at the same time
such claim is submitted (as defined in paragraph (b) of this section),
the amount of money or the value of property or services demanded or
requested in violation of 355.3(a) does not exceed $150,000.
(b) For the purposes of this section, a related group of claims
submitted at the same time shall include only those claims arising from
the same transaction (e.g., grant, loan, application, or contract) that
are submitted simultaneously as part of a single request, demand, or
submission.
(c) Nothing in this section shall be construed to limit the reviewing
official's authority to join in a single complaint against a person,
claims that are unrelated or were not submitted simultaneously,
regardless of the amount of money or the value of property or services
demanded or requested.
20 CFR 355.7 Complaint.
(a) On or after the date the Department of Justice approves the
issuance of a complaint in accordance with 31 U.S.C. 3803(b)(1), the
reviewing official may serve a complaint on the defendant, as provided
in 355.8.
(b) The complaint shall state --
(1) The allegations of liability against the defendant, including the
statutory basis for liability, an identification of the claims or
statements that are the basis for the alleged liability, and the reasons
why liability allegedly arises from such claims or statements;
(2) The maximum amount of penalties and assessments for which the
defendant may be held liable;
(3) Instructions for filing an answer to request a hearing, including
a specific statement of the defendant's right to request a hearing by
filing an answer and to be represented by a representative; and
(4) That failure to file and answer within 30 days of service of the
complaint may result in the imposition of the maximum amount of
penalties and assessments without right to appeal.
(c) At the same time the reviewing official serves the complaint, he
or she shall serve the defendant with a copy of these regulations.
20 CFR 355.8 Service of complaint.
(a) Service of a complaint must be made by certified or registered
mail or by delivery in any manner authorized by Rule 4(d) of the Federal
Rules of Civil Procedure.
(b) Proof of service, stating the name and address of the person on
whom the complaint was served, and the manner and date of service, may
be made by --
(1) Affidavit of the individual making service;
(2) An acknowledged U.S. Postal Service return receipt card; or
(3) Written acknowledgment of the defendant or his representative.
20 CFR 355.9 Answer.
(a) The defendant may request a hearing by filing an answer with the
reviewing official within 30 days of service of the complaint. An
answer shall be deemed to be a request for hearing.
(b) In the answer, the defendant --
(1) Shall admit or deny each of the allegations of liability made in
the complaint;
(2) Shall state any defense on which the defendant intends to rely;
(3) May state any reasons why the defendant contends that the
penalties and assessments should be less than the statutory maximum;
and
(4) Shall state the name, address, and telephone number of the person
authorized by the defendant to act as defendant's representative, if
any.
20 CFR 355.10 Default upon failure to file an answer.
(a) If the defendant does not file an answer within the time
prescribed in 355.9(a), the reviewing official may refer the complaint
to the ALJ.
(b) Upon the referral of the complaint, the ALJ shall promptly serve
on defendant in the manner prescribed in 355.8, a notice that an
initial decision will be issued under this section.
(c) If the defendant has failed to answer the complaint, the ALJ
shall assume the facts alleged in the complaint to be true and, if such
facts establish liability under 355.3, the ALJ shall issue an initial
decision imposing the maximum amount of penalties and assessments
allowed under the statute.
(d) Except as otherwise provided in this section, by failing to file
a timely answer, the defendant waives any right to further review of the
penalties and assessments imposed under paragraph (c) of this section,
and the initial decision shall become final and binding upon the parties
30 days after it is issued.
(e) If, before such an initial decision becomes final, the defendant
files a motion with the ALJ seeking to reopen on the grounds that
extraordinary circumstances prevented the defendant from filing an
answer, the initial decision shall be stayed pending the ALJ's decision
on the motion.
(f) If, on such motion, the defendant can demonstrate extraordinary
circumstances excusing the failure to file a timely answer, the ALJ
shall withdraw the initial decision in paragraph (c) of this section, if
such a decision has been issued, and shall grant the defendant an
opportunity to answer the complaint.
(g) A decision of the ALJ denying a defendant's motion under
paragraph (e) of this section is not subject to reconsideration under
355.38.
(h) The defendant may appeal to the authority head the decision
denying a motion to reopen by filing a notice of appeal with the
authority head within 15 days after the ALJ denies the motion. The
timely filing of a notice of appeal shall stay the initial decision
until the authority head decides the issue.
(i) If the defendant files a timely notice of appeal with the
authority head, the ALJ shall forward the record of the proceeding to
the authority head.
(j) The authority head shall decide expeditiously whether
extraordinary circumstances excuse the defendant's failure to file a
timely answer based solely on the record before the ALJ.
(k) If the authority head decides that extraordinary circumstances
excused the defendant's failure to file a timely answer, the authority
head shall remand the case to the ALJ with instructions to grant the
defendant an opportunity to answer.
(l) If the authority head decides that the defendant's failure to
file a timely answer is not excused, the authority head shall reinstate
the initial decision of the ALJ, which shall become final and binding
upon the parties 30 days after the authority head issues such decision.
20 CFR 355.11 Referral of complaint and answer to the ALJ.
Upon receipt of an answer, the reviewing official shall file the
complaint and answer with the ALJ.
20 CFR 355.12 Notice of hearing.
(a) When the ALJ receives the complaint and answer, the ALJ shall
promptly serve a notice of hearing upon the defendant in the manner
prescribed by 355.8. At the same time, the ALJ shall send a copy of
such notice to the representative for the Government.
(b) Such notice shall include --
(1) The tentative time and place, and the nature of the hearing;
(2) The legal authority and jurisdiction under which the hearing is
to be held;
(3) The matters of fact and law to be asserted;
(4) A description of the procedures for the conduct of the hearing;
(5) The name, address, and telephone number of the representative of
the Government and of the defendant, if any; and
(6) Such other matters as the ALJ deems appropriate.
20 CFR 355.13 Parties to the hearing.
(a) The parties to the hearing shall be the defendant and the
authority.
(b) Pursuant to 31 U.S.C. 3730(c)(5), a private plaintiff under the
False Claims Act may participate in these proceedings to the extent
authorized by the provisions of that Act.
20 CFR 355.14 Separation of functions.
(a) The investigating official, the reviewing official, and any
employee or agent of the authority who takes part in investigating,
preparing, or presenting a particular case may not, in such case or a
factually related case --
(1) Participate in the hearing as the ALJ;
(2) Participate or advise in the initial decision or the review of
the initial decision by the authority head, except as a witness or a
representative in public proceedings; or
(3) Make the collection of penalties and assessments under 31 U.S.C.
3806.
(b) The ALJ shall not be responsible to, or subject to the
supervision or direction of the investigating official or the reviewing
official.
(c) Except as provided in paragraph (a) of this section, the
representative for the Government may be employed anywhere in the
authority, including in the offices of either the investigating official
or the reviewing official.
20 CFR 355.15 Ex parte contacts.
No party or person (except employees of the ALJ's office) shall
communicate in any way with the ALJ on any matter at issue in a case,
unless on notice and opportunity for all parties to participate. This
provision does not prohibit a person or party from inquiring about the
status of a case or asking routine questions concerning administrative
functions or procedures.
20 CFR 355.16 Disqualification of reviewing official or ALJ.
(a) A reviewing official or ALJ in a particular case may disqualify
himself or herself at any time.
(b) A party may file with the ALJ a motion for disqualification of a
reviewing official or an ALJ. Such motion shall be accompanied by an
affidavit alleging personal bias or other reason for disqualification.
(c) Such motion and affidavit shall be filed promptly upon the
party's discovery of reasons requiring disqualification, or such
objections shall be deemed waived.
(d) Such affidavit shall state specific facts that support the
party's discovery of such facts. It shall be accompanied by a
certificate of the representative of record that it is made in good
faith.
(e) Upon the filing of such a motion and affidavit, the ALJ shall
proceed no further in the case until he or she resolves the matter of
disqualification in accordance with paragraph (f) of this section.
(f)(1) If the ALJ determines that a reviewing official is
disqualified, the ALJ shall dismiss the complaint without prejudice.
(2) If the ALJ disqualifies himself or herself, the case shall be
reassigned promptly to another ALJ.
(3) If the ALJ denies a motion to disqualify, the authority head may
determine the matter only as part of his or her review of the initial
decision upon appeal, if any.
20 CFR 355.17 Rights of parties.
Except as otherwise limited by this part, all parties may --
(a) Be accompanied, represented, and advised by a representative;
(b) Participate in any conference held by the ALJ;
(c) Conduct discovery;
(d) Agree to stipulations of fact or law, which shall be made part of
the record;
(e) Present evidence relevant to the issues at the hearing;
(f) Present and cross-examine witnesses;
(g) Present oral arguments at the hearing as permitted by the ALJ;
and
(h) Submit written briefs and proposed findings of fact and
conclusions of law after the hearing.
20 CFR 355.18 Authority of the ALJ.
(a) The ALJ shall conduct a fair and impartial hearing, avoid delay,
maintain order, and assure that a record of the proceeding is made.
(b) The ALJ has the authority to --
(1) Set and change the date, time, and place of the hearing upon
reasonable notice to the parties;
(2) Continue or recess the hearing in whole or in part for a
reasonable period of time;
(3) Hold conferences to identify or simplify the issues, or to
consider other matters that may aid in the expeditious disposition of
the proceeding;
(4) Administer oaths and affirmations;
(5) Issue subpoenas requiring the attendance of witnesses and the
production of documents at depositions or at hearings;
(6) Rule on motions and other procedural matters;
(7) Regulate the scope and timing of discovery;
(8) Regulate the course of the hearing and the conduct of
representatives and parties;
(9) Examine witnesses;
(10) Receive, rule on, exclude, or limit evidence;
(11) Upon motion of a party, take official notice of facts;
(12) Upon motion of a party, decide cases, in whole or in part, by
summary judgment where there is no disputed issue of material fact;
(13) Conduct any conference, argument, or hearing on motions in
person or by telephone; and
(14) Exercise such other authority as is necessary to carry out the
responsibilities of the ALJ under this part.
(c) The ALJ does not have the authority to decide upon the validity
of Federal statutes or regulations.
20 CFR 355.19 Prehearing conferences.
(a) The ALJ may schedule prehearing conferences as appropriate.
(b) Upon the motion of any party, the ALJ shall schedule at least one
prehearing conference at a reasonable time in advance of the hearing.
(c) The ALJ may use prehearing conferences to discuss the following:
(1) Simplification of the issues;
(2) The necessity or desirability of amendments to the pleadings,
including the need for a more definite statement;
(3) Stipulations, admissions of fact or as to the contents and
authenticity of documents;
(4) Whether the parties can agree to submission of the case on a
stipulated record;
(5) Whether a party chooses to waive appearance at an oral hearing
and to submit only documentary evidence (subject to the objection of
other parties) and written argument;
(6) Limitation of the number of witnesses;
(7) Scheduling dates for the exchange of witness lists and of
proposed exhibits;
(8) Discovery;
(9) The time and place for the hearing; and
(10) Such other matters as may tend to expedite the fair and just
disposition of the proceedings.
(d) The ALJ may issue an order containing all matters agreed upon by
the parties or ordered by the ALJ at a prehearing conference.
20 CFR 355.20 Disclosure of documents.
(a) Upon written request to the reviewing official, the defendant may
review any relevant and material documents, transcripts, records, and
other materials that relate to the allegations set out in the complaint
and upon which the findings and conclusions of the investigating
official under 355.4(b) are based unless such documents are subject to
a privilege under Federal law. Upon payment of fees for duplication,
the defendant may obtain copies of such documents.
(b) Upon written request to the reviewing official, the defendant
also may obtain a copy of all exculpatory information in the possession
of the reviewing official or investigating official relating to the
allegations in the complaint, even if it is contained in a document that
would otherwise be privileged. If the document would otherwise be
privileged, only that portion containing exculpatory information must be
disclosed.
(c) The notice sent to the Attorney General from the reviewing
official as described in 355.5 is not discoverable under any
circumstances.
(d) The defendant may file a motion to compel disclosure of the
documents subject to the provisions of this section. Such a motion may
only be filed with the ALJ following the filing of an answer pursuant to
355.9.
20 CFR 355.21 Discovery.
(a) The following types of discovery are authorized:
(1) Requests for production of documents for inspection and copying;
(2) Requests for admissions of the authenticity of any relevant
document or of the truth of any relevant fact;
(3) Written interrogatories; and
(4) Depositions.
(b) For the purpose of this section and 355.22 and 355.23, the term
''documents'' includes information, documents, reports, answers,
records, accounts, papers, and other data and documentary evidence.
Nothing contained herein shall be interpreted to require the creation of
a document.
(c) Unless mutually agreed to by the parties, discovery is available
only as ordered by the ALJ. The ALJ shall regulate the timing of
discovery.
(d) Motions for discovery. (1) A party seeking discovery may file a
motion with the ALJ. Such a motion shall be accompanied by a copy of
the requested discovery, or in the case of depositions, a summary of the
scope of the proposed deposition.
(2) Within ten days of service, a party may file an opposition to the
motion and/or a motion for protective order as provided in 355.24.
(3) The ALJ may grant a motion for discovery only if he or she finds
that the discovery sought --
(i) Is necessary for the expeditious, fair, and reasonable
consideration of the issues;
(ii) Is not unduly costly or burdensome;
(iii) Will not unduly delay the proceeding; and
(iv) Does not seek privileged information.
(4) The burden of showing that discovery should be allowed is on the
party seeking discovery.
(5) The ALJ may grant discovery subject to a protective order under
355.24.
(e) Depositions. (1) If a motion for deposition is granted, the ALJ
shall issue a subpoena for the deponent, which may require the deponent
to produce documents. The subpoena shall specify the time and place at
which the deposition will be held.
(2) The party seeking to depose shall serve the subpoena in the
manner prescribed in 355.8.
(3) The deponent may file with the ALJ a motion to quash the subpoena
or a motion for a protective order within ten days of service.
(4) The party seeking to depose shall provide for the taking of a
verbatim transcript of the deposition, which it shall make available to
all other parties for inspection and copying.
(f) Each party shall bear its own costs of discovery.
20 CFR 355.22 Exchange of witness lists, statements and exhibits.
(a) At least 15 days before the hearing or at such other time as may
be ordered by the ALJ, the parties shall exchange witness lists, copies
of prior statements of proposed witnesses, and copies of proposed
hearing exhibits, including copies of any written statements that the
party intends to offer in lieu of live testimony in accordance with
355.33(b). At the time the above documents are exchanged, any party that
intends to rely on the transcript of deposition testimony in lieu of
live testimony at the hearing, if permitted by the ALJ, shall provide
each party with a copy of the specific pages of the transcript it
intends to introduce into evidence.
(b) If a party objects, the ALJ shall not admit into evidence the
testimony of any witness whose name does not appear on the witness list
or any exhibit not provided to the opposing party as provided above
unless the ALJ finds good cause for the failure or that there is no
prejudice to the objecting party.
(c) Unless another party objects within the time set by the ALJ,
documents exchanged in accordance with paragraph (a) of this section
shall be deemed to be authentic for the purpose of admissibility at the
hearing.
20 CFR 355.23 Subpoenas for attendance at hearing.
(a) A party wishing to procure the appearance and testimony of any
individual at the hearing may request that the ALJ issue a subpoena.
(b) A subpoena requiring the attendance and testimony of an
individual may also require the individual to produce documents at the
hearing.
(c) A party seeking a subpoena shall file a written request therefor
not less than 15 days before the date fixed for the hearing unless
otherwise allowed by the ALJ for good cause shown. Such request shall
specify any documents to be produced and shall designate the witnesses
and describe the address and location thereof with sufficient
particularity to permit such witnesses to be found.
(d) The subpoena shall specify the time and place at which the
witness is to appear and any documents the witness is to produce.
(e) The party seeking the subpoena shall serve it in the manner
prescribed in 355.8. A subpoena on a party or upon an individual under
the control of a party may be served by first-class mail.
(f) A party or the individual to whom the subpoena is directed may
file with the ALJ a motion to quash the subpoena within ten days after
service or on or before the time specified in the subpoena for
compliance if it is less than ten days after service.
20 CFR 355.24 Protective order.
(a) A party or a prospective witness or deponent may file a motion
for a protective order with respect to discovery sought by an opposing
party or with respect to the hearing, seeking to limit the availability
or disclosure of evidence.
(b) In issuing a protective order, the ALJ may make any order which
justice requires to protect a party or person from annoyance,
embarrassment, oppression, or undue burden or expense, including one or
more of the following:
(1) That the discovery not be had;
(2) That the discovery may be had only on specified terms and
conditions, including a designation of the time or place;
(3) That the discovery may be had only through a method of discovery
other than that requested;
(4) That certain matters not be inquired into, or that the scope of
discovery be limited to certain matters;
(5) That discovery be conducted with no one present except persons
designated by the ALJ;
(6) That the contents of discovery or evidence be sealed;
(7) That a deposition after being sealed be opened only by order of
the ALJ;
(8) That a trade secret or other confidential research, development,
commercial information, or facts pertaining to any criminal
investigation, proceeding, or other administrative investigation not be
disclosed or be disclosed only in a designated way; or
(9) That the parties simultaneously file specified documents or
information enclosed in sealed envelopes to be opened as directed by the
ALJ.
20 CFR 355.25 Fees.
The party requesting a subpoena shall pay the cost of the fees and
mileage of any witness subpoenaed in the amounts that would be payable
to a witness in a proceeding in U.S. District Court. A check for
witness fees and mileage shall accompany the subpoena when served,
except that when a subpoena is issued on behalf of the authority, a
check for witness fees and mileage need not accompany the subpoena.
20 CFR 355.26 Form, filing and service of papers.
(a) Form. (1) Documents filed with the ALJ shall include an original
and two copies.
(2) Every pleading and paper filed in the proceeding shall contain a
caption setting forth the title of the action, the case number assigned
by the ALJ, and a designation of the paper (e.g., motion to quash
subpoena).
(3) Every pleading and paper shall be signed by, and shall contain
the address and telephone number of the party or the person on whose
behalf the paper was filed, or his or her representative.
(4) Papers are considered filed when they are mailed. Date of
mailing may be established by a certificate from the party or its
representative or by proof that the document was sent by certified or
registered mail.
(b) Service. A party filing a document with the ALJ shall, at the
time of filing, serve a copy of such document on every other party.
Service upon any party of any document other than the complaint or
notice of hearing shall be made by delivering or mailing a copy to the
party's last known address. When a party is represented by a
representative, service shall be made upon such representative in lieu
of the actual party.
(c) Proof of service. A certificate of the individual serving the
document by personal delivery or by mail, setting forth the manner of
service, shall be proof of service.
20 CFR 355.27 Computation of time.
(a) In computing any period of time under this part or in an order
issued thereunder, the time begins with the day following the act,
event, or default, and includes the last day of the period, unless it is
a Saturday, Sunday, or legal holiday observed by the Federal government,
in which event it includes the next business day.
(b) When the period of time allowed is less than seven days,
intermediate Saturdays, Sundays, and legal holidays observed by the
Federal government shall be excluded from the computation.
(c) Where a document has been served or issued by mail, an additional
five days will be added to the time permitted for any response.
20 CFR 355.28 Motions.
(a) Any application to the ALJ for an order or ruling shall be by
motion. Motions shall state the relief sought, the authority relied
upon, and the facts alleged, and shall be filed with the ALJ and served
on all other parties.
(b) Except for motions made during a prehearing conference or at the
hearing, all motions shall be in writing. The ALJ may require that oral
motions be reduced to writing.
(c) Within 15 days after a written motion is served, or such other
time as may be fixed by the ALJ, any party may file a response to such
motion.
(d) The ALJ may not grant a written motion before the time for filing
responses thereto has expired, except upon consent of the parties or
following a hearing on the motion, but may overrule or deny such motion
without awaiting a response.
(e) The ALJ shall make a reasonable effort to dispose of all
outstanding motions prior to the beginning of the hearing.
20 CFR 355.29 Sanctions.
(a) The ALJ may sanction a person, including any party or
representative for --
(1) Failing to comply with an order, rule, or procedure governing the
proceeding;
(2) Failing to prosecute or defend an action; or
(3) Engaging in other misconduct that interferes with the speedy,
orderly, or fair conduct of the hearing.
(b) Any such sanction, including but not limited to those listed in
paragraphs (c), (d), (e) of this section, shall reasonably relate to the
severity and nature of the failure or misconduct.
(c) When a party fails to comply with an order, including an order
for taking a deposition, the production of evidence within the party's
control, or a request for admission, the ALJ may --
(1) Draw an inference in favor of the requesting party with regard to
the information sought;
(2) In the case of requests for admission, deem each matter of which
an admission is requested to be admitted;
(3) Prohibit the party failing to comply with such order from
introducing evidence concerning, or otherwise relying upon testimony
relating to the information sought; and
(4) Strike any part of the pleadings or other submissions of the
party failing to comply with such request.
(d) If a party fails to prosecute or defend an action under this part
commenced by service of a notice of hearing, the ALJ may dismiss the
action or may issue an initial decision imposing penalties and
assessments.
(e) The ALJ may refuse to consider any motion, request, response,
brief or other document which is not filed in a timely fashion.
20 CFR 355.30 The hearing and burden of proof.
(a) The ALJ shall conduct a hearing on the record in order to
determine whether the defendant is liable for a civil penalty or
assessment under 355.3 and, if so, the appropriate amount of any such
civil penalty or assessment considering any aggravating or mitigating
factors.
(b) The authority shall prove defendant's liability and any
aggravating factors by a preponderance of the evidence.
(c) The defendant shall prove any affirmative defenses and any
mitigating factors by a preponderance of the evidence.
(d) The hearing shall be open to the public unless otherwise ordered
by the ALJ for good cause shown.
20 CFR 355.31 Determining the amount of penalties and assessments.
(a) In determining an appropriate amount of civil penalties and
assessments, the ALJ and upon appeal, the authority head, should
evaluate any circumstances that mitigate or aggravate the violation and
should articulate in their opinions the reasons that support the
penalties and assessments they impose. Because of the intangible costs
of fraud, the expense of investigating such conduct, and the need to
deter others who might be similarly tempted, ordinarily double damages
and a significant civil penalty should be imposed.
(b) Although not exhaustive, the following factors are among those
that may influence the ALJ and the authority head in determining the
amount of penalties and assessments to impose with respect to the
misconduct (i.e., the false, fictitious, or fraudulent claims or
statements) charged in the complaint:
(1) The number of false, fictitious, or fraudulent claims or
statements;
(2) The time period over which such claims or statements were made;
(3) The degree of the defendant's culpability with respect to the
misconduct;
(4) The amount of money or the value of the property, services, or
benefit falsely claimed;
(5) The value of the Government's actual loss as a result of the
misconduct, including foreseeable consequential damages and the costs of
investigation;
(6) The relationship of the amount imposed as civil penalties to the
amount of the Government's loss;
(7) The potential or actual impact of the misconduct upon national
defense, public health or safety, or public confidence in the management
of Government programs and operations, including particularly the impact
on the intended beneficiaries of such programs;
(8) Whether the defendant has engaged in a pattern of the same or
similar misconduct;
(9) Whether the defendant attempted to conceal the misconduct;
(10) The degree to which the defendant has involved others in the
misconduct or in concealing it;
(11) Where the misconduct of employees or agents is imputed to the
defendant, the extent to which the defendant's practices fostered or
attempted to preclude such misconduct;
(12) Whether the defendant cooperated in or obstructed an
investigation of the misconduct;
(13) Whether the defendant assisted in identifying and prosecuting
other wrongdoers;
(14) The complexity of the program or transaction, and the degree of
the defendant's sophistication with respect to it, including the extent
of the defendant's prior participation in the program or in similar
transactions;
(15) Whether the defendant has been found, in any criminal, civil, or
administrative proceeding to have engaged in similar misconduct or to
have dealt dishonestly with the Government of the United States or of a
state, directly or indirectly; and
(16) The need to deter the defendant and others from engaging in the
same or similar misconduct.
(c) Nothing in this section shall be construed to limit the ALJ or
the authority head from considering any other factors that in any given
case may mitigate or aggravate the offense for which penalties and
assessments are imposed.
20 CFR 355.32 Location of hearing.
(a) The hearing may be held --
(1) In any judicial district of the United States in which the
defendant resides or transacts business;
(2) In any judicial district of the United States in which the claim
or statement in issue was made; or
(3) In such other place as may be agreed upon by the defendant and
the ALJ.
(b) Each party shall have the opportunity to present argument with
respect to the location of the hearing.
(c) The hearing shall be held at the place and at the time ordered by
the ALJ.
20 CFR 355.33 Witnesses.
(a) Except as provided in paragraph (b) of this section, testimony at
the hearing shall be given orally by witnesses under oath or
affirmation.
(b) At the discretion of the ALJ, testimony may be admitted in the
form of a written statement or deposition. Any such written statement
must be provided to all other parties along with the last known address
of such witness, in a manner which allows sufficient time for other
parties to subpoena such witness for cross-examination at the hearing.
Prior written statements of witnesses proposed to testify at the hearing
and deposition transcripts shall be exchanged as provided in 355.22(a).
(c) The ALJ shall exercise reasonable control over the mode and order
of interrogating witnesses and presenting evidence so as to --
(1) Make the interrogation and presentation effective for the
ascertainment of the truth.
(2) Avoid needless consumption of time, and
(3) Protect witnesses from harassment or undue embarrassment.
(d) The ALJ shall permit the parties to conduct such
cross-examination as may be required for a full and true disclosure of
the facts.
(e) At the discretion of the ALJ, a witness may be cross-examined on
matters relevant to the proceeding without regard to the scope of his or
her direct examination. To the extent permitted by the ALJ,
cross-examination on matters outside the scope of direct examination
shall be conducted in the manner of direct examination and may proceed
by leading questions only if the witness is a hostile witness, an
adverse party, or a witness identified with an adverse party.
(f) Upon motion of any party, the ALJ shall order witnesses excluded
so that they cannot hear the testimony of other witnesses. This rule
does not authorize exclusion of --
(1) A party who is an individual;
(2) In the case of a party that is not an individual, an officer or
employee of the party designated by the party's representative; or
(3) An individual whose presence is shown by a party to be essential
to the presentation of its case, including an individual employed by the
Government engaged in assisting the representative for the Government.
20 CFR 355.34 Evidence.
(a) The ALJ shall determine the admissibility of evidence.
(b) Except as provided herein, the ALJ shall not be bound by the
Federal Rules of Evidence. However, the ALJ may apply the Federal Rules
of Evidence where appropriate, e.g., to exclude unreliable evidence.
(c) The ALJ shall exclude irrelevant and immaterial evidence.
(d) Although relevant, evidence may be excluded if its probative
value is substantially outweighed by the danger of unfair prejudice,
confusion of the issues, or by considerations of undue delay or needless
presentation of cumulative evidence.
(e) Although relevant, evidence may be excluded if it is privileged
under Federal law.
(f) Evidence concerning offers of compromise or settlement shall be
inadmissible to the extent provided in Rule 408 of the Federal Rules of
Evidence.
(g) The ALJ shall permit the parties to introduce rebuttal witnesses
and evidence.
(h) All documents and other evidence offered or taken for the record
shall be open to examination by all parties, unless otherwise ordered by
the ALJ pursuant to 355.24.
20 CFR 355.35 The record.
(a) The hearing will be recorded and transcribed. Transcripts may be
obtained following the hearing from the ALJ at a cost not to exceed the
actual cost of duplication.
(b) The transcript of testimony, exhibits and other evidence admitted
at the hearing, and all papers and requests filed in the proceeding
constitute the record for the decision by the ALJ and the authority
head.
(c) The record may be inspected and copied (upon payment of a
reasonable fee) by anyone, unless otherwise ordered by the ALJ pursuant
to 355.24.
20 CFR 355.36 Post-hearing briefs.
The ALJ may require the parties to file post-hearing briefs. In any
event, any party may file a post-hearing brief. The ALJ shall fix the
time for filing such briefs, not to exceed 60 days from the date the
parties receive the transcript of the hearing or, if applicable, the
stipulated record. Such briefs may be accompanied by proposed findings
of fact and conclusions of law. The ALJ may permit the parties to file
reply briefs.
20 CFR 355.37 Initial decision.
(a) The ALJ shall issue an initial decision based only on the record,
which shall contain findings of fact, conclusions of law, and the amount
of any penalties and assessments imposed.
(b) The findings of fact shall include a finding on each of the
following issues:
(1) Whether the claims or statements identified in the complaint, or
any portions thereof, violate 355.3;
(2) If the person is liable for penalties or assessments, the
appropriate amount of any such penalties or assessments considering any
mitigating or aggravating factors that he or she finds in the case, such
as those described in 355.31.
(c) The ALJ shall promptly serve the initial decision on all parties
within 90 days after the time for submission of post-hearing briefs and
reply briefs (if permitted) has expired. The ALJ shall at the same time
serve all defendants with a statement describing the right of any
defendant determined to be liable for a civil penalty or assessment to
file a motion for reconsideration with the ALJ or a notice of appeal
with the authority head. If the ALJ fails to meet the deadline
contained in this paragraph, he or she shall notify the parties of the
reason for the delay and shall set a new deadline.
(d) Unless the initial decision of the ALJ is timely appealed to the
authority head, or a motion for reconsideration of the initial decision
is timely filed, the initial decision shall constitute the final
decision of the authority head and shall be final and binding on the
parties 30 days after it is issued by the ALJ.
20 CFR 355.38 Reconsideration of initial decision.
(a) Except as provided in paragraph (d) of this section, any party
may file a motion for reconsideration of the initial decision within 20
days of receipt of the initial decision. If service was made by mail,
receipt will be presumed to be five days from the date of mailing in the
absence of contrary proof.
(b) Every such motion must set forth the matters claimed to have been
erroneously decided and the nature of the alleged errors. Such motion
shall be accompanied by a supporting brief.
(c) Responses to such motions shall be allowed only upon request of
the ALJ.
(d) No party may file a motion for reconsideration of an initial
decision that has been revised in response to a previous motion for
reconsideration.
(e) The ALJ may dispose of a motion for reconsideration by denying it
or by issuing a revised initial decision.
(f) When a motion for reconsideration is made, the time periods for
appeal to the authority head contained in this section, and for finality
of the initial decision in 355.36(d), shall begin on the date the ALJ
issues the denial of the motion for reconsideration or a revised initial
decision, as appropriate.
20 CFR 355.39 Appeal to authority head.
(a) Any defendant who has filed a timely answer and who is determined
in an initial decision to be liable for a civil penalty or assessment
may appeal such decision to the authority head by filing a notice of
appeal with the authority head in accordance with this section.
(b)(1) No notice of appeal may be filed until the time period for
filing a motion for reconsideration under 355.38 has expired.
(2) If a motion for reconsideration is timely filed, a notice of
appeal must be filed within 30 days after the ALJ denies the motion or
issues a revised initial decision, whichever applies.
(3) If no motion for reconsideration is timely filed, a notice of
appeal must be filed within 30 days after the ALJ issues the initial
decision.
(4) The authority head may extend the initial 30-day period for an
additional 30 days if the defendant files with the authority head a
request for an extension within the initial 30-day period and shows good
cause.
(c) If the defendant files a timely notice of appeal with the
authority head, the ALJ shall forward the record of the proceeding to
the authority head.
(d) A notice of appeal shall be accompanied by a written brief
specifying exceptions to the initial decision and reasons supporting the
exceptions.
(e) The representative for the Government may file a brief in
opposition to exceptions within 30 days of receiving the notice of
appeal and accompanying brief.
(f) There is no right to appear personally before the authority head.
(g) There is no right to appeal any interlocutory ruling by the ALJ.
(h) In reviewing the initial decision, the authority head shall not
consider any objection that was not raised before the ALJ unless a
demonstration is made of extraordinary circumstances causing the failure
to raise the objection.
(i) If any party demonstrates to the satisfaction of the authority
head that additional evidene not presented at such hearing is material
and that there were reasonable grounds for the failure to present such
evidence at such hearing, the authority head shall remand the matter to
the ALJ for consideration of such additional evidence.
(j) The authority head may affirm, reduce, reverse, compromise,
remand, or settle any penalty or assessment, determined by the ALJ in
any initial decision.
(k) The authority head shall promptly serve each party to the appeal
with a copy of the decision of the authority head. At the same time the
authority head shall serve the defendant with a statement describing the
defendant's right to seek judicial review.
(l) Unless a petition for review is filed as provided in 31 U.S.C.
3805 after a defendant has exhausted all administrative remedies under
this part and within 60 days after the date on which the authority head
serves the defendant with a copy of the authority head's decision, a
determination that a defendant is liable under 355.3 is final and is
not subject to judicial review.
20 CFR 355.40 Stays ordered by the Department of Justice.
If at any time the Attorney General or an Assistant Attorney General
designated by the Attorney General transmits to the authority head a
written finding that continuation of the administrative process
described in this part with respect to a claim or statement may
adversely affect any pending or potential criminal or civil action
related to such claim or statement, the authority head shall stay the
process immediately. The authority head may order the process resumed
only upon receipt of the written authorization of the Attorney General.
20 CFR 355.41 Stay pending appeal.
(a) An initial decision is stayed automatically pending disposition
of a otion for reconsideration or of an appeal to the authority head.
(b) No administrative stay is available following a final decision of
the authority head.
20 CFR 355.42 Judicial review.
Section 3805 of title 31 U.S. Code authorizes judicial review by an
appropriate U.S. District Court of a final decision of the authority
head imposing penalties or assessments under this part and specifies the
procedures for such review.
20 CFR 355.43 Collection of civil penalties and assessments.
Sections 3806 and 3808(b) of title 31 U.S. Code, authorize actions
for collection of civil penalties and assessments imposed under this
part and specify the procedures for such actions.
20 CFR 355.44 Right to administrative offset.
The amount of any penalty or assessment which has become final, or
for which a judgment has been entered under 355.42 or 355.43, or any
amount agreed upon in a compromise or settlement under 355.46, may be
collected by administrative offset under 31 U.S.C. 3716, except that an
administrative offset may not be made under this subsection against a
refund of an overpayment of Federal taxes, then or later owing by the
United States to the defendant.
20 CFR 355.45 Deposit in Treasury of United States.
All amounts collected pursuant to this part shall be deposited as
miscellaneous receipts in the Treasury of the United States, except as
provided in 31 U.S.C. 3806(g).
20 CFR 355.46 Compromise or settlement.
(a) Parties may make offers of compromise or settlement at any time.
(b) The reviewing official has the exclusive authority to compromise
or settle a case under this part at any time after the date on which the
reviewing official is permitted to issue a complaint and before the date
on which the ALJ issues an initial decision.
(c) The authority head has exclusive authority to compromise or
settle a case under this part at any time after the date on which the
ALJ issues an initial decision, except during the pendency of any review
under 355.42 or during the pendency of any action to collect penalties
and assessments under 355.43.
(d) The Attorney General has exclusive authority to compromise or
settle a case under this part during the pendency of any review under
355.42 or of any action to recover penalties and assessments under 31
U.S.C. 3806.
(e) The investigating official may recommend settlement terms to the
reviewing official, the authority head, or the Attorney General, as
appropriate. The reviewing official may recommend settlement terms to
the authority head, or the Attorney General, as appropriate.
(f) Any compromise or settlement must be in writing.
20 CFR 355.47 Limitations.
(a) The notice of hearing with respect to a claim or statement must
be served in the manner specified in 355.8 within 6 years after the
date on which such claim or statement is made.
(b) If the defendant fails to file a timely answer, service of a
notice under 355.10(b) shall be deemed a notice of hearing for purposes
of this section.
(c) The statute of limitations may be extended by agreement of the
parties.
20 CFR 355.47 SUBCHAPTER F -- INTERNAL ADMINISTRATION, POLICY AND PROCEDURES
20 CFR 355.47 PART 360 -- EMPLOYEE RESPONSIBILITIES AND CONDUCT
20 CFR 355.47 Subpart A -- Executive Personnel Financial Disclosure
Requirements
Sec.
360.1 Purpose.
360.2 Policy.
360.3 Designation of agency ethics official.
360.4 Who must file.
360.5 Requirements for filing.
360.6 Contents of report.
360.7 Failure to file.
360.8 Misuse of reports.
360.9 Public access to reports.
360.10 Ethics agreements.
20 CFR 355.47 Subpart B -- Employee Standards of Conduct
360.11 Purpose.
360.12 Standards of ethical conduct for Board employees.
360.13 Ethical conduct for special Government employees. (Reserved)
360.14 Delegation of responsibilities.
360.15 Statements of employment and financial interests.
360.16 Supplementary statements.
360.17 Interest of employee's relatives.
360.18 Information not known by employees.
360.19 Information not required.
360.20 Confidentiality of employee's statements.
360.21 Effect of employee's statements on other requirements.
360.22 Statements of special Government employees.
360.23 Review of statements.
360.24 Disciplinary and remedial action.
360.25 Unauthorized disclosure of tax information.
20 CFR 355.47 Subpart C -- Post-Employment Conflict of Interest
360.26 Purpose.
360.27 Board responsibilities.
360.28 Designation of Senior Employees.
360.29 Post-employment restrictions.
360.30 Administrative enforcement proceedings.
Source: 51 FR 43727, Dec. 4, 1986, unless otherwise noted.
20 CFR 355.47 Subpart A -- Executive Personnel Financial Disclosure
Requirements
Authority: 5 U.S.C. App. 201-212; 5 CFR Part 738.
20 CFR 360.1 Purpose.
Under the Ethics in Government Act certain Federal employees are
required to file financial disclosure statements. This subpart is
intended to implement the requirements of this Act. The employees
required to file reports are identified and the procedures and
applicable time limits are specified.
20 CFR 360.2 Policy.
In accordance with the Ethics in Government Act, executives of the
Railroad Retirement Board in positions identified herein are required to
disclose their personal financial interests and thereby demonstrate that
they are able to carry out their duties without compromising the public
trust. Statements of income, assets and liabilities must be reported.
A systematic review of the financial holdings of both current and
prospective officers and employees will serve to deter conflicts of
interest and to identify potential conflicts of interest in the case of
newcomers to Board service.
20 CFR 360.3 Designation of agency ethics official.
(a) The Board's designated agency ethics official (DAEO) shall be the
Board's General Counsel. This individual is responsible for
coordinating and managing the Board's ethics program in accordance with
the provisions of 5 CFR 738.203. This responsibility includes
maintaining liaison with the Office of Government Ethics; reviewing
financial disclosure reports; initiation and maintenance of ethics
education and training programs; and monitoring administrative actions
and sanctions.
(b) The Board's alternate agency ethics official shall be the Deputy
General Counsel. This individual will serve in an acting capacity in
the absence of the primary designated agency ethics official. The
alternate agency ethics official shall also serve as the deputy ethics
official.
(c) The deputy ethics official shall work under the supervision of
the designated agency ethics official in carrying out delegated
functions.
20 CFR 360.4 Who must file.
Reports of personal financial interest are to be filed by each Board
employee whose position is classified at GS-16 or above of the General
Schedule prescribed by 5 U.S.C. 5332; or the rate of basic pay for
which is fixed, other than under the General Schedule, at a rate equal
to or greater than the minimum rate of basic pay fixed for GS-16; and
each employee in any other position determined by the Director of the
Office of Government Ethics to be of equal classification. Also
required to file reports of personal financial interest are the
assistants to the Board Members occupying excepted positions and the
Board's designated ethics officials.
20 CFR 360.5 Requirements for filing.
(a) Requirements for incumbent. An incumbent reporting individual
who, during any calendar year, performs the duties of his or her
position for a period in excess of 60 days shall file a report of
personal financial interest on or before May 15 of the succeeding year.
(b) Requirement for new entrant. A new entrant to a position
requiring reporting shall file a report of personal financial interest
within 30 days of assuming the position. This report is not required if
the individual left another position for which a report had been filed
within the 30 days prior to assuming the new position or if the
individual has already filed a report as a nominee for the new position.
(c) Nominees for Board Member positions. Nominees for Board Member
positions shall file a report of personal financial interest within five
days of the transmittal of their nomination by the President to the
Senate.
(d) Report to be filed on termination of employment from covered
position. On or before the thirtieth day after termination of
employment from a covered position, a reporting individual shall file a
report of financial interest for the period from the end of the calendar
year with respect to which a report was last filed to the date on which
the individual left such position. In a case in which the individual
assumes employment in another covered position within 30 days of such
termination, no report shall be required.
(e) Reports to be filed with the DAEO. (1) A reporting individual
shall file the required report with the Board's DAEO. The DAEO shall
note on any report or supplemental report the date it is received. The
DAEO may, for good cause shown, grant to any employee or class of
employees an extension of up to 45 days to file the required report.
The agency shall transmit to the Director, Office of Government Ethics,
copies of the reports required to be filed by the designated agency
ethics officials and by the three Board Members or nominees to those
positions.
(2) Prior to transmitting a copy of the reports of the three Board
Members or nominees for Board Member positions to the Director, the
reports shall be reviewed by the Board's DAEO in accordance with
360.5(f). Prior to transmitting a copy of the report of the DAEO or
his/her alternate to the Director, the Board Members shall review the
report in accordance with 360.5(f).
(f) All reports filed with the DAEO or the Board Members, as the case
may be, shall be reviewed by them within 60 days after the date of
filing. Reports shall be reviewed for completeness and compliance with
the Ethics in Government Act and other applicable law or regulation. If
the reviewing official(s) finds that additional information is required
he or she shall request this information, indicating a date by which
this information must be submitted. If the reviewing official(s)
determine that remedial action is necessary to bring the report in
compliance with the Ethics in Government Act or other applicable law or
regulation, he or she, after personal consultation with the individual
who filed the report, shall specify what remedial action should be
taken. If the reporting individual does not comply with a request for
remedial action, then the reviewing official(s) shall notify the
Director of the Office of Government Ethics and refer the matter for
appropriate action to the Board Members in the case in which the DAEO is
the reviewing official. Where the DAEO is reviewing a report of a Board
Member, then the referral shall be to the President.
20 CFR 360.6 Contents of report.
Reports by incumbents, new entrants, nominees, and termination
reports filed under 360.5 (a) through (d) of this part shall be made on
the form prescribed by the Office of Government Ethics. These reports
shall be made in accordance with the instructions issued by the Office
of Government Ethics and shall include a full and complete statement of
the information required on the form.
20 CFR 360.7 Failure to file.
(a) Civil penalties. The Board Members or the Director, Office of
Government Ethics, as the case may be, shall refer to the Attorney
General the name of any individual he or she has reasonable cause to
believe has willfully failed to file a report or has willfully falsified
or willfully failed to file required information. The Attorney General
may bring a civil action in any appropriate U.S. District Court against
any individual who knowingly and willfully falsifies or who knowingly or
willfully fails to file or report any information required under this
subpart. The court may assess against the individual a civil penalty in
any amount, not to exceed $5,000.
(b) Personnel action or other penalties. The Board Members may take
any appropriate personnel or other action in accordance with applicable
law or regulation against any individual failing to file a report or
falsifying or failing to file required information. This action
includes adverse action under 5 CFR part 752.
20 CFR 360.8 Misuse of reports.
The Attorney General may bring a civil action against any person who
obtains or uses a report filed under this part for any purpose
prohibited by section 205(c)(1) of the Ethics in Government Act and this
section. Financial disclosure reports may not be used for any unlawful
purpose, for any commercial purpose, for determining or establishing the
credit rating of any individual, or for use directly or indirectly in
solicitation of money for any political, charitable, or other purpose.
The court may assess a penalty in any amount, not to exceed $5,000, in
addition to any other remedy available under statutory or common law.
20 CFR 360.9 Public access to reports.
(a) Disclosure to public. The Board's DAEO shall make each report
filed under this Part available to the public, together with a copy of
the official position description of the position held by the reporting
individual involved, if available. Within 15 days after any report is
actually received by the Board, any person who makes a written
application will be permitted to inspect the report or will be furnished
a copy of the report. The written application must state: The person's
name, occupation and address; the name and address of any other person
or organization on whose behalf the inspection or copy is requested;
and that the person is aware of the prohibitions on the obtaining or use
of the report, as set forth in 360.8. A report shall be made available
to the public for a period of six years after receipt of the report.
(b) Charges assessed for reproduction. The fee for copies of the
report shall be $.10 per copy per page. Any or all fees may be waived
or reduced by the DAEO whenever he or she determines that it is in the
public interest to do so. Generally, the fee will be waived except in
cases where an amount of $30.00 or more is involved.
20 CFR 360.10 Ethics agreements.
This section applies to ethics agreements made by reporting
individuals to resolve potential or actual conflicts of interest. The
term ''ethics agreement'' includes any undertaking to carry out one or
more of the following actions:
(a) Recusal or disqualification from one or more particular matters
or categories of official action;
(b) Divestiture of a financial interest or interests;
(c) Resignation from a non-federal business or other entity;
(d) Participation in one or more particular matters or categories of
official action upon the issuance of an 18 U.S.C. 208(b)(1) waiver; or
(e) Establishment of a blind trust under the Ethics in Government
Act.
The ethics agreement shall specify that the individual must complete
the action which he or she has undertaken within a period not to exceed
3 months from the date of the agreement, except in cases of unusual
hardship. Reporting individuals making ethics agreements must submit
evidence of action taken to carry out an ethics agreement. Records of
ethics agreements and actions to carry them out shall be maintained with
the individual's financial disclosure report at the Board and, where
applicable, at the Office of Government Ethics.
20 CFR 360.10 Subpart B -- Employee Standards of Conduct
Authority: E.O. 11222, 3 CFR, 1964-1965 Comp., p. 306; 18 U.S.C.
201, note; 5 CFR Part 735.
20 CFR 360.11 Purpose.
The proper performance of the Board's business and the maintenance of
citizens' confidence requires the avoidance of misconduct and conflicts
of interest on the part of Board employees and requires high standards
of honesty, integrity, impartiality and conduct. This subpart sets
forth Board regulations prescribing standards of conduct and
responsibility and governing statements reporting employment and
financial interests for Board employees and special Government
employees.
20 CFR 360.12 Standards of ethical conduct for Board employees.
(a) A Board employee shall avoid any action, whether or not
specifically prohibited by this part, which might result in, or create
the appearance of:
(1) Using public office for private gain;
(2) Giving preferential treatment to any person;
(3) Impeding Government efficiency or economy;
(4) Losing complete independence or impartiality;
(5) Making a Government decision outside official channels; or
(6) Affecting adversely the confidence of the public in the integrity
of the Government.
(b) Gifts, entertainment, and favors.
(1) Except as provided in paragraph (b)(2) of this section, a Board
employee shall not solicit or accept, directly or indirectly, any gift,
gratuity, favor, entertainment, loan, or any other thing of monetary
value, from a person who:
(i) Has, or is seeking to obtain, contractual or other business or
financial relations with the Board;
(ii) Conducts operations or activities that are regulated by the
Board; or
(iii) Has interest that may be substantially affected by a Board
employee's performance or nonperformance of his or her official duty.
(2) The prohibitions contained in paragraph (b)(1) of this section
shall not apply in the following situations:
(i) Where the action on the part of the Board employee involves a
family or other close personal relationship when the circumstances make
it clear that it is the special relationship rather than the business of
the persons concerned which is the motivating factor;
(ii) Acceptance of food and refreshments of nominal value on
infrequent occasions in the ordinary course of a luncheon or dinner
meeting or other meeting where an employee may properly be in
attendance;
(iii) Acceptance of loans from banks or other financial institutions
on customary terms to finance proper and usual activities of employees,
such as home mortgage loans; and
(iv) Acceptance of unsolicited advertising or promotional material,
such as pens, pencils, note pads, calendars and other items of nominal
intrinsic value.
(3) A Board employee shall not solicit a contribution from another
employee for a gift to an official superior, make a donation as a gift
to an official superior, or accept a gift from an employee receiving
less pay than himself (5 U.S.C. 7351). However, this paragraph does not
prohibit a voluntary gift of nominal value or donation in a nominal
amount made on a special occasion such as marriage, illness, or
retirement.
(4) A Board employee shall not accept a gift, present, decoration, or
other thing from a foreign government unless authorized by Congress as
provided by the Constitution and in section 7342 of title 5 United
States Code.
(5) Paragraph (b) of this section shall not preclude a Board employee
from receipt of bona fide reimbursement, unless prohibited by law, for
expenses of travel and such other necessary subsistence as is compatible
with this part for which no Government payment or reimbursement is made.
However, this paragraph does not allow an employee to be reimbursed, or
payment to be made on his behalf, for excessive personal living
expenses, gifts, entertainment or other personal benefits, nor does it
allow a Board employee to be reimbursed by a person when reimbursement
is proscribed by Decision B-128527 of the Comptroller General dated
March 7, 1967 (46 Comp. Gen. 689).
(c) Outside employment. (1) A Board employee shall not engage in
outside employment or other outside activity not compatible with the
full and proper discharge of the duties and responsibilities of his
Government employment. Incompatible activities include but are not
limited to:
(i) Acceptance of a fee, compensation, gift, payment of expense, or
any other thing of monetary value in circumstances in which acceptance
may result in, or create the appearance of, conflicts of interest; or
(ii) Outside employment which tends to impair his or her mental or
physical capacity to perform his or her Government duties and
responsibilities in an acceptable manner.
(2) A Board employee shaml not receive any salary or anything of
monetary value from a private source as compensation for services to the
Government (18 U.S.C. 209). Board employees are encouraged to engage in
teaching, lecturing, and writing that is not prohibited by law, the
Executive Order, OPM or Board regulations. However, an employee shall
not, either for or without compensation, engage in teaching, lecturing,
or writing, including teaching, lecturing, or writing for the purpose of
the special preparation of a person or class of persons for an
examination of the OPM or Board of Examiners for the Foreign Service,
that depends on information obtained as a result of his Board
employment, except when that information has been made available on
request, or when the Board gives written authorization for use of
non-public information on the basis that the use is in the public
interest. This section does not preclude a Board employee from:
(i) Participation in the activities of national or state political
parties not proscribed by law;
(ii) Participation in the affairs of or acceptance of an award for
meritorious public contribution or achievement given by a charitable,
religious, professional, social, fraternal, non-profit educational and
recreational, public service, or civic organization; or
(iii) Outside employment not prohibited by these regulations.
(d) Financial interests. A Board employee shall not:
(1) Have a direct or indirect financial interest that conflicts
substantially, or appears to conflict substantially, with his Board
duties and responsibilities; or
(2) Engage in, directly or indirectly, a financial transaction as a
result of, or primarily relying on, information obtained through his
Board employment.
This paragraph does not preclude a Board employee from having a
financial interest or engaging in financial transaction to the same
extent as a private citizen not employed by the Government so long as it
is not prohibited by law, the Executive Order, OPM or Board regulations.
(e) Use of Government property. A Board employee shall not directly
or indirectly use, or allow the use of, Government property of any kind,
including property leased to the Government, for other than officially
approved activities. An employee has a positive duty to protect and
conserve Government property, including equipment, supplies, and other
property entrusted or issued to him or her.
(f) Misuse of information. For the purpose of furthering a private
interest, a Board employee shall not, except as provided in paragraph
(c)(2) of this section directly use, or allow the use of, official
information obtained through or in connection with his Government
employment which has not been made available to the general public.
(g) Indebtedness. A Board employee shall pay each just financial
obligation in a proper and timely manner. A ''just financial
obligation'' means one acknowledged by the employee or reduced to
judgement by a court, or one imposed by law such as Federal, state or
local taxes, and ''in a proper and timely manner'' means in a manner
which the Board determines does not, under the circumstances, reflect
adversely on the Government or the Board as the employee's employer. In
the event of dispute between an employee and an alleged creditor, the
Board shall not be required to determine the validity or amount of the
disputed debt.
(h) Gambling, betting and lotteries. A Board employee shall not
participate, while on Government-owned or leased property or while on
duty for the Government, in any gambling activity including the
operation of a gambling device, in conducting a lottery or pool, in a
game for money or property, or in selling or purchasing a numbers slip
or ticket. However, this section does not preclude solicitation
activities approved by the Board.
(i) General conduct prejudicial to the Government. A Board employee
shall not engage in criminal, infamous, dishonest, immoral, or
notoriously disgraceful conduct, or other conduct prejudicial to the
Government.
(j) Disclosure and maintenance of personal information. (1) No
employee of the Board who, by virtue of his or her employment and
position, has access to personally identifiable agency records shall
disclose any information about an individual to a person or agency not
entitled to receive such information. An employee who discloses such
material may be guilty of a misdemeanor and subject to a fine not to
exceed $5,000.
(2) Any officer or employee of the Board who willfully maintains a
system of records without meeting the notice requirement of the Privacy
Act (published in the Federal Register) is guilty of a misdemeanor and
can be fined up to $5,000.
(3) Any employee who knowingly and willfully requests or obtains
under false pretenses any Board record concerning an individual is
guilty of a misdemeanor and can be fined up to $5,000 (5 U.S.C. 552a).
(k) Testimony. An employee of the Board shall not testify as an
expert witness on behalf of any party in any proceeding to which the
United States is also a party and where such party takes a position
which is contrary to that of the United States except:
(1) That the employee may testify from personal knowledge as to the
occurrences which are relevant to the issues in the proceeding including
those in which the employee participated, utilizing his or her
expertise, or
(2) In any proceeding where it is determined that another expert in
the field cannot practically be obtained; that it is impracticable for
the facts or opinions on the same subject to be obtained by other means,
and that the employee's testimony is required in the interest of
justice.
(l) Participation on behalf of a friend, relative, or coworker. An
employee of the Board shall not participate in the technical
development, adjudication, or review of a matter which may result in
entitlement to any benefit paid by the Board for themselves, their
relatives, friends, or coworkers. When this situation arises, employees
shall disqualify themselves and refer the matter to their supervisor.
The matter may not be referred to a subordinate employee. When
immediate disqualification and referral are not practicable, the
employee shall submit the action for review by the supervisor as soon
thereafter as possible.
(m) Miscellaneous statutory provisions. Each Board employee shall
acquaint himself or herself with each statute that relates to his or her
ethical and other conduct as an employee of the Board and of the
Government. The following is a list of statutes relating to ethical and
other conduct:
(1) House Concurrent Resolution 175, 85th Congress, 2d Session, 72
Stat. B12, the ''Code of Ethics for Government Service''.
(2) Chapter 11 of Title 18, United States Code, relating to bribery,
graft, and conflicts of interest, as appropriate to the employees
concerned.
(3) The prohibition against lobbying with appropriated funds (18
U.S.C. 1913).
(4) The prohibitions against disloyalty and striking (5 U.S.C. 7311;
18 U.S.C. 1918).
(5) The prohibition against the employment of a member of a Communist
organization (50 U.S.C. 784).
(6) The prohibitions against:
(i) The disclosure of classified information (18 U.S.C. 798; 50
U.S.C. 783); and
(ii) The disclosure of confidential information (18 U.S.C. 1905).
(7) The provision relating to the habitual use of intoxicants to
excess (5 U.S.C. 7352).
(8) The prohibition against the misuse of a Government vehicle (31
U.S.C. 638a(c)).
(9) The prohibition against the misuse of the franking privilege (18
U.S.C. 1719).
(10) The prohibition against the use of deceit in an examination or
personnel action in connection with Government employment (18 U.S.C.
1917).
(11) The prohibition against fraud or false statements in a
Government matter (18 U.S.C. 1001).
(12) The prohibition against mutilating or destroying a public record
(18 U.S.C. 2071).
(13) The prohibition against counterfeiting and forging
transportation requests (18 U.S.C. 508).
(14) The prohibitions against:
(i) Embezzlement of Government money or property (18 U.S.C. 641);
(ii) Failing to account for public money (18 U.S.C. 643); and
(iii) Embezzlement of the money or property of another person in the
possession of an employee by reason of his employment (18 U.S.C. 654).
(15) The prohibition against unauthorized use of documents relating
to claims from or by the Government (18 U.S.C. 285).
(16) The prohibitions against political activities in Subchapter III,
Chapter 73, Title 5 U.S. Code and 18 U.S.C. 602, 603, 607, and 608.
(17) The prohibition against an employee acting as the agent of a
foreign principal registered under the Foreign Agents Registration Act
(18 U.S.C. 219).
(18) The prohibition against unauthorized disclosure of any tax
return or tax return information contained in section 6103 of the
Internal Revenue Code.
360.13 Ethical conduct for special Government employees. (Reserved)
20 CFR 360.14 Delegation of responsibilities.
(a) The Executive Director shall be responsible for administration of
the Board's regulations on Employee Responsibilities and Conduct.
(b) The DAEO is designated Counselor for the Board. The Director of
Personnel is designated Deputy Counselor for the departmental service
and each Regional Director is designated Deputy Counselor for his or her
region.
20 CFR 360.15 Statements of employment and financial interests.
(a) Form and content of statements. The statements of employment and
financial interests required under this subpart for use by employees and
special Government employees of the Board shall generally contain the
information required by the formats prescribed by OPM in the Federal
Personnel Manual. The Board shall not require information in the
statement of employment and financial interests beyond that included in
OPM's formats without the approval of OPM.
(b) Employees who must submit statements. Employees in the following
named positions shall submit statements of employment and financial
interests:
(1) Director of Supply and Service;
(2) Procurement Officer.
(c) Statements to be submitted to the Ethics Official. Each
statement of employment and financial interests required by this
regulation shall be submitted to the DAEO, 844 Rush Street, Chicago,
Illinois 60611. Statements submitted under this Subpart are
confidential and are not available for public inspection.
(d) Review of complaint under grievance procedure. An employee who
feels that his or her position has been improperly included in
360.14(a) as one requiring the submission of a statement of employment
and financial interests may obtain a review of his complaint under the
Board's grievance procedure.
(e) Statement submission date. A Board employee required to submit a
statement of employment and financial interests shall submit that
statement to the DAEO not later than:
(1) Ninety days after the effective date of these regulations if
employed on or before that effective date; or
(2) Thirty days after his or her entrance on duty, but not earlier
than ninety days after the effective date, if appointed after that
effective date.
20 CFR 360.16 Supplementary statements.
Changes in or additions to the information contained in an employee's
statement of employment and financial interests shall be reported in a
supplementary statement as of June 30 each year, except when OPM
authorizes a different date on a showing by the Board of the necessity
therefor. If no changes or additions occur, a negative report is
required. Notwithstanding the filing of this annual report, each
employee shall at all times avoid acquiring a financial interest that
could result, or taking an action that would result, in a violation of
the conflict of interests provisions of section 208 of title 18 U.S.
Code, or 360.11 of these regulations.
20 CFR 360.17 Interest of employee's relatives.
The interest of a spouse, minor child, or other member of an
employee's immediate household is considered to be an interest of the
employee. For the purpose of this paragraph, ''member of an employee's
immediate household'' means those blood relations who are residents of
the employee's household.
20 CFR 360.18 Information not known by employees.
If any information required to be included on a statement of
employment and financial interests or supplementary statement, including
holdings placed in trust, is not known to the employee but is known to
another person, the employee shall request that other person to submit
information in his or her behalf.
20 CFR 360.19 Information not required.
The Board does not require an employee to submit on a statement of
employment and financial interests or supplementary statement any
information relating to the employee's connection with, or interest in,
a professional society or a charitable, religious, social, fraternal,
recreational, public service, civic, or political organization or a
similar organization not conducted as a business enterprise. For
reporting purposes, educational and other institutions doing research
and development or related work involving grants of money from or
contracts with the Board or Government are deemed ''business
enterprises'' and are required to be reported in an employee's statement
of employment and financial interests.
20 CFR 360.20 Confidentiality of employee's statements.
The Board shall hold each statement of employment and financial
interests, and each supplementary statement, in confidence and they
shall be retained in limited access files of the DAEO. Information will
not be disclosed from a statement except as the Board or OPM may
determine for good cause shown.
20 CFR 360.21 Effect of employee's statements on other requirements.
Statements of employment and financial interests and supplementary
statements required of employees are in addition to, and not in
substitution for, or in derogation of, any similar requirement imposed
by law, order, or regulation. The submission of a statement or
supplementary statement by an employee does not permit the employee or
any other person to participate in a matter in which the employee's or
the other person's participation is prohibited by law, order, or
regulation.
20 CFR 360.22 Statements of special Government employees.
A special Government employee of the Board is an officer or employee
of the Board who is retained, designated, appointed, or employed to
perform, with or without compensation, for not to exceed 130 days during
any period of 365 consecutive days, temporary duties either on a
full-time or intermittent basis. Special Government employees who are
not consultants or experts are not required to submit statements of
employment and financial interests.
20 CFR 360.23 Review of statements.
Each statement of employment and financial interests submitted under
360.15 shall be reviewed by the DAEO of the Board. When this review
indicates a conflict between the interests of an employee or special
Government employee of the Board and the performance of his or her
services for the Government, the DAEO shall have the indicated conflict
brought to the attention of the employee or special Government employee,
grant the employee or special Government employee an opportunity to
explain the indicated conflict, and attempt to resolve the indicated
conflict. If the indicated conflict cannot be resolved, the DAEO shall
forward a written report on the indicated conflict to the Board Members.
20 CFR 360.24 Disciplinary and remedial action.
An employee or special Government employee of the Board who violates
any of the regulations adopted by 360.12 may be disciplined. The
disciplinary action may be in addition to any penalty prescribed by law
for the violation. In addition to or in lieu of disciplinary action,
remedial action to end conflicts or the appearance of conflicts of
interest may include but is not limited to:
(a) Changes in assigned duties;
(b) Divestment by the employee or special Government employee of his
or her conflicting interest; and
(c) Disqualification for a particular assignment.
20 CFR 360.25 Unauthorized disclosure of tax information.
(a) Penalties which may be imposed for unlawful disclosure. It is
unlawful for any officer or employee of the Board, or former officer or
employee of the Board, to disclose to any person, except as authorized
under the Internal Revenue Code, any tax return or tax return
information as defined in section 6103(b) of the Internal Revenue Code.
Under section 7213(a) of the Internal Revenue Code, any unlawful
disclosure of any tax return or tax return information shall be a felony
punishable upon conviction by a fine in any amount not exceeding $5,000
or imprisonment of not more than 5 years, or both, together with the
costs of prosecution. In addition to any other punishment, if the
offense is committed by an officer or employee of the Board, that person
shall be dismissed from office or discharged from employment upon
conviction.
(b) Civil action for damages. Whenever any current or former Board
employee knowingly, or by reason of negligence, discloses a tax return
or tax return information with respect to a taxpayer in violation of the
provisions of the Internal Revenue Code, such taxpayer may bring a civil
action for damages against such current or former employee under section
7217 of the Internal Revenue Code, and the district courts of the United
States shall have jurisdiction of any such action. Upon a finding of
liability on the part of the Board employee, he or she shall be liable
to the taxpayer in an amount equal to the sum of:
(1) Actual damages sustained by the taxpayer and, in the case of
willful disclosure or a disclosure which is the result of gross
negligence, punitive damages, but in no case shall a taxpayer entitled
to recovery receive less than the sum of $1,000 with respect to each
instance of such unauthorized disclosure; and
(2) The costs of the action.
(c) An action to enforce any liability created by unauthorized
disclosure may be brought within two years from the date on which the
cause of action arises or at any time within two years after discovery
by the taxpayer of the unauthorized disclosure.
20 CFR 360.25 Subpart C -- Post-Employment Conflict of Interest
Authority: 18 U.S.C. 207; 5 CFR Part 737.
20 CFR 360.26 Purpose.
The purpose of this subpart is to issue regulations which give
content to the restrictions on post-employment activity established by
Title V of the Ethics in Government Act of 1978 (18 U.S.C. 207) for
administrative enforcement with respect to former officers and employees
of the Board; to serve as a guide in exercising administrative
enforcement with respect to former officers and employees of the Board;
to serve as a guide in exercising the administrative enforcement
authority reflected in 18 U.S.C. 207(j); to set forth the procedures to
be employed in making certain determinations and designations pursuant
to the Act; and to provide guidance to individuals who must conform to
the law.
20 CFR 360.27 Board responsibilities.
(a) The Board has primary responsibility, with regard to its former
employees, for the administrative enforcement of post-employment
restrictions. The Department of Justice may initiate criminal
enforcement in cases involving aggravated circumstances.
(b) The Board's DAEO has the responsibility to provide assistance
promptly to former Board employees who seek advice on specific problems
regarding post-employment conflict of interest.
20 CFR 360.28 Designation of Senior Employees.
(a) Senior Employee defined. A Senior Employee is a person employed
by the Board:
(1) At a rate of pay specified or fixed according to Subchapter II,
Chapter 53, title 5 U.S. Code, generally known as ''Executive Level'';
or
(2) In a position in any pay system for which the basic rate of pay
is equal to or greater than that for GS-17 as prescribed by 5 U.S.C.
5332, and who has significant decision-making or supervisory
responsibilities, designated by the Director of the Office of Government
Ethics pursuant to Office of Personnel Management designation
procedures.
(b) Annual reporting requirement. The Board shall submit to the
Director, Office of Government Ethics, by May 15 each year a report
consisting of:
(1) A description of all positions classified at GS-17 or above in
the General Schedule; those in any other pay system, the rate of pay
for which is at least that of grade GS-17; and those in the Senior
Executive Service;
(2) The Board's recommendation as to those positions that should not
be designated, based on standards established in Office of Personnel
Management regulations or any other reason; and
(3) The basis and reason for each such recommendation.
(c) Report of similar positions which should or should not be
designated. The Board's DAEO shall submit to the Director, Office of
Government Ethics, by June 30 each year, a list of such positions which
involve significant decision-making authority or other duties
substantially similar to those exercised by persons whose grade or
position is referred to in paragraph (b) of this section together with a
statement in each case as to whether and why the position should or
should not be designated.
20 CFR 360.29 Post-employment restrictions.
(a) No former Board employee, after terminating Government
employment, shall knowingly act as agent or attorney for, or otherwise
represent any other person in any formal or informal appearance before,
or with the intent to influence, or make any oral or written
communication on behalf of any other person to the United States, in
connection with any particular Government matter involving a specific
party, in which matter such employee participated personally and
substantially as a Board employee.
(b) No former Board employee, within two years after terminating
employment by the United States, shall knowingly act as agent or
attorney for, or otherwise represent any other person in any formal or
informal appearance before, or with the intent to influence, or make any
oral or written communication on behalf of any other person to the
United States, in connection with any particular Government matter
involving a specific party if such matter was actually pending under the
employee's responsibility as an officer or employee of the Board within
a period of one year prior to termination of such responsibility.
(c) No former Senior Employee, within two years after terminating
Government employment, shall knowingly represent or aid, counsel,
advise, consult, or assist in representing any other person in any
formal or informal appearance, before the United States, in connection
with any particular Government matter involving a specific party, in
which matter he or she participated personally and substantially.
(d) For a period of one year after terminating Board employment, no
former Senior Employee (other than a special Government employee who
serves for fewer than 60 days in a calendar year) shall knowingly act as
an agent or attorney for, or otherwise represent, anyone in any formal
or informal appearance before, or with the intent to influence, or make
any written or oral communication on behalf of anyone to the Board or
any of its officers or employees, in connection with any particular
Government matter, whether or not involving a specific party, which is
pending before the Board, or in which it has a direct and substantial
interest.
(e) The making of communications solely for the purpose of furnishing
scientific or technological information pursuant to agency procedures is
exempt from the prohibitions and restrictions set forth above. Also, a
former Board employee may be exempted from the restrictions on
post-employment practices if the Board Members in consultation with the
Director, Office of Government Ethics, execute a certification published
in the Federal Register that such former Government employee has
outstanding qualifications in the scientific, technological, or other
technical discipline; is acting with respect to a particular matter
which requires such qualifications; and that the national interest
would be served by such former Government employee's participation.
(f) A former Board employee may testify before any court, board,
commission, or legislative body with respect to matters of fact within
the personal knowledge of the former Board employee. This provision
does not, however, allow a former Board employee, otherwise prohibited
under the above prohibitions and restrictions, to testify on behalf of
another as an expert witness except:
(1) To the extent that the former employee may testify from personal
knowledge as to the occurrences which are relevant to the issues in the
proceeding including those in which the former Board employee
participated, utilizing his or her expertise, or
(2) In any proceeding where it is determined that another expert in
the field cannot practically be obtained; that it is impracticable for
the facts or opinions on the same subject to be obtained by other means,
and that the former Board employee's testimony is required in the
interest of justice.
20 CFR 360.30 Administrative enforcement proceedings.
(a) Delegation of authority. The Board Members may delegate their
authority under this subpart.
(b) Notification of possible violation. On receipt of information
regarding a possible violation of section 207 of title 18 U.S. Code, and
after determining that such information appears substantiated, the Board
Members shall expeditiously provide such information, along with any
comments or agency regulations to the Director, Office of Government
Ethics, and to the Criminal Division, Department of Justice. The Board
should coordinate any investigation on administrative action with the
Department of Justice to avoid prejudicing criminal proceedings, unless
the Department of Justice communicates to the Board that it does not
intend to initiate criminal prosecution.
(c) Notice of disciplinary proceeding and right to hearing. Whenever
the Board has determined after appropriate review that there is
reasonable cause to believe that a former Board employee has violated
any of the regulations regarding post-employment conflict of interest,
it may initiate an administrative disciplinary proceeding by providing
the former Board employee with adequate notice of an intention to
institute a proceeding and an opportunity for a hearing. The notice to
the former Board employee shall include:
(1) A statement of allegations, and the basis thereof, sufficiently
detailed to enable the former Board employee to prepare an adequate
defense;
(2) Notification of the right to a hearing; and
(3) An explanation of the method by which a hearing may be requested.
(d) Presiding official. The presiding officials at the hearing shall
be the Board Members or a qualified individual to whom the Board Members
have delegated authority to make an initial decision.
(e) Time, date and place. The hearing shall be conducted at a
reasonable time, date, and place. In setting a hearing date the
presiding official shall give due regard to the former Board employee's
need for:
(1) Adequate time to prepare a defense properly; and
(2) An expeditious resolution of allegations that may be damaging to
his or her reputation.
(f) Hearing rights. At a hearing the former employee shall, at a
minimum, have the following rights:
(1) To represent oneself or to be represented by counsel,
(2) To introduce and examine witnesses and to submit physical
evidence,
(3) To confront and cross-examine adverse witnesses,
(4) To present oral argument, and
(5) To receive a transcript or recording of the proceedings, on
request.
(g) Burden of proof. In this hearing, the Board has the burden of
proof and must establish substantial evidence of a violation.
(h) Hearing decision. The presiding official shall make a
determination exclusively on matters of record in the proceeding, and
shall set forth in the decision all findings of fact and conclusions of
law relevant to the matters at issue. Within 15 days of the date of an
initial decision, either party may appeal the decision to the Board
Members. The Board Members shall base their decision on such appeal
solely on the record of the proceedings or those portions thereof cited
by the parties to limit the issues. If the Board Members modify or
reverse the initial decision, they shall specify such findings of fact
and conclusions of law as are different from those of the presiding
official.
(i) Penalty for violation. The Board Members may take appropriate
action under 5 CFR 737.27 in the case of any individual who was found in
violation of the regulations on post-employment conflict of interest
after a final administrative decision or who failed to request a hearing
after receiving adequate notice, by:
(1) Prohibiting the individual from making, on behalf of any other
person except the United States, any formal or informal appearance
before, or, with the intent to influence, any oral or written
communication to, such department or agency on any matter of business
for a period not to exceed five years, which may be accomplished by
directing agency employees to refuse to participate in any such
appearance or to accept any such communication; or
(2) Taking other appropriate disciplinary action.
(j) Judicial review. Any person found to have violated the
regulations on post-employment conflict of interest may seek judicial
review of the administrative determination.
20 CFR 360.30 PART 361 -- RECOVERY OF DEBTS OWED TO THE UNITED STATES
GOVERNMENT BY GOVERNMENT EMPLOYEES
Sec.
361.1 Purpose.
361.2 Scope.
361.3 Definitions.
361.4 Determination of indebtedness.
361.5 Notice requirements before offset.
361.6 Requests for waiver or hearing.
361.7 Written decision following a hearing.
361.8 Limitations on notice and hearing requirements.
361.9 Exception to requirement that a hearing be offered.
361.10 Written agreement to repay debt as alternative to salary
offset.
361.11 Procedures for salary offset: When deductions may begin.
361.12 Procedures for salary offset: Types of collection.
361.13 Procedures for salary offset: Methods of collection.
361.14 Procedures for salary offset: Imposition of interest,
penalties and administrative costs.
361.15 Non-waiver of rights.
361.16 Refunds.
361.17 Coordination with other government agencies.
Authority: 5 U.S.C. 5514(b)(1).
Source: 53 FR 45262, Nov. 9, 1988, unless otherwise noted.
20 CFR 361.1 Purpose.
These regulations, which implement 5 U.S.C. 5514, provide the
standards and procedures which the Board will utilize to collect debts
owed to the United States from the current pay accounts of its
employees, including the current pay accounts of employees who owe debts
to agencies other than the Board.
20 CFR 361.2 Scope.
(a) Coverage. This part applies to agencies and employees as defined
by 361.3 of this part.
(b) Applicability. This part and 5 U.S.C. 5514 apply in recovering
certain debts by administrative offset, except where the employee
consents to the recovery, from the current pay account of an employee.
Because it is an administrative offset, debt collection procedures for
salary offset which are not specified in 5 U.S.C. 5514 and these
regulations shall be consistent with the provisions of the Federal
Claims Collection Standards (FCCS).
(1) Excluded debts or claims. The procedures contained in this part
do not apply to debts or claims arising under the Internal Revenue Code
of 1954 as amended (26 U.S.C. 1, et seq.), the Social Security Act (42
U.S.C. 301, et seq.), or the tariff laws of the United States; or to
any case where collection of a debt by salary offset is explicitly
provided for or prohibited by another statute (e.g., travel advances in
5 U.S.C. 5705 and employee training expenses in 5 U.S.C. 4108).
(2) Waiver requests and claims to the U.S. General Accounting Office.
This part does not preclude an employee from requesting waiver of
recovery of an overpayment under 5 U.S.C. 5584 or any other similar
provision of law, or from questioning the amount of validity of a debt
by submitting a subsequent claim to the U.S. General Accounting Office.
(3) Compromise, suspension, or termination under the Federal Claims
Collection Standards (4 CFR 101.1, et seq.). Nothing in this part
precludes the compromise, suspension or termination of collection
actions where appropriate under the standards implementing 31 U.S.C.
3711, et seq. (4 CFR 101.1, et seq.).
20 CFR 361.3 Definitions.
For purposes of this part, terms are defined as follows:
Agency means --
(a) An executive agency as defined by section 105 of Title 5, United
States Code; including the U.S. Postal Service and the U.S. Postal
Rate Commission;
(b) A military department as defined in Section 102 of Title 5,
United States Code;
(c) An agency or court in the judicial branch, including a court as
defined in Section 610 of Title 28, United States Court for the Northern
Mariana Islands, and the Judicial Panel on Multidistrict Litigation;
(d) An agency of the legislative branch, including the U.S. Senate
and the U.S. House of Representatives; and
(e) Other independent establishments that are entities of the Federal
government.
Creditor agency means the agency to which the debt is owed.
Debt means an amount owed to the United States from sources which
include loans insured or guaranteed by the United States and all other
amounts due the United States from fees, leases, rents, royalties,
services, sales of real or personal property, overpayments, fines,
penalties, damages, interest, forfeitures (except those arising under
the Uniform Code of Military Justice), and all other similar sources.
Delinquent debt means a debt which has not been paid by the date
specified in the creditor agency's initial written notification, unless
satisfactory arrangements for payment have been made by that date, or
where, at any time thereafter, the employee fails to satisfy his or her
obligations under a payment agreement with the creditor agency.
Disposable pay means that part of current basic pay, special pay,
incentive pay, retired pay, retainer pay, or in the case of an employee
not entitled to basic pay, other authorized pay, remaining after the
deduction of any amount required by law to be withheld. Agencies must
exclude deductions described in 5 CFR 581.104 (b) through (f) to
determine disposable pay subject to salary offset.
Employee means a current employee of a Federal agency, including a
current member of the Armed Forces or a Reserve of the Armed Forces
(Reserves).
FCCS means the Federal Claims Collection Standards jointly published
by the Department of Justice and the U.S. General Accounting Office at 4
CFR 101.1, et seq.
Paying agency means the Federal agency or branch of the Armed Forces
or Reserves employing the individual and disbursing his or her current
pay account.
Salary offset means an administrative offset to collect a debt under
5 U.S.C. 5514 by deduction(s) at one or more officially established pay
intervals from the current pay account of an employee without his or her
consent.
Waiver means the cancellation, remission, forgiveness, or
non-recovery of a debt allegedly owed by an employee to an agency as
permitted or required by 5 U.S.C. 5584, 5 U.S.C. 8346(b), 10 U.S.C.
2774, 32 U.S.C. 716, or any other similar law.
20 CFR 361.4 Determination of indebtedness.
In determining that an employee is indebted, the Board will review
the debt to make sure it is valid and past due.
20 CFR 361.5 Notice requirements before offset.
The Board shall provide an employee written Notice of Intent to
Offset Salary (Notice of Intent). The employee will be provided the
notice at least thirty calendar days before the intended deduction is to
begin. In addition, the notice must provide the following:
(a) That the Board has reviewed the records relating to the claim and
has determined that a debt is owed, and the origin, nature, and amount
of that debt;
(b) The Board's intention to collect the debt by means of deduction
from the employee's current disposable pay account;
(c) The amount, frequency, approximate beginning date, and duration
of the intended deductions;
(d) An explanation of the Board's requirements concerning interest,
penalties, and administrative costs, and notification that such
assessment must be made unless such payments are excused in accordance
with the FCCS;
(e) Advice as to the employee's or his or her representative's right
to inspect and copy or to be provided copies of government records
relating to the debt;
(f) If not previously provided, notification of the opportunity
(under terms agreeable to the Board) to establish a schedule for the
voluntary repayment of the debt or to enter into a written agreement to
establish a schedule for repayment of the debt in lieu of offset. The
agreement must be in writing, signed by both the employee and the Board,
and documented in the Board's files (4 CFR 102.2(e));
(g) Advice that the Board will accept a repayment agreement which is
reasonable in view of the financial condition of the employee at that
time;
(h) If there is a statutory provision for waiver, cancellation,
remission or forgiveness of the debt to be collected, advice that waiver
may be requested within the period and by the procedure specified and
explaining the conditions under which waiver, cancellation, remission or
forgiveness is granted;
(i) Advice as to the employee's right to a hearing conducted by an
official arranged by the Board (an administrative law judge, or
alternatively, a hearing official not under the control of the head of
the agency) on the Board's determination of the debt, the amount of the
debt, and the percentage of disposable pay to be deducted each pay
period if a petition is filed as prescribed by the Board;
(j) Advice that the timely filing of a petition for hearing or a
request for waiver (if the waiver statute or regulations are not
''permissive'' in nature) will stay the commencement of collection
proceedings;
(k) Advice that a final decision on the hearing (if one is requested)
will be issued at the earliest practical date, but not later than sixty
days after the filing of the petition requesting the hearing unless the
employee requests and the hearing official grants a delay in the
proceedings;
(l) Advice as to the method and time period for requesting a hearing
as provided for in section 361.5 and for requesting waiver, if it is
available;
(m) Advice that any knowingly false or frivolous statements,
representations, or evidence may subject the employee to:
(1) Disciplinary procedures appropriate under Chapter 75 of Title 5,
United States Code, Part 752 of Title 5, Code of Federal Regulations, or
any other applicable statutes or regulations;
(2) Penalties under the False Claims Act, sections 3729-3731 of Title
31, United States Code, or any other applicable statutory authority; or
(3) Criminal penalties under 286, 287, 1001, and 1002 of Title 18,
United States Code, or any other applicable statutory authority;
(n) Advice as to other rights and remedies available to the employee
under statutes or regulations governing the program for which the
collection is being made; and
(o) Advice that unless there are applicable contractual or statutory
provisions to the contrary, amounts paid on or deducted for the debt
which are later waived or found not owed to the United States will be
promptly refunded to the employee. Such refunds will not bear interest
unless required or permitted by law.
20 CFR 361.6 Requests for waiver or hearing.
(a) A request for waiver or for a hearing must be made in writing and
received by the Chief Financial Officer no later than thirty calendar
days after the notice is sent to the employee. This time limit may, at
the discretion of the Chief Financial Officer, be extended if the
employee can show that the delay was caused by circumstances which were
beyond the employee's control or because of the employee's failure to
receive notice of the time limit. Any right to waiver or to a hearing
is forfeited unless the time limits set forth in this paragraph are
complied with.
(b) The employee's request for a hearing must be signed by the
employee and fully identify and explain with reasonable specificity all
the facts, evidence and witnesses, if any, which the employee believes
support his or her position.
(c) A request for a hearing under this paragraph is not a request for
waiver. A request for waiver must state the basis for the request for
waiver and whether a hearing is requested. If no request for a hearing
is contained in the waiver request, no hearing will be provided.
(d) A hearing, if requested, will be an informal proceeding conducted
by an administrative law judge or hearing official not under the control
of the Board. The employee, or his/her representative, and the Board
will be given full opportunity to present evidence, witnesses and
argument.
20 CFR 361.7 Written decision following a hearing.
Within thirty days after the hearing, the administrative law judge or
hearing official shall issue a written decision stating the facts
evidencing the nature and origin of the alleged debt; the amount and
validity of the alleged debt; and the judge or hearing official's
analysis, findings and conclusions with respect to the employee's
position on liability for the debt and with respect to his or her
eligibility for waiver. The decision of the administrative law judge or
hearing official shall be the final agency decision.
20 CFR 361.8 Limitations on notice and hearing requirements.
(a) The procedural requirements of this part are not applicable to
collections which result from:
(1) An employee's election of coverage or of a change in coverage
under a Federal benefits program which requires periodic deductions from
pay and which cannot be placed into effect immediately because of normal
processing delays; and
(2) Ministerial adjustments in pay rates or allowances which cannot
be placed into effect immediately because of normal processing delays.
(b) Limited procedures. If the period of the normal processing delay
for which the retroactive deduction must be recovered does not exceed
four pay periods, the procedures provided in 361.4 and 361.5 of this
part shall not apply, but the Board shall in advance of the collection
issue a general notice that:
(1) Because of the employee's election, future salary will be reduced
to cover the period between the effective date of the election and the
first regular withholding, and the employee may dispute the amount of
the retroactive collection by notifying a specified office or official;
or
(2) Due to a normal ministerial adjustment in pay or allowances which
could not be placed into effect immediately, future salary will be
reduced to cover any excess pay or allowances received by the employee,
the employee may dispute the amount of the retroactive collection by
notifying a specified office or official.
(c) Limitation on exceptions. The exceptions described in paragraphs
(a) and (b) of this section shall not include a recovery required to be
made for any reason other than normal processing delays in putting the
change into effect, even if the period of time for which the amounts
must be retroactively withheld is less than four pay periods. Further,
if normal processing delays exceed four pay periods, then the full
procedures prescribed under 361.4 and 361.5 of this part shall be
extended to the employee.
20 CFR 361.9 Exception to requirement that a hearing be offered.
When an employee is overpaid due to the hours worked reported on the
payroll exceeding the actual hours worked, no pre-offset hearing must be
granted since in such cases there is no question regarding credibility
and veracity. In these cases the Board will make its determination
under this part based upon review of the written record.
20 CFR 361.10 Written agreement to repay debt as alternative to salary
offset.
(a) Notification by employee. The employee may propose, in response
to a Notice of Intent, a written agreement to repay the debt as an
alternative to salary offset. Any employee who wishes to do this must
submit a proposed written agreement to repay the debt which is received
by the Board within thirty calendar days of the date of the Notice of
Intent.
(b) Board's response. In response to timely notice by the debtor as
described in paragraph (a) of this section, the Board will notify the
employee whether the employee's proposed written agreement for repayment
is acceptable. It is within the Board's discretion to accept a
repayment agreement instead of proceeding by offset. In making this
determination, the Board will balance the agency's interest in
collecting the debt against hardship to the employee. If the debt is
delinquent and the employee has not disputed its existence or amount,
the Board will accept a repayment agreement instead of offset only if
the employee is able to establish that offset would result in undue
financial hardship or would be against equity and good conscience.
20 CFR 361.11 Procedures for salary offset: When deductions may begin.
(a) Deductions to liquidate an employee's debt will be by the method
and in the amount stated in the Notice of Intent to collect from the
employee's current pay.
(b) If the employee filed a petition for hearing with the Board
before the expiration of the period provided for in section 361.5, then
deductions will begin after the hearing officer has provided the
employee with a hearing and the hearing officer's final written decision
is in favor of the Board.
(c) If an employee retires, resigns or his or her period of
employment ends before collection of a debt is completed, offset shall
be made from subsequent payments of any nature (e.g., final salary
payment, lump sum leave, etc.) due the employee from the Board to the
extent necessary to liquidate the debt. If the debt cannot be
liquidated by offset from any final payment due the employee from the
Board, the Board shall liquidate the debt by administrative offset,
pursuant to 31 U.S.C. 3716, from later payments of any kind which are
due the employee from the United States.
20 CFR 361.12 Procedures for salary offset: Types of collection.
A debt will be collected in a lump sum or in installments.
Collection will be effected in one lump sum collection unless the
employee is financially unable to pay in one lump sum, or if the amount
of the debt exceeds 15 percent of disposable pay. In these cases,
deduction will be by installments.
20 CFR 361.13 Procedures for salary offset: Methods of collection.
(a) General. A debt will be collected by deductions at
officially-established pay intervals from an employee's current pay
account, unless the employee and the Board agree to alternative
arrangements for repayment. The alternative arrangement must be in
writing, signed by both the employee and the Board.
(b) Installment deductions. Installment deductions will be made over
a period not greater than the anticipated period of employment. The
size and frequency of installment deductions will bear a reasonable
relation to the size of the debt and the employee's ability to pay.
However, the amount deducted for any period will not exceed 15 percent
of the disposable pay from which the deduction is made, unless the
employee has agreed in writing to the deduction of a greater amount. If
possible, the installment payment will be sufficient in size and
frequency to liquidate the debt in three years. Installment payments of
less than $25 per pay period or $50 a month will be accepted only in the
most unusual circumstances.
(c) Sources of deductions. The Board will make deductions only from
basic pay, special pay, incentive pay, retired pay, retainer pay, or in
the case of an employee not entitled to basic pay, other authorized pay.
20 CFR 361.14 Procedures for salary offset: Imposition of interest,
penalties and administrative costs.
Interest will be charged in accordance with 4 CFR 102.13.
20 CFR 361.15 Non-waiver of rights.
So long as there are no statutory or contractual provisions to the
contrary, no employee involuntary payment (of all or a portion of a
debt) collected under these regulations will be interpreted as a waiver
of any rights that the employee may have under 5 U.S.C. 5514.
20 CFR 361.16 Refunds.
The Board will refund promptly to the appropriate individual amounts
offset under these regulations when:
(a) A debt is waived or otherwise found not owing the United States
(unless expressly prohibited by statute or regulation); or
(b) The Board is directed by an administrative or judicial order to
refund amounts deducted from the employee's current pay.
20 CFR 361.17 Coordination with other government agencies.
(a) Board is paying agency. (1) If the Board receives a claim which
meets the requirements of 5 CFR 550.1108 from another agency, deductions
shall begin prospectively at the next officially established pay
interval. The employee will receive written notice that the Board has
received a certified debt claim from a creditor agency. The notice will
contain the amount of the debt and the date deductions from salary will
commence and the amount of such deductions.
(2) If the Board receives a claim which does not meet the
requirements of 5 CFR 550.1108, then the Board will return the claim to
the creditor agency and inform the creditor agency that before any
action is taken to collect the debt from the employee's current pay
account, the procedures under 5 U.S.C. 5514 and 5 CFR Part 550 must be
followed and a claim which meets the requirements of 5 CFR 550.1108 must
be received.
(b) Board is creditor agency. When the Board is owed a debt by an
employee of another agency, the other agency shall not initiate the
requested offset until the Board provides the agency with a written
certification that the procedures under this part have been followed and
the Board has provided the other agency with a claim which meets the
requirement of 5 CFR 550.1108.
20 CFR 361.17 PART 362 -- EMPLOYEES' PERSONAL PROPERTY CLAIMS
Sec.
362.1 Purposes.
362.2 Definitions.
362.3 Who may file a claim.
362.4 Delegation of authority.
362.5 Time limits for filing a claim.
362.6 Procedure for filing a claim.
362.7 Factors to be considered in settling a claim.
362.8 Investigation of a claim.
362.9 Fraudulent claims.
362.10 Principal types of claims allowable.
362.11 Principal types of claims not allowable.
362.12 Computation of amount of reimbursement.
362.13 Property recovered after payment of claim.
362.14 Finality of settlement.
362.15 Agent's or attorney's fee.
Authority: Sec. 3(a), Pub. L. 88-558, 78 Stat. 767 (31 U.S.C.
241(b)(1)), unless otherwise noted.
Source: 45 FR 57709, Aug. 29, 1980, unless otherwise noted.
20 CFR 362.1 Purposes.
(a) This part prescribes regulations under the Military Personnel and
Civilian Employees' Claims Act of 1964, as amended, for the settlement
of a claim against the United States made by an officer or employee of
the Railroad Retirement Board for damage to, or loss of, personal
property incident to his service. In accordance with that Act, the
possession of such property must be reasonable, useful, or proper under
the circumstances.
(b) The Railroad Retirement Board is not an insurer of its officers'
or employees' personal property and does not underwrite the damage or
loss of such property that may be sustained by an officer or employee.
Officers and employees of the Board are encouraged to carry private
insurance to the maximum extent practicable to avoid large losses or
losses which may not be recoverable from the Board. The procedures set
forth in this section are designed to enable the claimant to obtain the
maximum amount of otherwise unreimbursed or uninsured compensation for
his loss or damage. Failure of the claimant to comply with these
procedures may reduce or preclude payment of his claim under this part.
20 CFR 362.2 Definitions.
As used in this part:
(a) Act means the Military Personnel and Civilian Employees' Claims
Act of 1964, as amended (31 U.S.C. 240-243).
(b) Article of extraordinary value means an article which was
purchased or which the employee values at a monetary amount which is in
excess of the usual, regular or customary amount paid for an article
which is capable of accomplishing the same purposes.
(c) Benefit of the Board means that the operations and service of the
Board were assisted, facilitated or improved.
(d) Board means the Railroad Retirement Board.
(e) Employee means an officer or employee of the Board.
(f) Settle means consider, ascertain, adjust, determine and dispose
of any claim, whether by full or partial allowance or by disallowance.
20 CFR 362.3 Who may file a claim.
A claim may be filed by an employee, by his spouse in his name as
authorized agent, or by any other authorized agent or legal
representative of the employee. If the employee is dead, his (a)
spouse, (b) child, (c) father or mother, or both, or (d) brother or
sister, or both, may file the claim and be entitled to payment in that
order of priority.
20 CFR 362.4 Delegation of authority.
The Deputy General Counsel of the Board is authorized to settle any
claim filed under this part.
(45 U.S.C. 231f(b)(5))
(45 FR 57709, Aug. 29, 1980, as amended at 48 FR 51448, Nov. 9, 1983)
20 CFR 362.5 Time limits for filing a claim.
A claim under this part may be considered only if:
(a) The damage or loss occurred after August 31, 1964; and
(b) The claim is filed in writing within two years after the damage,
loss or theft occurred or became known to the employee.
20 CFR 362.6 Procedure for filing a claim.
(a) Railroad Retirement Board Form G-108, Employee Claim for Loss or
Damage to Personal Property, is the prescribed form for filing claims
pursuant to the regulations in this part and must be completed by the
employee, the person acting on his behalf, or his survivor and forwarded
directly to the General Counsel of the Board for processing. Railroad
Retirement Board Form G-108 may be obtained from the Board's Bureau of
Law.
(b) In addition to the information required to complete the form
described 362.6(a), the following information or data must be submitted
with each claim:
(1) With respect to claims involving property which is stolen or
lost, the purchase receipt, or if not available, statements from the
employee estimating the value and what security measures or precautions
were taken to protect the property;
(2) With respect to claims involving property which is damaged, an
itemized repair estimate from an appropriate commercial source, or, if
beyond repair, a statement from an appropriate commercial source or, if
such a statement is not available, from the employee, indicating that
the damaged property is beyond repair;
(3) With respect to claims involving property stated to be beyond
repair in accordance with paragraph (b)(2) of this section, a statement
from the employee estimating the value and the purchase receipt, if
available;
(4) With respect to claims considered under 362.10(b)(3), a
statement by the employee's supervisor verifying that the supervisor
required the employee to provide, or that the supervisor consented to
having the employee provide, such property and that the provision of
such personal property was in the interest of the Board;
(5) With respect to a claim filed by an agent or survivor of an
employee, a power of attorney or other satisfactory evidence of
authority to file the claim.
20 CFR 362.7 Factors to be considered in settling a claim.
Claims are payable only for such types, quantities or amounts of
tangible personal property as the Deputy General Counsel of the Board
shall determine to be reasonable, useful, or proper under the
circumstances existing at the time and place of the loss, theft or
damage of the property. In determining what is reasonable, useful or
proper the Deputy General Counsel will consider the type and quantity of
property involved, the circumstances attending acquisition and use of
the property, and whether possession or use by the employee at the time
of loss, theft or damage was incident to the employee's service. What
is reasonable, useful or proper is a question of fact to be determined
by the Deputy General Counsel.
(45 U.S.C. 231f(b)(5))
(45 FR 57709, Aug. 29, 1980, as amended at 48 FR 51448, Nov. 9, 1983)
20 CFR 362.8 Investigation of a claim.
The Deputy General Counsel or his designee may investigate the
circumstances surrounding the theft, loss or damage of an employee's
property. In order to complete such investigation, the Deputy General
Counsel or his designee may request the submission of information in
addition to that described in 362.7 of this part.
(45 U.S.C. 231f(b)(5))
(45 FR 57709, Aug. 29, 1980, as amended at 48 FR 51448, Nov. 9, 1983)
20 CFR 362.9 Fraudulent claims.
Claims are not payable for items fraudulently claimed. When
investigation discloses that an employee, an agent of the employee, or a
survivor of the employee has intentionally misrepresented an item
claimed, as to cost, condition, cost of repair or other significant
information, the claim as to that item will be disallowed in its
entirety even though some actual loss or damage may have been sustained.
However, if the remainder of the claim is proper it will be paid as to
other items. This section does not preclude appropriate prosecution and
disciplinary action if warranted.
20 CFR 362.10 Principal types of claims allowable.
(a) In general, a claim may be allowed only for tangible personal
property of a type and quantity that was, from the Board's perspective,
reasonable, useful, or proper for the employee to possess under the
circumstances at the time of the loss or damage. Any questions in this
regard are to be resolved by the Deputy General Counsel.
(b) Claims that will ordinarily be allowed include, but are not
limited to, cases in which the loss or damage occurred:
(1) In a common or natural disaster;
(2) When the property was subjected to extraordinary risks in the
performance of duty or efforts to save human life or property of the
United States Government;
(3) When the property was used for the benefit of the Board at the
direction, or with the consent, of a supervisor.
(45 U.S.C. 231f(b)(5))
(45 FR 57709, Aug. 29, 1980, as amended at 48 FR 51448, Nov. 9, 1983)
20 CFR 362.11 Principal types of claims not allowable.
(a) Claims will be disallowed when:
(1) The personal property was lost, stolen or damaged prior to August
31, 1964;
(2) The loss or damage totals less than $5 or, to the extent of the
excess, more than the maximum amount provided in section 241(b)(1) of
title 31 of the U.S. Code;
(3) The loss or damage was caused, at least in part, by the
negligence of the employee or his agent;
(4) The personal property was acquired, possessed or transported in
violation of law or regulation;
(5) The personal property was brought into Board offices for
temporary storage in anticipation of delivery to another person or
removal to another location;
(6) The personal property lost or damaged was food-stuffs or
furniture;
(b) Claims which will ordinarily not be allowed include, but are not
limited to, claims for:
(1) Money or currency, except when lost in a common or natural
disaster;
(2) Articles of extraordinary value;
(3) Articles being worn (unless allowable under 362.10);
(4) Intangible property, such as bank books, checks, notes, stock
certificates, money orders or travelers' checks;
(5) Property owned by the United States, unless the employee is
financially responsible for it to another U.S. Government agency;
(6) Losses of insurers or subrogees and those losses recoverable from
an insurer or carrier;
(7) Losses or damages sustained in quarters not assigned or otherwise
provided in kind by the Board;
(8) Losses recoverable or recovered pursuant to contract;
(9) Loss or damage to any vehicle used for transportation or in
transportation (unless allowable under 362.10).
20 CFR 362.12 Computation of amount of reimbursement.
(a) The amount awarded with regard to any item of personal property
will not exceed its depreciated replacement cost at the time of loss.
Unless proven to be otherwise, replacement cost will be based on the
price paid in cash for the property or, if not acquired by purchase or
exchange, the value at the time of acquisition. The amount normally
payable on property damaged beyond economical repair is found by
determining its depreciated value immediately before it was damaged or
lost, less any salvage value. If the cost of repair is less than the
depreciated value of the property, then it is economically repairable,
and the cost of repair is the amount payable.
(b) Depreciation in value of an item of personal property is
determined by considering the type of article involved, its cost,
condition when lost or damaged beyond economical repair, and the time
elapsed between the date of acquisition and the date of accrual of the
claim.
(c) Allowance for articles acquired by barter will not exceed the
cost of the articles tendered in barter.
20 CFR 362.13 Property recovered after payment of claim.
When previously lost or stolen property is recovered by the employee
after allowance of a claim by the Board, the employee shall return the
amount of reimbursement.
20 CFR 362.14 Finality of settlement.
Notwithstanding any other provision of law, settlement of a claim
under the Act and this part is final and conclusive.
20 CFR 362.15 Agent's or attorney's fee.
Under the terms of the Act, no more than 10 percent of the amount
paid in settlement of a claim submitted and settled under this part may
be paid or delivered to or received by any agent or attorney on account
of services rendered in connection with that claim, any contract to the
contrary notwithstanding.
20 CFR 362.15 PART 363 -- GARNISHMENT OF REMUNERATION OF BOARD
PERSONNEL
Sec.
363.1 Authorization for garnishment of remuneration for employment
paid by the Board.
363.2 Definitions.
363.3 Procedure.
363.4 Exemptions.
363.5 Miscellaneous.
Authority: 15 U.S.C. 1673(b)(2); 42 U.S.C. 659, 661, and 662; and
45 U.S.C. 231f(b)(5) and 362(1).
Source: 45 FR 28315, Apr. 29, 1980, unless otherwise noted.
20 CFR 363.1 Authorization for garnishment of remuneration for
employment paid by the Board.
(a) Remuneration for employment paid or payable by the Board is
subject, in like manner and to the same extent as if the Board were a
private person, to legal process brought for the enforcement of legal
obligations to provide child support or to make alimony payments.
(b) Remuneration for employment includes compensation paid or payable
for personal services, whether such compensation is denominated as
wages, salary, commission, bonus, pay, or otherwise, and includes, but
is not limited to, severance pay, sick pay, and incentive pay, but does
not include awards for making suggestions.
(c) Remuneration for employment does not include:
(1) Amounts required by law to be deducted, including but not limited
to Federal employment taxes and civil service retirement contributions;
(2) Amounts which are deducted as health insurance premiums;
(3) Amounts which are deducted as premiums for regular life insurance
coverage; and
(4) Amounts which are properly withheld for Federal, state, or local
income tax purposes, if the withholding of such amounts is authorized or
required by law and if amounts withheld are not greater than would be
the case if the individual concerned claimed all dependents to which he
was entitled (the withholding of additional amounts pursuant to section
3402(i) of the Internal Revenue Code of 1954 may be permitted only when
such individual presents evidence of a tax obligation which supports the
additional withholding).
20 CFR 363.2 Definitions.
(a) Child support means periodic payments of funds for the support
and maintenance of a child or children; such term also includes
attorney's fees, interest, and court costs, when and to the same extent
that they are expressly made recoverable pursuant to a decree, order, or
judgment issued in accordance with applicable state law by a court of
competent jurisdiction.
(b) Alimony means periodic payments of funds for the support and
maintenance of a spouse or former spouse and, subject to and in accord
with state law, includes but is not limited to, separate maintenance,
alimony pendente lite, maintenance, and spousal support; such term also
includes attorney's fees, interest, and court costs, when and to the
extent that they are expressly made recoverable pursuant to a decree,
order, or judgment issued in accord with applicable state law by a court
of competent jurisdiction. Alimony does not include any payment or
transfer of property or of its value in compliance with any community
property settlement, equitable distribution of property, or other
division of property, nor does it include any payment to an estate.
(c) Legal process means any court order, summons, or other similar
process, including administrative orders, in the nature of garnishment,
which is directed to and the purpose of which is to compel the Board to
make a payment from moneys which are otherwise payable to an individual,
to another party in order to satisfy a legal obligation of such
individual to provide child support or make alimony payments. Legal
process additionally includes assignments in lieu of garnishment, but
only where grounds for the issuance of legal process in the nature of
garnishment exist. Such assignments are revocable.
20 CFR 363.3 Procedure.
(a) Service of legal process brought for the enforcement of a Board
employee's obligation to provide child support or make alimony payments
shall be accomplished by certified or registered mail, return receipt
requested, directed to the Deputy General Counsel of the Board, 844 Rush
Street, Chicago, Illinois 60611, or by personal service upon the Deputy
General Counsel.
(b) Where the Deputy General Counsel is effectively served with legal
process relating to a Board employee's legal obligation to provide child
support or to make alimony payments, he shall, as soon as possible and
not later than 15 days after the date of effective service of such
process, send written notice that such process has been so served,
together with a copy thereof, to the individual whose moneys are
affected thereby; and, if response to such process is required, shall
respond within 30 days, or within such longer period as may be
prescribed by state law, after the date effective service is made.
These requirements do not apply in the case of an assignment in lieu of
garnishment.
(45 FR 28315, Apr. 29, 1980, as amended at 48 FR 51448, Nov. 9, 1983)
20 CFR 363.4 Exemptions.
(a) The portion of any payment due to a Board employee which is
subject to legal process to enforce any order for the support of any
person shall not exceed 65 percent. Where the individual is supporting
a spouse or dependent child, other than a spouse or child with respect
to whose support that legal process is issued, the portion subject to
legal process is reduced by 10 percent. Where the alimony or support
arrearage is less than 12 weeks old, the portion subject to legal
process is reduced by 5 percent. If a lower limitation is provided by
applicable state or local law, then that lower limitation shall be
applied.
(b) In the absence of some evidence to the contrary, it will be
assumed that the defendant is not supporting a spouse or dependent child
other than a spouse or child with respect to whose support the legal
process is issued.
20 CFR 363.5 Miscellaneous.
(a) The Board may not be required to vary its normal disbursement
cycles in order to comply with legal process.
(b) Except as provided in these regulations, the Board may not be
required, in connection with proceedings under this part, to forward
documents which have been sent to the Board, to an employee of the
Board.
(c) Neither the Board nor any of its employees shall be liable with
respect to any payment made to any individual from moneys due from or
payable by the Board pursuant to legal process regular on its face, if
such payment is made in accordance with this part.
(d) No employee of the Board whose duties include responding to legal
process pursuant to requirements contained in this part shall be subject
under any law to any disciplinary action or civil or criminal liability
or penalty for, or on account of, any disclosure of information made by
such employee in connection with the performance of the employee's
duties in responding to any such process.
(e) For purposes of a proceeding under this part the Board will apply
the law of the state in which the legal process is issued unless it
comes to the attention of the Board that the state of issuance has no
contact with the plaintiff or defendant in the action; in which case,
the Board may, in its sole discretion, apply the law of any state with
significant interest in the matter.
20 CFR 363.5 PART 364 -- USE OF PENALTY MAIL TO ASSIST IN THE LOCATION
AND RECOVERY OF MISSING CHILDREN
Sec.
364.1 Purpose.
364.2 Definitions.
364.3 Publication of missing children information in the Railroad
Retirement Board's in-house publications.
364.4 Placement of missing children posters in Board field offices.
364.5 Further study of the use of penalty mail in the location and
recovery of missing children.
Authority: 39 U.S.C. 3220(a)(2).
Source: 52 FR 527 Jan. 7, 1987, unless otherwise noted.
20 CFR 364.1 Purpose.
These regulations, which implement 39 U.S.C. 3220, provide the
standards and guidelines for the use of Board penalty mail in the
location and recovery of missing children.
20 CFR 364.2 Definitions.
For purposes of this part, terms are defined as follows:
All-A-Board is the Board's in-house newspaper that is published on an
irregular basis about six times a year.
Field office is a Board district office. These offices are located
throughout the United States.
Penalty mail means the official mail of the Board that is used to
carry out the Board's duties.
Shelf life means the amount of time the Board has to remove from
circulation outdated missing children information. This is a three
month period, commencing with the date notice is received by the
National Center for Missing and Exploited Children that such information
is no longer accurate.
20 CFR 364.3 Publication of missing children information in the
Railroad Retirement Board's in-house publications.
(a) All-A-Board. Information about missing children will appear in
the All-A-Board. This publication will obtain the necessary information
from the National Center for Missing and Exploited Children. The
editorial staff of the All-A-Board shall determine the number of
children described in each issue and where this information will appear
in the publication.
(b) Other in-house publications. The Board may publish missing
children information in other in-house publications as it deems
appropriate. This determination will be made in accordance with the
guidelines that appear in 364.5.
20 CFR 364.4 Placement of missing children posters in Board field
offices.
(a) Poster content. The National Center for Missing and Exploited
Children shall select the missing child and the pertinent information
about that child, which may include a photograph of the child, that will
appear on the poster. The Board will develop a standard format for
these posters.
(b) Transmission of posters to field offices. The Board shall send
the posters to its field offices in penalty mail. Those posters will be
included in penalty mailings that are made in the normal course of the
Board's operations.
(c) Field office use of posters. (1) Upon receipt of the poster, the
field office will place it in the waiting room, if possible. Otherwise,
the field office should put the poster in a place where it will be
viewed by the public.
(2) The field office must remove and destroy the posters by the end
of their shelf life. The field office also may remove posters that they
believe have ceased to be of assistance in locating and recovering
missing children.
20 CFR 364.5 Further study of the use of penalty mail in the location
and recovery of missing children.
(a) Criteria. The Board shall continue to study different
alternatives for using penalty mail to assist in the location and
recovery of missing children. In order to implement a proposal, it
must:
(1) Be cost effective; and
(2) Fulfill the goal of aiding in the location and recovery of
missing children.
(b) Requirements. In any program, the National Center for Missing
and Exploited Children shall select the missing children and the
information about these children, which may include a photograph, that
will be used by the Board. Proposals must provide for the removal of
this material before the end of its shelf life.
20 CFR 364.5 PART 365 -- ENFORCEMENT OF NONDISCRIMINATION ON THE BASIS
OF HANDICAP IN PROGRAMS OR ACTIVITIES CONDUCTED BY THE RAILROAD
RETIREMENT BOARD
Sec.
365.101 Purpose.
365.102 Application.
365.103 Definitions.
365.104 -- 365.109 (Reserved)
365.110 Self-evaluation.
365.111 Notice.
365.112 -- 365.129 (Reserved)
365.130 General prohibitions against discrimination.
365.131 -- 365.139 (Reserved)
365.140 Employment.
365.141 -- 365.148 (Reserved)
365.149 Program accessibility: Discrimination prohibited.
365.150 Program accessibility: Existing facilities.
365.151 Program accessibility: New construction and alterations.
365.152 -- 365.159 (Reserved)
365.160 Communications.
365.161 -- 365.169 (Reserved)
365.170 Compliance procedures.
365.171 -- 365.999 (Reserved)
Authority: 29 U.S.C. 794.
Source: 53 FR 43434, Oct. 27, 1988, unless otherwise noted.
20 CFR 365.101 Purpose.
The purpose of this part is to effectuate section 119 of the
Rehabilitation, Comprehensive Services, and Developmental Disabilities
Amendments of 1978, which amended section 504 of the Rehabilitation Act
of 1973 to prohibit discrimination on the basis of handicap in programs
or activities conducted by Executive agencies or the United States
Postal Service.
20 CFR 365.102 Application.
This regulation ( 365.101 through 365.170) applies to all programs
or activities conducted by the agency, except for programs or activities
conducted outside the United States that do not involve individuals with
handicaps in the United States.
20 CFR 365.103 Definitions.
For purposes of this part, the term --
Agency means Railroad Retirement Board.
Assistant Attorney General means the Assistant Attorney General,
Civil Rights Division, United States Department of Justice.
Auxiliary aids means services or devices that enable persons with
impaired sensory, manual, or speaking skills to have an equal
opportunity to participate in, and enjoy the benefits of, programs or
activities conducted by the agency. For example, auxiliary aids useful
for persons with impaired vision include readers, brailled materials,
audio recordings, and other similar services and devices. Auxiliary
aids useful for persons with impaired hearing include telephone handset
amplifiers, telephones compatible with hearing aids, telecommunications
devices for deaf person (TDD's), interpreters, notetakers, written
materials, and other similar services and devices.
Board means the three-member board, appointed pursuant to 45 U.S.C.
231f, which heads the agency.
Chief Executive Officer means the Chief Executive Officer of the
Railroad Retirement Board. This individual is the chief operating
officer of the agency.
Complete complaint means a written statement that contains the
complainant's name and address and describes the agency's actions in
sufficient detail to inform the agency of the nature and date of the
alleged violation of section 504. It shall be signed by the complainant
or by someone authorized to do so on his or her behalf. Complaints
filed on behalf of classes or third parties shall describe or identify
(by name, if possible) the alleged victims of discrimination.
Facility means all or any portion of buildings, structures,
equipment, roads, walks, parking lots, rolling stock or other
conveyances, or other real or personal property.
Individual with handicaps means any person who has a physical or
mental impairment that substantially limits one or more major life
activities, has a record of such an impairment, or is regarded as having
such an impairment. As used in this definition, the phrase:
(1) Physical or mental impairment includes --
(i) Any physiological disorder or condition, cosmetic disfigurement,
or anatomical loss affecting one or more of the following body systems:
Neurological; musculoskeletal; special sense organs; respiratory,
including speech organs: cardiovascular; reproductive; digestive;
genitourinary; hemic and lymphatic; skin; and endocrine; or
(ii) Any mental or psychological disorder, such as mental
retardation, organic brain syndrome, emotional or mental illness, and
specific learning disabilities. The term ''physical or mental
impairment'' includes, but is not limited to, such diseases and
conditions as orthopedic, visual, speech, and hearing impairments,
cerebral palsy, epilepsy, muscular dystrophy, multiple sclerosis,
cancer, heart disease, diabetes, mental retardation, emotional illness,
and drug addiction and alcoholism.
(2) Major life activities includes functions such as caring for one's
self, performing manual tasks, walking, seeing, hearing, speaking,
breathing, learning, and working.
(3) Has a record of such an impairment means has a history of, or has
been misclassified as having, a mental or physical impairment that
substantially limits one or more major life activities.
(4) Is regarded as having an impairment means --
(i) Has a physical or mental impairment that does not substantially
limit major life activities but is treated by the agency as constituting
such a limitation;
(ii) Has a physical or mental impairment that substantially limits
major life activities only as a result of the attitudes of others toward
such impairment; or
(iii) Has none of the impairments defined in paragraph (1) of this
definition but is treated by the agency as having such an impairment.
Qualified individual with handicaps means --
(1) An individual with handicaps who meets the essential eligibility
requirements for participation in, or receipt of benefits from, a
program or activity.
(2) Qualified handicapped person as that term is defined for purposes
of employment in 29 CFR 1613.702(f), which is made applicable to this
part by 365.140.
Section 504 means section 504 of the Rehabilitation Act of 1973 (Pub.
L. 93-112, 87 Stat. 394 (29 U.S.C. 794)), as amended by the
Rehabilitation Act Amendments of 1974 (Pub. L. 93-516, 88 Stat. 1617);
the Rehabilitation, Comprehensive Services, and Developmental
Disabilities Amendments of 1978 (Pub. L. 95-602, 92 Stat. 2955); the
Rehabilitation Act Amendments of 1986, (Pub. L. 99-506, 100 Stat.
1810), and the Civil Rights Restoration Act of 1987 (Pub. L. 100-259,
102 Stat. 28 (1988)). As used in this part, section 504 applies only to
programs or activities conducted by Executive agencies and not to
federally assisted programs.
365.104 -- 365.109 (Reserved)
20 CFR 365.110 Self-evaluation.
(a) The agency shall, by December 27, 1989, evaluate its current
policies and practices, and the effects thereof, that do not or may not
meet the requirements of this part, and, to the extent modification of
any such policies and practices is required, the agency shall proceed to
make the necessary modifications.
(b) The agency shall provide an opportunity to interested persons,
including individuals with handicaps or organizations representing
individuals with handicaps, to participate in the self-evaluation
process by submitting comments (both oral and written).
(c) The agency shall, until at least three years following the
completion of the self-evaluation, maintain on file and make available
for public inspection:
(1) A description of areas examined and any problems identified, and
(2) A description of any modifications made.
20 CFR 365.111 Notice.
The agency shall make available to employees, applicants,
participants, beneficiaries, and other interested persons such
information regarding the provisions of this part and its applicability
to the programs or activities conducted by the agency, and make such
information available to them in such manner as the agency head finds
necessary to apprise such persons of the protections against
discrimination assured them by section 504 and this part.
365.112 -- 365.129 (Reserved)
20 CFR 365.130 General prohibitions against discrimination.
(a) No qualified individual with handicaps shall, on the basis of
handicap, be excluded from participation in, be denied the benefits of,
or otherwise be subjected to discrimination under any program or
activity conducted by the agency.
(b)(1) The agency, in providing any aid, benefit, or service may not,
directly or through contractual, licensing, or other arrangements, on
the basis of handicap --
(i) Deny a qualified individual with handicaps the opportunity to
participate in or benefit from the aid, benefit, or service;
(ii) Afford a qualified individual with handicaps an opportunity to
participate in or benefit from the aid, benefit, or service that is not
equal to that afforded others;
(iii) Provide a qualified individual with handicaps with an aid,
benefit, or service that is not as effective in affording equal
opportunity to obtain the same result, to gain the same benefit, or to
reach the same level of achievement as that provided to others;
(iv) Provide different or separate aid, benefits, or service to
individuals with handicaps or to any class of individuals with handicaps
than is provided to others unless such action is necessary to provide
qualified individuals with handicaps with aid, benefits, or services
that are as effective as those provided to others.
(v) Deny a qualified individual with handicaps the opportunity to
participate as a member of planning or advisory boards; or
(vi) Otherwise limit a qualified individual with handicaps in the
enjoyment of any right, privilege, advantage or opportunity enjoyed by
others receiving benefits under any programs administered by the Board.
(2) The agency may not deny a qualified individual with handicaps the
opportunity to participate in programs or activities that are not
separate or different, despite the existence of permissibly separate or
different programs or activities.
(3) The agency may not, directly or through contractual or other
arrangements, utilize criteria or methods of administration the purposes
or effect of which would:
(i) Subject qualified individuals with handicaps to discrimination on
the basis of handicap;
(ii) Deny qualified individuals with handicap assistance in obtaining
benefits under any program administered by the agency; or
(iii) Defeat or substantially impair accomplishment of the objectives
of a program or activity with respect to individuals with handicaps.
(4) The agency may not, in determining the site or location of a
facility, make selections the purpose or effect of which would:
(i) Exclude individuals with handicaps from, deny them the benefits
of, or otherwise subject them to discrimination under any program or
activity conducted by the agency; or
(ii) Defeat or substantially impair the accomplishment of the
objectives of a program or activity with respect to individuals with
handicaps.
(5) The agency, in the selection of procurement contractors, may not
use criteria that subject qualified individuals with handicaps to
discrimination on the basis of handicap.
(c) The exclusion of nonhandicapped persons from the benefits of a
program limited by Federal statute or Executive Order to individuals
with handicaps or the exclusion of a specific class of individuals with
handicaps from a program limited by Federal statute or Executive Order
to a different class of individuals with handicaps is not prohibited by
this part.
(d) The agency shall administer programs and activities in the most
integrated setting appropriate to the needs of qualified individuals
with handicaps.
365.131 -- 365.139 (Reserved)
20 CFR 365.140 Employment.
No qualified individual with handicaps shall, on the basis of
handicap, be subjected to discrimination in employment under any program
or activity conducted by the agency. The definitions, requirements and
procedures of section 501 of the Rehabilitation Act of 1973 (29 U.S.C.
791), as established by the Equal Employment Opportunity Commission in
29 CFR Part 1613, shall apply to employment in federally conducted
programs or activities.
365.141 -- 365.148 (Reserved)
20 CFR 365.149 Program accessibility: Discrimination prohibited.
Except as otherwise provided in 365.150, no qualified individual
with handicaps shall, because the agency's facilities are inaccessible
to or unusable by individuals with handicaps, be denied the benefits of,
be excluded from participation in, or otherwise be subjected to
discrimination under any program or activity conducted by the agency.
20 CFR 365.150 Program accessibility: Existing facilities.
(a) General. The agency shall operate each program or activity so
that the program or activity when viewed in its entirety is readily
accessible to and usable by individuals with handicaps. Although all
facilities in which the agency operates, except for the headquarters
building, are either owned or leased by and under the general control of
the General Services Administration (GSA), the agency recognizes its
obligation to request the GSA to make space reassignments or any
structural changes which the agency determines are necessary to ensure
program accessibility. This paragraph does not --
(1) Necessarily require the agency to make each of its existing
facilities accessible to and usable by individuals with handicaps; or
(2) Require the agency to take or to recommend to the GSA any action
that the agency can demonstrate would result in a fundamental alteration
in the nature of a program or activity or result in undue financial and
administrative burdens. In those circumstances where agency personnel
believe that the proposed action would fundamentally alter the program
or activity or would result in undue financial and administrative
burdens, the agency has the burden of proving that compliance with
365.150(a) would result in such alteration or burdens. The decision
that compliance would result in such alteration or burdens must be made
by the Chief Executive Officer after considering all agency resources
available for use in the funding and operation of the conducted program
or activity, and must be accompanied by a written statement of the
reasons for reaching that conclusion. If an action would result in such
an alteration or such burdens, the agency shall take any other action
that would not result in such an alteration or such burdens that would
nevertheless ensure that individuals with handicaps receive the benefits
and services of the program or activity.
(b) Methods. In general the agency will comply with this section by
making home visits. The agency may also comply with the requirements of
this section through such means as redesign of equipment, reassignment
of services to accessible buildings, assignment of aids to
beneficiaries, delivery of services at alternate accessible sites,
alteration of existing facilities and construction of new facilities,
use of accessible rolling stock, or any other methods that result in
making its programs or activities readily accessible to and usable by
individuals with handicaps. The agency is not required to make or
request the GSA to make structural changes in existing facilities where
other methods are effective in achieving compliance with this section.
The agency, in making or requesting space reassignments or alterations
to existing buildings, shall ensure that accessibility requirements, to
the extent compelled by the Architectural Barriers Act of 1968, as
amended (42 U.S.C. 4151-4157), and any regulations implementing it are
met. In choosing among available methods for meeting the requirements
of this section, the agency shall give priority to those methods that
offer programs and activities to qualified individuals with handicaps in
the most integrated setting appropriate.
(c) Time period for compliance. The agency shall comply with the
obligations established under this section by February 27, 1989, except
that where structural changes in facilities are undertaken, the agency
will make such changes or, where applicable, request the GSA to make
such changes by December 27, 1991, but in any event as expeditiously as
possible.
(d) Transition plan. In the event that structural changes to
facilities will be undertaken to achieve program accessibility, the
agency shall develop or, where applicable, request the GSA to develop,
by June 27, 1989, a transition plan setting forth the steps necessary to
complete such changes. The agency shall provide an opportunity to
interested persons, including individuals with handicaps or
organizations representing individuals with handicaps, to participate in
the development of the transition plan by submitting comments (both oral
and written). A copy of the transition plan shall be made available for
public inspection. The plan shall, at a minimum --
(1) Identify physical obstacles in the agency's facilities that limit
the accessibility of its programs or activities to individuals with
handicaps;
(2) Describe in detail the methods that will be used to make the
facilities accessible;
(3) Specify the schedule for taking the steps necessary to achieve
compliance with this section and, if the time period of the transition
plan is longer than one year, identify steps that will be taken during
each year of the transition period; and
(4) Indicate the official responsible for implementation of the plan.
20 CFR 365.151 Program accessibility: New construction and
alterations.
Each building or part of a building that is constructed or altered
by, on behalf of, or for the use of the agency shall be designed,
constructed, or altered so as to be readily accessible to and usable by
individuals with handicaps. The definitions, requirements, and
standards of the Architectural Barriers Act (42 U.S.C. 4151-4157), as
established in 41 CFR 101-19.600 to 101-19.607, apply to buildings
covered by this section.
365.152 -- 365.159 (Reserved)
20 CFR 365.160 Communications.
(a) The agency shall take appropriate steps to ensure effective
communication with applicants, participants, personnel of other Federal
entities, and members of the public.
(1) The agency shall furnish appropriate auxiliary aids where
necessary to afford an individual with handicaps an equal opportunity to
participate in, and enjoy the benefits of, a program or activity
conducted by the agency.
(i) In determining what type of auxiliary aid is necessary, the
agency shall give primary consideration to the requests of the
individual with handicaps.
(ii) The agency need not provide individually prescribed devices,
readers for personal use or study, or other devices of a personal
nature.
(2) Where the agency communicates with applicants and beneficiaries
by telephone, telecommunication devices for deaf persons (TDD's) or
equally effective telecommunication systems shall be used to communicate
with persons with impaired hearing.
(b) The agency shall take appropriate steps to provide individuals
with handicaps with information as to the existence and location of
accessible services, activities, and facilities and information
regarding their section 504 rights under the agency's programs or
activities.
(c) This section does not require the agency to take any action that
it can demonstrate would result in a fundamental alteration in the
nature of a program or activity or in undue financial and administrative
burdens. In those circumstances where agency personnel believe that the
proposed action would fundamentally alter the program or activity or
would result in undue financial and administrative burdens, the agency
has the burden of proving that compliance with 365.160 would result in
such alteration or burdens. The decision that compliance would result
in such alteration or burdens must be made by the Chief Executive
Officer after considering all agency resources available for use in the
funding and operation of the conducted program or activity, and must be
accompanied by a written statement of the reasons for reaching that
conclusion. If an action required to comply with this section would
result in such an alteration or such burdens, the agency shall take any
other action that would not result in such an alteration or such burdens
but would nevertheless ensure that, to the maximum extent possible,
individuals with handicaps receive the benefits and services of the
program or activity.
365.161 -- 365.169 (Reserved)
20 CFR 365.170 Compliance procedures.
(a) Except as provided in paragraph (b) of this section, this section
applies to all allegations of discrimination on the basis of handicap in
programs or activities conducted by the agency;
(b) The agency shall process complaints alleging violations of
section 504 with respect to employment according to the procedures
established by the Equal Employment Opportunity Commission in 29 CFR
Part 1613 pursuant to section 501 of the Rehabilitation Act of 1973 (29
U.S.C. 791).
(c) Except with respect to complaints arising under 365.170(b),
responsibility for implementation and operation of this section shall be
vested in the Chief Executive Officer.
(d) The Chief Executive Officer shall accept and investigate all
complete complaints for which he or she has jurisdiction. All complete
complaints must be filed within 90 days of the alleged act of
discrimination. The Chief Executive Officer may extend this time period
for good cause.
(e) If the Chief Executive Officer receives a complaint over which
the agency does not have jurisdiction, he or she shall promptly notify
the complainant and shall make reasonable efforts to refer the complaint
to the appropriate government entity.
(f) The Chief Executive Officer shall notify the Architectural and
Transportation Barriers Compliance Board upon receipt of any complaint
alleging that a building or facility used by the agency that is subject
to the Architectural Barriers Act of 1968, as amended (42 U.S.C.
4151-4157), is not readily accessible to and usable by individuals with
handicaps.
(g) Within 120 days of the receipt of a complete complaint under
365.170(d) for which the agency has jurisdiction, the Chief Executive
Officer shall notify the complainant of the results of the investigation
in a letter containing --
(1) Findings of fact and conclusions of law;
(2) A description of a remedy for each violation found; and
(3) A notice of the right to appeal.
(h) Appeals of the findings of fact and conclusions of law or
remedies must be filed by the complainant within 45 days of receipt from
the Chief Executive Officer of the letter required by 365.170(g). The
Chief Executive Officer may extend this time for good cause.
(i) Timely appeals shall be accepted and processed by the Board.
(j) The Board shall notify the complainant of the results of the
appeal within 60 days of the receipt of the request. If the Board
determines that it needs additional information from the complainant, it
shall have 30 days from the date it receives the additional information
to make its determination on the appeal.
(k) The time limits cited in paragraphs (g) and (j) of this section
may be extended with the permission of the Assistant Attorney General.
(l) The agency may delegate its authority for conducting complaint
investigations to other Federal agencies except that the authority for
making the final determination may not be delegated to another agency.
365.171 -- 365.999 (Reserved)
20 CFR 365.170 PART 366 -- COLLECTION OF DEBTS BY FEDERAL TAX REFUND
OFFSET (EFFECTIVE UNTIL JANUARY 11, 1994)
Sec.
366.1 Notification to Internal Revenue Service.
366.2 Past-due legally enforceable debt.
366.3 Reasonable attempt to notify.
366.4 Notification to debtor.
366.5 Consideration of evidence.
366.6 Change in notification to Internal Revenue Service.
366.7 Sunset provision.
Authority: 45 U.S.C. 231f(b)(5); 31 U.S.C. 3720A.
Source: 54 FR 397, Jan. 6, 1989, unless otherwise noted.
Effective Date Note: At 54 FR 397, Jan. 6, 1989, part 366 was
added, effective from January 6, 1989 until January 11, 1994.
20 CFR 366.1 Notification to Internal Revenue Service.
Upon entering into an agreement with the Internal Revenue Service and
the Financial Management Service with regard to its participation in the
tax refund offset program, the Board may notify the Internal Revenue
Service, pursuant to the terms of such agreement, of past-due legally
enforceable debts owed to the Board that are to be collected by tax
refund offset. The Board's notification to the Internal Revenue Service
will be as prescribed by the Internal Revenue Service in regard to
information included and format, and will be made by such dates as
prescribed by the Internal Revenue Service. The Board will provide the
Internal Revenue Service with a toll-free or collect telephone number
which the Internal Revenue Service may furnish to individuals whose
refunds have been offset for use in obtaining information from the Board
concerning the offset.
20 CFR 366.2 Past-due legally enforceable debt.
A past-due legally enforceable debt which may be referred to the
Internal Revenue Service is a debt:
(a) Which resulted from erroneous benefit or annuity payments made
under the Railroad Unemployment Insurance Act or the Railroad Retirement
Act or any other statute administered by the Board;
(b) Which is an obligation of a debtor who is a natural person;
(c) Which, except in the case of a judgment debt, has been delinquent
at least three months but not more than ten years at the time the offset
is made;
(d) Which is at least $25.00;
(e) With respect to whych the individual's rights described in Part
260 or Part 320 of this chapter or the applicable law regarding
reconsideration, waiver, and appeal, have been exhausted;
(f) With respect to which either:
(1) The Board's records do not contain evidence that the person owing
the debt (or his or her spouse) has filed for bankruptcy under Title 11
of the United States Code; or
(2) The Board can clearly establish at the time of the referral that
the automatic stay under section 362 of the Bankruptcy Code has been
lifted or is no longer in effect with respect to the person owing the
debt or his or her spouse, and the debt was not discharged in the
bankruptcy proceeding;
(g) Which cannot currently be collected pursuant to the salary offset
provisions of 5 U.S.C. 5514(a)(1);
(h) Which is not eligible for administrative offset under 31 U.S.C.
3716(a) by reason of 31 U.S.C. 3716(c)(2), or cannot currently be
collected by administrative offset under 31 U.S.C. 3716(a) by the Board
against amounts payable to the debtor by the Board;
(i) Which cannot currently be collected by administrative offset
under 255.6 or 340.6 of this chapter against amounts payable to the
debtor under any statute administered by the Board;
(j) With respect to which the Board has notified, or has made a
reasonable attempt to notify, the individual that the debt is past due,
and that unless the debtor repays the debt within 60 days, will be
referred to the Internal Revenue Service for offset against any
overpayment of tax; and
(k) With respect to which the Board has given the debtor at least 60
days from the date of the notification required in paragraph (j) of this
section to present evidence that all or part of the debt is not past due
or legally enforceable, has considered evidence, if any, presented by
such individual, and has determined that an amount of such debt is past
due and legally enforceable.
20 CFR 366.3 Reasonable attempt to notify.
In order to constitute a reasonable attempt to notify the debtor the
Board must have used a mailing address for the debtor obtained from the
Internal Revenue Service pursuant to section 6103 (m)(2) or (m)(4) of
the Internal Revenue Code within a period of one year preceding the
attempt to notify the debtor, whether or not the Board has used any
other address maintained by the Board for the debtor.
20 CFR 366.4 Notification to debtor.
The notification provided by the Board to the debtor will inform the
debtor how he or she may present evidence to the Board that all or part
of the debt is not past due or legally enforceable.
20 CFR 366.5 Consideration of evidence.
Evidence submitted by the debtor will be considered only by officials
or employees of the Board and a determination that an amount of such
debt is past-due and legally enforceable will be made only by such
officials or employees.
20 CFR 366.6 Change in notification to Internal Revenue Service.
If, after submitting to the Internal Revenue Service notification of
liability for a debt, the Board:
(a) Determines that an error has been made with respect to the
information contained in the notification,
(b) Receives a payment or credits a payment to the account of the
debtor named in the notification that reduces the amount of the debt
referred to the Internal Revenue Service for offset, or
(c) Receives notification that the individual owing the debt has
filed for bankruptcy under Title 11 of the United States Code or has
been adjudicated bankrupt and the debt has been discharged, the Board
will promptly notify the Internal Revenue Service. However, the Board
will make no notification to the Internal Revenue Service to increase
the amount of a debt owed by a debtor named in the Board's original
notification to the Internal Revenue Service. If the amount of a debt
is reduced after referral by the Board and offset by the Internal
Revenue Service, the Board will refund to the debtor any excess amount
and will promptly notify the Internal Revenue Service of any refund made
by the Board.
20 CFR 366.7 Sunset provision.
This section applies to refunds payable under section 6402 of the
Internal Revenue Code after December 31, 1988, and on or before January
10, 1994.
20 CFR 366.7 PART 367 -- RECOVERY OF DEBTS OWED TO THE UNITED STATES
GOVERNMENT BY ADMINISTRATIVE OFFSET
Sec.
367.1 Purpose and scope.
367.2 Past-due legally enforceable debt.
367.3 Board responsibilities.
367.4 Notification to another agency.
367.5 Notification to debtor.
367.6 Consideration of evidence.
367.7 Change in notification to another government agency.
367.8 Administrative offset against amounts payable from Civil
Service Retirement and Disability Fund.
Authority: 45 U.S.C. 231f(b)(5); 31 U.S.C. 3716.
Source: 56 FR 46375, Sept. 12, 1991, unless otherwise noted.
20 CFR 367.1 Purpose and scope.
The regulations in this part establish procedures to implement
section 10 of the Debt Collection Act of 1982 (Pub. L. 97-365), 31
U.S.C. 3716. Among other things, this statute authorizes the Board to
collect a claim arising under an agency program by means of
administrative offset, except that no claim may be collected by such
means if outstanding for more than 10 years after the Board's right to
collection of the debt first accrued, unless facts material to the
Government's right to collect the debt were not known and could not
reasonably have been known by the official or officials of the
government who were charged with the responsibility to discover and
collect such debts. This subpart specifies the agency procedures that
will be followed by the Board for an administrative offset.
20 CFR 367.2 Past-due legally enforceable debt.
A past-due legally enforceable debt which may be referred to another
governmental agency for administrative offset is a debt:
(a) Which resulted from erroneous benefit or annuity payments made
under the Railroad Unemployment Insurance Act or the Railroad Retirement
Act or any other statute administered by the Board;
(b) Which is an obligation of a debtor who is a natural person;
(c) Which, except in the case of a judgment debt, has been delinquent
at least three months but not more than ten years at the time the offset
is made;
(d) Which is at least $25.00;
(e) With respect to which the individual's rights described in part
260 or part 320 of this chapter or the applicable law regarding
reconsideration, waiver, and appeal, have been exhausted;
(f) With respect to which either;
(1) The Board's records do not contain evidence that the person owing
the debt (or his or her spouse) has filed for bankruptcy under title 11
of the United States Code; or
(2) The Board can clearly establish at the time of the referral that
the automatic stay under section 362 of the Bankruptcy Code has been
lifted or is no longer in effect with respect to the person owing the
debt or his or her spouse, and the debt as not discharged in the
bankruptcy proceeding;
(g) Which cannot currently be collected pursuant to the salary offset
provisions of 5 U.S.C. 5514(a)(1);
(h) Which cannot currently be collected by administrative offset
under 255.6 or 340.6 of this chapter against amounts payable to the
debtor under any statute administered by the Board;
(i) With respect to which the Board has notified, or has made a
reasonable attempt to notify, the individual that the debt is past due,
and that unless the debtor repays the debt within 60 days, the debt will
be referred to any other agency of the United States government for
offset against any money owed that person by that agency; and
(j) With respect to which the Board has given the debtor at least 60
days from the date of the notification required in paragraph (i) of this
section to present evidence that all or part of the debt is not past due
or legally enforceable, has considered evidence, if any, presented by
such individual, and has determined that the amount of such debt is past
due and legally enforceable.
20 CFR 367.3 Board responsibilities.
(a) The Board may delegate to an employee or employees the
responsibility for collecting any claims owed the Board by means of
administrative offset.
(b) Before collecting a claim by means of administrative offset, the
Board must ensure that administrative offset is feasible, allowable and
appropriate, and must notify the debtor of the Board's policies for
collecting a claim by means of administrative offset.
(c) Whether collection by administrative offset is feasible is a
determination to be made by the Board on a case-by-case basis, in the
exercise of its sound discretion. The Board shall consider not only
whether administrative offset can be accomplished, both practically and
legally, but also whether offset is best suited to further and protect
all of the Government's interests. In appropriate circumstances, the
Board may give due consideration to the debtor's financial condition,
and is not required to use offset in every instance in which there is an
available source of funds. The Board may also consider whether offset
would substantially interfere with or defeat the purposes of the program
authorizing the payments against which offset is contemplated.
(d) Before advising the debtor that the delinquent debt will be
subject to administrative offset, the agency official responsible for
administering the program under which the debt arose shall review the
claim and determine that the debt is valid and overdue.
(e) Administrative offset shall be considered by the Board only after
attempting to collect a claim under the statutes administered by the
Board except that no claim under this Act that has been outstanding for
more than 10 years after the Government's right to collect the debt
first accrued may be collected by means of administrative offset, unless
facts material to the right to collect the debt were not known and could
not reasonably have been known by the official of the agency who was
charged with the responsibility to discover and collect such debts.
20 CFR 367.4 Notification to another agency.
When the Board refers a debt under this part to another agency for
collection by means of administrative offset, the Board shall provide a
written certification to the other agency stating that the debtor owes
the debt (including the amount) and that the provisions of this part
have been fully complied with.
20 CFR 367.5 Notification to debtor.
The notification provided by the Board to the debtor will inform the
debtor how he or she may present evidence to the Board that all or part
of the debt is not past due or legally enforceable.
20 CFR 367.6 Consideration of evidence.
Evidence submitted by the debtor will be considered only by officials
or employees of the Board, and a determination that all or a portion of
such debt is past-due and legally enforceable will be made only by such
officials or employees.
20 CFR 367.7 Change in notification to another government agency.
If, after submitting notification of liability for a debt to another
agency, the Board:
(a) Determines that an error has been made with respect to the
information contained in the notification;
(b) Receives a payment or credits a payment to the account of the
debtor named in the notification that reduces the amount of the debt
referred to the other agency for offset; or
(c) Receives notification that the individual owing the debt has
filed for bankruptcy under title 11 of the United States Code or has
been adjudicated bankrupt and the debt has been discharged; the Board
will promptly notify the other agency. If the amount of a debt is
reduced after referral by the Board and offset by the other agency, the
Board will refund to the debtor any excess amount and will promptly
notify the other agency of any refund made by the Board. If the amount
of debt has increased after referral by the Board but prior to offset by
the other agency, then the Board will promptly notify the other agency
of such increase.
20 CFR 367.8 Administrative offset against amounts payable from Civil
Service Retirement and Disability Fund.
(a) The Board may request that moneys which are due and payable to a
debtor from the Civil Service Retirement and Disability Fund be
administratively offset in reasonable amounts in order to collect debts
owed to the Board by the debtor. Such requests shall be made to the
appropriate officials of the Office of Personnel Management in
accordance with such regulations as may be prescribed by the Director of
that Office.
(b) When making a request for administrative offset under paragraph
(a) of this section, the Board shall include a written certification
that:
(1) The debtor owes the United States a debt, including the amount of
the debt;
(2) The Board has complied with all applicable statutes, regulations,
and procedures of the Office of Personnel Management; and
(3) The Board has complied with the requirements of the applicable
provisions of the Federal Claims Collection Standards, the Railroad
Retirement Act and the Railroad Unemployment Insurance Act including any
required hearing or review.
(c) When the Board decides to request administrative offset under
paragraph (a) of this section, it should make the request as soon as
practical after completion of the applicable due process procedures in
order that the Office of Personnel Management may identify and flag the
debtor's account in anticipation of the time when the debtor becomes
eligible and requests to receive payments from the Fund. This will
satisfy any requirement that offset be initiated prior to expiration of
the applicable statute of limitations. At such time as the debtor makes
a claim for payments from the Fund, if at least a year has elapsed since
the offset request was originally made, the debtor will be permitted to
offer a satisfactory repayment plan in lieu of offset upon establishing
that changed financial circumstances would render the offset unjust.
(d) In accordance with procedures established by the Office of
Personnel Management, the Board may request an offset from the Civil
Service Retirement and Disability Fund prior to completion of due
process procedures.
(e) If the Board collects part or all of the debt by other means
before deductions are made or completed pursuant to paragraph (a) of
this section, the Board shall act promptly to modify or terminate its
request for offset under paragraph (a) of this section.
20 CFR 367.8 SUBCHAPTER G -- (RESERVED)
20 CFR 367.8 SUBCHAPTER H -- EMERGENCY REGULATIONS
20 CFR 367.8 PART 375 -- PLAN OF OPERATION DURING A NATIONAL EMERGENCY
Sec.
375.1 Purpose.
375.2 National emergency and effective date.
375.3 Policy.
375.4 Mailing instructions.
375.5 Organization and functions of the Board, delegations of
authority, and lines of succession.
375.6 Personnel, fiscal, and service functions.
375.7 Operating regulations.
375.8 Regulations for employers.
Authority: Sec. 10, 50 Stat. 314, as amended; 45 U.S.C. 228j and
sec. 12, 52 Stat. 1107, as amended; 45 U.S.C. 362.
Source: 29 FR 15864, Nov. 26, 1964, unless otherwise noted.
Redesignated at 29 FR 16322, Dec. 5, 1964, and 45 FR 28314, Apr. 29,
1980.
20 CFR 375.1 Purpose.
(a) The Railroad Retirement Board has adopted a plan to provide basic
organization and methods of operation which may be needed to continue
the uninterrupted payment of retirement, survivor, unemployment, and
sickness benefits and the continuation of employment service under the
Railroad Retirement Act (45 U.S.C. ch. 9) and the Railroad Unemployment
Insurance Act (45 U.S.C. ch. 11) during a period of national emergency
as defined in 375.2.
(b) The plan is published to inform all interested persons of the
circumstances and ways in which the Board will organize and operate in a
national emergency.
20 CFR 375.2 National emergency and effective date.
A period of national emergency shall be deemed to exist and the
provisions of this part shall become effective only (a) after an attack
upon the United States, or at a time specified by the authority of the
President after such attack, and (b) by order of the chairman of the
Board or his successor as set forth in 375.5, or when it is no longer
possible to communicate with such official at his designated station.
20 CFR 375.3 Policy.
To the greatest extent possible, payment of benefits shall be made
and employment service functions shall be carried on through the period
of a national emergency in strict conformance with the pertinent
provisions of the Railroad Retirement Act, the Railroad Unemployment
Insurance Act, and the regulations promulgated by the Board to
administer those acts. Where the character of the national emergency is
such as to prevent this, the stand-by regulations contained in this part
shall obtain. It will be expected, however, that every effort shall be
made to return to normal operating practices as quickly as possible
thereafter.
20 CFR 375.4 Mailing instructions.
In a national emergency as defined in 375.2, all mail shall be
directed to Board offices at their normal locations.
(40 FR 52844, Nov. 13, 1975)
20 CFR 375.5 Organization and functions of the Board, delegations of
authority, and lines of succession.
(a) During a national emergency as defined in 375.2, the respective
functions and responsibilities of the Board, the bureaus and offices,
and the regional and district offices shall be to the extent possible as
set forth in the U.S. Government Organization Manual; where not
possible such functions and responsibilities may be exercised without
regard to any existing policy or procedure of the Board.
(b) The following delegation of authority is made to provide
continuity of that organization in the event of a national emergency:
(1) The chairman of the Board shall act with full administrative
authority for the Board.
(2) In the absence or incapacity of the chairman of the Board, the
authority of the chairman to act for the Board shall pass to the
available successor highest on the following list:
Labor Member of the Board.
Management Member of the Board.
Chief Executive Officer.
Director of Retirement Claims.
Director of Research.
Director of Unemployment and Sickness Insurance.
Director of Data Processing and Accounts.
Director of Budget and Fiscal Operations.
Director of Management Control.
The Regional Director highest on the following list: Kansas City,
Cleveland, Atlanta, New York, and San Francisco.
(3) Except as may be determined otherwise by the Chairman of the
Board or his successor and as provided in 375.6 and 375.7, the duties
of each bureau head or regional director shall be discharged in his
absence or incapacity during a national emergency by the available staff
member next in line of succession. Each bureau head and each regional
director shall designate and preposition the line of succession within
his bureau or region. If no such designation has been made, such duties
shall be assumed by the available subordinate who is highest in grade
or, if there is more than one, in length of Board service.
(4) Emergency responsibility and authority under this section, once
assumed, shall be relinquished on direction of the duly constituted
higher authority acting under the provisions of paragraph (b)(2) of this
section.
(Board Order 68-135, 29 FR 15864, Nov. 26, 1964. Redesignated at 29
FR 16322, Dec. 5, 1964, and amended by Board Order 71-26, 36 FR 4980,
Mar. 16, 1971; Board Order 75-52, 40 FR 26673, June 25, 1975; 40 FR
52844, Nov. 13, 1975)
20 CFR 375.6 Personnel, fiscal, and service functions.
(a) Personnel. In a national emergency as defined in 375.2, when it
is no longer possible for a regional director, or the manager of the
Seattle district office, to communicate with the chairman of the Board
or his successor as set forth in 375.5, complete responsibility and
authority for administration of the personnel function are delegated to
such regional director, or the Seattle district manager, for his
respective OCD-OEP geographic area.
(b) Fiscal. (1) In a national emergency as defined in 375.2, the
chairman of the Board or his successor as set forth in 375.5 shall
designate an individual to assume the responsibilities of the Director
of Budget and Fiscal Operations in the event the Director or the
Assistant Director is unable to assume those responsibilities.
(2) In a national emergency, incumbents of the following positions
are hereby authorized to appoint emergency certifying officers:
Chief Executive Officer
Director of Budget and Fiscal Operations
Director of Retirement Claims
Director of Unemployment and Sickness Insurance
Regional Directors, or
Deputy Regional Directors.
(i) The emergency certifying officers shall be empowered to certify:
(a) Benefit payments under the Railroad Retirement Act.
(b) Benefit payments under the Railroad Unemployment Insurance Act.
(c) Administrative expenses of the Railroad Retirement Board.
(ii) Emergency certifying officers shall be appointed under the
authority delegated by this section when (a) normal channels for
certifying payments have been rendered inoperable, and (b) clearance has
been obtained from the ranking official in line of succession as set
forth in 375.5(b) (1) and (2) and under such instructions and
conditions as he may prescribe.
(c) Supply and service. (1) In a national emergency as defined in
375.2, complete responsibility and authority for the procurement of
needed supplies, equipment, space, communications, transportation
(automobiles only), and repair services are delegated to each regional
director and to the manager of the Seattle district office for their
respective OCD-OEP geographic areas.
(2) Federal sources of supply and service, if available, shall be
used.
(3) Any supplies, equipment, space, or services provided under this
emergency delegation shall be documented to show what was provided, the
amount procured, the cost thereof, and the source from which procured.
(4) As soon after the period of national emergency as conditions
permit, the records required by paragraph (c)(3) of this section shall
be transmitted to the Director of Supply and Service or his surviving
successor.
(29 FR 15864, Nov. 26, 1964. Redesignated at 29 FR 16322, Dec. 5,
1964, and amended by Board Order 67-29, 32 FR 3975, Mar. 11, 1967; 34
FR 12490, July 31, 1969; Board Order 75-52, 40 FR 26674, June 25, 1975;
40 FR 52844, Nov. 13, 1975)
20 CFR 375.7 Operating regulations.
(a) Retirement claims. (1) In a national emergency as defined in
375.2, applications for and development and certification of claims for
retirement, disability, and survivor benefits shall be to the extent
possible, as set forth in subchapter B of this chapter, except that:
(i) Standards of evidence may be relaxed although legal requirements
for entitlement to payments shall remain unchanged; in determining
relationships, employment, birth, death, etc., consideration shall be
given to whatever information is in the possession of applicants and
beneficiaries or the Board office adjudicating a claim.
(ii) If prescribed forms are not available, any writing that contains
substantially the necessary information shall be acceptable.
(iii) In a national emergency, that is when the headquarters office
is inoperable, the development and certification of claims shall be
assumed by the regional offices.
(2) To provide the necessary authority for a decentralized program as
outlined in this paragraph (a), those authorities which have been
delegated to the Director of Retirement Claims are hereby delegated to
the regional directors or their surviving successors.
(b) Unemployment and sickness claims. (1) In a national emergency as
defined in 375.2, receipt, adjudication, and certification of claims
for unemployment and sickness benefits shall be to the extent possible
as set forth in subchapter C of this chapter, except that:
(i) Where the Board's wage records have been destroyed or are
otherwise unavailable, the wage-record evidence in the possession of the
claimant, or the employer's wage records will be acceptable in
determining qualifications for benefits.
(ii) In the event normal record sources such as claim file folders or
magnetic tape master records are destroyed or otherwise unavailable,
other evidence of previous benefit payments shall be considered in
determining the periods for which benefits are currently payable and the
amounts.
(iii) In developing sickness benefit claims where medical evidence in
the form of a doctor's statement is not available, an affidavit from the
claimant or other person having knowledge of his sickness or injury
shall be acceptable.
(iv) If prescribed forms are not available, any writing that contains
substantially the necessary information shall be acceptable.
(v) Eligibility interviews, investigations, and checking procedures
shall be curtailed.
(vi) If claims cannot be submitted to the processing offices in
headquarters and in the regions because of the national emergency or if
those offices become inoperative, the development and certification of
claims shall be assumed by district offices.
(2) To provide the necessary authority for a decentralized program as
outlined in paragraph (b) of this section, the authorities which have
been delegated to the Director of Unemployment and Sickness Insurance
and to the regional directors are hereby delegated to the district
managers or to their surviving successors.
(c) Manpower. (1) In a national emergency as defined in 375.2,
complete responsibility and authority for administration of the manpower
function are delegated to regional directors and district managers who
shall be governed by existing Board procedures as set forth in
Subchapter C of this chapter, except that maximum freedom in the
implementation thereof may be exercised.
(29 FR 15864, Nov. 26, 1964. Redesignated at 29 FR 16322, Dec. 5,
1964, and amended by Board Order 75-52, 40 FR 26674, June 25, 1975)
20 CFR 375.8 Regulations for employers.
(a) In a national emergency as defined in 375.2, employers shall
continue to follow to the greatest extent possible the provisions set
forth in Subchapters A and B of this chapter in registering new
employees, in submitting employee and compensation data, in distributing
certificates of service and compensation, in making contributions and
contribution reports, in providing information relating to retirement
claims, in providing information relating to unemployment and sickness
claims, and in maintaining claims office facilities.
(b) Where the national emergency prevents employers from following
these provisions in whole or in part, it shall be their responsibility
to resume the payment of contributions and other normal practices as
quickly as possible in the post-attack period, to bring contribution
accounts up to date, and to supply the Board with wage and service and
other required information within the limits of available data withheld
during the emergency.
(c) In a national emergency as defined in 375.2, contributions,
communications, and other materials are to be mailed as set forth in
375.4.
20 CFR 375.8 SUBCHAPTER I -- (RESERVED)
20 CFR 375.8 FINDING AIDS
A list of CFR titles, subtitles, chapters, subchapters and parts and
an alphabetical list of agencies publishing in the CFR are included in
the CFR Index and Finding Aids volume to the Code of Federal Regulations
which is published separately and revised annually.
Table of CFR Titles and Chapters
Alphabetical List of Agencies Appearing in the CFR
Redesignation Tables
List of CFR Sections Affected
Chap.
20 CFR 375.8 Table of CFR Titles and Chapters
20 CFR 375.8 Title 1 -- General Provisions
I Administrative Committee of the Federal Register (Parts 1 -- 49)
II Office of the Federal Register (Parts 50 -- 299)
III Administrative Conference of the United States (Parts 300 -- 399)
IV Miscellaneous Agencies (Parts 400 -- 500)
20 CFR 375.8 Title 2 -- (Reserved)
20 CFR 375.8 Title 3 -- The President
I Executive Office of the President (Parts 100 -- 199)
20 CFR 375.8 Title 4 -- Accounts
I General Accounting Office (Parts 1 -- 99)
II Federal Claims Collection Standards (General Accounting Office --
Department of Justice) (Parts 100 -- 299)
20 CFR 375.8 Title 5 -- Administrative Personnel
I Office of Personnel Management (Parts 1 -- 1199)
II Merit Systems Protection Board (Parts 1200 -- 1299)
III Office of Management and Budget (Parts 1300 -- 1399)
IV Advisory Committee on Federal Pay (Parts 1400 -- 1499)
V The International Organizations Employees Loyalty Board (Parts 1500
-- 1599)
VI Federal Retirement Thrift Investment Board (Parts 1600 -- 1699)
VII Advisory Commission on Intergovernmental Relations (Parts 1700 --
1799)
VIII Office of Special Counsel (Parts 1800 -- 1899)
IX Appalachian Regional Commission (Parts 1900 -- 1999)
XI United States Soldiers' and Airmen's Home (Parts 2100 -- 2199)
XIV Federal Labor Relations Authority, General Counsel of the Federal
Labor Relations Authority and Federal Service Impasses Panel (Parts 2400
-- 2499)
XV Office of Administration, Executive Office of the President (Parts
2500 -- 2599)
XVI Office of Government Ethics (Parts 2600 -- 2699)
20 CFR 375.8 Title 6 (Reserved)
20 CFR 375.8 Title 7 -- Agriculture
Subtitle A -- Office of the Secretary of Agriculture (Parts 0 -- 26)
Subtitle B -- Regulations of the Department of Agriculture
I Agricultural Marketing Service (Standards, Inspections, Marketing
Practices), Department of Agriculture (Parts 27 -- 209)
II Food and Nutrition Service, Department of Agriculture (Parts 210
-- 299)
III Animal and Plant Health Inspection Service, Department of
Agriculture (Parts 300 -- 399)
IV Federal Crop Insurance Corporation, Department of Agriculture
(Parts 400 -- 499)
V Agricultural Research Service, Department of Agriculture (Parts 500
-- 599)
VI Soil Conservation Service, Department of Agriculture (Parts 600 --
699)
VII Agricultural Stabilization and Conservation Service (Agricultural
Adjustment), Department of Agriculture (Parts 700 -- 799)
VIII Federal Grain Inspection Service, Department of Agriculture
(Parts 800 -- 899)
IX Agricultural Marketing Service (Marketing Agreements and Orders;
Fruits, Vegetables, Nuts), Department of Agriculture (Parts 900 -- 999)
X Agricultural Marketing Service (Marketing Agreements and Orders;
Milk), Department of Agriculture (Parts 1000 -- 1199)
XI Agricultural Marketing Service (Marketing Agreements and Orders;
Miscellaneous Commodities), Department of Agriculture (Parts 1200 --
1299)
XIV Commodity Credit Corporation, Department of Agriculture (Parts
1400 -- 1499)
XV Foreign Agricultural Service, Department of Agriculture (Parts
1500 -- 1599)
XVI Rural Telephone Bank, Department of Agriculture (Parts 1600 --
1699)
XVII Rural Electrification Administration, Department of Agriculture
(Parts 1700 -- 1799)
XVIII Farmers Home Administration, Department of Agriculture (Parts
1800 -- 2099)
XXI Foreign Economic Development Service, Department of Agriculture
(Parts 2100 -- 2199)
XXII Office of International Cooperation and Development, Department
of Agriculture (Parts 2200 -- 2299)
XXV Office of the General Sales Manager, Department of Agriculture
(Parts 2500 -- 2599)
XXVI Office of Inspector General, Department of Agriculture (Parts
2600 -- 2699)
XXVII Office of Information Resources Management, Department of
Agriculture (Parts 2700 -- 2799)
XXVIII Office of Operations, Department of Agriculture (Parts 2800 --
2899)
XXIX Office of Energy, Department of Agriculture (Parts 2900 -- 2999)
XXX Office of Finance and Management, Department of Agriculture
(Parts 3000 -- 3099)
XXXI Office of Environmental Quality, Department of Agriculture
(Parts 3100 -- 3199)
XXXII Office of Grants and Program Systems, Department of Agriculture
(Parts 3200 -- 3299)
XXXIII Office of Transportation, Department of Agriculture (Parts
3300 -- 3399)
XXXIV Cooperative State Research Service, Department of Agriculture
(Parts 3400 -- 3499)
XXXVI National Agricultural Statistics Service, Department of
Agriculture (Parts 3600 -- 3699)
XXXVII Economic Research Service, Department of Agriculture (Parts
3700 -- 3799)
XXXVIII World Agricultural Outlook Board, Department of Agriculture
(Parts 3800 -- 3899)
XXXIX Economic Analysis Staff, Department of Agriculture (Parts 3900
-- 3999)
XL Economics Management Staff, Department of Agriculture (Parts 4000
-- 4099)
XLI National Agricultural Library, Department of Agriculture (Part
4100)
XLII Rural Development Administration, Department of Agriculture
(Part 4284 )
20 CFR 375.8 Title 8 -- Aliens and Nationality
I Immigration and Naturalization Service, Department of Justice
(Parts 1 -- 499)
20 CFR 375.8 Title 9 -- Animals and Animal Products
I Animal and Plant Health Inspection Service, Department of
Agriculture (Parts 1 -- 199)
II Packers and Stockyards Administration, Department of Agriculture
(Parts 200 -- 299)
III Food Safety and Inspection Service, Meat and Poultry Inspection,
Department of Agriculture (Parts 300 -- 399)
20 CFR 375.8 Title 10 -- Energy
I Nuclear Regulatory Commission (Parts 0 -- 199)
II Department of Energy (Parts 200 -- 699)
III Department of Energy (Parts 700 -- 999)
X Department of Energy (General Provisions) (Parts 1000 -- 1099)
XV Office of the Federal Inspector for the Alaska Natural Gas
Transportation System (Parts 1500 -- 1599)
XVII Defense Nuclear Facilities Safety Board (Parts 1700 -- 1799)
20 CFR 375.8 Title 11 -- Federal Elections
I Federal Election Commission (Parts 1 -- 9099)
20 CFR 375.8 Title 12 -- Banks and Banking
I Comptroller of the Currency, Department of the Treasury (Parts 1 --
199)
II Federal Reserve System (Parts 200 -- 299)
III Federal Deposit Insurance Corporation (Parts 300 -- 399)
IV Export-Import Bank of the United States (Parts 400 -- 499)
V Office of Thrift Supervision, Department of The Treasury (Parts 500
-- 599)
VI Farm Credit Administration (Parts 600 -- 699)
VII National Credit Union Administration (Parts 700 -- 799)
VIII Federal Financing Bank (Parts 800 -- 899)
IX Federal Housing Finance Board (Parts 900 -- 999)
XI Federal Financial Institutions Examination Council (Parts 1100 --
1199)
XIV Farm Credit System Insurance Corporation (Parts 1400 -- 1499)
XV Thrift Depositor Protection Oversight Board (Parts 1500 -- 1599)
XVI Resolution Trust Corporation (Parts 1600 -- 1699)
20 CFR 375.8 Title 13 -- Business Credit and Assistance
I Small Business Administration (Parts 1 -- 199)
III Economic Development Administration, Department of Commerce
(Parts 300 -- 399)
20 CFR 375.8 Title 14 -- Aeronautics and Space
I Federal Aviation Administration, Department of Transportation
(Parts 1 -- 199)
II Office of the Secretary, Department of Transportation (Aviation
Proceedings) (Parts 200 -- 399)
III Office of Commercial Space Transportation, Department of
Transportation (Parts 400 -- 499)
V National Aeronautics and Space Administration (Parts 1200 -- 1299)
20 CFR 375.8 Title 15 -- Commerce and Foreign Trade
Subtitle A -- Office of the Secretary of Commerce (Parts 0 -- 29)
Subtitle B -- Regulations Relating to Commerce and Foreign Trade
I Bureau of the Census, Department of Commerce (Parts 30 -- 199)
II National Institute of Standards and Technology, Department of
Commerce (Parts 200 -- 299)
III International Trade Administration, Department of Commerce (Parts
300 -- 399)
IV Foreign-Trade Zones Board (Parts 400 -- 499)
VII Bureau of Export Administration, Department of Commerce (Parts
700 -- 799)
VIII Bureau of Economic Analysis, Department of Commerce (Parts 800
-- 899)
IX National Oceanic and Atmospheric Administration, Department of
Commerce (Parts 900 -- 999)
XI Technology Administration, Department of Commerce (Parts 1100 --
1199)
XII United States Travel and Tourism Administration, Department of
Commerce (Parts 1200 -- 1299)
XIII East-West Foreign Trade Board (Parts 1300 -- 1399)
XIV Minority Business Development Agency (Parts 1400 -- 1499)
Subtitle C -- Regulations Relating to Foreign Trade Agreements
XX Office of the United States Trade Representative (Parts 2000 --
2099)
Subtitle D -- Regulations Relating to Telecommunications and
Information
XXIII National Telecommunications and Information Administration,
Department of Commerce (Parts 2300 -- 2399)
20 CFR 375.8 Title 16 -- Commercial Practices
I Federal Trade Commission (Parts 0 -- 999)
II Consumer Product Safety Commission (Parts 1000 -- 1799)
20 CFR 375.8 Title 17 -- Commodity and Securities Exchanges
I Commodity Futures Trading Commission (Parts 1 -- 199)
II Securities and Exchange Commission (Parts 200 -- 399)
IV Department of the Treasury (Parts 400 -- 499)
20 CFR 375.8 Title 18 -- Conservation of Power and Water Resources
I Federal Energy Regulatory Commission, Department of Energy (Parts 1
-- 399)
III Delaware River Basin Commission (Parts 400 -- 499)
VI Water Resources Council (Parts 700 -- 799)
VIII Susquehanna River Basin Commission (Parts 800 -- 899)
XIII Tennessee Valley Authority (Parts 1300 -- 1399)
20 CFR 375.8 Title 19 -- Customs Duties
I United States Customs Service, Department of the Treasury (Parts 1
-- 199)
II United States International Trade Commission (Parts 200 -- 299)
III International Trade Administration, Department of Commerce (Parts
300 -- 399)
20 CFR 375.8 Title 20 -- Employees' Benefits
I Office of Workers' Compensation Programs, Department of Labor
(Parts 1 -- 199)
II Railroad Retirement Board (Parts 200 -- 399)
III Social Security Administration, Department of Health and Human
Services (Parts 400 -- 499)
IV Employees' Compensation Appeals Board, Department of Labor (Parts
500 -- 599)
V Employment and Training Administration, Department of Labor (Parts
600 -- 699)
VI Employment Standards Administration, Department of Labor (Parts
700 -- 799)
VII Benefits Review Board, Department of Labor (Parts 800 -- 899)
VIII Joint Board for the Enrollment of Actuaries (Parts 900 -- 999)
IX Office of the Assistant Secretary for Veterans' Employment and
Training, Department of Labor (Parts 1000 -- 1099)
20 CFR 375.8 Title 21 -- Food and Drugs
I Food and Drug Administration, Department of Health and Human
Services (Parts 1 -- 1299)
II Drug Enforcement Administration, Department of Justice (Parts 1300
-- 1399)
III Office of National Drug Control Policy (Parts 1400 -- 1499)
20 CFR 375.8 Title 22 -- Foreign Relations
I Department of State (Parts 1 -- 199)
II Agency for International Development, International Development
Cooperation Agency (Parts 200 -- 299)
III Peace Corps (Parts 300 -- 399)
IV International Joint Commission, United States and Canada (Parts
400 -- 499)
V United States Information Agency (Parts 500 -- 599)
VI United States Arms Control and Disarmament Agency (Parts 600 --
699)
VII Overseas Private Investment Corporation, International
Development Cooperation Agency (Parts 700 -- 799)
IX Foreign Service Grievance Board Regulations (Parts 900 -- 999)
X Inter-American Foundation (Parts 1000 -- 1099)
XI International Boundary and Water Commission, United States and
Mexico, United States Section (Parts 1100 -- 1199)
XII United States International Development Cooperation Agency (Parts
1200 -- 1299)
XIII Board for International Broadcasting (Parts 1300 -- 1399)
XIV Foreign Service Labor Relations Board; Federal Labor Relations
Authority; General Counsel of the Federal Labor Relations Authority;
and the Foreign Service Impasse Disputes Panel (Parts 1400 -- 1499)
XV African Development Foundation (Parts 1500 -- 1599)
XVI Japan-United States Friendship Commission (Parts 1600 -- 1699)
20 CFR 375.8 Title 23 -- Highways
I Federal Highway Administration, Department of Transportation (Parts
1 -- 999)
II National Highway Traffic Safety Administration and Federal Highway
Administration, Department of Transportation (Parts 1200 -- 1299)
III National Highway Traffic Safety Administration, Department of
Transportation (Parts 1300 -- 1399)
20 CFR 375.8 Title 24 -- Housing and Urban Development
Subtitle A -- Office of the Secretary, Department of Housing and
Urban Development (Parts 0 -- 99)
Subtitle B -- Regulations Relating to Housing and Urban Development
I Office of Assistant Secretary for Equal Opportunity, Department of
Housing and Urban Development (Parts 100 -- 199)
II Office of Assistant Secretary for Housing-Federal Housing
Commissioner, Department of Housing and Urban Development (Parts 200 --
299)
III Government National Mortgage Association, Department of Housing
and Urban Development (Parts 300 -- 399)
V Office of Assistant Secretary for Community Planning and
Development, Department of Housing and Urban Development (Parts 500 --
599)
VI Office of Assistant Secretary for Community Planning and
Development, Department of Housing and Urban Development (Parts 600 --
699)
VII Office of the Secretary, Department of Housing and Urban
Development (Section 8 Housing Assistance Programs and Public and Indian
Housing Programs) (Parts 700 -- 799)
VIII Office of the Assistant Secretary for Housing -- Federal Housing
Commissioner, Department of Housing and Urban Development (Section 8
Housing Assistance Programs and Section 202 Direct Loan Program) (Parts
800 -- 899)
IX Office of Assistant Secretary for Public and Indian Housing,
Department of Housing and Urban Development (Parts 900 -- 999)
X Office of Assistant Secretary for Housing -- Federal Housing
Commissioner, Department of Housing and Urban Development (Interstate
Land Sales Registration Program) (Parts 1700 -- 1799)
XI Solar Energy and Energy Conservation Bank, Department of Housing
and Urban Development (Parts 1800 -- 1899)
XII Office of Inspector General, Department of Housing and Urban
Development (Parts 2000 -- 2099)
XV Mortgage Insurance and Loan Programs under the Emergency
Homeowners' Relief Act, Department of Housing and Urban Development
(Parts 2700 -- 2799)
XX Office of Assistant Secretary for Housing -- Federal Housing
Commissioner, Department of Housing and Urban Development (Parts 3200 --
3699)
XXV Neighborhood Reinvestment Corporation (Parts 4100 -- 4199)
20 CFR 375.8 Title 25 -- Indians
I Bureau of Indian Affairs, Department of the Interior (Parts 1 --
299)
II Indian Arts and Crafts Board, Department of the Interior (Parts
300 -- 399)
III National Indian Gaming Commission (Parts 500 -- 599)
IV Office of Navajo and Hopi Indian Relocation (Parts 700 -- 799)
20 CFR 375.8 Title 26 -- Internal Revenue
I Internal Revenue Service, Department of the Treasury (Parts 1 --
799)
20 CFR 375.8 Title 27 -- Alcohol, Tobacco Products and Firearms
I Bureau of Alcohol, Tobacco and Firearms, Department of the Treasury
(Parts 1 -- 299)
20 CFR 375.8 Title 28 -- Judicial Administration
I Department of Justice (Parts 0 -- 199)
III Federal Prison Industries, Inc., Department of Justice (Parts 300
-- 399)
V Bureau of Prisons, Department of Justice (Parts 500 -- 599)
VI Offices of Independent Counsel, Department of Justice (Parts 600
-- 699)
VII Office of Independent Counsel (Parts 700 -- 799)
20 CFR 375.8 Title 29 -- Labor
Subtitle A -- Office of the Secretary of Labor (Parts 0 -- 99)
Subtitle B -- Regulations Relating to Labor
I National Labor Relations Board (Parts 100 -- 199)
II Bureau of Labor-Management Relations and Cooperative Programs,
Department of Labor (Parts 200 -- 299)
III National Railroad Adjustment Board (Parts 300 -- 399)
IV Office of Labor-Management Standards, Department of Labor (Parts
400 -- 499)
V Wage and Hour Division, Department of Labor (Parts 500 -- 899)
IX Construction Industry Collective Bargaining Commission (Parts 900
-- 999)
X National Mediation Board (Parts 1200 -- 1299)
XII Federal Mediation and Conciliation Service (Parts 1400 -- 1499)
XIV Equal Employment Opportunity Commission (Parts 1600 -- 1699)
XVII Occupational Safety and Health Administration, Department of
Labor (Parts 1900 -- 1999)
XX Occupational Safety and Health Review Commission (Parts 2200 --
2499)
XXV Pension and Welfare Benefits Administration, Department of Labor
(Parts 2500 -- 2599)
XXVI Pension Benefit Guaranty Corporation (Parts 2600 -- 2699)
XXVII Federal Mine Safety and Health Review Commission (Parts 2700 --
2799)
20 CFR 375.8 Title 30 -- Mineral Resources
I Mine Safety and Health Administration, Department of Labor (Parts 1
-- 199)
II Minerals Management Service, Department of the Interior (Parts 200
-- 299)
III Board of Surface Mining and Reclamation Appeals, Department of
the Interior (Parts 300 -- 399)
IV Geological Survey, Department of the Interior (Parts 400 -- 499)
VI Bureau of Mines, Department of the Interior (Parts 600 -- 699)
VII Office of Surface Mining Reclamation and Enforcement, Department
of the Interior (Parts 700 -- 999)
20 CFR 375.8 Title 31 -- Money and Finance: Treasury
Subtitle A -- Office of the Secretary of the Treasury (Parts 0 -- 50)
Subtitle B -- Regulations Relating to Money and Finance
I Monetary Offices, Department of the Treasury (Parts 51 -- 199)
II Fiscal Service, Department of the Treasury (Parts 200 -- 399)
IV Secret Service, Department of the Treasury (Parts 400 -- 499)
V Office of Foreign Assets Control, Department of the Treasury (Parts
500 -- 599)
VI Bureau of Engraving and Printing, Department of the Treasury
(Parts 600 -- 699)
VII Federal Law Enforcement Training Center, Department of the
Treasury (Parts 700 -- 799)
VIII Office of International Investment, Department of the Treasury
(Parts 800 -- 899)
20 CFR 375.8 Title 32 -- National Defense
Subtitle A -- Department of Defense
I Office of the Secretary of Defense (Parts 1 -- 399)
V Department of the Army (Parts 400 -- 699)
VI Department of the Navy (Parts 700 -- 799)
VII Department of the Air Force (Parts 800 -- 1099)
Subtitle B -- Other Regulations Relating to National Defense
XII Defense Logistics Agency (Parts 1200 -- 1299)
XVI Selective Service System (Parts 1600 -- 1699)
XIX Central Intelligence Agency (Parts 1900 -- 1999)
XX Information Security Oversight Office (Parts 2000 -- 2099)
XXI National Security Council (Parts 2100 -- 2199)
XXIV Office of Science and Technology Policy (Parts 2400 -- 2499)
XXVII Office for Micronesian Status Negotiations (Parts 2700 -- 2799)
XXVIII Office of the Vice President of the United States (Parts 2800
-- 2899)
XXIX Presidential Commission on the Assignment of Women in the Armed
Forces (Part 2900)
20 CFR 375.8 Title 33 -- Navigation and Navigable Waters
I Coast Guard, Department of Transportation (Parts 1 -- 199)
II Corps of Engineers, Department of the Army (Parts 200 -- 399)
IV Saint Lawrence Seaway Development Corporation, Department of
Transportation (Parts 400 -- 499)
20 CFR 375.8 Title 34 -- Education
Subtitle A -- Office of the Secretary, Department of Education (Parts
1 -- 99)
Subtitle B -- Regulations of the Offices of the Department of
Education
I Office for Civil Rights, Department of Education (Parts 100 -- 199)
II Office of Elementary and Secondary Education, Department of
Education (Parts 200 -- 299)
III Office of Special Education and Rehabilitative Services,
Department of Education (Parts 300 -- 399)
IV Office of Vocational and Adult Education, Department of Education
(Parts 400 -- 499)
V Office of Bilingual Education and Minority Languages Affairs,
Department of Education (Parts 500 -- 599)
VI Office of Postsecondary Education, Department of Education (Parts
600 -- 699)
VII Office of Educational Research and Improvement, Department of
Education (Parts 700 -- 799)
20 CFR 375.8 Title 35 -- Panama Canal
I Panama Canal Regulations (Parts 1 -- 299)
20 CFR 375.8 Title 36 -- Parks, Forests, and Public Property
I National Park Service, Department of the Interior (Parts 1 -- 199)
II Forest Service, Department of Agriculture (Parts 200 -- 299)
III Corps of Engineers, Department of the Army (Parts 300 -- 399)
IV American Battle Monuments Commission (Parts 400 -- 499)
V Smithsonian Institution (Parts 500 -- 599)
VII Library of Congress (Parts 700 -- 799)
VIII Advisory Council on Historic Preservation (Parts 800 -- 899)
IX Pennsylvania Avenue Development Corporation (Parts 900 -- 999)
XI Architectural and Transportation Barriers Compliance Board (Parts
1100 -- 1199)
XII National Archives and Records Administration (Parts 1200 -- 1299)
20 CFR 375.8 Title 37 -- Patents, Trademarks, and Copyrights
I Patent and Trademark Office, Department of Commerce (Parts 1 --
199)
II Copyright Office, Library of Congress (Parts 200 -- 299)
III Copyright Royalty Tribunal (Parts 300 -- 399)
IV Assistant Secretary for Technology Policy, Department of Commerce
(Parts 400 -- 499)
V Under Secretary for Technology, Department of Commerce (Parts 500
-- 599)
20 CFR 375.8 Title 38 -- Pensions, Bonuses, and Veterans' Relief
I Department of Veterans Affairs (Parts 0 -- 99)
20 CFR 375.8 Title 39 -- Postal Service
I United States Postal Service (Parts 1 -- 999)
III Postal Rate Commission (Parts 3000 -- 3099)
20 CFR 375.8 Title 40 -- Protection of Environment
I Environmental Protection Agency (Parts 1 -- 799)
V Council on Environmental Quality (Parts 1500 -- 1599)
20 CFR 375.8 Title 41 -- Public Contracts and Property Management
Subtitle B -- Other Provisions Relating to Public Contracts
50 Public Contracts, Department of Labor (Parts 50-1 -- 50-999)
51 Committee for Purchase from the Blind and Other Severely
Handicapped (Parts 51-1 -- 51-99)
60 Office of Federal Contract Compliance Programs, Equal Employment
Opportunity, Department of Labor (Parts 60-1 -- 60-999)
61 Office of the Assistant Secretary for Veterans Employment and
Training, Department of Labor (Parts 61-1 -- 61-999)
Subtitle C -- Federal Property Management Regulations System
101 Federal Property Management Regulations (Parts 101-1 -- 101-99)
105 General Services Administration (Parts 105-1 -- 105-999)
109 Department of Energy Property Management Regulations (Parts 109-1
-- 109-99)
114 Department of the Interior (Parts 114-1 -- 114-99)
115 Environmental Protection Agency (Parts 115-1 -- 115-99)
128 Department of Justice (Parts 128-1 -- 128-99)
132 Department of the Air Force (Parts 132-1 -- 132-99)
Subtitle D -- Other Provisions Relating to Property Management
(Reserved)
Subtitle E -- Federal Information Resources Management Regulations
System
201 Federal Information Resources Management Regulation (Parts 201-1
-- 201-99)
Subtitle F -- Federal Travel Regulation System
301 Travel Allowances (Parts 301-1 -- 301-99)
302 Relocation Allowances (Parts 302-1 -- 302-99)
303 Payment of Expenses Connected with the Death of Certain Employees
(Parts 303-1 -- 303-2)
304 Payment from a non-Federal source for travel expenses (Parts
304-1 -- 304-99)
20 CFR 375.8 Title 42 -- Public Health
I Public Health Service, Department of Health and Human Services
(Parts 1 -- 199)
IV Health Care Financing Administration, Department of Health and
Human Services (Parts 400 -- 499)
V Office of Inspector General-Health Care, Department of Health and
Human Services (Parts 1000 -- 1999)
20 CFR 375.8 Title 43 -- Public Lands: Interior
Subtitle A -- Office of the Secretary of the Interior (Parts 1 --
199)
Subtitle B -- Regulations Relating to Public Lands
I Bureau of Reclamation, Department of the Interior (Parts 200 --
499)
II Bureau of Land Management, Department of the Interior (Parts 1000
-- 9999)
20 CFR 375.8 Title 44 -- Emergency Management and Assistance
I Federal Emergency Management Agency (Parts 0 -- 399)
IV Department of Commerce and Department of Transportation (Parts 400
-- 499)
20 CFR 375.8 Title 45 -- Public Welfare
Subtitle A -- Department of Health and Human Services, General
Administration (Parts 1 -- 199)
Subtitle B -- Regulations Relating to Public Welfare
II Office of Family Assistance (Assistance Programs), Administration
for Children and Families, Department of Health and Human Services
(Parts 200 -- 299)
III Office of Child Support Enforcement (Child Support Enforcement
Program), Administration for Children and Families, Department of Health
and Human Services (Parts 300 -- 399)
IV Office of Refugee Resettlement, Administration for Children and
Families Department of Health and Human Services (Parts 400 -- 499)
V Foreign Claims Settlement Commission of the United States,
Department of Justice (Parts 500 -- 599)
VI National Science Foundation (Parts 600 -- 699)
VII Commission on Civil Rights (Parts 700 -- 799)
VIII Office of Personnel Management (Parts 800 -- 899)
X Office of Community Services, Administration for Children and
Families, Department of Health and Human Services (Parts 1000 -- 1099)
XI National Foundation on the Arts and the Humanities (Parts 1100 --
1199)
XII ACTION (Parts 1200 -- 1299)
XIII Office of Human Development Services, Department of Health and
Human Services (Parts 1300 -- 1399)
XVI Legal Services Corporation (Parts 1600 -- 1699)
XVII National Commission on Libraries and Information Science (Parts
1700 -- 1799)
XVIII Harry S. Truman Scholarship Foundation (Parts 1800 -- 1899)
XXI Commission on Fine Arts (Parts 2100 -- 2199)
XXII Christopher Columbus Quincentenary Jubilee Commission (Parts
2200 -- 2299)
XXIV James Madison Memorial Fellowship Foundation (Parts 2400 --
2499)
XXV Commission on National and Community Service (Parts 2500 -- 2506)
20 CFR 375.8 Title 46 -- Shipping
I Coast Guard, Department of Transportation (Parts 1 -- 199)
II Maritime Administration, Department of Transportation (Parts 200
-- 399)
III Coast Guard (Great Lakes Pilotage), Department of Transportation
(Parts 400 -- 499)
IV Federal Maritime Commission (Parts 500 -- 599)
20 CFR 375.8 Title 47 -- Telecommunication
I Federal Communications Commission (Parts 0 -- 199)
II Office of Science and Technology Policy and National Security
Council (Parts 200 -- 299)
III National Telecommunications and Information Administration,
Department of Commerce (Parts 300 -- 399)
20 CFR 375.8 Title 48 -- Federal Acquisition Regulations System
1 Federal Acquisition Regulation (Parts 1 -- 99)
2 Department of Defense (Parts 200 -- 299)
3 Department of Health and Human Services (Parts 300 -- 399)
4 Department of Agriculture (Parts 400 -- 499)
5 General Services Administration (Parts 500 -- 599)
6 Department of State (Parts 600 -- 699)
7 Agency for International Development (Parts 700 -- 799)
8 Department of Veterans Affairs (Parts 800 -- 899)
9 Department of Energy (Parts 900 -- 999)
10 Department of the Treasury (Parts 1000 -- 1099)
12 Department of Transportation (Parts 1200 -- 1299)
13 Department of Commerce (Parts 1300 -- 1399)
14 Department of the Interior (Parts 1400 -- 1499)
15 Environmental Protection Agency (Parts 1500 -- 1599)
16 Office of Personnel Management Federal Employees Health Benefits
Acquisition Regulation (Parts 1600 -- 1699)
17 Office of Personnel Management (Parts 1700 -- 1799)
18 National Aeronautics and Space Administration (Parts 1800 -- 1899)
19 United States Information Agency (Parts 1900 -- 1999)
20 Nuclear Regulatory Commission (Parts 2000 -- 2099)
22 Small Business Administration (Parts 2200 -- 2299)
24 Department of Housing and Urban Development (Parts 2400 -- 2499)
25 National Science Foundation (Parts 2500 -- 2599)
28 Department of Justice (Parts 2800 -- 2899)
29 Department of Labor (Parts 2900 -- 2999)
34 Department of Education Acquisition Regulation (Parts 3400 --
3499)
35 Panama Canal Commission (Parts 3500 -- 3599)
44 Federal Emergency Management Agency (Parts 4400 -- 4499)
51 Department of the Army Acquisition Regulations (Parts 5100 --
5199)
52 Department of the Navy Acquisition Regulations (Parts 5200 --
5299)
53 Department of the Air Force Federal Acquisition Regulation
Supplement (Parts 5300 -- 5399)
57 African Development Foundation (Parts 5700 -- 5799)
61 General Services Administration Board of Contract Appeals (Parts
6100 -- 6199)
63 Department of Transportation Board of Contract Appeals (Parts 6300
-- 6399)
99 Cost Accounting Standards Board, Office of Federal Procurement
Policy, Office of Management and Budget (Parts 9900 -- 9999)
20 CFR 375.8 Title 49 -- Transportation
Subtitle A -- Office of the Secretary of Transportation (Parts 1 --
99)
Subtitle B -- Other Regulations Relating to Transportation
I Research and Special Programs Administration, Department of
Transportation (Parts 100 -- 199)
II Federal Railroad Administration, Department of Transportation
(Parts 200 -- 299)
III Federal Highway Administration, Department of Transportation
(Parts 300 -- 399)
IV Coast Guard, Department of Transportation (Parts 400 -- 499)
V National Highway Traffic Safety Administration, Department of
Transportation (Parts 500 -- 599)
VI Federal Transit Administration, Department of Transportation
(Parts 600 -- 699)
VII National Railroad Passenger Corporation (AMTRAK) (Parts 700 --
799)
VIII National Transportation Safety Board (Parts 800 -- 899)
X Interstate Commerce Commission (Parts 1000 -- 1399)
20 CFR 375.8 Title 50 -- Wildlife and Fisheries
I United States Fish and Wildlife Service, Department of the Interior
(Parts 1 -- 199)
II National Marine Fisheries Service, National Oceanic and
Atmospheric Administration, Department of Commerce (Parts 200 -- 299)
III International Regulatory Agencies (Fishing and Whaling) (Parts
300 -- 399)
IV Joint Regulations (United States Fish and Wildlife Service,
Department of the Interior and National Marine Fisheries Service,
National Oceanic and Atmospheric Administration, Department of
Commerce); Endangered Species Committee Regulations (Parts 400 -- 499)
V Marine Mammal Commission (Parts 500 -- 599)
VI Fishery Conservation and Management, National Oceanic and
Atmospheric Administration, Department of Commerce (Parts 600 -- 699)
20 CFR 375.8 CFR Index and Finding Aids Subject/Agency Index
List of Agency Prepared Indexes Parallel Tables of Statutory Authorities
and Rules Acts Requiring Publication in the Federal Register List of CFR
Titles, Chapters, Subchapters, and Parts Alphabetical List of Agencies
Appearing in the CFR
20 CFR 375.8 Alphabetical List of Agencies Appearing in the CFR
CFR Title, Subtitle or
Agency
Chapter
ACTION 45, XII
Administrative Committee of the Federal Register 1, I
Administrative Conference of the United States 1, III
Advisory Commission on Intergovernmental Relations 5, VII
Advisory Committee on Federal Pay 5, IV
Advisory Council on Historic Preservation 36, VIII
African Development Foundation 22, XV; 48, 57
Agency for International Development 22, II; 48, 7
Agricultural Marketing Service 7, I, IX, X, XI
Agricultural Research Service 7, V
Agricultural Stabilization and Conservation Service 7, VII
Agriculture Department
Agricultural Marketing Service 7, I, IX, X, XI
Agricultural Research Service 7, V
Agricultural Stabilization and Conservation Service 7, VII
Animal and Plant Health Inspection Service 7, III; 9, I
Commodity Credit Corporation 7, XIV
Cooperative State Research Service 7, XXXIV
Economic Analysis Staff 7, XXXIX
Economic Research Service 7, XXXVII
Economics Management Staff 7, XL
Energy, Office of 7, XXIX
Environmental Quality, Office of 7, XXXI
Farmers Home Administration 7, XVIII
Federal Acquisition Regulation 48, 4
Federal Crop Insurance Corporation 7, IV
Federal Grain Inspection Service 7, VIII
Finance and Management, Office of 7, XXX
Food and Nutrition Service 7, II
Food Safety and Inspection Service 9, III
Foreign Agricultural Service 7, XV
Foreign Economic Development Service 7, XXI
Forest Service 36, II
General Sales Manager, Office of 7, XXV
Grants and Program Systems, Office of 7, XXXII
Information Resources Management, Office of 7, XXVII
Inspector General, Office of 7, XXVI
International Cooperation and Development Office 7, XXII
National Agricultural Library 7, XLI
National Agricultural Statistics Service 7, XXXVI
Operations Office 7, XXVIII
Packers and Stockyards Administration 9, II
Rural Electrification Administration 7, XVII
Rural Telephone Bank 7, XVI
Secretary of Agriculture, Office of 7, Subtitle A
Soil Conservation Service 7, VI
Transportation, Office of 7, XXXIII
World Agriculture Outlook Board 7, XXXVIII
Air Force Department 32, VII; 41, Subtitle C, Ch. 132
Federal Acquisition Regulation Supplement 48, 53
Alaska Natural Gas Transportation System, Office of the Federal
Inspector 10, XV
Alcohol, Tobacco and Firearms, Bureau of 27, I
AMTRAK 49, VII
American Battle Monuments Commission 36, IV
Animal and Plant Health Inspection Service 7, III; 9, I
Appalachian Regional Commission 5, IX
Architectural and Transportation Barriers Compliance Board 36, XI
Arms Control and Disarmament Agency, U.S. 22, VI
Army Department 32, V
Engineers, Corps of 33, II; 36, III
Federal Acquisition Regulation 48, 51
Assistant Secretary for Technology Policy, Department of Commerce 37,
IV
Benefits Review Board 20, VII
Bilingual Education and Minority Languages Affairs, Office of 34, V
Blind and Other Severely Handicapped, Committee for Purchase from 41,
51
Board for International Broadcasting 22, XIII
Budget, Office of Management and 5, III
Census Bureau 15, I
Central Intelligence Agency 32, XIX
Child Support Enforcement, Office of 45, III
Children and Families, Administration for 45, II, III, IV, X
Christopher Columbus Quincentenary Jubilee Commission 45, XXII
Civil Rights Commission 45, VII
Civil Rights, Office for (Education Department) 34, I
Claims Collection Standards, Federal 4, II
Coast Guard 33, I; 46, I, III; 49, IV
Commerce Department 44, IV
Census Bureau 15, I
Assistant Secretary for Technology Policy 37, IV
Economic Affairs, Under Secretary 37, V
Economic Analysis, Bureau of 15, VIII
Economic Development Administration 13, III
Endangered Species Committee 50, IV
Export Administration Bureau 15, VII
Federal Acquisition Regulation 48, 13
Fishery Conservation and Management 50, VI
International Trade Administration 15, III; 19, III
National Institute of Standards and Technology 15, II
National Marine Fisheries Service 50, II, IV
National Oceanic and Atmospheric Administration 15, IX; 50, II, III,
IV, VI
National Telecommunications and Information Administration 15, XXIII;
47, III
Patent and Trademark Office 37, I
Productivity, Technology and Innovation, Assistant Secretary for 37,
IV
Secretary of Commerce, Office of 15, Subtitle A
Technology Administration 15, XI
Under Secretary for Technology 37, V
United States Travel and Tourism Administration 15, XII
Commercial Space Transportation, Office of, Department of
Transportation 14, III
Commission on National and Community Service 45, XXV
Committee for Purchase from People who are Blind or Severely Disabled
41, 51
Commodity Credit Corporation 7, XIV
Commodity Futures Trading Commission 17, I
Community Planning and Development, Office of Assistant Secretary for
24, V, VI
Community Services, Office of 45, X
Comptroller of the Currency 12, I
Construction Industry Collective Bargaining Commission 29, IX
Consumer Product Safety Commission 16, II
Cooperative State Research Service 7, XXXIV
Copyright Office 37, II
Copyright Royalty Tribunal 37, III
Cost Accounting Standards Board, Office of Federal Procurement Policy
48, 99
Council on Environmental Quality 40, V
Customs Service, United States 19, I
Defense Department 32, Subtitle A
Air Force Department 32, VII; 41, Subtitle C, Ch. 132
Army Department 32, V; 33, II; 36, III, 48, 51
Engineers, Corps of 33, II; 36, III
Federal Acquisition Regulation 48, 2
Navy Department 32, VI; 48, 52
Secretary of Defense, Office of 32, I
Defense Logistics Agency 32, XII
Defense Nuclear Facilities Safety Board 10, XVII
Delaware River Basin Commission 18, III
Drug Enforcement Administration 21, II
East-West Foreign Trade Board 15, XIII
Economic Affairs, Under Secretary (Commerce) 37, V
Economic Analysis, Bureau of 15, VIII
Economic Analysis Staff, Department of Agriculture 7, XXXIX
Economic Development Administration 13, III
Economics Management Staff 7, XL
Economic Research Service 7, XXXVII
Education, Department of
Bilingual Education and Minority Languages Affairs, Office of 34, V
Civil Rights, Office for 34, I
Educational Research and Improvement, Office of 34, VII
Elementary and Secondary Education, Office of 34, II
Federal Acquisition Regulation 48, 34
Postsecondary Education, Office of 34, VI
Secretary of Education, Office of 34, Subtitle A
Special Education and Rehabilitative Services, Office of 34, III
Vocational and Adult Education, Office of 34, IV
Educational Research and Improvement, Office of 34, VII
Elementary and Secondary Education, Office of 34, II
Employees' Compensation Appeals Board 20, IV
Employees Loyalty Board, International Organizations 5, V
Employment and Training Administration 20, V
Employment Standards Administration 20, VI
Endangered Species Committee 50, IV
Energy, Department of 10, II, III, X; 41, 109
Federal Acquisition Regulation 48, 9
Federal Energy Regulatory Commission 18, I
Energy, Office of, Department of Agriculture 7, XXIX
Engineers, Corps of 33, II; 36, III
Engraving and Printing, Bureau of 31, VI
Environmental Protection Agency 40, I; 41, 115; 48, 15
Environmental Quality, Office of (Agriculture Department) 7, XXXI
Equal Employment Opportunity Commission 29, XIV
Equal Opportunity, Office of Assistant Secretary for 24, I
Executive Office of the President 3, I
Administration, Office of 5, XV
Export Administration Bureau 15, VII
Export-Import Bank of the United States 12, IV
Family Assistance, Office of 45, II
Farm Credit Administration 12, VI
Farm Credit System Insurance Corporation 12, XIV
Farmers Home Administration 7, XVIII
Federal Acquisition Regulation 48, 1
Federal Aviation Administration 14, I
Federal Claims Collection Standards 4, II
Federal Communications Commission 47, I
Federal Contract Compliance Programs, Office of 41, 60
Federal Crop Insurance Corporation 7, IV
Federal Deposit Insurance Corporation 12, III
Federal Election Commission 11, I
Federal Emergency Management Agency 44, I; 48, 44
Federal Energy Regulatory Commission 18, I
Federal Financial Institutions Examination Council 12, XI
Federal Financing Bank 12, VIII
Federal Grain Inspection Service 7, VIII
Federal Highway Administration 23, I, II; 49, III
Federal Home Loan Mortgage Corporation 1, IV
Federal Housing Finance Board 12, IX
Federal Information Resources Management Regulations 41, Subtitle E,
Ch. 201
Federal Inspector for the Alaska Natural Gas Transportation System,
Office of 10, XV
Federal Labor Relations Authority, and General Counsel of the Federal
Labor Relations Authority 5, XIV; 22, XIV
Federal Law Enforcement Training Center 31, VII
Federal Maritime Commission 46, IV
Federal Mediation and Conciliation Service 29, XII
Federal Mine Safety and Health Review Commission 29, XXVII
Federal Pay, Advisory Committee on 5, IV
Federal Prison Industries, Inc. 28, III
Federal Procurement Policy Office 48, 99
Federal Property Management Regulations 41, 101
Federal Property Management Regulations System 41, Subtitle C
Federal Railroad Administration 49, II
Federal Register, Administrative Committee of 1, I
Federal Register, Office of 1, II
Federal Reserve System 12, II
Federal Retirement Thrift Investment Board 5, VI
Federal Service Impasses Panel 5, XIV
Federal Trade Commission 16, I
Federal Transit Administration 49, VI
Federal Travel Regulation System 41, Subtitle F
Finance and Management, Department of Agriculture 7, XXX
Fine Arts Commission 45, XXI
Fiscal Service 31, II
Fish and Wildlife Service, United States 50, I, IV
Fishery Conservation and Management 50, VI
Fishing and Whaling, International Regulatory Agencies 50, III
Food and Drug Administration 21, I
Food and Nutrition Service 7, II
Food Safety and Inspection Service 9, III
Foreign Agricultural Service 7, XV
Foreign Assets Control, Office of 31, V
Foreign Claims Settlement Commission of United States 45, V
Foreign Economic Development Service 7, XXI
Foreign Service Grievance Board 22, IX
Foreign Service Impasse Disputes Panel 22, XIV
Foreign Service Labor Relations Board 22, XIV
Foreign-Trade Zones Board 15, IV
Forest Service 36, II
General Accounting Office 4, I, II
General Sales Manager, Office of 7, XXV
General Services Administration
Contract Appeals Board 48, 61
Federal Acquisition Regulation 48, 5
Federal Information Resources Management Regulations 41, Subtitle E,
Ch. 201
Federal Property Management Regulations System 41, 101, 105
Federal Travel Regulation System 41, Subtitle F
Payment of Expenses Connected With the Death of Certain Employees 41,
303
Relocation Allowances 41, 302
Travel Allowances 41, 301
Geological Survey 30, IV
Government Ethics, Office of 5, XVI
Government National Mortgage Association 24, III
Grants and Program Systems, Office of 7, XXXII
Great Lakes Pilotage 46, III
Harry S. Truman Scholarship Foundation 45, XVIII
Health and Human Services, Department of 45, Subtitle A
Child Support Enforcement, Office of 45, III
Children and Families, Administration for 45, II, III, IV, X
Community Services, Office of 45, X
Family Assistance, Office of 45, II
Federal Acquisition Regulation 48, 3
Food and Drug Administration 21, I
Health Care Financing Administration 42, IV
Human Development Services Office 45, XIII
Inspector General, Office of 42, V
Public Health Service 42, I
Refugee Resettlement, Office of 45, IV
Social Security Administration 20, III; 45, IV
Health Care Financing Administration 42, IV
Housing and Urban Development, Department of
Community Planning and Development, Office of Assistant Secretary for
24, V, VI
Equal Opportunity, Office of Assistant Secretary for 24, I
Federal Acquisition Regulation 48, 24
Government National Mortgage Association 24, III
Housing -- Federal Housing Commissioner, Office of Assistant
Secretary for 24, II, VIII, X, XX
Inspector General, Office of 24, XII
Mortgage Insurance and Loan Programs Under Emergency Homeowners'
Relief Act 24, XV
Public and Indian Housing, Office of Assistant Secretary for 24, IX
Secretary, Office of 24, Subtitle B, VII
Solar Energy and Energy Conservation Bank 24, XI
Housing -- Federal Housing Commissioner, Office of Assistant
Secretary for 24, II, VIII, X, XX
Human Development Services Office 45, XIII
Immigration and Naturalization Service 8, I
Indian Affairs, Bureau of 25, I
Indian Arts and Crafts Board 25, II
Information Agency, United States 22, V; 48, 19
Information Resources Management, Office of, Agriculture Department
7, XXVII
Information Security Oversight Office 32, XX
Inspector General, Office of, Agriculture Department 7, XXVI
Inspector General, Office of, Health and Human Services Department
42, V
Inspector General, Office of, Housing and Urban Development
Department 24, XII
Inter-American Foundation 22, X
Intergovernmental Relations, Advisory Commission on 5, VII
Interior Department
Endangered Species Committee 50, IV
Federal Acquisition Regulation 48, 14
Federal Property Management Regulations System 41, 114
Fish and Wildlife Service, United States 50, I, IV
Geological Survey 30, IV
Indian Affairs, Bureau of 25, I
Indian Arts and Crafts Board 25, II
Land Management Bureau 43, II
Minerals Management Service 30, II
Mines, Bureau of 30, VI
National Park Service 36, I
Reclamation Bureau 43, I
Secretary of the Interior, Office of 43, Subtitle A
Surface Mining and Reclamation Appeals, Board of 30, III
Surface Mining Reclamation and Enforcement, Office of 30, VII
United States Fish and Wildlife Service 50, I, IV
Internal Revenue Service 26, I
International Boundary and Water Commission, United States and Mexico
22, XI
International Cooperation and Development Office, Department of
Agriculture 7, XXII
International Development, Agency for 22, II
International Development Cooperation Agency 22, XII
International Development, Agency for 22, II
Overseas Private Investment Corporation 22, VII
International Joint Commission, United States and Canada 22, IV
International Organizations Employees Loyalty Board 5, V
International Regulatory Agencies (Fishing and Whaling) 50, III
International Trade Administration 15, III; 19, III
International Trade Commission, United States 19, II
Interstate Commerce Commission 49, X
James Madison Memorial Fellowship Foundation 45, XXIV
Japan-United States Friendship Commission 22, XVI
Joint Board for the Enrollment of Actuaries 20, VIII
Justice Department 28, I; 41, 128
Drug Enforcement Administration 21, II
Federal Acquisition Regulation 48, 28
Federal Claims Collection Standards 4, II
Federal Prison Industries, Inc. 28, III
Foreign Claims Settlement Commission of the United States 45, V
Immigration and Naturalization Service 8, I
Offices of Independent Counsel 28, VI
Prisons, Bureau of 28, V
Labor Department
Benefits Review Board 20, VII
Employees' Compensation Appeals Board 20, IV
Employment and Training Administration 20, V
Employment Standards Administration 20, VI
Federal Acquisition Regulation 48, 29
Federal Contract Compliance Programs, Office of 41, 60
Federal Procurement Regulations System 41, 50
Labor-Management Relations and Cooperative Programs, Bureau of 29, II
Labor-Management Standards, Office of 29, IV
Mine Safety and Health Administration 30, I
Occupational Safety and Health Administration 29, XVII
Pension and Welfare Benefits Administration 29, XXV
Public Contracts 41, 50
Secretary of Labor, Office of 29, Subtitle A
Veterans' Employment and Training, Office of the Assistant Secretary
for 41, 61; 20, IX
Wage and Hour Division 29, V
Workers' Compensation Programs, Office of 20, I
Labor-Management Relations and Cooperative Programs, Bureau of 29, II
Labor-Management Standards, Office of 29, IV
Land Management, Bureau of 43, II
Legal Services Corporation 45, XVI
Library of Congress 36, VII
Copyright Office 37, II
Management and Budget, Office of 5, III; 48, 99
Marine Mammal Commission 50, V
Maritime Administration 46, II
Merit Systems Protection Board 5, II
Micronesian Status Negotiations, Office for 32, XXVII
Mine Safety and Health Administration 30, I
Minerals Management Service 30, II
Mines, Bureau of 30, VI
Minority Business Development Agency 15, XIV
Miscellaneous Agencies 1, IV
Monetary Offices 31, I
Mortgage Insurance and Loan Programs Under the Emergency Homeowners'
Relief Act, Department of Housing and Urban Development 24, XV
National Aeronautics and Space Administration 14, V; 48, 18
National Agricultural Library 7, XLI
National Agricultural Statistics Service 7, XXXVI
National Archives and Records Administration 36, XII
National Bureau of Standards 15, II
National Capital Planning Commission 1, IV
National Commission for Employment Policy 1, IV
National Commission on Libraries and Information Science 45, XVII
National and Community Service, Commission on 45, XXV
National Credit Union Administration 12, VII
National Drug Control Policy, Office of 21, III
National Foundation on the Arts and the Humanities 45, XI
National Highway Traffic Safety Administration 23, II, III; 49, V
National Indian Gaming Commission 25, III
National Institute of Standards and Technology 15, II
National Labor Relations Board 29, I
National Marine Fisheries Service 50, II, IV
National Mediation Board 29, X
National Oceanic and Atmospheric Administration 15, IX; 50, II, III,
IV, VI
National Park Service 36, I
National Railroad Adjustment Board 29, III
National Railroad Passenger Corporation (AMTRAK) 49, VII
National Science Foundation 45, VI; 48, 25
National Security Council 32, XXI
National Security Council and Office of Science and Technology Policy
47, II
National Telecommunications and Information Administration 15, XXIII;
47, III
National Transportation Safety Board 49, VIII
Navy Department 32, VI; 48, 52
Neighborhood Reinvestment Corporation 24, XXV
Nuclear Regulatory Commission 10, I; 48, XX
Occupational Safety and Health Administration 29, XVII
Occupational Safety and Health Review Commission 29, XX
Office of Independent Counsel 28, VII
Office of National Drug Control Policy 21, III
Office of Navajo and Hopi Indian Relocation 25, IV
Offices of Independent Counsel, Department of Justice 28, VI
Operations Office, Department of Agriculture 7, XXVIII
Overseas Private Investment Corporation 22, VII
Packers and Stockyards Administration 9, II
Panama Canal Commission 48, 35
Panama Canal Regulations 35, I
Patent and Trademark Office 37, I
Payment of Expenses Connected With the Death of Certain Employees 41,
303
Peace Corps 22, III
Pennsylvania Avenue Development Corporation 36, IX
Pension and Welfare Benefits Administration, Department of Labor 29,
XXV
Pension Benefit Guaranty Corporation 29, XXVI
Personnel Management, Office of 5, I; 45, VIII; 48, 17
Federal Employees Health Benefits Acquisition Regulation 48, 16
Postal Rate Commission 39, III
Postal Service, United States 39, I
Postsecondary Education, Office of 34, VI
President's Commission on White House Fellowships 1, IV
Presidential Commission on the Assignment of Women in the Armed
Forces 32, XXIX
Presidential Documents 3
Prisons, Bureau of 28, V
Productivity, Technology and Innovation, Assistant Secretary
(Commerce) 37, IV
Property Management Regulations System, Federal 41, Subtitle C
Public Contracts, Department of Labor 41, 50
Public Health Service 42, I
Railroad Retirement Board 20, II
Reclamation Bureau 43, I
Reduction in Meeting and Training Allowance Payments 41, 304
Refugee Resettlement, Office of 45, IV
Regional Action Planning Commissions 13, V
Relocation Allowances 41, 302
Research and Special Programs Administration 49, I
Resolution Trust Corporation 12, XVI
Rural Electrification Administration 7, XVII
Rural Telephone Bank 7, XVI
Saint Lawrence Seaway Development Corporation 33, IV
Science and Technology Policy, Office of 32, XXIV
Science and Technology Policy, Office of, and National Security
Council 47, II
Secret Service 31, IV
Securities and Exchange Commission 17, II
Selective Service System 32, XVI
Small Business Administration 13, I; 48, 22
Smithsonian Institution 36, V
Social Security Administration 20, III; 45, IV
Soil Conservation Service 7, VI
Solar Energy and Energy Conservation Bank, Department of Housing and
Urban Development 24, XI
Soldiers' and Airmen's Home, United States 5, XI
Special Counsel, Office of 5, VIII
Special Education and Rehabilitative Services, Office of 34, III
State Department 22, I
Federal Acquisition Regulation 48, 6
Surface Mining and Reclamation Appeals, Board of 30, III
Susquehanna River Basin Commission 18, VIII
Technology Administration 15, XI
Tennessee Valley Authority 18, XIII
Thrift Depositor Protection Oversight Board 12, XV
Thrift Supervision Office, Department of the Treasury 12, V
Trade Representative, United States, Office of 15, XX
Transportation, Department of 44, IV
Coast Guard 33, I; 46, I, III; 49, IV
Commercial Space Transportation, Office of 14, III
Contract Appeals Board 48, 63
Federal Acquisition Regulation 48, 12
Federal Aviation Administration 14, I
Federal Highway Administration 23, I, II; 49, III
Federal Railroad Administration 49, II
Federal Transit Administration 49, VI
Maritime Administration 46, II
National Highway Traffic Safety Administration 23, II, III; 49, V
Research and Special Programs Administration 49, I
Saint Lawrence Seaway Development Corporation 33, IV
Secretary of Transportation, Office of 14, II; 49, Subtitle A
Transportation, Office of, Department of Agriculture 7, XXXIII
Travel Allowance 41, 301
Travel and Tourism Administration, United States 15, XII
Treasury Department 17, IV
Alcohol, Tobacco and Firearms, Bureau of 27, I
Comptroller of the Currency 12, I
Customs Service, United States 19, I
Engraving and Printing, Bureau of 31, VI
Federal Acquisition Regulation 48, 10
Federal Law Enforcement Training Center 31, VII
Fiscal Service 31, II
Foreign Assets Control, Office of 31, V
Internal Revenue Service 26, I
Monetary Offices 31, I
Secret Service 31, IV
Secretary of the Treasury, Office of 31, Subtitle A
Thrift Supervision Office 12, V
United States Customs Service 19, I
Truman, Harry S. Scholarship Foundation 45, XVIII
Under Secretary for Technology, Department of Commerce 37, V
United States and Canada, International Joint Commission 22, IV
United States Arms Control and Disarmament Agency 22, VI
United States Customs Service 19, I
United States Fish and Wildlife Service 50, I, IV
United States Information Agency 22, V; 48, 19
United States International Development Cooperation Agency 22, XII
United States International Trade Commission 19, II
United States Postal Service 39, I
United States Soldiers' and Airmen's Home 5, XI
United States Trade Representative, Office of 15, XX
United States Travel and Tourism Administration 15, XII
Veterans Affairs Department 38, I; 48, 8
Veterans' Employment and Training, Office of the Assistant Secretary
for 41, 61; 20, IX
Vice President of the United States, Office of 32, XXVIII
Vocational and Adult Education, Office of 34, IV
Wage and Hour Division 29, V
Water Resources Council 18, VI
Workers' Compensation Programs, Office of 20, I
World Agriculture Outlook Board 7, XXXVIII
20 CFR 375.8 20 CFR (4-1-93 Edition)
20 CFR 375.8 Redesignation Table No. 1
20 CFR 375.8
20 CFR 375.8
20 CFR 375.8 Redesignation Table No. 1
At 51 FR 3036, Jan. 23, 1986, part 234 was revised. For the
convenience of the user, the following table shows the relationship
between the former parts and sections to the new parts and sections.
20 CFR 375.8 20 CFR (4-1-93 Edition)
20 CFR 375.8 Redesignation Table No. 2
20 CFR 375.8
20 CFR 375.8
20 CFR 375.8 Redesignation Table No. 2
At 54 FR 30725, July 24, 1989, part 218 was revised. For the
convenience of the user, the following table shows the relationship
between the former sections and the new sections.
20 CFR 375.8 20 CFR (4-1-93 Edition)
20 CFR 375.8 Redesignation Table No. 3
20 CFR 375.8
20 CFR 375.8
20 CFR 375.8 Redesignation Table No. 3
At 54 FR 31942, Aug. 3, 1989, part 219 was revised. For the
convenience of the user, the following table shows the relationship
between the former sections and the new sections.
20 CFR 375.8 20 CFR (4-1-93 Edition)
20 CFR 375.8 Redesignation Table No. 4
20 CFR 375.8
20 CFR 375.8
20 CFR 375.8 Redesignation Table No. 4
At 56 FR 12980, Mar. 28, 1991, part 220 was added. At 56 FR 13040,
Mar. 28, 1991, part 208 was removed. For the convenience of the user,
the following table shows the relationship between the former sections
and the new sections.
20 CFR 375.8 20 CFR (4-1-93 Edition)
20 CFR 375.8 List of CFR Sections Affected
20 CFR 375.8 List of CFR Sections Affected
All changes in this volume of the Code of Federal regulations which
were made by documents published in the Federal Register since January
1, 1986, are enumerated in the following list. Entries indicate the
nature of the changes effected. Page numbers refer to Federal Register
pages. The user should consult the entries for chapters and parts as
well as sections for revisions.
For the period before January 1, 1986, see the ''List of CFR Sections
Affected, 1949-1963, 1964-1972, and 1973-1985'' published in seven
separate volumes.
20 CFR 375.8 1986
20 CFR
51 FR
Page
Chapter I
10 Authority citation revised 8280
10.1 (b) revised; eff. 6-9-86 8280
10.411 Revised; eff. 6-9-86 8280
10.412 Revised; eff. 6-9-86 8282
10.450 (h) Added; eff. 6-9-86 8282
Chapter II
234 Revised 3036
Technical correction 6106
237 Heading and authority citation revised 3040
Technical correction 6106
237.201 -- 237.205 (Subpart B) Removed 3040
Technical correction 6106
237.501 -- 237.504 (Subpart E) Correctly removed 6218
238 Removed 3040
Technical correction 6106
295 Added 12845
360 Revised 43727
395 Authority citation revised 20471
395.9 (c)(1) and (d)(1) amended 20471
20 CFR 375.8 1987
20 CFR
52 FR
Page
Chapter I
10.1 Revised; eff. 6-1-87 10503
10.2 (b) revised; eff. 6-1-87 10503
10.3 (i) added; eff. 6-1-87 10503
10.4 Revised; eff. 6-1-87 10503
10.5 (a)(6), (11) (iv) through (xx), (12) and (14) through (20) and
(b) revised; (a) (21) through (26) added; (c) and (d) removed; eff.
6-1-87 10503
10.10 Revised; eff. 6-1-87 10504
10.11 Revised; eff. 6-1-87 10505
10.12 Added; eff. 6-1-87 10505
10.20 (b) table amended; eff. 6-1-87 10505
10.23 Revised; eff. 6-1-87 10505
10.100 Revised; eff. 6-1-87 10505
10.101 Redesignated as 10.103 and revised; new 10.101 redesignated
from 10.102 and revised; eff. 6-1-87 10506
10.102 Redesignated as 10.101 and revised; new 10.102 redesignated
from 10.103 and revised; eff. 6-1-87 10506
10.103 Redesignated as 10.102 and revised; new 10.103 redesignated
from 10.101 and revised; eff. 6-1-87 10506
10.104 Added; eff. 6-1-87 10506
10.105 (a) revised; (e) added; eff. 6-1-87 10507
10.106 Revised; OMB number; eff. 6-1-87 10507
10.107 Revised; eff. 6-1-87 10507
10.109 Revised; eff. 6-1-87 10507
10.110 Redesignated as 10.125 and revised; new 10.110 added; eff.
6-1-87 10508
10.111 Revised; eff. 6-1-87 10508
10.120 Revised; eff. 6-1-87 10508
10.121 Revised; eff. 6-1-87 10509
10.122 Revised; OMB number; eff. 6-1-87 10509
10.123 Redesignated as 10.124 and revised; eff. 6-1-87 10509
Added; eff. 6-1-87 10510
10.124 Redesignated as 10.126 and revised; new 10.124 redesignated
from 10.123 and revised; eff. 6-1-87 10509
10.125 Redesignated from 10.110 and revised; eff. 6-1-87 10508
10.126 Redesignated from 10.124 and revised; eff. 6-1-87 10509
10.127 Added; eff. 6-1-87 10510
10.128 Added; eff. 6-1-87 10511
10.130 Revised; eff. 6-1-87 10511
10.131 Revised; eff. 6-1-87 10511
10.132 Revised; eff. 6-1-87 10511
10.133 (a) revised; eff. 6-1-87 10512
10.134 Redesignated as 10.136 and revised; eff. 6-1-87 10512
Added; eff. 6-1-87 10513
10.135 Redesignated as 10.137 and revised; new 10.135 added; eff.
6-1-87 10512
10.136 Redesignated as 10.138 and revised; new 10.136 redesignated
from 10.134 and revised; eff. 6-1-87 10512
10.137 Redesignated as 10.139; new 10.137 redesignated from 10.135
and revised; eff. 6-1-87 10512
10.138 Redesignated from 10.136 and revised; eff. 6-1-87 10512
10.139 Redesignated from 10.137; eff. 6-1-87 10512
10.140 Revised; eff. 6-1-87 10513
10.141 Revised; eff. 6-1-87 10513
10.144 Revised; eff. 6-1-87 10513
10.145 (c) introductory text, (d), (g), (h) and (i) revised; OMB
number; eff. 6-1-87 10513
10.160 -- 10.166 Undesignated center heading added; eff. 6-1-87
10514
10.160 -- 10.164 Added; eff. 6-1-87 10514
10.165 Added; eff. 6-1-87 10515
10.166 Added; eff. 6-1-87 10515
10.200 Revised; eff. 6-1-87 10515
10.201 Revised; eff. 6-1-87 10515
10.202 Redesignated as 10.203 and revised; eff. 6-1-87 10515
Redesignated from 10.210 and revised; eff. 6-1-87 10516
10.203 Removed; new 10.203 redesignated from 10.202 and revised;
eff. 6-1-87 10515
10.204 Revised; eff. 6-1-87 10516
10.205 Revised; eff. 6-1-87 10516
10.206 (a) revised; eff. 6-1-87 10517
10.207 Revised; OMB number; eff. 6-1-87 10517
10.208 Revised; eff. 6-1-87 10517
10.209 Revised; eff. 6-1-87 10518
10.210 Redesignated as 10.202 and revised; eff. 6-1-87 10516
10.301 (a) revised; eff. 6-1-87 10518
10.302 Revised; eff. 6-1-87 10518
10.303 Revised; eff. 6-1-87 10518
10.304 Revised; eff. 6-1-87 10519
10.305 Redesignated as 10.306 and revised; new 10.305 added; eff.
6-1-87 10519
10.306 Redesignated as 10.307; new 10.306 redesignated from 10.305
and revised; eff. 6-1-87 10519
10.307 Redesignated from 10.306; eff. 6-1-87 10519
10.310 Revised; eff. 6-1-87 10519
10.311 (b) and (c) revised; eff. 6-1-87 10520
10.313 (a) revised; (c) added; eff. 6-1-87 10520
10.314 Revised; eff. 6-1-87 10520
10.320 -- 10.324 Undesignated center heading added; eff. 6-1-87
10520
10.320 Added; eff. 6-1-87 10520
10.321 Added; eff. 6-1-87 10521
10.322 Added; eff. 6-1-87 10521
10.323 Added; eff. 6-1-87 10522
10.324 Added; eff. 6-1-87 10522
10.400 (e) revised; eff. 6-1-87 10522
10.413 Added; eff. 6-1-87 10522
10.452 (a) revised; eff. 6-1-87 10522
10.500 Revised; eff. 6-1-87 10522
10.503 Introductory text, (b), (c) and (d) revised; eff. 6-1-87
10522
10.506 Added; eff. 6-1-87 10523
10.507 Added; eff. 6-1-87 10523
10.600 -- 10.624 (Subpart H) Added; eff. 6-1-87 10523
Chapter II
200 (Subchapter A) Heading revised 11010
200 Heading and authority citation revised 11010
Authority citation revised; section authority citations removed
41559
200.1 Redesignated as 200.2; new 200.1 added 11010
200.2 Redesignated as 200.3; new 200.2 redesignated from 200.1 11010
200.3 Redesignated as 200.4; new 200.3 redesignated from 200.2 11010
Revised 11011
200.4 Redesignated as 200.5; new 200.4 redesignated from 200.3 11010
(g) revised 13820
200.5 Redesignated as 200.6; new 200.5 redesignated from 200.4 11010
200.6 Redesignated as 200.7; new 200.6 redesignated from 200.5 11010
200.7 Redesignated from 200.6 11010
Revised 41559
209.2 OMB number 11016
210.7 OMB number 11016
216.7 OMB number 11016
216.9 OMB number 11017
216.21 OMB number 11017
216.31 OMB number 11017
216.47 OMB number 11017
216.71 OMB number 11017
217.3 OMB number 11017
217.5 OMB number 11017
217.10 OMB number 11017
230.3 OMB number 11017
234.10 OMB number 11017
234.30 OMB number 11017
260.5 OMB number 11017
260.9 OMB number 11017
266.12 OMB number 11017
320.39 OMB number 11017
322.4 OMB number 11017
325.12 OMB number 11017
325.13 OMB number 11017
330.4 OMB number 11017
335.102 OMB number 11017
335.103 OMB number 11018
335.104 OMB number 11018
335.202 OMB number 11018
341.4 OMB number 11018
345.4 OMB number 11018
345.5 OMB number 11018
345.6 OMB number 11018
345.8 OMB number 11018
355 (Subchapter E and Part) Added 47706
359 (Subchapter E and Part) Added; interim; effective in part to
8-12-87 19133
364 Added 527
20 CFR 375.8 1988
20 CFR
53 FR
Page
Chapter I
10 Authority citation revised 11594
10.125 (b) revised; interim 11594
10.321 (a) revised; interim 11594
61 Revised; eff. 4-8-88 3679
62 Removed; eff. 4-8-88 3685
Chapter II
200.5 (f) revised 3198
205 Revised 39255
209.13 Added 17182
210 Authority citation revised 17182
210.2 Revised 17182
210.3 Revised 17182
210.4 (a) revised 17183
210.5 (f) revised 17184
210.6 Revised 17184
211 Authority citation revised 17184
211.2 (b)(9) revised; (b) (11) and (12) added; (c)(2) removed; (c)
(3) through (7) redesignated as (c) (2) through (6); new (c)(5) revised
17184
211.4 Revised 17184
211.5 Revised 17184
211.6 Revised 17184
211.7 Revised 17184
211.9 Revised 17184
211.11 Revised 17184
211.12 Revised 17185
211.13 Revised 17185
211.14 (a) revised 17185
243 Added 35806
262 Authority citation revised 35807
262.5 Removed 35807
262.6 Removed 35807
262.7 Removed 35807
295.5 (e)(2) amended 35807
320.5 Revised 2486
320.6 Added 2486
320.8 Revised 2486
320.9 Added 2486
320.10 Revised 2487
320.11 Added 2487
320.12 Revised 2488
320.15 Removed 2488
320.18 Amended 2488
320.22 Revised 2488
320.25 (c) added 2488
320.50 Removed 2488
340.6 Revised 2489
340.10 Revised 2489
346 Added (regulations transferred from 359.7) 3201
350.1 (c) amended 35807
350.2 (c) amended 35807
355 (Subchapter E and Part) Confirmed 3201
359 (Subchapter E and Part) Removed (359.7 transferred to Part 346)
3201
361 Added 45262
365 Added 43434
Authority citation corrected 44976
20 CFR 375.8 1989
20 CFR
54 FR
Page
Chapter I
10 Authority citation revised 52024
10.122 Amended 18834
10.125 Correctly removed 18834
10.126 Correctly removed 18834
10.300 (a) revised; (c) added 52024
Chapter II
Chapter II Nomenclature change 35874
200.4 (b) revised 43055
200.5 (e)(3) revised 43055
200.8 Added 43055
200.9 Added 43056
200.10 Added 43057
204 Revised 5224
217 Authority citation revised 13363
217.1 Revised 13363
217.8 (d) revised; (e) through (j) redesignated as (f), (h) through
(k), and (s) and revised; new (e), (g), and (l) through (r) added 13363
217.9 (b)(2) revised; (c)(4) added; OMB number 13363
217.10 Introductory text removed; (c) revised 13364
217.17 (a) revised; (e) added; OMB numbers 13364
217.20 (c) added 13364
218 Revised 30725
219 Revised 31942
222 Added 42949
225 Redesignated as 226 and amended; new 225 added 12903
225.34 (b) (i), (ii), and (iii) redesignated as (b) (1), (2), and (3)
21203
226 Authority citation revised 12903
227 Authority citation revised 12903
227.3 Amended 12903
232 Authority citation revised 12903
232.302 (a)(2) amended 12903
235 Added 5225
260 Authority citation revised 21203
260.6 Heading revised 21203
262 Removed 43057
301 Authority citation added; section authority citations removed
21203
302 Removed 5226
325 Revised; interim 24551
335 Revised 43057
337 Removed 5227
344 Added (temporary) 25847
366 Added (effective to 1-11-94) 397
20 CFR 375.8 1990
20 CFR
55 FR
Page
Chapter II
Chapter II Nomenclature change 26430
200.2 (c) amended 26430
209.12 (b) amended 26430
212 Authority citation revised 20454
212.4 (f) revised 20454
260 Heading revised 39146
260.1 Heading revised; (a) introductory text, (b) and (d) (1) and
(2) amended 39146
260.3 Heading, (a) introductory text and (c) amended 39146
260.4 Heading, (b), (c), (d), (g), (h) and (i) amended 39146
260.5 Heading, (a), (b) and (c) amended 39146
327 Authority citation revised 1811
327.1 Revised 1811
327.10 (a) revised; (d) through (h) added 1811
327.15 (a) amended 1812
327.20 Removed 1812
332 Authority citation revised 1813
332.5 Revised 1813
Subchapter I (Parts 395-398) Removed 39148
20 CFR 375.8 1991
20 CFR
56 FR
Page
Chapter I
10 Authority citation revised 1360
10.305 Revised 47675
10.306 (a) revised 47675
10.311 (c) revised 47675
10.411 (a)(2) and (c) revised; (d)(1) amended; eff. 5-14-91 1360
Chapter II
200.3 (a)(2)(ii), (5), and (b) table amended 1573
200.8 ( b) amended; (d)(1), (2), (3), (f), (g) and (h) redesignated
as (d)(2), (3), (4), (g), (h) and (i); new (d)(1), new (f) and (j)
added 50247
208 Removed 13040
209 Heading and authority citation revised 1573
209.14 Added 1573
216 Revised 28692
220 Added 12980
230 Authority citation revised 13040
230.3 Removed 13040
230.4 Removed 13040
234.55 -- 234.58 (Subpart F) Added 1573
234.60 -- 234.62 (Subpart F) Redesignated as Subpart G 1573
236 Removed 55073
240 Removed 55073
260 Authority citation revised 13040
260.1 (d)(3) introductory text, (iii) and (iv) revised 13040
302 Added 6966
302.2 Corrected 10302
302.4 (a) and (d) corrected 10302
320 Authority citation revised 65679
320.1 Revised 65679
320.2 Added 65679
320.5 Revised 65679
320.8 (a) revised 65679
320.10 Revised 65679
320.11 Revised 65680
320.12 Revised 65680
320.18 Revised 65680
320.19 Added 65680
320.25 (b) amended; (c) revised; (d) added 65681
320.28 Amended 65681
320.30 Amended 65681
320.32 Revised 65681
320.38 Revised 65681
320.39 Revised 65681
320.40 Revised 65681
320.42 (b) revised 65681
320.45 (b) amended 65682
320.49 Added 65682
323 Added 26328
330 Revised 28702
348 Removed 6968
367 Added 46375
20 CFR 375.8 1992
20 CFR
57 FR
Page
Chapter I
10.304 (b) revised 15227
10.311 Revised 35755
Chapter II
209.12 (a)(1) and (b) amended; interim 4365
259 Authority citation revised 4366
259.1 Revised 4366
259.3 Revised 4366
259.4 Amended 4366
259.5 Removed; new 259.5 redesignated from 259.6 4366
259.6 Redesignated as 259.5; new 259.6 redesignated from 259.7 and
revised 4366
259.7 Redesignated as 259.6 4366
335.4 (c) revised 807
340.7 Revised 1379
340.8 Revised 1379
340.10 (c)(3), (d) and (e) revised 1379
345 Authority citation revised 2677
345.10 (b) revised; (c) removed 2677
20 CFR 375.8 1993
20
Employees' Benefits
PARTS 1 TO 399
Revised as of April 1, 1993
CONTAINING
A CODIFICATION OF DOCUMENTS
OF GENERAL APPLICABILITY
AND FUTURE EFFECT
AS OF APRIL 1, 1993
With Ancillaries
Published by
the Office of the Federal Register
National Archives and Records
Administration
as a Special Edition of
the Federal Register
Washington, DC 20402-9328
20 CFR 375.8 Table of Contents
Page
Explanation v
Title 20:
Chapter I -- Office of Workers' Compensation Programs, Department of
Labor
Chapter II -- Railroad Retirement Board
Finding Aids:
Table of CFR Titles and Chapters
Alphabetical List of Agencies Appearing in the CFR
Redesignation Tables
List of CFR Sections Affected
20 CFR 375.8 Explanation
The Code of Federal Regulations is a codification of the general and
permanent rules published in the Federal Register by the Executive
departments and agencies of the Federal Government. The Code is divided
into 50 titles which represent broad areas subject to Federal
regulation. Each title is divided into chapters which usually bear the
name of the issuing agency. Each chapter is further subdivided into
parts covering specific regulatory areas.
Each volume of the Code is revised at least once each calendar year
and issued on a quarterly basis approximately as follows:
Title 1 through Title 16 as of January 1
Title 17 through Title 27 as of April 1
Title 28 through Title 41 as of July 1
Title 42 through Title 50 as of October 1
The appropriate revision date is printed on the cover of each volume.
LEGAL STATUS
The contents of the Federal Register are required to be judicially
noticed (44 U.S.C. 1507). The Code of Federal Regulations is prima facie
evidence of the text of the original documents (44 U.S.C. 1510).
HOW TO USE THE CODE OF FEDERAL REGULATIONS
The Code of Federal Regulations is kept up to date by the individual
issues of the Federal Register. These two publications must be used
together to determine the latest version of any given rule.
To determine whether a Code volume has been amended since its
revision date (in this case, April 1, 1993), consult the ''List of CFR
Sections Affected (LSA),'' which is issued monthly, and the ''Cumulative
List of Parts Affected,'' which appears in the Reader Aids section of
the daily Federal Register. These two lists will identify the Federal
Register page number of the latest amendment of any given rule.
EFFECTIVE AND EXPIRATION DATES
Each volume of the Code contains amendments published in the Federal
Register since the last revision of that volume of the Code. Source
citations for the regulations are referred to by volume number and page
number of the Federal Register and date of publication. Publication
dates and effective dates are usually not the same and care must be
exercised by the user in determining the actual effective date. In
instances where the effective date is beyond the cut-off date for the
Code a note has been inserted to reflect the future effective date. In
those instances where a regulation published in the Federal Register
states a date certain for expiration, an appropriate note will be
inserted following the text.
OMB CONTROL NUMBERS
The Paperwork Reduction Act of 1980 (Pub. L. 96-511) requires Federal
agencies to display an OMB control number with their information
collection request. Many agencies have begun publishing numerous OMB
control numbers as amendments to existing regulations in the CFR. These
OMB numbers are placed as close as possible to the applicable
recordkeeping or reporting requirements.
OBSOLETE PROVISIONS
Provisions that become obsolete before the revision date stated on
the cover of each volume are not carried. Code users may find the text
of provisions in effect on a given date in the past by using the
appropriate numerical list of sections affected. For the period before
January 1, 1986, consult either the List of CFR Sections Affected,
1949-1963, 1964-1972, or 1973-1985, published in seven separate volumes.
For the period beginning January 1, 1986, a ''List of CFR Sections
Affected'' is published at the end of each CFR volume.
CFR INDEXES AND TABULAR GUIDES
A subject index to the Code of Federal Regulations is contained in a
separate volume, revised annually as of January 1, entitled CFR Index
and Finding Aids. This volume contains the Parallel Table of Statutory
Authorities and Agency Rules (Table I), and Acts Requiring Publication
in the Federal Register (Table II). A list of CFR titles, chapters, and
parts and an alphabetical list of agencies publishing in the CFR are
also included in this volume.
An index to the text of ''Title 3 -- The President'' is carried
within that volume.
The Federal Register Index is issued monthly in cumulative form.
This index is based on a consolidation of the ''Contents'' entries in
the daily Federal Register.
A List of CFR Sections Affected (LSA) is published monthly, keyed to
the revision dates of the 50 CFR titles.
REPUBLICATION OF MATERIAL
There are no restrictions on the republication of material appearing
in the Code of Federal Regulations.
INQUIRIES AND SALES
For a summary, legal interpretation, or other explanation of any
regulation in this volume, contact the issuing agency. Inquiries
concerning editing procedures and reference assistance with respect to
the Code of Federal Regulations may be addressed to the Director, Office
of the Federal Register, National Archives and Records Administration,
Washington, DC 20408 (telephone 202-512-1557). All mail order sales are
handled exclusively by the Superintendent of Documents, Attn: New
Orders, P.O. Box 371954, Pittsburgh, PA 15250-7954. Charge orders may
be telephoned to the Government Printing Office order desk at
202-783-3238.
Martha L. Girard,
Director,
Office of the Federal Register.
April 1, 1993.
20 CFR 375.8 THIS TITLE
Title 20 -- Employees' Benefits is composed of three volumes. The
first volume, containing parts 1-399, includes all current regulations
issued by the Office of Workers' Compensation Programs, Department of
Labor and the Railroad Retirement Board. The second volume, containing
parts 400-499, includes all current regulations issued by the Social
Security Administration, Department of Health and Human Services. The
third volume, containing part 500 to End, includes all current
regulations issued by the Employees' Compensation Appeals Board, the
Employment and Training Administration, the Employment Standards
Administration, the Benefits Review Board, the Office of the Assistant
Secretary for Veterans' Employment and Training (all of the Department
of Labor) and the Joint Board for the Enrollment of Actuaries. The
contents of these volumes represent all current regulations codified
under this title of the CFR as of April 1, 1993.
Redesignation tables appear in the Finding Aids section of the first
and second volumes.
For this volume Sheli E. Fleming was Chief Editor. The Code of
Federal Regulations publication program is under the direction of
Richard L. Claypoole, assisted by Alomha S. Morris.
20 CFR 0.0 20 CFR Ch. III (4-1-93 Edition)
20 CFR 0.0 Social Security Administration, HHS
20 CFR 0.0 Title 20 -- Employees' Benefits
20 CFR 0.0 (This book contains parts 400 to 499)
Part
chapter iii -- Social Security Administration, Department of Health
and Human Services 401
Cross References: Other regulations issued by the Department of
Health and Human Services appear in title 21, chapter I; title 48,
chapter 3; title 42, chapters I, III, IV, and V; and title 45,
subtitle A, and chapters II, III, IV, X, and XIII.
20 CFR 0.0 20 CFR Ch. III (4-1-93 Edition)
20 CFR 0.0 Social Security Administration, HHS
20 CFR 0.0 CHAPTER III -- SOCIAL SECURITY
20 CFR 0.0 ADMINISTRATION, DEPARTMENT OF
20 CFR 0.0 HEALTH AND HUMAN SERVICES
Part
Page
400 (Reserved)
401 Disclosure of official records and information
404 Federal old-age, survivors and disability insurance (1950- )
410 Federal Coal Mine Health and Safety Act of 1969, Title IV --
Black Lung benefits (1969- )
416 Supplemental security income for the aged, blind, and disabled
422 Organization and procedures
423 -- 499 (Reserved)
20 CFR 0.0 20 CFR Ch. III (4-1-93 Edition)
20 CFR 0.0 Social Security Administration, HHS
20 CFR 0.0 PART 400 -- (RESERVED)
20 CFR 0.0 PART 401 -- DISCLOSURE OF OFFICIAL RECORDS AND INFORMATION
20 CFR 0.0 Subpart A -- General Provisions
Sec.
401.100 Purposes of the regulation.
401.105 When the regulation applies.
401.110 Terms defined.
401.115 Situations not specified in this part.
401.120 Safeguards against unauthorized disclosure or use.
401.125 Fees.
20 CFR 0.0 Subpart B -- How Laws Apply
401.200 General.
401.205 Disclosures required by law.
401.210 Disclosures prohibited by law.
401.215 Freedom of Information Act.
401.220 Other laws.
20 CFR 0.0 Subpart C -- Individual Disclosures
401.300 General principles.
401.305 Within HHS.
401.310 Compatible purposes.
401.315 Law enforcement purposes.
401.320 Health or safety.
401.325 Statistical and research activities.
401.330 Congress.
401.335 General Accounting Office.
401.340 Courts.
401.345 Other specific recipients.
401.350 Deceased persons.
20 CFR 0.0 Subpart D -- Obtaining and Correcting Your Records
401.400 General.
401.405 How to get your own record.
401.410 Medical information.
401.415 Records about two or more individuals.
401.420 How to correct your record.
20 CFR 0.0 Subpart E -- Appeals
401.500 Which decisions are covered.
401.505 Appeal of refusal to correct a record.
401.510 Appeals after denial of access.
20 CFR 0.0 Subpart F -- Disclosures of Addresses by Blood Donor
Locator Service
401.600 Blood Donor Locator Service.
Source: 45 FR 74914, Nov. 13, 1980, unless otherwise noted.
20 CFR 0.0 Subpart A -- General Provisions
Authority: Secs. 205(a), 1102, and 1106 of the Social Security Act;
Sec. 413(b) of the Federal Mine Safety and Health Act of 1977; 5 U.S.C
552 and 552a, 26 U.S.C. 6103, 30 U.S.C. 923, 42 U.S.C. 405(a), 1302, and
1306.
20 CFR 401.100 Purposes of the regulation.
The Social Security Administration (SSA) generally provides
information which individuals request about themselves. This regulation
describes how individuals may get access to their own records. This
regulation also describes the rules SSA uses to decide whether to
disclose information about individuals without their consent. These
rules are set out in subparts A through E of this part. These rules
comply with the Freedom of Information Act, the Privacy Act, section
1106 of the Social Security Act, and other applicable statutes. When
required by the Privacy Act, SSA publishes notices of routine use for
public information and comment. Procedures for requesting information
are in 422.426 and 422.428 of this chapter and 45 CFR parts 5 and 5b.
(45 FR 74914, Nov. 13, 1980, as amended at 50 FR 28568, July 15,
1985)
20 CFR 401.105 When the regulation applies.
(a) Scope of rules. This regulation sets out the general guidelines
which we follow in deciding whether to make disclosures. However, we
must examine the facts of each case separately to decide if we should
disclose the information or keep it confidential.
(b) Social security records. This regulation applies to information
about an individual contained in SSA's records. Other regulations apply
to --
(1) Information which is not about an individual -- 45 CFR part 5 and
subpart E of part 22 of this chapter; or
(2) Information about acts of SSA officials and employees or to SSA's
personnel records -- 45 CFR parts 5 and 5b; or
(3) Information in the possession of a State or local agency
administering a program of Aid to Families with Dependent Children -- 45
CFR 205.50.
(c) Health insurance records. This regulation also applies to health
insurance records which SSA maintains for the Health Care Financing
Administration's (HCFA) programs under title XVIII of the Social
Security Act. SSA will disclose these records to HCFA. HCFA may
redisclose these records under the regulations applying to records in
HCFA's custody.
(d) Black lung benefit records. This regulation also applies to
records which SSA maintains for the administration of the Federal Coal
Mine Health and Safety Act. However, this information is not covered by
section 1106 of the Social Security Act.
(e) Records kept by consultants. Information retained by a medical,
psychological or vocational professional concerning an examination
performed under contract in the social security program shall not be
disclosed except as permitted by this part.
20 CFR 401.110 Terms defined.
Access, as that term is used in the Privacy Act (5 U.S.C. 552a(d)),
means the individual's right to review and copy records about that
individual.
Act means the Social Security Act.
Disclosure means the availability or release of a record about an
individual to another party.
FOIA means the Freedom of Information Act.
HHS means the Department of Health and Human Services.
Individual means a living natural person; this does not include
corporations, partnerships, and unincorporated business or professional
groups of two or more persons.
Information means information about an individual, and includes, but
is not limited to, vital statistics; race, sex, or other physical
characteristics; earnings information; professional fees paid to an
individual and other financial information; benefit data or other
claims information; the social security number, employer identification
number, or other individual identifier; address; phone number;
medical information, including psychological or psychiatric information
or lay information used in a medical determination; and information
about marital and family relationships and other personal relationships.
Record means any item, collection, or grouping of information about
an individual that SSA maintains (e.g., employment history, medical
history (including consultative examinations), education) and that
contains his or her name, or an identifying number, symbol, or any other
means by which an individual can be identified.
Secretary means the Secretary of Health and Human Services and any
individual authorized to act for him or her in the administration of a
social security program.
Social Security Administration (SSA) means (1) that principal
operating component of the Department of Health and Human Services which
has administrative responsibilities under titles, I, II, IV -- parts A,
X, XI, XIV, XVI, and XVIII of the Act; and (2) units of State
governments which make determinations under agreements made under
sections 221 and 1633 of the Act.
Social security program means any program or provision of law which
SSA is responsible for administering, including the Freedom of
Information Act and Privacy Act. This includes our responsibilities
under parts B and C of the Federal Coal Mine Health and Safety Act.
System of records means a group of records under our control from
which information about an individual is retrieved by the name of the
individual or by an identifying number, symbol, or other identifying
particular.
We means the Social Security Administration.
20 CFR 401.115 Situations not specified in this part.
If no other provision in this regulation specifically allows SSA to
disclose information, the Commissioner or designee may disclose this
information if not prohibited by Federal law. For example the
Commissioner or designee may disclose information necessary to respond
to life threatening situations.
20 CFR 401.120 Safeguards against unauthorized disclosure or use.
The FOIA does not authorize us to impose any restrictions on how
information is used after we disclose it under that law. However, the
FOIA does permit us to withhold information, for example, if disclosure
would result in a ''clearly unwarranted invasion of personal privacy.''
In deciding whether this exemption applies in a given case, we must
consider all the ways in which the recipient might use the information
and how likely the recipient is to redisclose the information to other
parties. Thus, before we disclose personal information we may consider
such factors as --
(a) Whether only those individuals who have a need to know the
information will obtain it;
(b) Whether appropriate measures to safeguard the information to
avoid unwarranted use or misuse will be taken; and
(c) Whether we would be permitted to conduct on-site inspections to
see whether the safeguards are being met.
20 CFR 401.125 Fees.
We follow HHS regulations (45 CFR 5.60, 5.61 and 5b.13) and 422.440
and 422.441 of this chapter to determine the amount of fees, if any, to
be charged for providing information under the FOIA and Privacy Act.
(45 FR 74914, Nov. 13, 1980, as amended at 50 FR 28568, July 15,
1985)
20 CFR 401.125 Subpart B -- How Laws Apply
Authority: Secs. 205(a), 1102, 1106, and 1141 of the Social Security
Act; 5 U.S.C. 552 and 552a, 8 U.S.C. 1360, 26 U.S.C. 6103, 30 U.S.C.
923, 42 U.S.C. 405(a), 1302, 1306, and 1341.
20 CFR 401.200 General.
This section describes how various laws control the disclosure or
confidentiality of personal information which we keep. We must consider
these laws in the following order.
(a) Some laws require us to disclose information ( 401.205); some
laws require us to withhold information ( 401.210). These laws control
whenever they apply.
(b) If no law of this type applies in a given case, then we must look
to the FOIA. See 401.215.
(c) When the FOIA doesn't require disclosure, we may disclose
information if both the Privacy Act and section 1106 of the Social
Security Act permit the disclosure. See 401.220.
20 CFR 401.205 Disclosures required by law.
We disclose information when a law specifically requires it. The
Social Security Act requires us to disclose information for certain
program purposes. These include disclosures to the Office of Inspector
General, HHS, the parent Locator Service, and to States pursuant to an
arrangement regarding use of the Blood Donor Locator Service. Also,
there are other laws which require that we furnish other agencies
information which they need for their programs. These include the
Department of Veterans Affairs for its benefit programs, the Immigration
and Naturalization Service to carry out its duties regarding aliens, the
Railroad Retirement Board for its benefit programs, and to Federal,
State, and local agencies administering Aid to Families with Dependent
Children, Medicaid, unemployment compensation, food stamps, and other
programs.
(56 FR 66565, Dec. 24, 1991)
20 CFR 401.210 Disclosures prohibited by law.
We do not disclose information when a law specifically prohibits it.
The Internal Revenue Code generally prohibits us from disclosing tax
return information which we receive to maintain individual earnings
records. This includes, for example, amounts of wages and contributions
from employers. Other laws restrict our disclosure of certain
information about drug and alcohol abuse which we collect to determine
eligibility for social security benefits.
20 CFR 401.215 Freedom of Information Act.
The FOIA requires us to disclose any information in our records upon
request from the public, unless one of several exemptions in the FOIA
applies. When the FOIA requires disclosure, the Privacy Act permits it.
The public does not include Federal agencies, courts, or the Congress,
but does include State agencies, individuals, corporations, and most
other parties. The FOIA does not apply to requests that are not from
the public (e.g., from a Federal agency). However, we apply FOIA
principles to requests from these sources for disclosure of information
(see 401.300; also see 401.330 and 401.335 for disclosures to
Congress and the General Accounting Office.
20 CFR 401.220 Other laws.
When the FOIA does not apply, we may not disclose any personal
information unless both the Privacy Act and section 1106 of the Social
Security Act permit the disclosure. Sections 401.305 through 401.340
discuss how we apply the various provisions of the Privacy Act that
permit disclosure. Section 1106 of the Social Security Act requiries
the Secretary of HHS to set out in regulations what disclosures may be
made; therefore, any disclosure permitted by this regulation is
permitted by section 1106.
20 CFR 401.220 Subpart C -- Individual Disclosures
Authority: Secs. 205(a), 1102, and 1106 of the Social Security Act;
Sec. 413(b) of the Federal Mine Safety and Health Act of 1977; 5 U.S.C
552 and 552a, 8 U.S.C. 1360, 26 U.S.C. 6103, 30 U.S.C. 923, 42 U.S.C.
405(a), 1302, and 1306.
20 CFR 401.300 General principles.
When no law specifically requiring or prohibiting disclosure (see
401.205 and 401.210) applies to a question of whether to disclose
information, we follow the FOIA principles to resolve that question. We
do this to insure uniform treatment in all situations. The FOIA
principle which most often applies to SSA disclosure questions is
whether the disclosure would result in a ''clearly unwarranted invasion
of personal privacy.'' To decide whether a disclosure would be a clearly
unwarranted invasion of personal privacy we consider --
(a) The sensitivity of the information (e.g., whether individuals
would suffer harm or embarrassment as a result of the disclosure);
(b) The public interest in the disclosure;
(c) The rights and expectations of individuals to have their personal
information kept confidential; and
(d) The public's interest in maintaining general standards of
confidentiality of personal information; and
(e) Those factors discussed in 401.120. We feel that there is a
strong public interest in sharing information with other agencies with
programs having the same or similar purposes, so we generally share
information with those agencies. However, since there is usually little
or no public interest in disclosing information for disputes between two
private parties or for other private or commercial purposes; we
generally do not share information for these purposes.
20 CFR 401.305 Within HHS.
The Privacy Act allows an agency to share information inside the
agency when necessary for the agency to carry out its duties. For
purposes of this provision, HHS considers itself one agency. SSA, as a
part of HHS, discloses information to another HHS component when SSA
determines that the other component has a legitimate need for the
information and no other law prohibits it.
20 CFR 401.310 Compatible purposes.
(a) General. The Privacy Act allows us to disclose information,
without the consent of the individual, to any other party for routine
uses.
(b) Routine use. This means the disclosure of a record outside HHS
for a purpose which is compatible with the purpose for which the record
was collected. We publish notices of systems of records in the Federal
Register which contain a list of all routine use disclosures.
(c) Determining compatibility. We disclose information for routine
uses where necessary to carry out SSA's programs. It is also our policy
to disclose information for use in other programs which have the same
purposes as SSA programs if the information concerns eligibility,
benefit amounts, or other matters of benefit status in a social security
program and is relevant to determining the same matters in the other
program. For example, we disclose information to the Railroad
Retirement Board for pension and unemployment compensation programs, to
the Veterans Administration for its benefit program, to worker's
compensation programs, to State general assistance programs, and to
other income maintenance programs at all levels of government; we also
disclose for health-maintenance programs like Medicare and Medicaid, and
in appropriate cases, for epidemiological and similar research.
20 CFR 401.315 Law enforcement purposes.
(a) General. The Privacy Act allows us to disclose information for
law enforcement purposes under certain conditions. Much of the
information in our files is especially sensitive or very personal.
Furthermore, participation in social security programs is mandatory, so
people cannot limit what information is given to us. Therefore, we
generally disclose information for law enforcement purposes only in
limited situations. Paragraphs (b) and (c) of this section discuss the
disclosures we generally make for these purposes.
(b) Serious crimes. SSA may disclose information for criminal law
enforcement purposes where a violent crime such as murder or kidnapping
has been committed and the individual about whom the information is
being sought has been indicted or convicted of that crime.
The Privacy Act allows us to disclose if the head of the law
enforcement agency makes a written request giving enough information to
show -- That these conditions are met; What information is needed; and
Why it is needed.
(c) Criminal activity involving the social security program or
another program with the same purposes. We disclose information when
necessary to investigate or prosecute fraud or other criminal activity
involving the social security program. We may also disclose information
for investigation or prosecution of criminal activity in other
income-maintenance or health-maintenance programs (e.g., other
governmental pension programs, unemployment compensation, general
assistance, Medicare or Medicaid) if the information concerns
eligibility, benefit amounts, or other matters of benefit status in a
social security program and is relevant to determining the same matters
in the other program.
20 CFR 401.320 Health or safety.
The Privacy Act allows us to disclose information in compelling
circumstances where an individual's health or safety is affected. For
example, if we learn that someone has been exposed to an excessive
amount of radiation, we may notify that person and appropriate health
officials. If we learn that someone has made a threat against someone
else, we may notify that other person and law enforcement officials.
When we make these disclosures, the Privacy Act requires us to send a
notice of the disclosure to the last known address of the person whose
record was disclosed.
20 CFR 401.325 Statistical and research activities.
(a) General. Statistical and research activities often do not
require information in a format that identifies specific individuals.
Therefore, whenever possible, we release information for statistical or
research purposes only in the form of aggregates or individual data that
cannot be associated with a particular individual. The Privacy Act
allows us to release records if there are safeguards that the record
will be used solely as a statistical or research record and the
individual cannot be identified from any information in the record.
(b) Safeguards for disclosure with identifiers. The Privacy Act also
allows us to disclose data for statistical and research purposes in a
form allowing individual identification when the purpose is compatible
with the purpose for which the record was collected. We will disclose
personally identifiable information for statistical and research
purposes if --
(1) We determine that the requester needs the information in an
identifiable form for a statistical or research activity, will use the
information only for that purpose, and will protect individuals from
unreasonable and unwanted contacts;
(2) The activity is designed to increase knowledge about present or
alternative social security programs or other Federal or State
income-maintenance or health-maintenance programs, or consists of
epidemiological or similar research; and
(3) The recipient will keep the information as a system of
statistical records, will follow appropriate safeguards, and agrees to
our on-site inspection of those safeguards so we can be sure the
information is used or redisclosed only for statistical or research
purposes. No redisclosure of the information may be made without SSA's
approval. We will also require these safeguards when we disclose
personally identifiable information to another HHS component for its own
statistical or research functions (see 401.305).
(c) Statistical record. A statistical record is a record in a system
of records which is maintained only for statistical and research
purposes, and which is not used to make any determination about an
individual. We maintain and use statistical records only for
statistical and research purposes. We may disclose a statistical record
if the conditions in paragraph (b) of this section are met.
(d) Compiling of records. Where a request for information for
statistical and research purposes would require us to compile records,
and doing that would be administratively burdensome to ongoing SSA
operations, we may decline to furnish the information.
20 CFR 401.330 Congress.
(a) We disclose information to either House of Congress. We also
disclose information to any committee or subcommittee of either House,
or to any joint committee of Congress or subcommittee of that committee,
if the information is on a matter within the committee's or
subcommittee's jurisdiction.
(b) We disclose to any member of Congress the information needed to
respond to constituents' requests for information about themselves
(including requests from parents of minors, or legal guardians).
However, these disclosures are subject to the restrictions in
401.400ff.
20 CFR 401.335 General Accounting Office.
We disclose information to the General Accounting Office when that
agency needs the information to carry out its duties.
20 CFR 401.340 Courts.
(a) General. The Privacy Act allows us to disclose information when
we receive an order from a court of competent jurisdiction. However,
much of our information is especially sensitive. Participation in
social security programs is mandatory, and so people cannot limit what
information is given to SSA. When information is used in a court
proceeding, it usually becomes part of a public record, and its
confidentiality cannot be protected. Therefore, we treat subpoenas or
other court orders for information under the rules in paragraph (b) of
this section.
(b) We generally disclose information in response to a subpoena or
other court order if --
(1) Another section of this part would specificially allow the
release; or
(2) The Secretary of HHS is a party to the proceeding; or
(3) The information is necessary for due process in a criminal
proceeding. In other cases, we try to satisfy the needs of courts while
preserving the confidentiality of information.
20 CFR 401.345 Other specific recipients.
In addition to disclosures we make under the routine use provision,
we also release information to --
(a) The Bureau of the Census for purposes of planning or carrying out
a census, survey, or related activity; and
(b) The National Archives of the United States if the record has
sufficient historical or other value to warrant its continued
preservation by the United States Government. We also disclose a record
to the Administrator of General Services for a determination whether the
record has such a value.
20 CFR 401.350 Deceased persons.
We do not consider the disclosure of information about a deceased
person to be a clearly unwarranted invasion of that person's privacy.
However, in disclosing information about a deceased person, we follow
the principles in 401.300 to insure that the privacy rights of a living
person are not violated.
20 CFR 401.350 Subpart D -- Obtaining and Correcting Your Records
Authority: Secs. 205(a), 1102, and 1106 of the Social Security Act;
Sec. 413(b) of the Federal Mine Safety and Health Act of 1977; 5 U.S.C
552 and 552a, 26 U.S.C. 6103, 30 U.S.C. 923, 42 U.S.C. 405(a), 1302, and
1306.
20 CFR 401.400 General.
The Freedom of Information Act allows you to request information from
SSA whether or not it is in a system of records. The Privacy Act gives
you the right to have access to most records about yourself that are in
our systems of records. Exceptions to this Privacy Act right include --
(a) Certain medical records (see 5 U.S.C. 552a(f)(3) and 401.410);
(b) Certain criminal law enforcement records (see 5 U.S.C. 552a(k),
and HHS' rule in 45 CFR 5b.11); and
(c) Records compiled in reasonable anticipation of a court action or
formal adminstrative proceeding.
We generally follow the HHS rules in 45 CFR 5b.5 and 5b.6 on access
to an individual's record. However, in a few situations our rules are
somewhat more strict, because of the especially sensitive nature of many
of our records. This subpart briefly describes our rules.
20 CFR 401.405 How to get your own record.
(a) Who may ask. You may ask for any record about yourself that is
in an SSA system of records. If you are a minor, you may get
information about yourself under the same rules as for an adult. Under
the Privacy Act, if you are the parent or guardian of a minor, or the
legal guardian of someone who has been declared legally incompetent, and
you are acting on his or her behalf, you may ask for information about
that individual. See 401.410 for the rules which apply to requests for
medical records.
(b) Identification. When you request access to a record, you must
identify yourself. One means of identity is your signature but you may
also be requested to show your driver's license, birth certificate, or
similar document.
(c) How to ask. To request access to a record you may visit your
local social security office or write to the manager of the SSA system
of records. The name and address of the manager of the system is part
of the notice of systems of records which is published annually in the
Federal Register. Every local social security office keeps a copy of
the Federal Register containing that notice. That office can also help
you get access to your record. You do not need to use any special form
to ask for a record about you in our files, but your request must give
enough identifying information about the record you want to enable us to
find your particular record. This identifying information should
include the system of records in which the record is located and the
name and social security number (or other identifier) under which the
record is filed. We do not honor requests for all records, all
information, or similar blanket requests.
20 CFR 401.410 Medical information.
(a) Your own record. In accordance with 45 CFR 5b.6, when you
request medical information about yourself, you must also name a
representative in writing. The representative may be a physician, other
health professional, or other responsible individual who would be
willing to review the record and inform you of its contents at your
representative's discretion. If you do not designate a representative,
we may decline to release the requested information. In some cases, it
may be possible to release medical information directly to you rather
than to your representative.
(b) Requests on behalf of a minor. If you are the parent or guardian
of a minor, we will release the minor's medical record only to a
representative that you name in writing. The representative in these
cases must be a physician or other health professional (excluding a
family member) who would be willing to review the record and inform you
of its contents at the representative's discretion. If you do not
designate a representative, we will decline to release the requested
information. We will also make reasonable efforts to inform the minor
that the record has been given to the representative. We will also tell
the representative when further disclosure may be an unwarranted
invasion of the minor's privacy. We will also ask the representative to
consider the effect that disclosing the record to the parent or guardian
would have on the minor in determining whether the minor's record should
be made available to the parent or guardian.
(c) Requests on behalf of an incapacitated adult. If you are the
legal guardian of an adult who has been declared legally incompetent,
you may receive his or her records directly.
20 CFR 401.415 Records about two or more individuals.
(a) When information about two or more individuals is in one record
filed under your social security number, you may receive the information
about you and the fact of entitlement and the amount of benefits payable
to other persons based on your record. You may receive information
about yourself or others, which is filed under someone else's social
security number, if that information affects your entitlement to social
security benefits or the amount of those benefits.
20 CFR 401.420 How to correct your record.
(a) How to request a correction. This section applies to all records
kept by SSA (as described in 401.105) except for records of earnings.
(Section 422.125 of this chapter describes how to request correction of
your earnings record.) You may request that your record be corrected or
amended if you believe that the record is not accurate, timely,
complete, relevant, or necessary to the administration of a social
security program. To amend or correct your record, you should write to
the manager identified in the notice of systems of records which is
published annually in the Federal Register (see 401.405(c) on how to
locate this information). The staff at any social security office can
help you prepare the request. You should submit any available evidence
to support your request. Your request should indicate --
(1) The system of records from which the record is retrieved;
(2) The particular record which you want to correct or amend;
(3) Whether you want to add, delete or substitute information in the
record; and
(4) Your reasons for believing that your record should be corrected
or amended.
(b) What we will not change. You cannot use the correction process
to alter, delete, or amend information which is part of a determination
of fact or which is evidence received in the record of a claim in the
administrative appeal process. Disagreements with these determinations
are to be resolved through the SSA appeal process. (See subparts I and
J of part 404, and subpart N of part 416, of this chapter.) For example,
you cannot use the correction process to alter or delete a document
showing a birth date used in deciding your social security claim.
However, you may submit a statement on why you think certain information
should be altered, deleted, or amended, and this will be made part of
your file.
(c) Acknowledgement of correction request. We will acknowledge
receipt of a correction request within 10 working days, unless the
request can be reviewed, processed, and an initial determination of
denial or compliance given before that time.
(d) Notice of error. If the record is wrong, we will correct it
promptly. If wrong information was disclosed from the record, we will
tell all those who received that information that it was wrong and will
give them the correct information. This will not be necessary if the
change is not due to an error, e.g., a change of name or address.
(e) Record found to be correct. If the record is correct, we will
advise you in writing of the reason why we refuse to amend your record
and we will also inform you of your right to seek a review of the
refusal and the name and address of the official to whom you should send
your request for review.
20 CFR 401.420 Subpart E -- Appeals
Authority: Secs. 205(a), 1102, and 1106 of the Social Security Act;
Sec. 413(b) of the Federal Mine Safety and Health Act of 1977; 5 U.S.C
552 and 552a, 26 U.S.C. 6103, 30 U.S.C. 923, 42 U.S.C. 405(a), 1302, and
1306.
20 CFR 401.500 Which decisions are covered.
This subpart describes how to appeal a decision made under the
Privacy Act concerning your request for correction of a record or for
access to your records, those of your minor child, or those of a person
for whom you are the legal guardian. We generally handle a denial of
your request for information about another person under the provisions
of the FOIA (see part 422, subpart E of this chapter). This subpart
applies only to written requests.
(50 FR 28568, July 15, 1985)
20 CFR 401.505 Appeal of refusal to correct a record.
(a) If we deny your request to correct a record, you may request a
review of that decision. As discussed in 401.420(e), our letter
denying your request will tell you to whom to write.
(b) The official will review your request within 30 working days from
the date of receipt. However, for a good reason and with the approval
of the Commissioner, this time limit may be extended up to an additional
30 days. In that case, the official will notify you about the delay,
the reason for it, and the date when the review is expected to be
completed. If, after review, the official determines that the record
should be corrected, the record will be corrected. If, after review,
the reviewing official also refuses to amend the record exactly as you
requested, the official will advise you --
(1) That your request has been refused and the reason;
(2) That this refusal is SSA's final decision;
(3) That you have a right to seek court review of this request to
amend the record; and
(4) That you have a right to file a statement of disagreement with
the decision. Your statement should include the reason you disagree.
Your statement will be made available to anyone to whom the record is
subsequently disclosed, together with a statement of SSA's reasons for
refusal to amend the record. Also, prior recipients of the record will
be provided a copy of your statement.
20 CFR 401.510 Appeals after denial of access.
If, under the Privacy Act, we deny your request for access to your
own record, those of your minor child, or those of a person for whom you
are the legal guardian, we will advise you in writing of the reason for
that denial, the name and title or position of the person responsible
for the decision, and your right to appeal that decision. You may
appeal the denial decision to the Commissioner of Social Security, 6401
Security Boulevard, Baltimore, MD 21235, within 30 days after you
receive the notice denying all or part of your request, or, if later,
within 30 days after you receive materials in partial compliance with
your request. If we refuse to release a medical record because you did
not designate a representative ( 401.410) to receive the material, that
refusal is not a formal denial of access and, therefore, may not be
appealed to the Commissioner. If you file an appeal, either the
Commissioner or a designee will review your request and any supporting
information submitted and then send you a notice explaining the decision
on your appeal. The decision must be made within 20 working days after
your appeal is received. The Commissioner or a designee may extend this
time limit up to 10 additional working days if one of the circumstances
in 422.429 is met. You will be notified in writing of any extension,
the reason for the extension, and the date by which your appeal will be
decided. The notice of the decision on your appeal will explain your
right to have the matter reviewed in a Federal district court if you
disagree with all or part of the decision.
(50 FR 28568, July 15, 1985; 50 FR 30144, July 24, 1985)
20 CFR 401.510 Subpart F -- Disclosures of Addresses by Blood Donor
Locator Service
Authority: Secs. 205(c)(2), 1102, and 1141 of the Social Security
Act; 42 U.S.C. 405(c)(2), 1302, and 1341, and 26 U.S.C. 6103.
20 CFR 401.600 Blood Donor Locator Service.
(a) General. We will enter into arrangements with State agencies
under which we will furnish to them at their request the last known
personal mailing addresses (residence or post office box) of blood
donors whose blood donations show that they are or may be infected with
the human immunodeficiency virus which causes acquired immune deficiency
syndrome. The State agency or other authorized person, as defined in
paragraph (b) of this section, will then inform the donors that they may
need medical care and treatment. The safeguards that must be used by
authorized persons as a condition to receiving address information from
the Blood Donor Locator Service are in paragraph (g) of this section,
and the requirements for a request for address information are in
paragraph (d).
(b) Definitions. State means the 50 States, the District of
Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, Guam, the
Commonwealth of Northern Marianas, and the Trust Territory of the
Pacific Islands.
Authorized person means --
(1) Any agency of a State (or of a political subdivision of a State)
which has duties or authority under State law relating to the public
health or otherwise has the duty or authority under State law to
regulate blood donations; and
(2) Any entity engaged in the acceptance of blood donations which is
licensed or registered by the Food and Drug Administration in connection
with the acceptance of such blood donations, and which provides for --
(i) The confidentiality of any address information received pursuant
to these rules and section 1141 of the Social Security Act and related
blood donor records;
(ii) Blood donor notification procedures for individuals with respect
to whom such information is requested and a finding has been made that
they are or may be infected with the human immunodeficiency virus; and
(iii) Counseling services for such individuals who have been found to
have such virus. New counseling programs are not required, and an
entity may use existing counseling programs or referrals to provide
these services.
Related blood donor records means any record, list, or compilation
established in connection with a request for address information which
indicates, directly or indirectly, the identity of any individual with
respect to whom a request for address information has been made pursuant
to these rules.
(c) Use of social security number for identification. A State or an
authorized person in the State may require a blood donor to furnish his
or her social security number when donating blood. The number may then
be used by an authorized person to identify and locate a donor whose
blood donation indicates that he or she is or may be infected with the
human immunodeficiency virus.
(d) Request for address of blood donor. An authorized person which
has been unable to locate a blood donor at the address he or she may
have given at the time of the blood donation may request assistance from
the State agency which has arranged with us to participate in the Blood
Donor Locator Service. The request to the Blood Donor Locator Service
must --
(1) Be in writing;
(2) Be from a participating State agency either on its own behalf as
an authorized person or on behalf of another authorized person;
(3) Indicate that the authorized person meets the confidentiality
safeguards of paragraph (g) of this section; and
(4) Include the donor's name and social security number, the
addresses at which the authorized person attempted without success to
contact the donor, the date of the blood donation if available, a
statement that the donor has tested positive for the human
immunodeficiency virus according to the latest Food and Drug
Administration standards or that the history of the subsequent use of
the donated blood or blood products indicates that the donor has or may
have the human immunodeficiency virus, and the name and address of the
requesting blood donation facility.
(Approved by the Office of Management and Budget under control number
0960-0501)
(e) SSA response to request for address. After receiving a request
that meets the requirements of paragraph (d) of this section, we will
search our records for the donor's latest personal mailing address. If
we do not find a current address, we will request that the Internal
Revenue Service search its tax records and furnish us any personal
mailing address information from its files, as required under section
6103(m)(6) of the Internal Revenue Code. After completing these
searches, we will provide to the requesting State agency either the
latest mailing address available for the donor or a response stating
that we do not have this information. We will then destroy the records
or delete all identifying donor information related to the request and
maintain only the information that we will need to monitor the
compliance of authorized persons with the confidentiality safeguards
contained in paragraph (g) of this section.
(f) SSA refusal to furnish address. If we determine that an
authorized person has not met the requirements of paragraphs (d) and (g)
of this section, we will not furnish address information to the State
agency. In that case, we will notify the State agency of our
determination, explain the reasons for our determination, and explain
that the State agency may request administrative review of our
determination. The Commissioner of Social Security or a delegate of the
Commissioner will conduct this review. The review will be based on the
information of record and there will not be an opportunity for an oral
hearing. A request for administrative review, which may be submitted
only by a State agency, must be in writing. The State agency must send
its request for administrative review to the Commissioner of Social
Security, 6401 Security Boulevard, Baltimore, MD 21235, within 60 days
after receiving our notice refusing to give the donor's address. The
request for review must include supporting information or evidence that
the requirements of these rules have been met. If we do not furnish
address information because an authorized person failed to comply with
the confidentiality safeguards of paragraph (g) of this section, the
State agency will have an opportunity to submit evidence that the
authorized person is now in compliance. If we then determine, based on
our review of the request for administrative review and the supporting
evidence, that the authorized person meets the requirements of these
rules, we will respond to the address request as provided in paragraph
(e) of this section. If we determine on administrative review that the
requirements have not been met, we will notify the State agency in
writing of our decision. We will make our determination within 30 days
after receiving the request for administrative review, unless we notify
the State agency within this 30-day time period that we will need
additional time. Our determination on the request for administrative
review will give the findings of fact, the reasons for the decision, and
what actions the State agency should take to ensure that it or the blood
donation facility is in compliance with these rules.
(g) Safeguards to ensure confidentiality of blood donor records. We
will require assurance that authorized persons have established and
continue to maintain adequate safeguards to protect the confidentiality
of both address information received from the Blood Donor Locator
Service and related blood donor records. The authorized person must, to
the satisfaction of the Secretary --
(1) Establish and maintain a system for standardizing records which
includes the reasons for requesting the addresses of blood donors, dates
of the requests, and any disclosures of address information;
(2) Store blood donors' addresses received from the Blood Donor
Locator Service and all related blood donor records in a secure area or
place that is physically safe from access by persons other than those
whose duties and responsibilities require access;
(3) Restrict access to these records to authorized employees and
officials who need them to perform their official duties related to
notifying blood donors who are or may be infected with the human
immunodeficiency virus that they may need medical care and treatment;
(4) Advise all personnel who will have access to the records of the
confidential nature of the information, the safeguards required to
protect the information, and the civil and criminal sanctions for
unauthorized use or disclosure of the information;
(5) Destroy the address information received from the Blood Donor
Locator Service, as well as any records established in connection with
the request which indicate directly or indirectly the identity of the
individual, after notifying or attempting to notify the donor at the
address obtained from the Blood Donor Locator Service; and
(6) Upon request, report to us the procedures established and
utilized to ensure the confidentiality of address information and
related blood donor records. We reserve the right to make onsite
inspections to ensure that these procedures are adequate and are being
followed and to request such information as we may need to ensure that
the safeguards required in this section are being met.
(h) Unauthorized disclosure. Any official or employee of the Federal
Government, a State, or a blood donation facility who discloses blood
donor information, except as provided for in this section or under a
provision of law, will be subject to the same criminal penalty as
provided in section 7213(a) of the Internal Revenue Code of 1986 for the
unauthorized disclosure of tax information.
(56 FR 66565, Dec. 24, 1991; 57 FR 956, Jan. 9, 1992)
20 CFR 401.600 Pt. 404
20 CFR 401.600 PART 404 -- FEDERAL OLD-AGE, SURVIVORS AND DISABILITY INSURANCE (1950- )
20 CFR 401.600 Subpart A -- Introduction, General Provisions and
Definitions
Sec.
404.1 Introduction.
404.2 General definitions and use of terms.
404.3 General provisions.
20 CFR 401.600 Subpart B -- Insured Status and Quarters of Coverage
404.101 Introduction.
404.102 Definitions.
404.110 How we determine fully insured status.
404.111 When we consider a person fully insured based on World War II
active military or naval service.
404.112 When we consider certain employees of private nonprofit
organizations to be fully insured.
404.115 Table for determining the quarters of coverage you need to be
fully insured.
404.120 How we determine currently insured status.
404.130 How we determine disability insured status.
404.131 When you must have disability insured status.
404.132 How we determine fully insured status for a period of
disability or disability insurance benefits.
404.133 When we give you quarters of coverage based on military
service to establish a period of disability.
404.140 What is a quarter of coverage.
404.141 How we credit quarters of coverage for calendar years before
1978.
404.142 How we credit self-employment income to calendar quarters for
taxable years beginning before 1978.
404.143 How we credit quarters of coverage for calendar years after
1977.
404.144 How we credit self-employment income to calendar years for
taxable years beginning after 1977.
404.145 When you acquire a quarter of coverage.
404.146 When a calendar quarter cannot be a quarter of coverage.
Appendix to Subpart B -- Quarter of Coverage Amounts for Calendar
Years After 1978
20 CFR 401.600 Subpart C -- Computing Primary Insurance Amounts
404.201 Introduction.
404.202 Other regulations related to this subpart.
404.203 Definitions.
404.204 Methods of computing primary insurance amounts -- general.
404.210 Average-indexed-monthly-earnings method.
404.211 Computing your average indexed monthly earnings.
404.212 Computing your primary insurance amount from your average
indexed monthly earnings.
404.213 Computation where you are eligible for a pension based on
your noncovered employment.
404.220 Average-monthly-wage method.
404.221 Computing your average monthly wage.
404.222 Use of benefit table in finding your primary insurance amount
from your average monthly wage.
404.230 Guaranteed alternative.
404.231 Steps in computing your primary insurance amount under the
guaranteed alternative -- general.
404.232 Computing your average monthly wage.
404.233 Adjustment of your guaranteed alternative when you become
entitled after age 62.
404.240 Old-start method -- general.
404.241 1977 simplified old-start method.
404.242 Use of old-start primary insurance amount as guaranteed
alternative.
404.243 Computation where you are eligible for a pension based on
noncovered employment.
404.250 Special computation rules for people who had a period of
disability.
404.251 Subsequent entitlement to benefits less than 12 months after
entitlement to disability benefits ended.
404.252 Subsequent entitlement to benefits 12 months or more after
entitlement to disability benefits ended.
404.260 Special minimum primary insurance amounts.
404.261 Computing your special minimum primary insurance amount.
404.270 Cost-of-living increases.
404.271 When automatic cost-of-living increases apply.
404.272 Indexes we use to measure the rise in the cost-of-living.
404.273 When automatic cost-of-living increases are to be made.
404.274 Measuring the increase in the indexes.
404.275 Amount of automatic cost-of-living increases.
404.276 Publication of notice of increase.
404.277 Automatic increases of ''frozen'' minimum primary insurance
amount.
404.278 Additional cost-of-living increase.
404.280 Recomputations.
404.281 Why your primary insurance amount may be recomputed.
404.282 Effective date of recomputations.
404.283 Recomputation under method other than that used to find your
primary insurance amount.
404.284 Recomputations for people who reach age 62, or become
disabled, or die before age 62 after 1978.
404.285 Recomputations performed automatically.
404.286 How to request an immediate recomputation.
404.287 Waiver of recomputation.
404.288 Recomputing when you are entitled to a monthly pension based
on noncovered employment.
404.290 Recalculations.
Appendix I -- Average of the Total Wages for Years after 1950
Appendix II -- Benefit Formulas Used with Average Indexed Monthly
Earnings
Appendix III -- Benefit Table
Appendix IV -- Earnings Needed for a Year of Coverage after 1950
Appendix V -- Computing the Special Minimum Primary Insurance Amount
and Related Maximum Family Benefits
Appendix VI -- Percentage of Automatic Increases in Primary Insurance
Amounts since 1978
Appendix VII -- ''Old-Law'' Contribution and Benefit Base
20 CFR 401.600 Subpart D -- Old-Age, Disability, Dependents' and
Survivors' Insurance Benefits; Period of Disability
404.301 Introduction.
404.302 Other regulations related to this subpart.
404.303 Definitions.
404.304 General rules on benefit amounts.
404.305 When you may not be entitled to benefits.
404.310 Who is entitled to old-age benefits.
404.311 When entitlement to old-age benefits begins and ends.
404.312 Old-age benefit amounts.
404.313 Using delayed retirement credit to increase old-age benefit
amount.
404.315 Who is entitled to disability benefits.
404.316 When entitlement to disability benefits begins and ends.
404.317 Disability benefit amounts.
404.320 Who is entitled to a period of disability.
404.321 When a period of disability begins and ends.
404.322 When you may apply for a period of disability after a delay
due to a physical or mental condition.
404.325 The termination month.
404.330 Who is entitled to wife's or husband's benefits.
404.331 Who is entitled to wife's or husband's benefits as a divorced
spouse.
404.332 When wife's and husband's benefits begin and end.
404.333 Wife's and husband's benefit amounts.
404.335 Who is entitled to widow's or widower's benefits.
404.336 Who is entitled to widow's or widower's benefits as a
surviving divorced spouse.
404.337 When widow's and widower's benefits begin and end.
404.338 Widow's and widower's benefit amounts.
404.339 Who is entitled to mother's or father's benefits.
404.340 Who is entitled to mother's or father's benefits as a
surviving divorced spouse.
404.341 When mother's and father's benefits begin and end.
404.342 Mother's and father's benefit amounts.
404.344 Your relationship by marriage to the insured.
404.345 Your relationship as wife, husband, widow, or widower under
State law.
404.346 Your relationship as wife, husband, widow, or widower based
upon a deemed valid marriage.
404.347 ''Living in the same household'' defined.
404.348 When a child living with you is ''in your care.''
404.349 When a child living apart from you is ''in your care.''
404.350 Who is entitled to child's benefits.
404.351 Who may be reentitled to child's benefits.
404.352 When child's benefits begin and end.
404.353 Child's benefit amounts.
404.354 Your relationship to the insured.
404.355 Who is the insured's natural child.
404.356 Who is the insured's legally adopted child.
404.357 Who is the insured's stepchild.
404.358 Who is the insured's grandchild or stepgrandchild.
404.359 Who is the insured's equitably adopted child.
404.360 When a child is dependent upon the insured person.
404.361 When a natural child is dependent.
404.362 When a legally adopted child is dependent.
404.363 When a stepchild is dependent.
404.364 When a grandchild or stepgrandchild is dependent.
404.365 When an equitably adopted child is dependent.
404.366 ''Contributions for support,'' ''one-half support,'' and
''living with'' the insured defined -- determining first month of
entitlement.
404.367 When you are a ''full-time elementary or secondary school
student''.
404.368 When you are considered a full-time student during a period
of non-attendance.
404.369 Special rules for entitlement to child's benefits if you are
a full-time student for months before August 1982.
404.370 Who is entitled to parent's benefits.
404.371 When parent's benefits begin and end.
404.373 Parent's benefit amounts.
404.374 Parent's relationship to the insured.
404.380 General.
404.381 Who is entitled to special age 72 payments.
404.382 When special age 72 payments begin and end.
404.383 Special age 72 payment amounts.
404.384 Reductions, suspensions, and nonpayments of special age 72
payments.
404.390 General.
404.391 Who is entitled to the lump-sum death payment as a widow or
widower who was living in the same household.
404.392 Who is entitled to the lump-sum death payment when there is
no widow or widower who was living in the same household -- death occurs
after August 1981.
404.393 Who is entitled to the lump-sum death payment when there is
no widow or widower who was living in the same household -- death occurs
before September 1, 1981.
404.394 Who is entitled to the lump-sum death payment when burial
expenses are paid from the deceased's funds.
404.395 Who is not entitled to the lump-sum death payment.
20 CFR 401.600 Subpart E -- Deductions; Reductions; and Nonpayments
of Benefits
404.401 Deduction, reduction, and nonpayment of monthly benefits or
lump-sum death payments.
404.401a When we do not pay a disabled person because of work
activity.
404.402 Interrelationship of deductions, reductions, adjustments and
nonpayment of benefits.
404.403 Reduction where total monthly benefits exceed maximum family
benefits payable.
404.404 How reduction for maximum affects insured individual and
other persons entitled on his earnings record.
404.405 Situations where total benefits can exceed maximum because of
''savings clause.''
404.406 Reduction for maximum because of retroactive effect of
application for monthly benefits.
404.407 Reduction because of entitlement to other benefits.
404.408 Reduction of benefits based on disability on account of
receipt of certain other disability benefits provided under Federal,
State, or local laws or plans.
404.408a Reduction where spouse is receiving a Government pension.
404.408b Reduction of retroactive monthly social security benefits
where supplemental security income (SSI) payments were received for the
same period.
404.409 (Reserved)
404.410 Reduction in benefits for age -- general.
404.411 Special reduction in benefits for age involving entitlement
to two or more benefits.
404.412 Adjustments in benefit reductions for age.
404.413 Reduction in benefits for age following an increase in
primary insurance amounts.
404.415 Deductions because of excess earnings; annual earnings test.
404.416 Amount of deduction because of excess earnings.
404.417 Deductions because of noncovered remunerative activity
outside the United States; 45 hour and 7-day work test.
404.418 ''Noncovered remunerative activity outside the United
States,'' defined.
404.420 Persons deemed entitled to benefits based on an individual's
earnings record.
404.421 Deductions because beneficiary failed to have a child in his
or her care.
404.422 Deductions because of refusal to accept rehabilitation
services.
404.423 Manner of making deductions.
404.424 Total amount of deductions where more than one deduction
event occurs in a month.
404.425 Total amount of deductions where deduction events occur in
more than 1 month.
404.428 Earnings in a taxable year.
404.429 Earnings; defined.
404.430 Excess earnings defined for taxable years ending after
December 1972; monthly exempt amount defined.
404.434 Excess earnings; method of charging.
404.435 Excess earnings; months to which excess earnings cannot be
charged.
404.436 Excess earnings; months to which excess earnings cannot be
charged because individual is deemed not entitled to benefits.
404.437 Excess earnings; benefit rate subject to deductions because
of excess earnings.
404.439 Partial monthly benefits; excess earnings of the individual
charged against his benefits and the benefits of persons entitled (or
deemed entitled) to benefits on his earnings record.
404.440 Partial monthly benefits; prorated share of partial payment
exceeds the benefit before deduction for excess earnings.
404.441 Partial monthly benefits; insured individual and another
person entitled (or deemed entitled) on the same earnings record both
have excess earnings.
404.446 Definition of ''substantial services'' and ''services''.
404.447 Evaluation of factors involved in substantial services test.
404.450 Required reports of work outside the United States or failure
to have care of a child.
404.451 Penalty deductions for failure to report within prescribed
time limit noncovered remunerative activity outside the United States or
not having care of a child.
404.452 Reports to Social Security Administration of earnings;
wages; net earnings from self-employment.
404.453 Penalty deductions for failure to report earnings timely.
404.454 Good cause for failure to make required reports.
404.455 Request by Social Security Administration for reports of
earnings and estimated earnings; effect of failure to comply with
request.
404.456 Current suspension of benefits because an individual works or
engages in self-employment.
404.457 Deductions where taxes neither deducted from wages of certain
maritime employees nor paid.
404.458 Limiting deductions where total family benefits payable would
not be affected or would be only partly affected.
404.460 Nonpayment of monthly benefits of aliens outside the United
States.
404.461 Nonpayment of lump sum after death of alien outside United
States for more than 6 months.
404.462 Nonpayment of hospital and medical insurance benefits of
alien outside United States for more than 6 months.
404.463 Nonpayment of benefits of aliens outside the United States;
''foreign social insurance system,'' and ''treaty obligation''
exceptions defined.
404.464 Nonpayment of benefits where individual is deported;
prohibition against payment of lump sum based on deported individual's
earnings records.
404.465 Conviction for subversive activities; effect on monthly
benefits and entitlement to hospital insurance benefits.
404.466 Conviction for subversive activities; effect on enrollment
for supplementary medical insurance benefits.
404.467 Nonpayment of benefits; individual entitled to disability
insurance benefits or childhood disability benefits based on statutory
blindness is engaging in substantial gainful activity.
404.468 Nonpayment of benefits to prisoners.
404.469 Nonpayment of benefits where individual has not furnished or
applied for a Social Security number.
20 CFR 401.600 Subpart F -- Overpayments, Underpayments, Waiver of
Adjustment or Recovery of Overpayments, and Liability of a Certifying
Officer
404.501 General applicability of section 204 of the Act.
404.502 Overpayments.
404.502a Notice of right to waiver consideration.
404.503 Underpayments.
404.504 Relation to provisions for reductions and increases.
404.505 Relationship to provisions requiring deductions.
404.506 When waiver of adjustment or recovery may be applied.
404.507 Fault.
404.508 Defeat the purpose of Title II.
404.509 Against equity and good conscience; defined.
404.510 When an individual is ''without fault'' in a
deduction-overpayment.
404.510a When an individual is ''without fault'' in an entitlement
overpayment.
404.511 When an individual is at ''fault'' in a
deduction-overpayment.
404.512 When adjustment or recovery of an overpayment will be waived.
404.513 Liability of a certifying officer.
404.515 Collection and compromise of claims for overpayment.
404.520 Referral of overpayments to the Internal Revenue Service for
tax refund offset -- General.
404.521 Notice to overpaid individual.
404.522 Review within SSA that an overpayment is past due and legally
enforceable.
404.523 Findings by SSA.
404.524 Review of our records related to the overpayment.
404.525 Suspension of offset.
404.526 Tax refund insufficient to cover amount of overpayment.
20 CFR 401.600 Subpart G -- Filing of Applications and Other Forms
404.601 Introduction.
404.602 Definitions.
404.603 You must file an application to receive benefits.
404.610 What makes an application a claim for benefits.
404.611 Filing of application with Social Security Administration.
404.612 Who may sign an application.
404.613 Evidence of authority to sign an application for another.
404.614 When an application or other form is considered filed.
404.615 Claimant must be alive when an application is filed.
404.620 Filing before the first month you meet the requirements for
benefits.
404.621 Filing after the first month you meet the requirements for
benefits.
404.622 Limiting an application.
404.623 Filing by persons eligible for old-age and husband's or
wife's benefits.
404.630 Use of date of written statement as filing date.
404.631 Statements filed with the Railroad Retirement Board.
404.632 Statements filed with a hospital.
404.640 Withdrawal of an application.
404.641 Cancellation of a request to withdraw.
20 CFR 401.600 Subpart H -- Evidence
404.701 Introduction.
404.702 Definitions.
404.703 When evidence is needed.
404.704 Your responsibility for giving evidence.
404.705 Failure to give requested evidence.
404.706 Where to give evidence.
404.707 Original records or copies as evidence.
404.708 How we decide what is enough evidence.
404.709 Preferred evidence and other evidence.
404.715 When evidence of age is needed.
404.716 Type of evidence of age to be given.
404.720 Evidence of a person's death.
404.721 Evidence to presume a person is dead.
404.723 When evidence of marriage is required.
404.725 Evidence of a valid ceremonial marriage.
404.726 Evidence of common-law marriage.
404.727 Evidence of a deemed valid marriage.
404.728 Evidence a marriage has ended.
404.730 When evidence of a parent or child relationship is needed.
404.731 Evidence you are a natural parent or child.
404.732 Evidence you are a stepparent or stepchild.
404.733 Evidence you are the legally adopting parent or legally
adopted child.
404.734 Evidence you are an equitably adopted child.
404.735 Evidence you are the grandchild or stepgrandchild.
404.736 Evidence of a child's dependency.
404.745 Evidence of school attendance for child age 18 or older.
404.750 Evidence of a parent's support.
404.760 Evidence of living in the same household with insured person.
404.762 Evidence of having a child in your care.
404.765 Evidence of responsibility for or payment of burial expenses.
404.770 Evidence of where the insured person had a permanent home.
404.780 Evidence of ''good cause'' for exceeding time limits on
accepting proof of support or application for a lump-sum death payment.
20 CFR 401.600 Subpart I -- Records of Earnings
404.801 Introduction.
404.802 Definitions.
404.803 Conclusiveness of the record of your earnings.
404.810 How to obtain a statement of earnings and a benefit estimate
statement.
404.811 The statement of earnings and benefit estimate.
404.820 Filing a request for correction of the record of your
earnings.
404.821 Correction of the record of your earnings before the time
limit ends.
404.822 Correction of the record of your earnings after the time
limit ends.
404.823 Correction of the record of your earnings for work in the
employ of the United States.
404.830 Notice of removal or reduction of your wages.
404.831 Notice of removal or reduction of your self-employment
income.
20 CFR 401.600 Subpart J -- Determinations, Administrative Review
Process, and Reopening of Determinations and Decisions
404.900 Introduction.
404.901 Definitions.
404.902 Administrative actions that are initial determinations.
404.903 Administrative actions that are not initial determinations.
404.904 Notice of the initial determination.
404.905 Effect of an initial determination.
404.906 Opportunity for personal appearance interview before initial
disability denial or cessation determination -- demonstration projects.
404.907 Reconsideration -- general.
404.908 Parties to a reconsideration.
404.909 How to request reconsideration.
404.911 Good cause for missing the deadline to request review.
404.913 Reconsideration procedures.
404.914 Disability hearing -- general.
404.915 Disability hearing -- appointment of a disability hearing
officer.
404.916 Disability hearing -- procedures.
404.917 Disability hearing -- disability hearing officer's
reconsidered determination.
404.918 Disability hearing -- review of the disability hearing
officer's reconsidered determination before it is issued.
404.919 Notice of another person's request for reconsideration.
404.920 Reconsidered determination.
404.921 Effect of a reconsidered determination.
404.922 Notice of a reconsidered determination.
404.923 Expedited appeals process -- general.
404.924 When the expedited appeals process may be used.
404.925 How to request expedited appeals process.
404.926 Agreement in expedited appeals process.
404.927 Effect of expedited appeals process agreement.
404.928 Expedited appeals process request that does not result in
agreement.
404.929 Hearing before an administrative law judge -- general.
404.930 Availability of a hearing before an administrative law judge.
404.932 Parties to a hearing before an administrative law judge.
404.933 How to request a hearing before an administrative law judge.
404.935 Submitting evidence prior to a hearing before an
administrative law judge.
404.936 Time and place for a hearing before an administrative law
judge.
404.938 Notice of a hearing before an administrative law judge.
404.939 Objections to the issues.
404.940 Disqualification of the administrative law judge.
404.941 Prehearing case review.
404.944 Administrative law judge hearing procedures -- general.
404.946 Issues before an administrative law judge.
404.948 Deciding a case without an oral hearing before an
administrative law judge.
404.949 Presenting written statements and oral arguments.
404.950 Presenting evidence at a hearing before an administrative law
judge.
404.951 When a record of a hearing before an administrative law judge
is made.
404.952 Consolidated hearings before an administrative law judge.
404.953 The decision of an administrative law judge.
404.955 The effect of an administrative law judge's decision.
404.956 Removal of a hearing request from an administrative law judge
to the Appeals Council.
404.957 Dismissal of a request for a hearing before an administrative
law judge.
404.958 Notice of dismissal of a request for a hearing before an
administrative law judge.
404.959 Effect of dismissal of a request for a hearing before an
administrative law judge.
404.960 Vacating a dismissal of a request for a hearing before an
administrative law judge.
404.961 Prehearing and posthearing conferences.
404.965 (Reserved)
404.967 Appeals Council review -- general.
404.968 How to request Appeals Council review.
404.969 Appeals Council initiates review.
404.970 Cases the Appeals Council will review.
404.971 Dismissal by Appeals Council.
404.972 Effect of dismissal of request for Appeals Council review.
404.973 Notice of Appeals Council review.
404.974 Obtaining evidence from Appeals Council.
404.975 Filing briefs with the Appeals Council.
404.976 Procedures before Appeals Council on review.
404.977 Case remanded by Appeals Council.
404.979 Decision of Appeals Council.
404.981 Effect of Appeals Council's decision or denial of review.
404.982 Extension of time to file action in Federal district court.
404.983 Case remanded by a Federal court.
404.984 Appeals Council review of administrative law judge decision
in a case remanded by a Federal court.
404.985 Application of circuit court law.
404.987 Reopening and revising determinations and decisions.
404.988 Conditions for reopening.
404.989 Good cause for reopening.
404.990 Finality of determinations and decisions on revision of an
earnings record.
404.991 Finality of determinations and decisions to suspend benefit
payments for entire taxable year because of earnings.
404.991a Late completion of timely investigation.
404.992 Notice of revised determination or decision.
404.993 Effect of revised determination or decision.
404.994 Time and place to request a hearing on revised determination
or decision.
404.995 Finality of findings when later claim is filed on same
earnings record.
404.996 Increase in future benefits where time period for reopening
expires.
404.999a Payment of certain travel expenses -- general.
404.999b Who may be reimbursed.
404.999c What travel expenses are reimbursable.
404.999d When and how to claim reimbursement.
20 CFR 401.600 Subpart K -- Employment, Wages, Self-Employment, and
Self-Employment Income
404.1001 Introduction.
404.1002 Definitions.
404.1003 Employment.
404.1004 What work is covered as employment.
404.1005 Who is an employee.
404.1006 Corporation officer.
404.1007 Common-law employee.
404.1008 Agent-driver or commission-driver, full-time life insurance
saleman, home worker, or traveling or city salesman.
404.1009 Who is an employer.
404.1010 Farm crew leader as employer.
404.1012 Work excluded from employment.
404.1013 Included -- excluded rule.
404.1014 Domestic service by a student for a local college club,
fraternity or sorority.
404.1015 Family services.
404.1016 Foreign agricultural workers.
404.1017 Sharefarmers.
404.1018 Work by civilians for the United States Government or its
instrumentalitiess -- wages paid after 1983.
404.1018a Work by civilians for the United States Government or its
instrumentalities -- remuneration paid prior to 1984.
404.1018b Medicare qualified government employment.
404.1019 Work as a member of a uniformed service of the United
States.
404.1020 Work for States and their political subdivisions and
instrumentalities.
404.1021 Work for the District of Columbia.
404.1022 American Samoa or Guam.
404.1023 Ministers of churches and members of religious orders.
404.1024 Election of coverage by religious orders.
404.1025 Work for religious, charitable, educational, or certain
other organizations exempt from income tax.
404.1026 Work for a church or qualified church-controlled
organization.
404.1027 Railroad work.
404.1028 Student working for a school, college, or university.
404.1029 Student nurses.
404.1030 Delivery and distribution or sale of newspapers, shopping
news, and magazines.
404.1031 Fishing.
404.1032 Work for a foreign government.
404.1033 Work for a wholly owned instrumentality of a foreign
government.
404.1034 Work for an international organization.
404.1035 Work for a communist organization.
404.1036 Certain nonresident aliens.
404.1037 Work on or in connection with a non-American vessel or
aircraft.
404.1041 Wages.
404.1042 Wages when paid and received.
404.1043 Facilities or privileges-meals and lodging.
404.1044 Vacation pay.
404.1045 Employee expenses.
404.1046 Pay for work by certain members of religious orders.
404.1047 Annual wage limitation.
404.1048 Contribution and benefit base after 1992.
404.1049 Payments under an employer plan or system.
404.1050 Retirement payments.
404.1051 Payments on account of sickness or accident disability, or
related medical or hospitalization expenses.
404.1052 Payments from or to certain tax-exempt trusts or tax exempt
trusts or payments under or into certain annuity plans.
404.1053 ''Qualified benefits'' under a cafeteria plan.
404.1054 Payments by an employer of employee's tax or employee's
contribution under State law.
404.1055 Payments for agricultural labor.
404.1056 Explanation of agricultural labor.
404.1057 Domestic service in the employer's home.
404.1058 Special situations.
404.1059 Deemed wages for certain individuals interned during World
War II.
404.1060 (Reserved)
404.1065 Self-employment coverage.
404.1066 Trade or business in general.
404.1068 Employees who are considered self-employed.
404.1069 Real estate agents and direct sellers.
404.1070 Christian Science practitioners.
404.1071 Ministers and members of religious orders.
404.1073 Public office.
404.1074 Farm crew leader who is self-employed.
404.1075 Members of certain religious groups opposed to insurance.
404.1077 Individuals under railroad retirement system.
404.1080 Net earnings from self-employment.
404.1081 General rules for figuring net earnings from
self-employment.
404.1082 Rentals from real estate; material participation.
404.1083 Dividends and interest.
404.1084 Gain or loss from disposition of property; capital assets;
timber, coal, and iron ore; involuntary conversion.
404.1085 Net operating loss deduction.
404.1086 Community income.
404.1087 Figuring partner's net earnings from self-employment for
taxable year which ends as a result of death.
404.1088 Retirement payment to retired partners.
404.1089 Figuring net earnings for residents and nonresidents of
Puerto Rico.
404.1090 Personal exemption deduction.
404.1091 Figuring net earnings for ministers and members of religious
orders.
404.1092 Figuring net earnings for United States citizens temporarily
living outside the United States.
404.1093 Possession of the United States.
404.1094 Options available for figuring net earnings from
self-employment.
404.1095 Agricultural trade or business.
404.1096 Self-employment income.
20 CFR 401.600 Subpart L -- (Reserved)
20 CFR 401.600 Subpart M -- Coverage of Employees of State and Local
Governments
Sec.
404.1200 General.
404.1201 Scope of this subpart regarding coverage and wage reports
and adjustments.
404.1202 Definitions.
404.1203 Evidence -- for wages paid prior to 1987.
404.1204 Designating officials to act on behalf of the State.
404.1205 Absolute coverage groups.
404.1206 Retirement system coverage groups.
404.1207 Divided retirement system coverage groups.
404.1208 Ineligible employees.
404.1209 Mandatorily excluded services.
404.1210 Optionally excluded services.
404.1211 Interstate instrumentalities.
404.1212 Policemen and firemen.
404.1214 Agreement for coverage.
404.1215 Modification of agreement.
404.1216 Modification of agreement to correct an error.
404.1217 Continuation of coverage.
404.1218 Resumption of coverage.
404.1219 Dissolution of political subdivision.
404.1220 Identification numbers.
404.1225 Records -- for wages paid prior to 1987.
404.1230 Onsite review program.
404.1231 Scope of review.
404.1232 Conduct of review
404.1234 Reports of review's findings.
404.1237 Wage reports and contribution returns -- general -- for
wages paid prior to 1987.
404.1239 Wage reports for employees performing services in more than
one coverage group -- for wages paid prior to 1987.
404.1242 Back pay.
404.1243 Use of reporting forms -- for wages paid prior to 1987.
404.1247 When to report wages -- for wages paid prior to 1987.
404.1249 When and where to make deposits of contributions and to file
contribution returns and wage reports -- for wages paid prior to 1987.
404.1251 Final reports -- for wages paid prior to 1987.
404.1255 State's liability for contributions -- for wages paid prior
to 1987.
404.1256 Limitation on State's liability for contributions for
multiple employment situations -- for wages paid prior to 1987.
404.1260 Amount of contributions -- for wages paid prior to 1987.
404.1262 Manner of payment of contributions by State -- for wages
paid prior to 1987.
404.1263 When fractional part of a cent may be disregarded -- for
wages paid prior to 1987.
404.1265 Addition of interest to contributions -- for wages paid
prior to 1987.
404.1267 Failure to make timely payments -- for wages paid prior to
1987.
404.1270 Adjustments in general -- for wages paid prior to 1987.
404.1271 Adjustment of overpayment of contributions -- for wages paid
prior to 1987.
404.1272 Refund or recomputation of overpayments which are not
adjustable -- for wages paid prior to 1987.
404.1275 Adjustment of employee contributions -- for wages paid prior
to 1987.
404.1276 Reports and payments erroneously made to Internal Revenue
Service-transfer of funds -- for wages paid prior to 1987.
404.1280 Allowance of credits or refunds -- for wages paid prior to
1987.
404.1281 Credits or refunds for periods of time during which no
liability exists -- for wages paid prior to 1987.
404.1282 Time limitations on credits or refunds -- for wages paid
prior to 1987.
404.1283 Exceptions to the time limitations on credits or refunds --
for wages paid prior to 1987.
404.1284 Offsetting underpayments against overpayments -- for wages
paid prior to 1987.
404.1285 Assessments of amounts due -- for wages paid prior to 1987.
404.1286 Time limitations on assessments -- for wages paid prior to
1987.
404.1287 Exceptions to the time limitations on assessments -- for
wages paid prior to 1987.
404.1289 Payment after expiration of time limitation for assessment
-- for wages paid prior to 1987.
404.1290 Review of decisions by the Secretary -- for wages paid prior
to 1987.
404.1291 Reconsideration -- for wages paid prior to 1987.
404.1292 How to request review -- for wages paid prior to 1987.
404.1293 Time for filing request for review -- for wages paid prior
to 1987.
404.1294 Notification to State after reconsideration -- for wages
paid prior to 1987.
404.1295 Commissioner's review -- for wages paid prior to 1987.
404.1296 Commissioner's notification to the State -- for wages paid
prior to 1987.
404.1297 Review by court -- for wages paid prior to 1987.
404.1298 Time for filing civil action -- for wages paid prior to
1987.
404.1299 Final judgments -- for wages paid prior to 1987.
20 CFR 401.600 Subpart N -- Wage Credits for Veterans and Members of
the Uniformed Services
404.1301 Introduction.
404.1302 Definitions.
404.1310 Who is a World War II veteran.
404.1311 Ninety-day active service requirement for World War II
veterans.
404.1312 World War II service included.
404.1313 World War II service excluded.
404.1320 Who is a post-World War II veteran.
404.1321 Ninety-day active service requirement for post-World War II
veterans.
404.1322 Post-World War II service included.
404.1323 Post-World War II service excluded.
404.1325 Separation from active service under conditions other than
dishonorable.
404.1330 Who is a member of a uniformed service.
404.1340 Wage credits for World War II and post-World War II
veterans.
404.1341 Wage credits for a member of a uniformed service.
404.1342 Limits on granting World War II and post-World War II wage
credits.
404.1343 When the limits on granting World War II and post-World War
II wage credits do not apply.
404.1350 Deemed insured status.
404.1351 When deemed insured status does not apply.
404.1352 Benefits and payments based on deemed insured status.
404.1360 Veterans Administration pension or compensation payable.
404.1361 Federal benefit payable other than by Veterans
Administration.
404.1362 Treatment of social security benefits or payments where
Veterans Administration pension or compensation payable.
404.1363 Treatment of social security benefits or payments where
Federal benefit payable other than by Veterans Administration.
404.1370 Evidence of active service and separation from active
service.
404.1371 Evidence of membership in a uniformed service during the
years 1957 through 1967.
20 CFR 401.600 Subpart O -- Interrelationship of Old-Age, Survivors and
Disability Insurance Program With the Railroad Retirement Program
404.1401 General relationship of Railroad Retirement Act with the
old-age, survivors and disability insurance program of the Social
Security Act.
404.1402 When services in the railroad industry are covered.
404.1403 Definition of ''years of service''.
404.1404 Effective date of coverage of railroad services under the
act.
404.1405 When the provisions of 404.1402 do not apply.
404.1406 Eligibility to railroad retirement benefits as a bar to
payment of social security benefits.
404.1407 When railroad retirement benefits do not bar payment of
social security benefits.
404.1408 Compensation to be treated as wages.
404.1409 Purposes of using compensation.
404.1410 Presumption on basis of certified compensation record.
404.1412 Compensation quarters of coverage.
404.1413 Certification of payment to Railroad Retirement Board.
20 CFR 401.600 Subpart P -- Determining Disability and Blindness
404.1501 Scope of subpart.
404.1502 General definitions and terms for this subpart.
404.1503 Who makes disability and blindness determinations.
404.1503a Program integrity.
404.1504 Determinations by other organizations and agencies.
404.1505 Basic definition of disability.
404.1506 When we will not consider your impairment.
404.1508 What is needed to show an impairment.
404.1509 How long the impairment must last.
404.1510 Meaning of substantial gainful activity.
404.1511 Definition of disabling impairment.
404.1512 Evidence of your impairment.
404.1513 Medical evidence of your impairment.
404.1514 When we will purchase existing evidence.
404.1515 Where and how to submit evidence.
404.1516 If you fail to submit medical and other evidence.
404.1517 Consultative examination at our expense.
404.1518 If you do not appear at a consultative examination.
404.1519 The consultative examination.
404.1519a When we will purchase a consultative examination and how we
will use it.
404.1519b When we will not purchase a consultative examination.
404.1519f Type of purchased examinations.
404.1519g Who we will select to perform a consultative examination.
404.1519h Your treating physician or psychologist.
404.1519i Other sources for consultative examinations.
404.1519j Obiections to the designated physician or psychologist.
404.1519k Purchase of medical examinations, laboratory tests, and
other services.
404.1519m Diagnostic tests or procedures.
404.1519n Informing the examining physician or psychologist of
examination scheduling, report content, and signature requirements.
404.1519o When a properly signed consultative examination report has
not been received.
404.1519p Reviewing reports of consultative examinations.
404.1519q Conflict of interest.
404.1519s Authorizing and monitoring the consultative examination.
404.1519t Consultative examination oversight.
404.1520 Evaluation of disability in general.
404.1520a Evaluation of mental impairments.
404.1521 What we mean by an impairment(s) that is not severe.
404.1522 When you have two or more unrelated impairments -- initial
claims.
404.1523 Multiple impairments.
404.1525 Listing of Impairments in Appendix 1.
404.1526 Medical equivalence.
404.1527 Evaluating medical opinions about your impairment(s) or
disability.
404.1528 Symptoms, signs and laboratory findings.
404.1529 How we evaluate symptoms including pain.
404.1530 Need to follow prescribed treatment.
404.1545 Your residual functional capacity.
404.1546 Responsibility for assessing and determining residual
functional capacity.
404.1560 When your vocational background will be considered.
404.1561 Your ability to do work depends upon your residual
functional capacity.
404.1562 If you have done only arduous unskilled physical labor.
404.1563 Your age as a vocational factor.
404.1564 Your education as a vocational factor.
404.1565 Your work experience as a vocational factor.
404.1566 Work which exists in the national economy.
404.1567 Physical exertion requirements.
404.1568 Skill requirements.
404.1569 Listing of Medical -- Vocational Guidelines in Appendix 2.
404.1569a Exertional and nonexertional limitations.
404.1571 General.
404.1572 What we mean by substantial gainful activity.
404.1573 General information about work activity.
404.1574 Evaluation guides if you are an employee.
404.1575 Evaluation guides if you are self-employed.
404.1576 Impairment-related work expenses.
404.1577 Disability defined for widows, widowers, and surviving
divorced spouses for monthly benefits payable for months prior to
January 1991.
404.1578 How we determine disability for widows, widowers, and
surviving divorced spouses for monthly benefits payable for months prior
to January 1991.
404.1579 How we will decide whether your disability continues or
ends.
404.1581 Meaning of blindness as defined in the law.
404.1582 A period of disability based on blindness.
404.1583 How we determine disability for blind persons who are age 55
or older.
404.1584 Evaluation of work activity of blind people.
404.1585 Trial work period for persons age 55 or older who are blind.
404.1586 Why and when we will stop your cash benefits.
404.1587 Circumstances under which we may suspend your benefits
before we make a determination.
404.1588 Your responsibility to tell us of events that may change
your disability status.
404.1589 We may conduct a review to find out whether you continue to
be disabled.
404.1590 When and how often we will conduct a continuing disability
review.
404.1591 If your medical recovery was expected and you returned to
work.
404.1592 The trial work period.
404.1592a The reentitlement period.
404.1593 Medical evidence in continuing disability review cases.
404.1594 How we will decide whether your disability continues or
ends.
404.1595 When we determine that you are not now disabled.
404.1596 Circumstances under which we may suspend your benefits
before we make a determination.
404.1597 After we make a determination that you are not now disabled.
404.1597a Continued benefits pending appeal of a medical cessation
determination.
404.1598 If you become disabled by another impairment(s).
404.1599 Work incentive experiments and rehabilitation demonstration
projects in the disability program.
Appendix 1 to Subpart P -- Listing of Impairments
Appendix 2 to Subpart P -- Medical-Vocational Guidelines
20 CFR 401.600 Subpart Q -- Determinations of Disability
404.1601 Purpose and scope.
404.1602 Definitions.
404.1603 Basic responsibilities for us and the State.
404.1610 How a State notifies us that it wishes to perform the
disability determination function.
404.1611 How we notify a State whether it may perform the disability
determination function.
404.1613 Disability determinations the State makes.
404.1614 Responsibilities for obtaining evidence to make disability
determinations.
404.1615 Making disability determinations.
404.1616 Medical or psychological consultant.
404.1617 Reasonable efforts to obtain review by a qualified
psychiatrist or psychologist.
404.1618 Notifying claimants of the disability determination.
404.1620 General administrative requirements.
404.1621 Personnel.
404.1622 Training.
404.1623 Facilities.
404.1624 Medical and other purchased services.
404.1625 Records and reports.
404.1626 Fiscal.
404.1627 Audits.
404.1628 Property.
404.1629 Participation in research and demonstration projects.
404.1630 Coordination with other agencies.
404.1631 Confidentiality of information and records.
404.1632 Other Federal laws and regulations.
404.1633 Policies and operating instructions.
404.1640 General.
404.1641 Standards of performance.
404.1642 Processing time standards.
404.1643 Performance accuracy standards.
404.1644 How and when we determine whether the processing time
standards are met.
404.1645 How and when we determine whether the performance accuracy
standard is met.
404.1650 Action we will take if a State agency does not meet the
standards.
404.1660 How we will monitor.
404.1661 When we will provide performance support.
404.1662 What support we will provide.
404.1670 General.
404.1671 Good cause for not following the Act, our regulations, or
other written guidelines.
404.1675 Finding of substantial failure.
404.1680 Notice of right to hearing on proposed finding of
substantial failure.
404.1681 Disputes on matters other than substantial failure.
404.1682 Who conducts the hearings.
404.1683 Hearings and appeals process.
404.1690 Assumption when we make a finding of substantial failure.
404.1691 Assumption when State no longer wishes to perform the
disability determination function.
404.1692 Protection of State employees.
404.1693 Limitation on State expenditures after notice.
404.1694 Final accounting by the State.
20 CFR 401.600 Subpart R -- Representation of Parties
404.1700 Introduction.
404.1703 Definitions.
404.1705 Who may be your representative.
404.1707 Appointing a representative.
404.1710 Authority of a representative.
404.1715 Notice or request to a representative.
404.1720 Fee for a representative's services.
404.1725 Request for approval of a fee.
404.1728 Proceedings before a State or Federal court.
404.1730 Payment of fees.
404.1735 Services in a proceeding under Title II of the Act.
404.1740 Rules governing representatives.
404.1745 What happens to a representative who breaks the rules.
404.1750 Notice of charges against a representative.
404.1755 Withdrawing charges against a representative.
404.1765 Hearing on charges.
404.1770 Decision by hearing officer.
404.1775 Requesting review of the hearing officer's decision.
404.1776 Assignment of request for review of the hearing officer's
decision.
404.1780 Appeals Council's review of hearing officer's decision.
404.1785 Evidence permitted on review.
404.1790 Appeals Council's decision.
404.1795 When the Appeals Council will dismiss a request for review.
404.1797 Reinstatement after suspension -- period of suspension
expired.
404.1799 Reinstatement after suspension or disqualification -- period
of suspension not expired.
20 CFR 401.600 Subpart S -- Payment Procedures
404.1800 Introduction.
404.1805 Paying benefits.
404.1810 Expediting benefit payments.
404.1815 Withholding certification or payments.
404.1820 Transfer or assignment of payments.
404.1825 Joint payments to a family.
20 CFR 401.600 Subpart T -- Totalization Agreements
404.1901 Introduction.
404.1902 Definitions.
404.1903 Negotiating totalization agreements.
404.1904 Effective date of a totalization agreement.
404.1905 Termination of agreements.
404.1908 Crediting foreign periods of coverage.
404.1910 Person qualifies under more than one totalization agreement.
404.1911 Effects of a totalization agreement on entitlement to
hospital insurance benefits.
404.1913 Precluding dual coverage.
404.1914 Certificate of coverage.
404.1915 Payment of contributions.
404.1918 How benefits are computed.
404.1919 How benefits are recomputed.
404.1920 Supplementing the U.S. benefit if the total amount of the
combined benefits is less than the U.S. minimum benefit.
404.1921 Benefits of less than $1 due.
404.1925 Applications.
404.1926 Evidence.
404.1927 Appeals.
404.1928 Effect of the alien non-payment provision.
404.1929 Overpayments.
404.1930 Disclosure of information.
20 CFR 401.600 Subpart U -- Representative Payment
404.2001 Introduction.
404.2010 When payment will be made to a representative payee.
404.2015 Information considered in determining whether to make
representative payment.
404.2020 Information considered in selecting a representative payee.
404.2021 Order of preference in selecting a representative payee.
404.2025 Information to be submitted by a representative payee.
404.2030 Advance notice of the determination to make representative
payment.
404.2035 Responsibilities of a representative payee.
404.2040 Use of benefit payments.
404.2040a Compensation for qualified organizations serving as
representative payees.
404.2041 Liability for misuse of benefit payments.
404.2045 Conservation and investment of benefit payments.
404.2050 When new representative payee will be selected.
404.2055 When representative payment will be stopped.
404.2060 Transfer of accumulated benefit payments.
404.2065 Accounting for benefit payments.
20 CFR 401.600 Subpart V -- Payments for Vocational Rehabilitation
Services
404.2101 General.
404.2102 Purpose and scope.
404.2103 Definitions.
404.2104 Participation by State VR agencies or alternate
participants.
404.2108 Requirements for payment.
404.2109 Responsibility for making payment decisions.
404.2110 What we mean by ''SGA'' and by ''a continuous period of 9
months''.
404.2111 Criteria for determining when VR will be considered to have
contributed to a continuous period of 9 months.
404.2112 Payment for VR services in a case where an individual
continues to receive disability payments based on participation in an
approved VR program.
404.2113 Payment for VR services in a case where an individual
refuses to continue or fails to cooperate in a VR program.
404.2114 Services for which payment may be made.
404.2115 When services must have been provided.
404.2116 When claims for payment for VR services must be made (filing
deadlines).
404.2117 What costs will be paid.
404.2118 Applicability of these provisions to alternate participants.
404.2119 Method of payment.
404.2120 Audits.
404.2121 Post-payment reviews and validations.
404.2122 Confidentiality of information and records.
404.2123 Other Federal laws and regulations.
404.2127 Resolution of disputes.
20 CFR 401.600 Subpart A -- Introduction, General Provisions and
Definitions
Authority: Secs. 203, 205(a), 216(j), 227, and 1102 of the Social
Security Act; 42 U.S.C. 403, 405(a), 416(j), 427, and 1302.
20 CFR 404.1 Introduction.
The regulations in this part 404 (Regulations No. 4 of the Social
Security Administration) relate to the provisions of title II of the
Social Security Act as amended on August 28, 1950, and as further
amended thereafter. The regulations in this part are divided into 22
subparts:
(a) Subpart A contains provisions relating to general definitions and
use of terms.
(b) Subpart B relates to quarters of coverage and insured status
requirements.
(c) Subpart C relates to the computation and recomputation of the
primary insurance amount.
(d) Subpart D relates to the requirements for entitlement to monthly
benefits and to the lump-sum death payment duration of entitlement and
benefit rates.
(e) Subpart E contains provisions relating to the reduction and
increase of insurance benefits and to deductions from benefits and
lump-sum death payments.
(f) Subpart F relates to overpayments, underpayments, waiver of
adjustment or recovery of overpayments and liability of certifying
officers.
(g) Subpart G relates to filing of applications and other forms.
(h) Subpart H relates to evidentiary requirements for establishing an
initial and continuing right to monthly benefits and for establishing a
right to lump-sum death payment. (Evidentiary requirements relating to
disability are contained in subpart P.)
(i) Subpart I relates to maintenance and revision of records of wages
and self-employment income.
(j) Subpart J relates to initial determinations, the administrative
review process, and reopening of determinations and decisions.
(k) Subpart K relates to employment, wages, self-employment and
self-employment income.
(l) Subpart L is reserved.
(m) Subpart M relates to coverage of employees of State and local
Governments.
(n) Subpart N relates to benefits in cases involving veterans.
(o) Subpart O relates to the interrelationship of the old-age,
survivors and disability insurance program with the railroad retirement
program.
(p) Subpart P relates to the determination of disability or
blindness.
(q) Subpart Q relates to standards, requirements and procedures for
States making determinations of disability for the Secretary. It also
sets out the Secretary's responsibilities in carrying out the disability
determination function.
(r) Subpart R relates to the provisions applicable to attorneys and
other individuals who represent applicants in connection with claims for
benefits.
(s) Subpart S relates to the payment of benefits to individuals who
are entitled to benefits.
(t) Subpart T relates to the negotiation and administration of
totalization agreements between the United States and foreign countries.
(u) Subpart U relates to the selection of a representative payee to
receive benefits on behalf of a beneficiary and to the duties and
responsibilities of a representative payee.
(v) Subpart V relates to payments to State vocational rehabilitative
agencies (or alternate participants) for vocational rehabilitation
services.
(26 FR 7054, Aug. 5, 1961; 26 FR 7760, Aug. 19, 1961, as amended at
27 FR 4513, May 11, 1962; 28 FR 14492, Dec. 31, 1963; 51 FR 11718,
Apr. 7, 1986)
20 CFR 404.2 General definitions and use of terms.
(a) Terms relating to the Act and regulations. (1) The Act means the
Social Security Act, as amended (42 U.S.C. Chapter 7).
(2) Regulations 2 (20 CFR, 1938 ed., part 402) means the regulations
approved July 20, 1937, as amended from time to time, relating to
Federal old-age benefits under title II of the Social Security Act and
amendments to such title effective prior to January 1, 1940.
(3) Regulations 3 (20 CFR, 1961 ed., part 403) means the regulations
approved May 21, 1940, as amended and supplemented from time to time,
relating to Federal old-age and survivors benefits under title II of the
Social Security Act and amendments to such title effective prior to
January 1, 1951.
(4) Internal Revenue Code of 1939 means the act approved February 10,
1939 (53 Stat. part 1), as amended.
(5) Internal Revenue Code of 1954 means the act approved August 16,
1954 (68A Stat. 1), as amended.
(6) Railroad Retirement Act means the Railroad Retirement Act of 1937
(50 Stat. 307), as amended.
(7) Section means a section of the regulations in part 404 of this
chapter unless the context indicates otherwise.
(b) Secretary; Commissioner; Appeals Council; Administrative Law
Judge defined. (1) Secretary means the Secretary of Health and Human
Services.
(2) Commissioner means the Commissioner of Social Security.
(3) Appeals Council means the Appeals Council of the Office of
Hearings and Appeals in the Social Security Administration or such
member or members thereof as may be designated by the Chairman.
(4) Administrative Law Judge means an Administrative Law Judge in the
Office of Hearings and Appeals of the Social Security Administration.
(c) Miscellaneous. (1) Certify, when used in connection with the
duty imposed on the Secretary by section 205(i) of the act, means that
action taken by the Administration in the form of a written statement
addressed to the Managing Trustee, setting forth the name and address of
the person to whom payment of a benefit or lump sum, or any part
thereof, is to be made, the amount to be paid, and the time at which
payment should be made.
(2) Benefit means an old-age insurance benefit, disability insurance
benefit, wife's insurance benefit, husband's insurance benefit, child's
insurance benefit, widow's insurance benefit, widower's insurance
benefit, mother's insurance benefit, father's insurance benefit,
parent's insurance benefit, or special payment at age 72 under title II
of the Act. (Lump sums, which are death payments under title II of the
Act, are excluded from the term benefit as defined in this part to
permit greater clarity in the regulations.)
(3) Lump sum means a lump-sum death payment under title II of the act
or any person's share of such a payment.
(4) Attainment of age. An individual attains a given age on the
first moment of the day preceding the anniversary of his birth
corresponding to such age.
(5) State, unless otherwise indicated, includes (i) the District of
Columbia, (ii) the Virgin Islands, (iii) the Commonwealth of Puerto Rico
effective January 1, 1951, (iv) Guam and American Samoa, effective
September 13, 1960, generally, and for purposes of sections 210(a) and
211 of the act effective after 1960 with respect to service performed
after 1960, and effective for taxable years beginning after 1960 with
respect to crediting net earnings from self-employment and
self-employment income, and (v) the Territories of Alaska and Hawaii
prior to January 3, 1959, and August 21, 1959, respectively when those
territories acquired statehood.
(6) United States, when used in a geographical sense, includes,
unless otherwise indicated, (i) the States, (ii) the Territories of
Alaska and Hawaii prior to January 3, 1959, and August 21, 1959,
respectively, when they acquired statehood, (iii) the District of
Columbia, (iv) the Virgin Islands, (v) the Commonwealth of Puerto Rico
effective January 1, 1951, and (vi) Guam and American Samoa, effective
September 13, 1960, generally, and for purposes of sections 210(a) and
211 of the act, effective after 1960 with respect to service performed
after 1960, and effective for taxable years beginning after 1960 with
respect to crediting net earnings from self-employment and
self-employment income.
(7) Masculine gender includes the feminine, unless otherwise
indicated.
(8) The terms defined in sections 209, 210, and 211 of the act shall
have the meanings therein assigned to them.
(26 FR 7055, Aug. 5, 1961; 26 FR 7760, Aug. 19, 1961, as amended at
28 FR 1037, Feb. 2, 1963; 28 FR 14492, Dec. 31, 1963; 29 FR 15509,
Nov. 19, 1964; 41 FR 32886, Aug. 6, 1976; 51 FR 11718, Apr. 7, 1986)
20 CFR 404.3 General provisions.
(a) Extent to which Regulations No. 3 (20 CFR, 1961 ed., part 403)
remain in effect. Regulations No. 3 of the Social Security
Administration (20 CFR, 1961 ed., part 403) continue in effect with
respect to old-age and survivors insurance benefits under title II of
the Act for months prior to September 1950 (except with respect to
additional deductions from such benefits under section 203(g) of the Act
in effect prior to the Social Security Act Amendments of 1950); with
respect to lump-sum death payments under title II of the Act where death
occurred after 1939 and before September 1950; and with respect to
determinations as to whether, under title II of the Act, services
performed before 1951 constitute employment and remuneration paid before
1951 constitutes wages. Except as provided in this paragraph or as
specifically incorporated into this part 404 by reference, Regulations
No. 3 of the Social Security Administration (20 CFR, 1961 ed., part
403) are superseded by the regulations in this part 404.
(b) Effect of cross references. The cross references in the
regulations in this part 404 to other portions of the regulations, when
the word see is used, are made only for convenience and shall be given
no legal effect.
(c) Periods of limitation ending on nonwork days. Pursuant to the
provisions of section 216(j) of the act, effective September 13, 1960,
where any provision of title II, or any provision of another law of the
United States (other than the Internal Revenue Code of 1954) relating to
or changing the effect of title II, or any regulation of the Secretary
issued under title II, provides for a period within which an act is
required to be done which affects eligibility for or the amount of any
benefit or payment under this title or is necessary to establish or
protect any rights under this title, and such period ends on a Saturday,
Sunday or Federal legal holiday or on any other day all or part of which
is declared to be a nonwork day for Federal employees by statute or
Executive Order, then such act shall be considered as done within such
period if it is done on the first day thereafter which is not a
Saturday, Sunday, or legal holiday or any other day all or part of which
is declared to be a nonwork day for Federal employees either by statute
or Executive Order. For purposes of this paragraph, the day on which a
period ends shall include the final day of any extended period where
such extension is authorized by law or by the Secretary pursuant to law.
Such extension of any period of limitation does not apply to periods
during which benefits may be paid for months prior to the month an
application for such benefits is filed pursuant to 404.621, or to
periods during which an application for benefits may be accepted as such
pursuant to 404.620.
(26 FR 7055, Aug. 5, 1961, as amended at 29 FR 15509, Nov. 19, 1964;
51 FR 11718, Apr. 7, 1986)
20 CFR 404.3 Subpart B -- Insured Status and Quarters of Coverage
Authority: Secs. 205(a), 212, 213, 214, 216, 217, 223, and 1102 of
the Social Security Act; 42 U.S.C. 405(a), 412, 413, 414, 416, 417,
423, and 1302.
Source: 45 FR 25384, Apr. 15, 1980, unless otherwise noted.
20 CFR 404.3 General
20 CFR 404.101 Introduction.
(a) Insured status. This subpart explains what we mean when we say
that a person has insured status under the social security program. It
also describes how a person may become fully insured, currently insured
or insured for disability benefits. Your insured status is a basic
factor in determining if you are entitled to old-age or disability
insurance benefits or to a period of disability. It is also a basic
factor in determining if dependents' or survivors' insurance benefits or
a lump-sum death payment are payable based on your earnings record. If
you are neither fully nor currently insured, no benefits are payable
based on your earnings. (Subpart D of this part describes these
benefits and the kind of insured status required for each.) In 404.110
through 404.120 we tell how we determine if you are fully or currently
insured. The rules for determining if you are insured for purposes of
establishing a period of disability or becoming entitled to disability
insurance benefits are in 404.130 through 404.133. Whether you have
the required insured status depends on the number of quarters of
coverage (QCs) you have acquired.
(b) QCs. This subpart also sets out our rules on crediting you with
QCs. QCs are used in determining insured status. In general, you are
credited with QCs based on the wages you are paid and the
self-employment income you derive during certain periods. (See subpart
K of this part for a definition of wages and self-employment income.)
Our rules on how and when you acquire a QC are contained in 404.140
through 404.146.
20 CFR 404.102 Definitions.
For the purpose of this subpart --
Act means the Social Security Act, as amended.
Age means how many years old you are. You reach a particular age on
the day before your birthday. For example, if your sixty-second
birthday is on July 1, 1979, you became age 62 on June 30, 1979.
Quarter or calendar quarter means a period of three calendar months
ending March 31, June 30, September 30, or December 31 of any year.
We, our, or us means the Social Security Administration.
You or your means the worker whose insured status is being
considered.
20 CFR 404.102 Fully Insured Status
20 CFR 404.110 How we determine fully insured status.
(a) General. We describe how we determine the number of quarters of
coverage (QCs) you need to be fully insured in paragraphs (b), (c), and
(d) of this section. The table in 404.115 may be used to determine the
number of QCs you need to be fully insured under paragraph (b) of this
section. We consider certain World War II veterans to have died fully
insured (see 404.111). We also consider certain employees of private
nonprofit organizations to be fully insured if they meet special
requirements (see 404.112).
(b) How many QCs you need to be fully insured. (1) You need at least
6 QCs but not more than 40 QCs to be fully insured. A person who died
before 1951 with at least 6 QCs is fully insured.
(2) You are fully insured for old-age insurance benefits if you have
one QC (whenever acquired) for each calendar year elapsing after 1950
or, if later, after the year in which you became age 21, and before the
year you reach retirement age, that is, before --
(i) The year you become age 62, if you are a woman;
(ii) The year you become age 62, if you are a man who becomes age 62
after 1974;
(iii) The year 1975, if you are a man who became age 62 in 1973 or
1974; or
(iv) The year you became age 65, if you are a man who became age 62
before 1973.
(3) A person who is otherwise eligible for survivor's benefits and
who files an application will be entitled to benefits based on your
earnings if you die fully insured. You will be fully insured if you had
one QC (whenever acquired) for each calendar year elapsing after 1950
or, if later, after the year you became age 21, and before the earlier
of the following years:
(i) The year you die; or
(ii) The year you reach retirement age as shown in paragraph (b)(2)
of this section.
(c) How a period of disability affects the number of QCs you need.
In determining the number of elapsed years under paragraph (b) of this
section, we do not count as an elapsed year any year which is wholly or
partly in a period of disability we established for you. For example,
if we established a period of disability for you from December 5, 1975
through January 31, 1977, the three years, 1975, 1976 and 1977, would
not be counted as elapsed years.
(d) How we credit QCs for fully insured status based on your total
wages before 1951 -- (1) General. For purposes of paragraph (b) of this
section, we may use the following rules in crediting QCs based on your
wages before 1951 instead of the rule in 404.141(b)(1).
(i) We may consider you to have one QC for each $400 of your total
wages before 1951, as defined in paragraph (d)(2) of this section, if
you have at least 7 elapsed years as determined under paragraph (b)(2)
or (b)(3) of this section; and the number of QCs determined under this
paragraph plus the number of QCs credited to you for periods after 1950
make you fully insured.
(ii) If you file an application in June 1992 or later and you are not
entitled to a benefit under 404.380 or section 227 of the Act in the
month the application is made, we may consider you to have at least one
QC before 1951 if you have $400 or more total wages before 1951, as
defined in paragraph (d)(2) of this section, provided that the number of
QCs credited to you under this paragraph plus the number of QCs credited
to you for periods after 1950 make you fully insured.
(2) What are total wages before 1951. For purposes of paragraph
(d)(1) of this section, your total wages before 1951 include --
(i) Remuneration credited to you before 1951 on the records of the
Secretary;
(ii) Wages considered paid to you before 1951 under section 217 of
the Act (relating to benefits in case of veterans);
(iii) Compensation under the Railroad Retirement Act of 1937 before
1951 that can be credited to you under title II of the Social Security
Act; and
(iv) Wages considered paid to you before 1951 under section 231 of
the Act (relating to benefits in case of certain persons interned in the
United States during World War II).
(e) When your fully insured status begins. You are fully insured as
of the first day of the calendar quarter in which you acquire the last
needed QC (see 404.145).
(45 FR 25384, Apr. 15, 1980, as amended at 50 FR 36573, Sept. 9,
1985; 57 FR 23157, June 2, 1992)
20 CFR 404.111 When we consider a person fully insured based on World
War II active military or naval service.
We consider that a person, who was not otherwise fully insured, died
fully insured if --
(a) The person was in the active military or naval service of the
United States during World War II;
(b) The person died within three years after separation from service
and before July 27, 1954; and
(c) The conditions in 404.1350 and 404.1350 that permit us to
consider the person fully insured are met.
(d) The provisions of this section do not apply to persons filing
applications after May 31, 1992, unless a survivor is entitled to
benefits under section 202 of the Act based on the primary insurance
amount of the fully insured person for the month preceding the month in
which the application is made.
(45 FR 25384, Apr. 15, 1980, as amended at 57 FR 23157, June 2, 1992)
20 CFR 404.112 When we consider certain employees of private nonprofit
organiations to be fully insured.
If you are age 55 or over on January 1, 1984, and are on that date an
employee of an organization described in 404.1025(a) which does not
have in effect a waiver certificate under section 3121(k) of the Code on
that date and whose employees are mandatorily covered as a result of
section 102 of Pub. L. 98-21, we consider you to be fully insured if
you meet the following requirements:
(50 FR 36573, Sept. 9, 1985)
20 CFR 404.115 Table for determining the quarters of coverage you need
to be fully insured.
(a) General. You may use the following table to determine the number
of quarters of coverage (QCs) you need to be fully insured under
404.110. Paragraphs (b) and (c) of this section tell you how to use this
table.
(b) Number of QCs you need. The QCs you need for fully insured
status are in column II opposite your date of birth in column I. If a
worker dies before reaching retirement age as described in
404.110(b)(2), the QCs needed for fully insured status are shown in
column IV opposite --
(1) The year of death in column III, if the worker was born before
January 2, 1930; or
(2) The age in the year of death in column V, if the worker was born
after January 1, 1930.
(c) How a period of disability affects the number of QCs you need.
If you had a period of disability established for you, it affects the
number of QCs you need to be fully insured (see 404.110(c)). For each
year which is wholly or partly in a period of disability, subtract one
QC from the number of QCs shown in the appropriate line and column of
the table as explained in paragraph (b) of this section.
20 CFR 404.115 Currently Insured Status
20 CFR 404.120 How we determine currently insured status.
(a) What the period is for determining currently insured status. You
are currently insured if you have at least 6 quarters of coverage (QCs)
during the 13-quarter period ending with the quarter in which you --
(1) Die;
(2) Most recently became entitled to disability insurance benefits;
or
(3) Became entitled to old-age insurance benefits.
(b) What quarters are not counted as part of the 13-quarter period.
We do not count as part of the 13-quarter period any quarter all or part
of which is included in a period of disability established for you,
except that the first and last quarters of the period of disability may
be counted if they are QCs (see 404.146(d)).
20 CFR 404.120 Disability Insured Status
20 CFR 404.130 How we determine disability insured status.
(a) General. We have four different rules for determining if you are
insured for purposes of establishing a period of disability or becoming
entitled to disability insurance benefits. To have disability insured
status, you must meet one of these rules and you must be fully insured
(see 404.132 which tells when the period ends for determining the
number of quarters of coverage (QCs) you need to be fully insured).
(b) Rule I -- You must meet the 20/40 requirement. You are insured
in a quarter for purposes of establishing a period of disability or
becoming entitled to disability insurance benefits if in that quarter --
(1) You are fully insured; and
(2) You have at least 20 QCs in the 40-quarter period (see paragraph
(f) of this section) ending with that quarter.
(c) Rule II -- You become disabled before age 31. You are insured in
a quarter for purposes of establishing a period of disability or
becoming entitled to disability insurance benefits if in that quarter --
(1) You have not become (or would not become) age 31;
(2) You are fully insured; and
(3) You have QCs in at least one-half of the quarters during the
period ending with that quarter and beginning with the quarter after the
quarter you became age 21; however --
(i) If the number of quarters during this period is an odd number, we
reduce the number by one; and
(ii) If the period has less than 12 quarters, you must have at least
6 QCs in the 12-quarter period ending with that quarter.
(d) Rule III -- You had a period of disability before age 31. You
are insured in a quarter for purposes of establishing a period of
disability or becoming entitled to disability insurance benefits if in
that quarter --
(1) You are disabled again at age 31 or later after having had a
prior period of disability established which began before age 31 and for
which you were only insured under paragraph (c) of this section; and
(2) You are fully insured and have QCs in at least one-half the
calendar quarters in the period beginning with the quarter after the
quarter you became age 21 and through the quarter in which the later
period of disability begins, up to a maximum of 20 QCs out of 40
calendar quarters; however --
(i) If the number of quarters during this period is an odd number, we
reduce the number by one;
(ii) If the period has less than 12 quarters, you must have at least
6 QCs in the 12-quarter period ending with that quarter; and
(iii) No monthly benefits may be paid or increased under Rule III
before May 1983.
(e) Rule IV -- You are statutorily blind. You are insured in a
quarter for purposes of establishing a period of disability or becoming
entitled to disability insurance benefits if in that quarter --
(1) You are disabled by blindness as defined in 404.1581; and
(2) You are fully insured.
(f) How we determine the 40-quarter or other period. In determining
the 40-quarter period or other period in paragraph (b), (c), or (d) of
this section, we do not count any quarter all or part of which is in a
prior period of disability established for you, unless the quarter is
the first or last quarter of this period and the quarter is a QC.
However, we will count all the quarters in the prior period of
disability established for you if by doing so you would be entitled to
benefits or the amount of the benefit would be larger.
(49 FR 28547, July 13, 1984, as amended at 55 FR 7313, Mar. 1, 1990)
20 CFR 404.131 When you must have disability insured status.
(a) For a period of disability. To establish a period of disability,
you must have disability insured status in the quarter in which you
become disabled or in a later quarter in which you are disabled.
(b) For disability insurance benefits. (1) To become entitled to
disability insurance benefits, you must have disability insured status
in the first full month that you are disabled as described in
404.1501(a), or if later --
(i) The 17th month (if you have to serve a waiting period described
in 404.315(d)) before the month in which you file an application for
disability insurance benefits; or
(ii) The 12th month (if you do not have to serve a waiting period)
before the month in which you file an application for disability
insurance benefits.
(2) If you do not have disability insured status in a month specified
in paragraph (b)(1) of this section, you will be insured for disability
insurance benefits beginning with the first month after that month in
which you do meet the insured status requirement and you also meet all
other requirements for disability insurance benefits described in
404.315.
20 CFR 404.132 How we determine fully insured status for a period of
disability or disability insurance benefits.
In determining if you are fully insured for purposes of paragraph
(b), (c), (d), or (e) of 404.130 on disability insured status, we use
the fully insured status requirements in 404.110, but apply the
following rules in determining when the period of elasped years ends:
(a) If you are a woman, or a man born after January 1, 1913, the
period of elapsed years in 404.110(b) used in determining the number of
quarters of coverage (QCs) you need to be fully insured ends as of the
earlier of --
(1) The year you become age 62; or
(2) The year in which --
(i) Your period of disability begins;
(ii) Your waiting period begins (see 404.315(d)); or
(iii) You become entitled to disability insurance benefits (if you do
not have to serve a waiting period).
(b) If you are a man born before January 2, 1913, the period of
elapsed years in 404.110(b) used in determining the number of QCs you
need to be fully insured ends as of the earlier of --
(1) The year 1975; or
(2) The year specified in paragraph (a)(2) of this section.
(45 FR 25384, Apr. 15, 1980, as amended at 49 FR 28547, July 13,
1984)
20 CFR 404.133 When we give you quarters of coverage based on military
service to establish a period of disability.
For purposes of establishing a period of disability only, we give you
quarters of coverage (QCs) for your military service before 1957 (see
subpart N of this part). We do this even though we may not use that
military service for other purposes of title II of the Act because a
periodic benefit is payable from another Federal agency based in whole
or in part on the same period of military service.
20 CFR 404.133 Quarters of Coverage
20 CFR 404.140 What is a quarter of coverage.
(a) General. A quarter of coverage (QC) is the basic unit of social
security coverage used in determining a worker's insured status. We
credit you with QCs based on your earnings covered under social
security.
(b) How we credit QCs based on earnings before 1978 (General).
Before 1978, wages were generally reported on a quarterly basis and
self-employment income was reported on an annual basis. For the most
part, we credit QCs for calendar years before 1978 based on your
quarterly earnings. For these years, as explained in 404.141, we
generally credit you with a QC for each calendar quarter in which you
were paid at least $50 in wages or were credited with at least $100 of
self-employment income. Section 404.142 tells how self-employment
income derived in a taxable year beginning before 1978 is credited to
specific calendar quarters for purposes of 404.141.
(c) How we credit QCs based on earnings after 1977 (General). After
1977, both wages and self-employment income are generally reported on an
annual basis. For calendar years after 1977, as explained in 404.143,
we generally credit you with a QC for each part of your total covered
earnings in a calendar year that equals the amount required for a QC in
that year. Section 404.143 also tells how the amount required for a QC
will be increased in the future as average wages increase. Section
404.144 tells how self-employment income derived in a taxable year
beginning after 1977 is credited to specific calendar years for purposes
of 404.143.
(d) When a QC is acquired and when a calendar quarter is not a QC
(general). Section 404.145 tells when a QC is acquired and 404.146
tells when a calendar quarter cannot be a QC. These rules apply when we
credit QCs under 404.141 or 404.143.
20 CFR 404.141 How we credit quarters of coverage for calendar years
before 1978.
(a) General. The rules in this section tell how we credit calendar
quarters as quarters of coverage (QCs) for calendar years before 1978.
We credit you with a QC for a calendar quarter based on the amount of
wages you were paid and self-employment income you derived during
certain periods. The rules in paragraphs (b), (c), and (d) of this
section are subject to the limitations in 404.146, which tells when a
calendar quarter cannot be a QC.
(b) How we credit QCs based on wages paid in, or self-employment
income credited to, a calendar quarter. We credit you with a QC for a
calendar quarter in which --
(1) You were paid wages of $50 or more (see paragraph (c) of this
section for an exception relating to wages paid for agricultural labor);
or
(2) You were credited (under 404.142) with self-employment income of
$100 or more.
(c) How we credit QCs based on wages paid for agricultural labor in a
calendar year after 1954. (1) We credit QCs based on wages for
agricultural labor depending on the amount of wages paid during a
calendar year for that work. If you were paid wages for agricultural
labor in a calendar year after 1954 and before 1978, we credit you with
QCs for calendar quarters in that year which are not otherwise QCs
according to the following table.
(2) When we assign QCs to calendar quarters in a year as shown in the
table in paragraph (c)(1) of this section, you might not meet (or might
not meet as early in the year as otherwise possible) the requirements to
be fully or currently insured, to be entitled to a computation or
recomputation of your primary insurance amount, or to establish a period
of disability. If this happens, we assign the QCs to different quarters
in that year than those shown in the table if this assignment permits
you to meet these requirements (or meet them earlier in the year). We
can only reassign QCs for purposes of meeting these requirements.
(d) How we credit QCs based on wages paid or self-employment income
derived in a year. (1) If you were paid wages in a calendar year after
1950 and before 1978 at least equal to the annual wage limitation in
effect for that year as described in 404.1027(a), we credit you with a
QC for each quarter in that calendar year. If you were paid at least
$3,000 wages in a calendar year before 1951, we credit you with a QC for
each quarter in that calendar year.
(2) If you derived self-employment income (or derived self-employment
income and also were paid wages) during a taxable year beginning after
1950 and before 1978 at least equal to the self-employment income and
wage limitation in effect for that year as described in 404.1068(b), we
credit you with a QC for each calendar quarter wholly or partly in that
taxable year.
(45 FR 25834, Apr. 15, 1980; 45 FR 41931, June 3, 1980)
20 CFR 404.142 How we credit self-employment income to calendar
quarters for taxable years beginning before 1978.
In crediting quarters of coverage under 404.141(b)(2), we credit any
self-employment income you derived during a taxable year that began
before 1978 to calendar quarters as follows:
(a) If your taxable year was a calendar year, we credit your
self-employment income equally to each quarter of that calendar year.
(b) If your taxable year was not a calendar year (that is, it began
on a date other than January 1, or was less than a calendar year), we
credit your self-employment income equally --
(1) To the calendar quarter in which your taxable year ended; and
(2) To each of the next three or fewer preceding quarters that were
wholly or partly in your taxable year.
20 CFR 404.143 How we credit quarters of coverage for calendar years
after 1977.
(a) Crediting quarters of coverage (QCs). For calendar years after
1977, we credit you with a QC for each part of the total wages paid and
self-employment income credited (under 404.144) to you in a calendar
year that equals the amount required for a QC in that year. For
example, if the total of your wages and self-employment income for a
calendar year is more than twice, but less than 3 times, the amount
required for a QC in that year, we credit you with only 2 QCs for the
year. The rules for crediting QCs in this section are subject to the
limitations in 404.146, which tells when a calendar quarter cannot be a
QC. In addition, we cannot credit you with more than four QCs for any
calendar year. The amount of wages and self-employment income that you
must have for each QC is --
(1) $250 for calendar year 1978; and
(2) For each calendar year after 1978, an amount determined by the
Secretary for that year (on the basis of a formula in section 213(d)(2)
of the Act which reflects national increases in average wages). The
amount determined by the Secretary is published in the Federal Register
on or before November 1 of the preceding year and included in the
appendix to this subpart.
(b) Assigning QCs. We assign a QC credited under paragraph (a) of
this section to a specific calendar quarter in the calendar year only if
the assignment is necessary to --
(1) Give you fully or currently insured status;
(2) Entitle you to a computation or recomputation of your primary
insurance amount; or
(3) Permit you to establish a period of disability.
20 CFR 404.144 How we credit self-employment income to calendar years
for taxable years beginning after 1977.
In crediting quarters of coverage under 404.143(a), we credit
self-employment income you derived during a taxable year that begins
after 1977 to calendar years as follows:
(a) If your taxable year is a calendar year or begins and ends within
the same calendar year, we credit your self-employment income to that
calendar year.
(b) If your taxable year begins in one calendar year and ends in the
following calendar year, we allocate proportionately your
self-employment income to the two calendar years on the basis of the
number of months in each calendar year which are included completely
within your taxable year. We consider the calendar month in which your
taxable year ends as included completely within your taxable year.
Example. For the taxable year beginning May 15, 1978, and ending May
14, 1979, your self-employment income is $1200. We credit 7/12 ($700)
of your self-employment income to calendar year 1978 and 5/12 ($500) of
your self-employment income to calendar year 1979.
20 CFR 404.145 When you acquire a quarter of coverage.
If we credit you with a quarter of coverage (QC) for a calendar
quarter under paragraph (b), (c), or (d) of 404.141 for calendar years
before 1978 or assign it to a specific calendar quarter under paragraph
(b) of 404.143 for calendar years after 1977, you acquire the QC as of
the first day of the calendar quarter.
20 CFR 404.146 When a calendar quarter cannot be a quarter of coverage.
This section applies when we credit you with quarters of coverage
(QCs) under 404.141 for calendar years before 1978 and under 404.143
for calendar years after 1977. We cannot credit you with a QC for --
(a) A calendar quarter that has not begun;
(b) A calendar quarter that begins after the quarter of your death;
(c) A calendar quarter that has already been counted as a QC; or
(d) A calendar quarter that is included in a period of disability
established for you, unless --
(1) The quarter is the first or the last quarter of this period; or
(2) The period of disability is not taken into consideration (see
404.320(a)).
20 CFR 404.146 Pt. 404, Subpt. B, App.
20 CFR 404.146 Appendix to Subpart B of Part 404 -- Quarter of Coverage
Amounts for Calendar Years After 1978
This appendix shows the amount determined by the Secretary that is
needed for a quarter of coverage for each year after 1978 as explained
in 404.143. We publish the amount as a Notice in the Federal Register
on or before November 1 of the preceding year. The amounts determined
by the Secretary are as follows:
(45 FR 25384, Apr. 15, 1980, as amended at 52 FR 8247, Mar. 17, 1987;
57 FR 44096, Sept 24, 1992)
20 CFR 404.146 Subpart C -- Computing Primary Insurance Amounts
20 CFR 404.146 General
Authority: Secs. 202(a), 205(a), 215, and 1102 of the Social
Security Act; 42 U.S.C. 402(a), 405(a), 415 and 1302.
Source: 47 FR 30734, July 15, 1982, unless otherwise noted.
20 CFR 404.201 Introduction.
In this subpart we describe how we compute your primary insurance
amount, which is the first step in finding your monthly social security
benefit amount. Your primary insurance amount is the basic figure we
use in finding the monthly benefit actually payable to you and to
members of your family. For example, if you retire at age 65 or become
disabled, your monthly benefit is equal to your primary insurance
amount. In other situations, your benefit does not equal your primary
insurance amount. For example, if you become entitled to old-age
benefits before you reach age 65, your benefit is less than your primary
insurance amount, as described in 404.410 through 404.413. Benefits
payable to members of your family are a specified percentage of your
primary insurance amount. (See subpart D.) We explain how we
automatically increase your primary insurance amount to keep it up to
date with rises in the cost of living. We also explain how and when we
recompute your primary insurance amount and how and when we recalculate
your primary insurance amount. We have organized this subpart as
follows:
(a) In 404.210 through 404.212, we describe the
average-indexed-monthly-earnings method we use for computing primary
insurance amounts of workers who after 1978 reach age 62, or become
disabled or die before age 62;
(b) In 404.220 through 404.222, we describe the
average-monthly-wage method we use for computing primary insurance
amounts of workers who reach age 62, become disabled, or die before
1979;
(c) In 404.230 through 404.233, we describe the guaranteed
alternative method of computing primary insurance amounts that applies
to people who reach age 62 after 1978 but before 1984;
(d) In 404.240 through 404.242, we describe a method of computing
primary insurance amounts (called the old-start method) for people who
had all or substantially all their social security earnings before 1951;
(e) In 404.250 through 404.252, we describe special rules we apply
in computing primary insurance amounts of people who had a period of
disability at some time in their lives;
(f) In 404.260 through 404.261, we describe how we compute the
special minimum primary insurance amount for long-term, low-paid
workers;
(g) In 404.270 through 404.277, we describe how we automatically
adjust primary insurance amounts to take account of rises in the cost of
living;
(h) In 404.280 through 404.287, we describe how and when we
recompute primary insurance amounts to take into account additional
earnings;
(i) In 404.290, we describe how and when we recalculate primary
insurance amounts; and
(j) Appendices I-VI contain material such as figures and formulas
that we use in finding a primary insurance amount under various
circumstances.
20 CFR 404.202 Other regulations related to this subpart.
This subpart is related to several others. In subpart B of this
part, we describe how you become insured for social security benefits as
a result of your work in covered employment. In subpart D, we discuss
the different kinds of social security benefits available -- old-age and
disability benefits for you and benefits for your dependents and
survivors -- the amount of the benefits, and the requirements you and
your family must meet to qualify for them; your work status, your age,
the size of your family, and other factors may affect the amount of the
benefits for you and your family. Rules relating to deductions,
reductions, and nonpayment of benefits we describe in subpart E. In
subpart F of this part, we describe what we do when a recalculation or
recomputation of your primary insurance amount (as described in this
subpart) results in our finding that you and your family have been
overpaid or underpaid. In subparts G and H of this part, we tell how to
apply for benefits and what evidence is needed to establish entitlement
to them. In subpart J of this part, we describe how benefits are paid.
Then in subparts I, K, N, and O of this part, we discuss your earnings
that are taxable and creditable for social security purposes (and how we
keep records of them), and deemed military wage credits which may be
used in finding your primary insurance amount.
20 CFR 404.203 Definitions.
(a) General definitions. As used in this subpart --
Ad hoc increase in primary insurance amounts means an increase in
primary insurance amounts enacted by the Congress and signed into law by
the President.
Entitled means that a person has applied for benefits and has proven
his or her right to them for a given period of time.
We, us, or our means the Social Security Administration or the
Department of Health and Human Services.
You or your means the insured worker who has applied for benefits or
a deceased insured worker on whose social security earnings record
someone else has applied.
(b) Other definitions. To make it easier to find them, we have
placed other definitions in the sections of this subpart in which they
are used.
20 CFR 404.204 Methods of computing primary insurance amounts --
general.
(a) General. We compute most workers' primary insurance amounts
under one of two major methods. There are, in addition, several special
methods of computing primary insurance amounts which we apply to some
workers. Your primary insurance amount is the highest of all those
computed under the methods for which you are eligible.
(b) Major methods. (1) If after 1978 you reach age 62, or become
disabled or die before age 62, we compute your primary insurance amount
under what we call the average-indexed-monthly-earnings method, which is
described in 404.210 through 404.212. The earliest of the three dates
determines the computation method we use.
(2) If before 1979 you reached age 62, became disabled, or died, we
compute your primary insurance amount under what we call the
average-monthly-wage method, described in 404.220 through 404.222.
(c) Special methods. (1) Your primary insurance amount, computed
under any of the special methods for which you are eligible as described
in this paragraph, may be substituted for your primary insurance amount
computed under either major method described in paragraph (b) of this
section.
(2) If you reach age 62 during the period 1979-1983, your primary
insurance amount is guaranteed to be the highest of --
(i) The primary insurance amount we compute for you under the
average-indexed-monthly-earnings method;
(ii) The primary insurance amount we compute for you under the
average-monthly-wage method, as modified by the rules described in
404.230 through 404.233; or
(iii) The primary insurance amount computed under what we call the
old-start method; as described in 404.240 through 404.242.
(3) If you had all or substantially all of your social security
earnings before 1951, we will also compute your primary insurance amount
under what we call the old-start method.
(4) We compute your primary insurance amount under the rules in
404.250 through 404.252, if --
(i) You were disabled and received social security disability
insurance benefits sometime in your life;
(ii) Your disability insurance benefits were terminated because of
your recovery or because you engaged in substantial gainful activity;
and
(iii) You are, after 1978, re-entitled to disability insurance
benefits, or entitled to old-age insurance benefits, or have died.
(5) In some situations, we use what we call a special minimum
computation, described in 404.260 through 404.261, to find your
primary insurance amount. Computations under this method reflect
long-term, low-wage attachment to covered work.
20 CFR 404.204 Average-Indexed-Monthly Earnings Method of Computing Primary Insurance Amounts
20 CFR 404.210 Average-indexed-monthly-earnings method.
(a) Who is eligible for this method. If after 1978, you reach age
62, or become disabled or die before age 62, we will compute your
primary insurance amount under the average-indexed-monthly-earnings
method.
(b) Steps in computing your primary insurance amount under the
average-indexed-monthly-earnings method. We follow these three major
steps in computing your primary insurance amount:
(1) First, we find your average indexed monthly earnings, as
described in 404.211;
(2) Second, we find the benefit formula in effect for the year you
reach age 62, or become disabled or die before age 62, as described in
404.212; and
(3) Then, we apply that benefit formula to your average indexed
monthly earnings to find your primary insurance amount, as described in
404.212.
(4) Next, we apply any automatic cost-of-living or ad hoc increases
in primary insurance amounts that became effective in or after the year
you reached age 62, unless you are receiving benefits based on the
minimum primary insurance amount, in which case not all the increases
may be applied, as described in 404.277.
20 CFR 404.211 Computing your average indexed monthly earnings.
(a) General. In this method, your social security earnings after
1950 are indexed, as described in paragraph (d) of this section, then
averaged over the period of time you can reasonably have been expected
to have worked in employment or self-employment covered by social
security. (Your earnings before 1951 are not used in finding your
average indexed monthly earnings.)
(b) Which earnings may be used in computing your average indexed
monthly earnings -- (1) Earnings. In computing your average indexed
monthly earnings, we use wages, compensation, self-employment income,
and deemed military wage credits (see 404.1340 through 404.1343) that
are creditable to you for social security purposes for years after 1950.
(2) Computation base years. We use your earnings in your computation
base years in finding your average indexed monthly earnings. All years
after 1950 up to (but not including) the year you become entitled to
old-age or disability insurance benefits, and through the year you die
if you had not been entitled to old-age or disability benefits, are
computation base years for you. The year you become entitled to
benefits and following years may be used as computation base years in a
recomputation if their use would result in a higher primary insurance
amount. (See 404.280 through 404.287.) However, years after the year
you die may not be used as computation base years even if you have
earnings credited to you in those years. Computation base years do not
include years wholly within a period of disability unless your primary
insurance amount would be higher by using the disability years. In such
situations, we count all the years during the period of disability, even
if you had no earnings in some of them.
(c) Average of the total wages. Before we compute your average
indexed monthly earnings, we must first know the ''average of the total
wages'' of all workers for each year from 1951 until the second year
before you become eligible. The average of the total wages for years
after 1950 are shown in appendix I. Corresponding figures for more
recent years which have not yet been incorporated into this appendix are
published in the Federal Register on or before November 1 of the
succeeding year. ''Average of the total wages'' (or ''average wage'')
means:
(1) For the years 1951 through 1977, four times the amount of average
taxable wages that were reported to the Social Security Administration
for the first calendar quarter of each year for social security tax
purposes. For years prior to 1973, these average wages were determined
from a sampling of these reports.
(2) For the years 1978 through 1990, all remuneration reported as
wages on Form W-2 to the Internal Revenue Service for all employees for
income tax purposes, divided by the number of wage earners. We adjusted
those averages to make them comparable to the averages for 1951-1977.
For years after 1977, the term includes remuneration for services not
covered by social security and remuneration for covered employment in
excess of that which is subject to FICA contributions.
(3) For years after 1990, all remuneration reported as wages on Form
W-2 to the Internal Revenue Service for all employees for income tax
purposes, including remuneration described in paragraph (c)(2) of this
section, plus contributions to certain deferred compensation plans
described in section 209(k) of the Social Security Act (also reported on
Form W-2), divided by the number of wage earners. If both distributions
from and contributions to any such deferred compensation plan are
reported on Form W-2, we will include only the contributions in the
calculation of the average of the total wages. We will adjust those
averages to make them comparable to the averages for 1951-1990.
(d) Indexing your earnings. (1) The first step in indexing your
social security earnings is to find the relationship (under paragraph
(d)(2) of this section) between --
(i) The average wage of all workers in your computation base years;
and
(ii) The average wage of all workers in your indexing year. As a
general rule, your indexing year is the second year before the earliest
of the year you reach age 62, or become disabled or die before age 62.
However, your indexing year is determined under paragraph (d)(4) of this
section if you die before age 62, your surviving spouse or surviving
divorced spouse is first eligible for benefits after 1984, and the
indexing year explained in paragraph (d)(4) results in a higher
widow(er)'s benefit than results from determining the indexing year
under the general rule.
(2) To find the relationship, we divide the average wages for your
indexing year, in turn, by the average wages for each year beginning
with 1951 and ending with your indexing year. We use the quotients
found in these divisions to index your earnings as described in
paragraph (d)(3) of this section.
(3) The second step in indexing your social security earnings is to
multiply the actual year-by-year dollar amounts of your earnings (up to
the maximum amounts creditable, as explained in 404.1047 and 404.1096
of this part) by the quotients found in paragraph (d)(2) of this section
for each of those years. We round the results to the nearer penny.
(The quotient for your indexing year is 1.0; this means that your
earnings in that year are used in their actual dollar amount; any
earnings after your indexing year that may be used in computing your
average indexed monthly earnings are also used in their actual dollar
amount.)
Example. Ms. A reaches age 62 in July 1979. Her year-by-year social
security earnings since 1950 are as follows:
20 CFR 404.211 Step 1
The first step in indexing Ms. A's earnings is to find the
relationship between the general wage level in Ms. A's indexing year
(1977) and the general wage level in each of the years 1951-1976. We
refer to appendix I for average wage figures, and perform the following
computations:
20 CFR 404.211 Step 2
After we have found these indexing quotients, we multiply Ms. A's
actual year-by-year earnings by them to find her indexed earnings, as
shown below:
(4) We calculate your indexing year under this paragraph if you, the
insured worker, die before reaching age 62, your surviving spouse or
surviving divorced spouse is first eligible after 1984, and the indexing
year calculated under this paragraph results in a higher widow(er)'s
benefit than results from the indexing year calculated under the general
rule explained in paragraph (d)(1)(ii). For purposes of this paragraph,
the indexing year is never earlier than the second year before the year
of your death. Except for this limitation, the indexing year is the
earlier of --
(i) The year in which you, the insured worker, attained age 60, or
would have attained age 60 if you had lived, and
(ii) The second year before the year in which the surviving spouse or
the surviving divorced spouse becomes eligible for widow(er)'s benefits,
i.e. has attained age 60, or is age 50-59 and disabled.
(e) Number of years to be considered in finding your average indexed
monthly earnings. To find the number of years to be used in computing
your average indexed monthly earnings --
(1) We count the years beginning with 1951, or (if later) the year
you reach age 22, and ending with the earliest of the year before you
reach age 62, become disabled, or die. Years wholly or partially within
a period of disability (as defined in 404.1501(b) of subpart P of this
part) are not counted unless your primary insurance amount would be
higher. In that case, we count all the years during the period of
disability, even though you had no earnings in some of those years.
These are your elapsed years. From your elapsed years, we then subtract
up to 5 years, the exact number depending on the kind of benefits to
which you are entitled. You cannot, under this procedure, have fewer
than 2 benefit computation years.
(2) For computing old-age insurance benefits and survivors insurance
benefits, we subtract 5 from the number of your elapsed years. See
paragraphs (e) (3) and (4) of this section for the dropout as applied to
disability benefits. This is the number of your benefit computation
years; we use the same number of your computation base years (see
paragraph (b)(2) of this section) in computing your average indexed
monthly earnings. For benefit computation years, we use the years with
the highest amounts of earnings after indexing. They may include
earnings from years that were not indexed, and must include years of no
earnings if you do not have sufficient years with earnings. You cannot
have fewer than 2 benefit computation years.
(3) Where the worker is first entitled to disability insurance
benefits (DIB) after June 1980, there is an exception to the usual 5
year dropout provision explained in paragraph (e)(2) of this section.
(For entitlement before July 1980, we use the usual dropout.) We call
this exception the disability dropout. We divide the elapsed years by 5
and disregard any fraction. The result, which may not exceed 5, is the
number of dropout years. We subtract that number from the number of
elapsed years to get the number of benefit computation years, which may
not be fewer than 2. After the worker dies, the disability dropout no
longer applies and we use the basic 5 dropout years to compute benefits
for survivors. We continue to apply the disability dropout when a
person becomes entitled to old-age insurance benefits (OAIB), unless his
or her entitlement to DIB ended at least 12 months before he or she
became eligible for OAIB. For first DIB entitlement before July 1980,
we use the rule in paragraph (e)(2) of this section.
(4) For benefits payable after June 1981, the disability dropout
might be increased by the child care dropout. If the number of
disability dropout years is fewer than 3, we will drop out a benefit
computation year for each benefit computation year that the worker meets
the child care requirement and had no earnings, until the total of all
dropout years is 3. The child care requirement for any year is that the
worker must have been living with his or her child (or his or her
spouse's child) substantially throughout any part of any calendar year
that the child was alive and under age 3. In actual practice, no more
than 2 child care years may be dropped, because of the combined effect
of the number of elapsed years, 1-for-5 dropout years (if any), and the
computation years required for the computation.
Example. Ms. M., born August 4, 1953, became entitled to disability
insurance benefits (DIB) beginning in July 1980 based on a disability
which began January 15, 1980. In computing the DIB, we determined that
the elapsed years are 1975 through 1979, the number of dropout years is
1 (5 elapsed years divided by 5), and the number of computation years is
4. Since Ms. M. had no earnings in 1975 and 1976, we drop out 1975 and
use her earnings for the years 1977 through 1979.
Ms. M. lived with her child, who was born in 1972, in all months of
1973 and 1974 and did not have any earnings in those years. We,
therefore, recompute Ms. M.'s DIB beginning with July 1981 to give her
the advantage of the child care dropout. To do this, we reduce the 4
computation years by 1 child care year to get 3 computation years.
Because the child care dropout cannot be applied to computation years in
which the worker had earnings, we can drop only one of Ms. M.'s
computation years, i.e., 1976, in addition to the year 1975 which we
dropped in the initial computation.
(i) Living with means that you and the child ordinarily live in the
same home and you exercise, or have the right to exercise, parental
control. See 404.366(c) for a further explanation.
(ii) Substantially throughout any part of any calendar year means
that any period you were not living with the child during a calendar
year did not exceed 3 months. If the child was either born or attained
age 3 during the calendar year, the period of absence in the year cannot
have exceeded the smaller period of 3 months, or one-half the time after
the child's birth or before the child attained age 3.
(iii) Earnings means wages for services rendered and net earnings
from self-employment minus any net loss for a taxable year. See
404.429 for a further explanation.
(f) Your average indexed monthly earnings. After we have indexed
your earnings and found your benefit computation years, we compute your
average indexed monthly earnings by --
(1) Totalling your indexed earnings in your benefit computation
years;
(2) Dividing the total by the number of months in your benefit
computation years; and
(3) Rounding the quotient to the next lower whole dollar. if not
already a multiple of $1.
Example. From the example in paragraph (d) of this section, we see
that Ms. A reaches age 62 in 1979. Her elapsed years are 1951-1978 (28
years). We subtract 5 from her 28 elapsed years to find that we must
use 23 benefit computation years. This means that we will use her 23
highest computation base years to find her average indexed monthly
earnings. We exclude the 5 years 1961-1965 and total her indexed
earnings for the remaining years, i.e., the benefit computation years
(including her unindexed earnings in 1977 and 1978) and get $249,381.41.
We then divide that amount by the 276 months in her 23 benefit
computation years and find her average indexed monthly earnings to be
$903.56, which is rounded down to $903.
(47 FR 30734, July 15, 1982; 47 FR 35479, Aug. 13, 1982, as amended
at 48 FR 11695, Mar. 21, 1983; 51 FR 4482, Feb. 5, 1986; 57 FR 1381,
Jan. 14, 1992)
20 CFR 404.212 Computing your primary insurance amount from your
average indexed monthly earnings.
(a) General. We compute your primary insurance amount under the
average-indexed-monthly-earnings method by applying a benefit formula to
your average indexed monthly earnings.
(b) Benefit formula. (1) We use the applicable benefit formula in
appendix II for the year you reach age 62, become disabled, or die
whichever occurs first. If you die before age 62, and your surviving
spouse or surviving divorced spouse is first eligible after 1984, we may
compute the primary insurance amount, for the purpose of paying benefits
to your widow(er), as if you had not died but reached age 62 in the
second year after the indexing year that we computed under the
provisions of 404.211(d)(4). We will not use this primary insurance
amount for computing benefit amounts for your other survivors or for
computing the maximum family benefits payable on your earnings record.
Further, we will only use this primary insurance amount if it results in
a higher widow(er)'s benefit than would result if we did not use this
special computation.
(2) The dollar amounts in the benefit formula are automatically
increased each year for persons who attain age 62, or who become
disabled or die before age 62 in that year, by the same percentage as
the increase in the average of the total wages (see appendix I).
(3) We will publish benefit formulas for years after 1979 in the
Federal Register at the same time we publish the average of the total
wage figures. We begin to use a new benefit formula as soon as it is
applicable, even before we periodically update appendix II.
(4) We may use a modified formula, as explained in 404.213, if you
are entitled to a pension based on your employment which was not covered
by Social Security.
(c) Computing your primary insurance amount from the benefit formula.
We compute your primary insurance amount by applying the benefit
formula to your average indexed monthly earnings and adding the results
for each step of the formula. For computations using the benefit
formulas in effect for 1979 through 1982, we round the total amount to
the next higher multiple of $0.10 if it is not a multiple of $0.10 and
for computations using the benefit formulas effective for 1983 and later
years, we round to the next lower multiple of $0.10. (See paragraph (e)
of this section for a discussion of the minimum primary insurance
amount.)
(d) Adjustment of your primary insurance amount when entitlement to
benefits occurs in a year after attainment of age 62, disability or
death. If you (or your survivors) do not become entitled to benefits in
the same year you reach age 62, become disabled, or die before age 62,
we compute your primary insurance amount by --
(1) Computing your average indexed monthly earnings as described in
404.211;
(2) Applying to your average indexed monthly earnings the benefit
formula for the year in which you reach age 62, or become disabled or
die before age 62; and
(3) Applying to the primary insurance amount all automatic
cost-of-living and ad hoc increases in primary insurance amounts that
have gone into effect in or after the year you reached age 62, became
disabled, or died before age 62. (See 404.277 for special rules on
minimum benefits, and appendix VI for a table of percentage increases in
primary insurance amounts since December 1978. Increases in primary
insurance amounts are published in the Federal Register and we
periodically update appendix VI.)
(e) Minimum primary insurance amount. If you were eligible for
benefits, or died without having been eligible, before 1982, your
primary insurance amount computed under this method cannot be less than
$122. This minimum benefit provision has been repealed effective with
January 1982 for most workers and their families where the worker
initially becomes eligible for benefits in that or a later month, or
dies in January 1982 or a later month without having been eligible
before January 1982. For members of a religious order who are required
to take a vow of poverty, as explained in 20 CFR 404.1024, and which
religious order elected Social Security coverage before December 29,
1981, the repeal is effective with January 1992 based on first
eligibility or death in that month or later.
(47 FR 30734, July 15, 1982, as amended at 48 FR 46142, Oct. 11,
1983; 51 FR 4482, Feb. 5, 1986; 52 FR 47916, Dec. 17, 1987)
20 CFR 404.213 Computation where you are eligible for a pension based
on your noncovered employment.
(a) When applicable. Except as provided in paragraph (d) of this
section, we will modify the formula prescribed in 404.212 and in
appendix II of this subpart in the following situations:
(1) You become eligible for old-age insurance benefits after 1985;
or
(2) You become eligible for disability insurance benefits after 1985;
and
(3) For the same months after 1985 that you are entitled to old-age
or disability benefits, you are also entitled to a monthly pension(s)
for which you first became eligible after 1985 based in whole or part on
your earnings in employment which was not covered under Social Security.
(Noncovered employment includes employment outside the United States
which is not covered under the United States Social Security system.
Pensions from noncovered employment outside the United States include
both pensions from social insurance systems that base benefits on
earnings but not on residence or citizenship, and those from private
employers. However, no reduction resulting from entitlement to a pension
based on employment covered by a totalization agreement (see 404.1908
and 404.1918) will be made in the computation of a totalized benefit.)
(b) Amount of your monthly pension that we use. For purposes of
computing your primary insurance amount, we consider the amount of your
monthly pension(s) (or the amount prorated on a monthly basis) which is
attributable to your noncovered work after 1956 that you are entitled to
for the first month in which you are concurrently entitled to Social
Security benefits. For applications filed before December 1988, we will
use the month of earliest concurrent eligibility. In determining the
amount of your monthly pension we will use, we will consider the
following:
(1) If your pension is not paid on a monthly basis or is paid in a
lump-sum, we will allocate it proportionately as if it were paid
monthly. We will allocate this the same way we allocate lump-sum
payments for a spouse or surviving spouse whose benefits are reduced
because of entitlement to a Government pension. (See 404.408a.)
(2) If your monthly pension is reduced to provide a survivor's
benefit, we will use the unreduced amount.
(3) If the monthly pension amount which we will use in computing your
primary insurance amount is not a multiple of $0.10, we will round it to
the next lower multiple of $0.10.
(c) How we compute your primary insurance amount. When you become
entitled to old-age or disability insurance benefits and to a monthly
pension, we will compute your primary insurance amount under the
average-indexed-monthly-earnings method ( 404.212) as modified by
paragraph (c)(1) and (2) of this section. Where applicable, we will
also consider the 1977 simplified old-start method ( 404.241) as
modified by 404.243 and a special minimum primary insurance amount as
explained in 404.260 and 404.261. We will use the highest result from
these three methods as your primary insurance amount. We compute under
the average-indexed-monthly-earnings method, and use the higher primary
insurance amount resulting from the application of paragraphs (c) (1)
and (2) of this section, as follows:
(1) The formula in appendix II, except that instead of the first
percentage figure (i.e., 90 percent), we use --
(i) 80 percent if you initially become eligible for old-age or
disability insurance benefits in 1986;
(ii) 70 percent for initial eligibility in 1987;
(iii) 60 percent for initial eligibility in 1988;
(iv) 50 percent for initial eligibility in 1989;
(v) 40 percent for initial eligibility in 1990 and later years, or
(2) The formula in appendix II minus one-half the portion of your
monthly pension which is due to noncovered work after 1956 and for which
you were entitled in the first month you were entitled to both Social
Security benefits and the monthly pension. If the monthly pension
amount is not a multiple of $0.10, we will round to the next lower
multiple of $0.10. To determine the portion of your pension which is due
to noncovered work after 1956, we consider the total number of years of
work used to compute your pension and the percentage of those years
which are after 1956, and in which your employment was not covered. We
take that percentage of your total pension as the amount which is due to
your noncovered work after 1956.
(d) Alternate computation. (1) If you have more than 20 but less
than 30 years of coverage as defined in the column headed ''Alternate
Computation Under 404.213(d)'' in appendix IV of this subpart, we will
compute your primary insurance amount using the applicable percentage
given below instead of the first percentage in appendix II of this
subpart if the applicable percentage below is larger than the percentage
specified in paragraph (c) of this section:
(i) For benefits payable for months before January 1989 --
(ii) For benefits payable for months after December 1988 --
(2) If you later earn additional year(s) of coverage, we will
recompute your primary insurance amount, effective with January of the
following year.
(e) Exceptions. The computations in paragraph (c) of this section do
not apply in the following situations:
(1) Payments made under the Railroad Retirement Act are not
considered to be a pension from noncovered employment for the purposes
of this section. See subpart O of this part for a discussion of
railroad retirement benefits.
(2) You were entitled before 1986 to disability insurance benefits in
any of the 12 months before you reach age 62 or again become disabled.
(See 404.251 for the appropriate computation.)
(3) You were a Federal employee performing service on January 1, 1984
to which Social Security coverage was extended on that date solely by
reason of the amendments made by section 101 of the Social Security
Amendments of 1983.
(4) You were an employee of a nonprofit organization who was exempt
from Social Security coverage on December 31, 1983 unless you were
previously covered under a waiver certificate which was terminated prior
to that date..
(5) You have 30 years of coverage as defined in the column headed
''Alternate Computation Under 404.213(d)'' in appendix IV of this
subpart.
(6) Your survivors are entitled to benefits on your record of
earnings. (After your death, we will recompute the primary insurance
amount to nullify the effect of any monthly pension, based in whole or
in part on noncovered employment, to which you had been entitled.)
(f) Entitlement to a totalization benefit and a pension based on
noncovered employment. If you are entitled to a totalization benefit
and to a pension based on noncovered employment that is not covered by a
totalization agreement, we count your coverage from a foreign country
with which the United States (U.S.) has a totalization agreement and
your U.S. coverage to determine if you meet the requirements for the
modified computation in paragraph (d) of this section or the exception
in paragraph (e)(5) of this section.
(1) Where the amount of your totalization benefit will be determined
using a computation method that does not consider foreign earnings (see
404.1918), we will find your total years of coverage by adding your --
(i) Years of coverage from the agreement country (quarters of
coverage credited under 404.1908 divided by four) and
(ii) Years of U.S. coverage as defined for the purpose of computing
the special minimum primary insurance amount under 404.261.
(2) Where the amount of your totalization benefit will be determined
using a computation method that does consider foreign earnings, we will
credit your foreign earnings to your U.S. earnings record and then find
your total years of coverage using the method described in 404.261.
(52 FR 47916, Dec. 17, 1987, as amended at 55 FR 21382, May 24, 1990;
57 FR 22429, May 28, 1992)
20 CFR 404.213 Average-Monthly-Wage Method of Computing Primary Insurance Amounts
20 CFR 404.220 Average-monthly-wage method.
(a) Who is eligible for this method. You must before 1979, reach age
62, become disabled or die to be eligible for us to compute your primary
insurance amount under the average-monthly-wage method. Also, as
explained in 404.230, if you reach age 62 after 1978 but before 1984,
you are eligible to have your primary insurance amount computed under a
modified average-monthly-wage method if it is to your advantage. Being
eligible for either the average-monthly-wage method or the modified
average-monthly-wage method does not preclude your eligibility under the
old-start method described in 404.240 through 404.242.
(b) Steps in computing your primary insurance amount under the
average-monthly-wage method. We follow these three major steps in
computing your primary insurance amount under the average-monthly-wage
method:
(1) First, we find your average monthly wage, as described in
404.221;
(2) Second, we look at the benefit table in appendix III; and
(3) Then we find your primary insurance amount in the benefit table,
as described in 404.222.
(4) Finally, we apply any automatic cost-of-living or ad hoc
increases that became effective in or after the year you reached age 62,
or became disabled, or died before age 62, as explained in 404.270
through 404.277.
20 CFR 404.221 Computing your average monthly wage.
(a) General. Under the average-monthly-wage method, your social
security earnings are averaged over the length of time you can
reasonably have been expected to have worked under social security after
1950 (or after you reached age 21, if later).
(b) Which of your earnings may be used in computing your average
monthly wage. (1) In computing your average monthly wage, we consider
all the wages, compensation, self-employment income, and deemed military
wage credits that are creditable to you for social security purposes.
(The maximum amounts creditable are explained in 404.1047 and 404.1096
of this part.)
(2) We use your earnings in your computation base years in computing
your average monthly wage. All years after 1950 up to (but not
including) the year you become entitled to old-age or disability
insurance benefits, or through the year you die if you had not been
entitled to old-age or disability benefits, are computation base years
for you. Years after the year you die may not be used as computation
base years even if you have earnings credited to you in them. However,
years beginning with the year you become entitled to benefits may be
used for benefits beginning with the following year if using them would
give you a higher primary insurance amount. Years wholly within a
period of disability are not computation base years unless your primary
insurance amount would be higher if they were. In such situations, we
count all the years during the period of disability, even if you had no
earnings in some of them.
(c) Number of years to be considered in computing your average
monthly wage. To find the number of years to be used in computing your
average monthly wage --
(1) We count the years beginning with 1951 or (if later) the year you
reached age 22 and ending with the year before you reached age 62, or
became disabled, or died before age 62. Any part of a year -- or years
-- in which you were disabled, as defined in 404.1505, is not counted
unless doing so would give you a higher average monthly wage. In that
case, we count all the years during the period of disability, even if
you had no earnings in some of those years. These are your elapsed
years. (If you are a male and you reached age 62 before 1975, see
paragraph (c)(2) of this section for the rules on finding your elapsed
years.)
(2) If you are a male and you reached age 62 in --
(i) 1972 or earlier, we count the years beginning with 1951 and
ending with the year before you reached age 65, or became disabled or
died before age 65 to find your elapsed years;
(ii) 1973, we count the years beginning with 1951 and ending with the
year before you reached age 64, or became disabled or died before age 64
to find your elapsed years; or
(iii) 1974, we count the years beginning with 1951 and ending with
the year before you reached age 63, became disabled, or died before age
63 to find your elapsed years.
(3) Then we subtract 5 from the number of your elapsed years. This
is the number of your benefit computation years; we use the same number
of your computation base years in computing your average monthly wage.
For benefit computation years, we use the years with the highest amounts
of earnings, but they may include years of no earnings. You cannot have
fewer than 2 benefit computation years.
(d) Your average monthly wage. After we find your benefit
computation years, we compute your average monthly wage by --
(1) Totalling your creditable earnings in your benefit computation
years;
(2) Dividing the total by the number of months in your benefit
computation years; and
(3) Rounding the quotient to the next lower whole dollar if not
already a multiple of $1.
Example. Mr. B reaches age 62 and becomes entitled to old-age
insurance benefits in August 1978. He had no social security earnings
before 1951 and his year-by-year social security earnings after 1950 are
as follows:
We first find Mr. B's elapsed years, which are the 27 years
1951-1977. We subtract 5 from his 27 elapsed years to find that we must
use 22 benefit computation years in computing his average monthly wage.
His computation base years are 1951-1977, which are the years after 1950
and prior to the year he became entitled. This means that we will use
his 22 computation base years with the highest earnings to compute his
average monthly wage. Thus, we exclude the years 1964-1967 and 1951.
We total his earnings in his benefit computation years and get
$132,700. We then divide that amount by the 264 months in his 22
benefit computation years and find his average monthly wage to be
$502.65, which is rounded down to $502.
(e) ''Deemed'' average monthly wage for certain deceased veterans of
World War II. Certain deceased veterans of World War II are ''deemed''
to have an average monthly wage of $160 (see 404.1340 through 404.1343
of this part) unless their actual average monthly wage, as found in the
method described in paragraphs (a) through (d) of this section is
higher.
20 CFR 404.222 Use of benefit table in finding your primary insurance
amount from your average monthly wage.
(a) General. We find your primary insurance amount under the
average-monthly-wage method in the benefit table in appendix III.
(b) Finding your primary insurance amount from benefit table. We
find your average monthly wage in column III of the table. Your primary
insurance amount appears on the same line in column IV (column II if you
are entitled to benefits for any of the 12 months preceding the
effective month in column IV). As explained in 404.212(e), there is a
minimum primary insurance amount of $122 payable for persons who became
eligible or died after 1978 and before January 1982. There is also an
alternative minimum of $121.80 (before the application of cost-of-living
increases) for members of this group whose benefits were computed from
the benefit table in effect in December 1978 on the basis of either the
old-start computation method in 404.240 through 404.242 or the
guaranteed alternative computation method explained in 404.230 through
404.233. However, as can be seen from the extended table in appendix
III, the lowest primary insurance amount under this method is now $1.70
for individuals for whom the minimum benefit has been repealed.
Example. In the example in 404.221(d), we computed Mr. B's average
monthly wage to be $502. We refer to the December 1978 benefit table in
appendix III. Then we find his average monthly wage in column III of
the table. Reading across, his primary insurance amount is on the same
line in column IV and is $390.50. A 9.9 percent automatic cost-of-living
benefit increase was effective for June 1979, increasing Mr. B's
primary insurance amount to $429.20, as explained in 404.270 through
404.277. Then, we increase the $429.20 by the 14.3 percent June 1980
cost-of-living benefit increase and get $490.60, and by the 11.2 percent
June 1981 increase to get $545.60.
(47 FR 30734, July 15, 1982, as amended at 48 FR 46142, Oct. 11,
1983)
20 CFR 404.222 Guaranteed Alternative for People Reaching Age 62 After 1978 but Before 1984
20 CFR 404.230 Guaranteed alternative.
(a) General. If you reach age 62 after 1978 but before 1984, we
compute your primary insurance amount under a modified
average-monthly-wage method as a guaranteed alternative to your primary
insurance amount computed under the average-indexed-monthly-earnings
method. We also compute your primary insurance amount under the
old-start method ( 404.240 through 404.242) and under the special rules
for a person who had a period of disability ( 404.250 through 404.252),
if you are eligible. In 404.231 through 404.233, we explain the
average-monthly-wage method as the alternative to the
average-indexed-monthly-earnings method.
(b) Restrictions. (1) To qualify for this guaranteed-alternative
computation, you must have some creditable earnings before 1979.
(2) You or your survivors do not qualify for a guaranteed-alternative
computation if you were eligible (you attained age 62, became disabled,
or died before age 62) for social security benefits based on your own
earnings at any time before 1979 unless --
(i) Those benefits were disability insurance benefits which were
terminated because you recovered from your disability or you engaged in
substantial gainful activity; and
(ii) You spent at least 12 months without being eligible for
disability benefits again.
(3) This guaranteed alternative method applies only to old-age
insurance benefits and to survivor benefits where the deceased worker
reached the month of his or her 62nd birthday after 1978 but before 1984
and died after reaching age 62.
20 CFR 404.231 Steps in computing your primary insurance amount under
the guaranteed alternative -- general.
If you reach age 62 after 1978 but before 1984, we follow three major
steps in finding your guaranteed alternative:
(a) First, we compute your average monthly wage, as described in
404.232;
(b) Second, we find the primary insurance amount that corresponds to
your average monthly wage in the benefit table in appendix III.
(c) Then we apply any automatic cost-of-living or ad hoc increases in
primary insurance amounts that have become effective in or after the
year you reached age 62.
20 CFR 404.232 Computing your average monthly wage under the guaranteed
alternative.
(a) General. With the exception described in paragraph (b) of this
section, we follow the rules in 404.221 to compute your average monthly
wage.
(b) Exception. We do not use any year after the year you reach age
61 as a computation base year in computing your average monthly wage for
purposes of the guaranteed alternative.
20 CFR 404.233 Adjustment of your guaranteed alternative when you
become entitled after age 62.
(a) If you do not become entitled to benefits at the time you reach
age 62, we adjust the guaranteed alternative computed for you under
404.232 as described in paragraph (b) of this section.
(b) To the primary insurance amount computed under the guaranteed
alternative, we apply any automatic cost-of-living or ad hoc increases
in primary insurance amounts that go into effect in the year you reach
age 62 and in years up through the year you become entitled to benefits.
(See appendix VI for a list of the percentage increases in primary
insurance amounts since December 1978.)
Mr. C reaches age 62 in January 1981 and becomes entitled to old-age
insurance benefits in April 1981. He had no social security earnings
before 1951 and his year-by-year social security earnings after 1950 are
as follows:
Mr. C's elapsed years are the 30 years 1951 through 1980. We
subtract 5 from his 30 elapsed years to find that we must use 25 benefit
computation years in computing his average monthly wage. His
computation base years are 1951 through 1980 which are years after 1950
up to the year he reached age 62. We will use his 25 computation base
years with the highest earnings to compute his average monthly wage.
Thus, we exclude the years 1951-1955. The year 1981 is not a base year
for this computation.
We total his earnings in his benefit computation years and get
$236,000. We then divide by the 300 months in his 25 benefit
computation years, and find his average monthly wage to be $786.66 which
is rounded down to $786.
The primary insurance amount in the benefit table in appendix III
that corresponds to Mr. C's average monthly wage is $521.70. The 9.9
percent and 14.3 percent cost of living increase for 1979 and 1980,
respectively, are not applicable because Mr. C reached age 62 in 1981.
The average indexed monthly earnings method described in 404.210
through 404.212 considers all of the earnings after 1950, including 1981
earnings which, in Mr. C's case cannot be used in the guaranteed
alternative method. Mr. C's primary insurance amount under the average
indexed earnings method is $548.40. Therefore, his benefit is based upon
the $548.40 primary insurance amount. As in the guaranteed alternative
method, Mr. C is not entitled to the cost of living increases for years
before the year he reaches age 62.
20 CFR 404.233 ''Old-Start'' Method of Computing Primary Insurance Amounts
20 CFR 404.240 Old-start method -- general.
If you had all or substantially all your social security earnings
before 1951, your primary insurance amount computed under the ''1977
simplified old-start'' method may be higher than any other primary
insurance amount computed for you under any other method for which you
are eligible. As explained in 404.242, if you reach age 62 after 1978,
your primary insurance amount computed under the old-start method is
used, for purposes of the guaranteed alternative described in 404.230,
if the old-start primary insurance amount is higher than the one found
under the average-monthly-wage method. We may use a modified
computation, as explained in 404.243, if you are entitled to a pension
based on your employment which was not covered by Social Security.
(47 FR 30734, July 15, 1982, as amended at 52 FR 47917, Dec. 17,
1987)
20 CFR 404.241 1977 simplified old-start method.
(a) Who is qualified.
To qualify for the old-start computation, you must meet the
conditions in paragraphs (a) (1), (2), or (3) of this section:
(1) You must --
(i) Have one ''quarter of coverage'' (see 404.101 and 404.110 of
this part) before 1951;
(ii) Have attained age 21 after 1936 and before 1950, or attained age
22 after 1950 and earned fewer than 6 quarters of coverage after 1950;
(iii) Have not had a period of disability which began before 1951,
unless it can be disregarded, as explained in 404.320 of this part;
and,
(iv) Have attained age 62, become disabled, or died, after 1977.
(2)(i) You or your survivor becomes entitled to benefits for June
1992 or later;
(ii) You do not meet the conditions in paragraph (a)(1) of this
section, and,
(iii) No person is entitled to benefits on your earnings record in
the month before the month you or your survivor becomes entitled to
benefits.
(3) A recomputation is first effective for June 1992 or later based
on your earnings for 1992 or later.
(b) Steps in old-start computation. (1) First, we allocate your
earnings during the period 1937-1950 as described in paragraph (c) of
this section.
(2) Next, we compute your average monthly wage, as described in
paragraph (d) of this section.
(3) Next, we apply the old-start formula to your average monthly
wage, as described in paragraph (e)(1) of this section.
(4) Next, we apply certain increments to the amount computed in step
(3), as described in paragraph (e)(2) of this section.
(5) Next, we find your primary insurance amount in the benefit table
in appendix III, as described in paragraph (f)(1) of this section.
(6) Then, we apply automatic cost-of-living or ad hoc increases in
primary insurance amounts to the primary insurance amount found in step
(5), as described in paragraph (f)(2) of this section.
(c) Finding your computation base years under the old-start method.
(1) Instead of using your actual year-by-year earnings before 1951, we
find your computation base years for 1937-1950 (and the amount of
earnings for each of them) by allocating your total 1937-1950 earnings
among the years before 1951 under the following procedure:
(i) If you reached age 21 before 1950 and your total 1937-1950
earnings are not more than $3,000 times the number of years after the
year you reached age 20 and before 1951 (a maximum of 14 years), we
allocate your earnings equally among those years, and those years are
your computation base years before 1951.
(ii) If you reached age 21 before 1950 and your total 1937-1950
earnings are more than $3,000 times the number of years after the year
you reached age 20 and before 1951, we allocate your earnings at the
rate of $3,000 per year for each year after you reached age 20 and
before 1951 up to a maximum of 14 years. We credit any remainder in
reverse order to years before age 21 in $3,000 increments and any amount
left over of less than $3,000 to the year before the earliest year to
which we credited $3,000. No more than $42,000 may be credited in this
way and to no more than 14 years. Those years are your computation base
years before 1951.
(iii) If you reached age 21 in 1950 or later and your total pre-1951
earnings are $3,000 or less, we credit the total to the year you reached
age 20 and that year is your pre-1951 computation base year.
(iv) If you reached age 21 in 1950 or later and your total pre-1951
earnings are more than $3,000, we credit $3,000 to the year you reached
age 20 and credit the remainder to earlier years (or year) in blocks of
$3,000 in reverse order. We credit any remainder of less than $3,000 to
the year before the earliest year to which we had credited $3,000. No
more than $42,000 may be credited in this way and to no more than 14
years. Those years are your computation base years before 1951.
(v) If you die before 1951, we allocate your 1937-1950 earnings under
paragraphs (c)(1) (i) through (iv), except that in determining the
number of years, we will use the year of death instead of 1951. If you
die before you attain age 21, the number of years in the period is equal
to 1.
(vi) For purposes of paragraphs (c)(1) (i) through (v), if you had a
period of disability which began before 1951, we will exclude the years
wholly within a period of disability in determining the number of years.
(2)(i) All years after 1950 up to (but not including) the year you
become entitled to old-age insurance or disability insurance benefits
(or through the year you die if you had not become entitled to old-age
or disability benefits) are also computation base years for you.
(ii) Years wholly within a period of disability are not computation
base years unless your primary insurance amount would be higher if they
were. In such situations, we count all the years during the period of
disability, even if you had no earnings in some of them.
Example. Ms. D reaches age 62 in June 1979. Her total 1937-1950
social security earnings are $40,000 and she had social security
earnings of $7,100 in 1976 and $6,300 in 1977. Since she reaches age 62
after 1978, we first compute her primary insurance amount under the
average-indexed-monthly-earnings method ( 404.210 through 404.212). As
of June 1981, it is $170.50, which is the minimum primary insurance
amount applicable, because her average indexed monthly earnings of $50
would yield only $56.50 under the benefit formula. Ms. D reached age 62
after 1978 but before 1984 and her guaranteed alternative under the
average-monthly-wage method as of June 1981 is $170.30, which is the
minimum primary insurance amount based on average monthly wages of $48.
(These amounts include the 9.9, the 14.3, and the 11.2 percent
cost-of-living increases effective June 1979, June 1980, and June 1981
respectively.)
Ms. D is also eligible for the old-start method. We first allocate
$3,000 of her 1937-1950 earnings to each of her 13 computation base
years starting with the year she reached age 21 (1938) and ending with
1950. The remaining $1,000 is credited to the year she reached age 20.
Ms. D, then, has 42 computation base years (14 before 1951 and 28 after
1950).
(d) Computing your average monthly wage under the old-start method.
(1) First, we count your elapsed years, which are the years beginning
with 1937 (or the year you reach 22, if later) and ending with the year
before you reach age 62, or become disabled or die before age 62. (See
404.211(e)(1) for the rule on how we treat years wholly or partially
within a period of disability.)
(2) Next, we subtract 5 from the number of your elapsed years, and
this is the number of computation years we must use. We then choose
this number of your computation base years in which you had the highest
earnings. These years are your benefit computation years. You must
have at least 2 benefit computation years.
(3) Then we compute your average monthly wage by dividing your total
creditable earnings in your benefit computation years by the number of
months in these years and rounding the quotient to the next lower dollar
if not already a multiple of $1.
(e) Old-start computation formula. We use the following formula to
compute your primary insurance benefit, which we will convert to your
primary insurance amount:
(1) We take 40 percent of the first $50 of your average monthly wage,
plus 10 percent of the next $200 of your average monthly wage up to a
total average monthly wage of $250. (We do not use more than $250 of
your average monthly wage.)
(2) We increase the amount found in paragraph (e)(1) of this section
by 1 percent for each $1,650 in your pre-1951 earnings, disregarding any
remainder less than $1,650. We always increase the amount by at least 4
of these 1 percent increments but may not increase it by more than 14 of
them.
(f) Finding your primary insurance amount under the old-start method.
(1) In column I of the benefit table in appendix III we locate the
amount (the primary insurance benefit) computed in paragraph (e) of this
section and find the corresponding primary insurance amount on the same
line in column IV of the table.
(2) We increase that amount by any automatic cost-of-living or ad hoc
increases in primary insurance amounts effective since the beginning of
the year in which you reached age 62, or became disabled or died before
age 62. (See 404.270 through 404.277.)
Example. From the example in paragraph (c)(2) of this section, we see
that Ms. D's elapsed years total 40 (number of years at ages 22 to 61,
both inclusive). Her benefit computation years, therefore, must total
35. Since she has only 16 years of actual earnings, we must include 19
years of zero earnings in this old-start computation to reach the
required 35 benefit computation years.
We next divide her total social security earnings ($53,400) by the
420 months in her benefit computation years and find her average monthly
wage to be $127.
We apply the old-start computation formula to Ms. D's average
monthly wage as follows: 40 percent of the first $50 of her average
monthly wage ($20.00), plus 10 percent of the remaining $77 of her
average monthly wage ($7.70), for a total of $27.70.
We then apply 14 1-percent increments to that amount, increasing it
by $3.88 to $31.58. We find $31.58 in column I of the December 1978
benefit table in appendix III and find her primary insurance amount of
$195.90 on the same line in column IV. We apply the 9.9 percent
automatic cost-of-living increase effective for June 1979 to $195.90 and
get an old-start primary insurance amount of $215.30 which we then
increase to $246.10 to reflect the 14.3 percent cost-of-living increase
effective for June 1980, and to $273.70 to reflect the June 1981
increase. Since that primary insurance amount is higher than the
$153.10 primary insurance amount computed under the average-monthly-wage
method and the $153.30 primary insurance amount computed under the
average-indexed-monthly-earnings method, we base Ms. D's benefits (and
those of her family) on $215.30 (plus later cost-of-living increases),
which is the highest primary insurance amount.
(47 FR 30734, July 15, 1982, as amended at 55 FR 21382, May 24, 1990;
57 FR 23157, June 2, 1992)
20 CFR 404.242 Use of old-start primary insurance amount as guaranteed
alternative.
If your primary insurance amount as computed under the old-start
method is higher than your primary insurance amount computed under the
average-monthly-wage method, your old-start primary insurance amount
will serve as the guaranteed alternative to your primary insurance
amount computed under the average-indexed-monthly-earnings method, as
described in 404.230. However, earnings that you have in or after the
year you reach age 62, or become disabled or die before age 62 are not
used in an old-start computation in this situation.
20 CFR 404.243 Computation where you are eligible for a pension based
on noncovered employment.
The provisions of 404.213 are applicable to computations under the
old-start method, except for paragraphs (c) (1) and (2) and (d) of that
section. Your primary insurance amount will be whichever of the
following two amounts is larger:
(a) One-half the primary insurance amount computed according to
404.241 (before application of the cost of living amount); or
(b) The primary insurance amount computed according to 404.241
(before application of the cost of living amount), minus one-half the
portion of your monthly pension which is due to noncovered work after
1956 and for which you were eligible in the first month you became
eligible for Social Security benefits. If the result is not a multiple
of $0.10, we will round to the next lower multiple of $0.10. (See
404.213 (b)(3) if you are not eligible for a monthly pension in the
first month you are entitled to Social Security benefits.) To determine
the portion of your pension which is due to noncovered work after 1956,
we consider the total number of years of work used to compute your
pension and the percentage of those years which are after 1956 and in
which your employment was not covered. We take that percentage of your
total pension as the amount which is due to your noncovered work after
1956.
(52 FR 47918, Dec. 17, 1987)
20 CFR 404.243 Special Computation Rules for People Who Had a Period of Disability
20 CFR 404.250 Special computation rules for people who had a period of
disability.
If you were disabled at some time in your life, received disability
insurance benefits, and those benefits were terminated because you
recovered from your disability or because you engaged in substantial
gainful activity, special rules apply in computing your primary
insurance amount when you become eligible after 1978 for old-age
insurance benefits or if you become re-entitled to disability insurance
benefits or die. (For purposes of 404.250 through 404.252, we use the
term second entitlement to refer to this situation.) There are two sets
of rules:
(a) Second entitlement within 12 months. If 12 months or fewer pass
between the last month for which you received a disability insurance
benefit and your second entitlement, see the rules in 404.251; and
(b) Second entitlement after more than 12 months. If more than 12
months pass between the last month for which you received a disability
insurance benefit and your second entitlement, see the rules in
404.252.
20 CFR 404.251 Subsequent entitlement to benefits within 12 months
after entitlement to disability benefits ended.
(a) Disability before 1979; second entitlement after 1978. In this
situation, we compute your second-entitlement primary insurance amount
by selecting the highest of the following:
(1) The primary insurance amount to which you were entitled when you
last received a benefit, increased by any automatic cost-of-living or ad
hoc increases in primary insurance amounts that took effect since then;
(2) The primary insurance amount resulting from a recomputation of
your primary insurance amount, if one is possible; or
(3) The primary insurance amount computed for you as of the time of
your second entitlement under any method for which you are qualified at
that time, including the average-indexed-monthly-earnings method if the
previous period of disability is disregarded.
(b) Disability and second entitlement after 1978. In this situation,
we compute your second-entitlement primary insurance amount by selecting
the highest of the following:
(1) The primary insurance amount to which you were entitled when you
last received a benefit, increased by any automatic cost-of-living or ad
hoc increases in primary insurance amount that took effect since then;
(2) The primary insurance amount resulting from a recomputation of
your primary insurance amount, if one is possible (this recomputation
may be under the average-indexed-monthly-earnings method only); or
(3) The primary insurance amount computed for you as of the time of
your second entitlement under any method (including an old-start method)
for which you are qualifed at that time.
(c) Disability before 1986; second entitlement after 1985. When
applying the rule in paragraph (b)(3) of this section, we must consider
your receipt of a monthly pension based on noncovered employment. (See
404.213). However, we will disregard your monthly pension if you were
previously entitled to disability benefits before 1986 and in any of the
12 months before your second entitlement.
(47 FR 30734, July 15, 1982, as amended at 52 FR 47918, Dec. 17,
1987)
20 CFR 404.252 Subsequent entitlement to benefits more than 12 months
after entitlement to disability benefits ended.
In this situation, we compute your second-entitlement primary
insurance amount by selecting the higher of the following:
(a) New primary insurance amount. The primary insurance amount
computed as of the time of your second entitlement under any of the
computation methods for which you qualify at the time of your second
entitlement; or
(b) Previous primary insurance amount. The primary insurance amount
to which you were entitled in the last month for which you were entitled
to a disability insurance benefit.
20 CFR 404.252 Special Minimum Primary Insurance Amounts
20 CFR 404.260 Special minimum primary insurance amounts.
Regardless of the method we use to compute your primary insurance
amount, if the special minimum primary insurance amount described in
404.261 is higher, then your benefits (and those of your dependents or
survivors) will be based on the special minimum primary insurance
amount. Special minimum primary insurance amounts are not based on a
worker's average earnings, as are primary insurance amounts computed
under other methods. Rather, the special minimum primary insurance
amount is designed to provide higher benefits to people who worked for
long periods in low-paid jobs covered by social security.
20 CFR 404.261 Computing your special minimum primary insurance amount.
(a) Years of coverage. (1) The first step in computing your special
minimum primary insurance amount is to find the number of your years of
coverage, which is the sum of --
(i) The quotient found by dividing your total creditable social
security earnings during the period 1937-1950 by $900, disregarding any
fractional remainder; plus
(ii) The number of your computation base years after 1950 in which
your social security earnings were at least the amounts shown in
appendix IV. (Computation base years mean the same here as in other
computation methods discussed in this subpart.)
(2) You must have at least 11 years of coverage to qualify for a
special minimum primary insurance amount computation. However, special
minimum primary insurance amounts based on little more than 10 years of
coverage are usually lower than the regular minimum benefit that was in
effect before 1982 (see 404.212(e) and 404.222(b) of this part). In
any situation where your primary insurance amount computed under another
method is higher, we use that higher amount.
(b) Computing your special minimum primary insurance amount. (1)
First, we subtract 10 from your years of coverage and multiply the
remainder (at least 1 and no more than 20) by $11.50;
(2) Then we increase the amount found in paragraph (b)(1) of this
section by any automatic cost-of-living or ad hoc increases that have
become effective since December 1978 to find your special minimum
primary insurance amount. See appendix V for the applicable table,
which includes the 9.9 percent cost-of-living increase that became
effective June 1979, the 14.3 percent increase that became effective
June 1980, and the 11.2 percent increase that became effective June
1981.
Example. Ms. F, who attained age 62 in January 1979, had $10,000 in
total social security earnings before 1951 and her post-1950 earnings
are as follows:
Her primary insurance amount under the
average-indexed-monthly-earnings method as of June 1981 is $240.40
(based on average indexed monthly earnings of $229). Her
guaranteed-alternative primary insurance amount under the
average-monthly-wage method as of June 1981 is $255.80 (based on average
monthly wages of $131).
However, Ms. F has enough earnings before 1951 to allow her 11 years
of coverage before 1951 ($10,000 $900=11, plus a remainder, which we
drop). She has sufficient earnings in 1951-52, 1954-56, 1958, 1960,
1962-63, 1969-71, 1973, and 1976-77 to have a year of coverage for each
of those years. She thus has 15 years of coverage after 1950 and a
total of 26 years of coverage. We subtract 10 from her years of
coverage, multiply the remainder (16) by $11.50 and get $184.00. We then
apply the June 1979, June 1980, and June 1981 automatic cost-of-living
increases (9.9 percent, 14.3 percent, and 11.2 percent, respectively) to
that amount to find her special minimum primary insurance amount of
$202.30 effective June 1979, $231.30 effective June 1980, and $257.30
effective June 1981. (See appendices V and VI.) Since her special
minimum primary insurance amount is higher than the primary insurance
amounts computed for her under the other methods described in this
subpart for which she is eligible, her benefits (and those of her
family) are based on the special minimum primary insurance amount.
(47 FR 30734, July 15, 1982, as amended at 48 FR 46143, Oct. 11,
1983)
20 CFR 404.261 Cost-of-Living Increases
20 CFR 404.270 Cost-of-living increases.
Your primary insurance amount may be automatically increased each
December so it keeps up with rises in the cost of living. These
automatic increases also apply to other benefit amounts, as described in
404.271.
(47 FR 30734, July 15, 1982, as amended at 51 FR 12603, Apr. 14,
1986)
20 CFR 404.271 When automatic cost-of-living increases apply.
Besides increases in the primary insurance amounts of current
beneficiaries, automatic cost-of-living increases also apply to --
(a) The benefits of certain uninsured people age 72 and older (see
404.380);
(b) The special minimum primary insurance amounts (described in
404.260 through 404.261) of current and future beneficiaries;
(c) The primary insurance amounts of people who after 1978 become
eligible for benefits or die before becoming eligible (beginning with
December of the year they become eligible or die), although certain
limitations are placed on the automatic adjustment of the frozen minimum
primary insurance amount (as described in 404.277); and
(d) The maximum family benefit amounts in column V of the benefit
table in appendix III.
(47 FR 30734, July 15, 1982, as amended at 51 FR 12603, Apr. 14,
1986)
20 CFR 404.272 Indexes we use to measure the rise in the
cost-of-living.
(a) The bases. To measure increases in the cost-of-living for annual
automatic increase purposes, we use either:
(1) The revised Consumer Price Index (CPI) for urban wage earners and
clerical workers as published by the Department of Labor, or
(2) The average wage index (AWI), which is the average of the annual
total wages that we use to index (i.e., update) a worker's past earnings
when we compute his or her primary insurance amount ( 404.211(c)).
(b) Effect of the OASDI fund ratio. Which of these indexes we use to
measure increases in the cost-of-living depends on the Old-Age,
Survivors, and Disability Insurance (OASDI) fund ratio.
(c) OASDI fund ratio for years after 1984. For purposes of
cost-of-living increases, the OASDI fund ratio is the ratio of the
combined assets in the Federal Old-Age and Survivors Insurance Trust
Fund and the Federal Disability Insurance Trust Fund (see section 201 of
the Social Security Act) on January 1 of a given year, to the estimated
expenditures from the Funds in the same year. The January 1 balance
consists of the assets (i.e., government bonds and cash) in the Federal
Old-Age and Survivors Insurance Trust Fund and the Federal Disability
Insurance Trust Fund, plus Federal Insurance Contributions Act (FICA)
and Self-Employment Contributions Act (SECA) taxes transferred to these
trust funds on January 1 of the given year, minus the outstanding
amounts (principal and interest) owed to the Federal Hospital Insurance
Trust Fund as a result of interfund loans. Estimated expenditures are
amounts we expect to pay from the Old-Age and Survivors Insurance and
the Disability Insurance Trust Funds during the year, including the net
amount that we pay into the Railroad Retirement Account, but excluding
principal repayments and interest payments to the Hospital Insurance
Trust Fund and transfer payments between the Old-Age and Survivors
Insurance and the Disability Insurance Trust Funds. The ratio as
calculated under this rule is rounded to the nearest 0.1 percent.
(d) Which index we use. We use the CPI if the OASDI fund ratio is
15.0 percent or more for any year from 1984 through 1988, and if the
ratio is 20.0 percent or more for any year after 1988. We use either
the CPI or the AWI, depending on which has the lower percentage increase
in the applicable measuring period (see 404.274), if the OASDI fund
ratio is less than 15.0 percent for any year from 1984 through 1988, and
if the ratio is less than 20.0 percent for any year after 1988. For
example, if the OASDI fund ratio for a year is 17.0 percent, the
cost-of-living increase effective December of that year will be based on
the CPI.
(51 FR 12603, Apr. 14, 1986)
20 CFR 404.273 When automatic cost-of-living increases are to be made.
We make automatic cost-of-living increases if the applicable index,
either the CPI or the AWI, rises by 3.0 percent or more over a specified
measuring period (see the rules in 404.274). If the cost-of-living
increase is to be based on an increase of 3.0 percent or more in the
CPI, the increase becomes effective in December of the year in which the
measuring period ends. If the increase is to be based on an increase of
3.0 percent or more in the AWI, the increase becomes effective in
December of the year after the year in which the measuring period ends.
(51 FR 12603, Apr. 14, 1986)
20 CFR 404.274 Measuring the increase in the indexes.
(a) General. Depending on the OASDI fund ratio, we measure the rise
in one index or in both indexes during the applicable measuring period
(described in paragraphs (b) and (c) of this section) to determine
whether there will be an automatic cost-of-living increase and if so,
its amount.
(b) Measuring period based on CPI. For the increase effective
December 1984 and later years, the measuring period we use for finding
the amount of the CPI increase --
(1) Begins with --
(i) Any calendar quarter in which an ad hoc benefit increase is
effective; or, if later,
(ii) The third calendar quarter of any year in which the last
automatic increase became effective; and
(2) Ends with the third calendar quarter of the following year, but
only if the CPI has increased by at least 3.0 percent (after rounding to
the nearest one-tenth of one percent) since the beginning of the
measuring period. (If the CPI increase is less than 3.0 percent, we
extend the measuring period to the third quarter of the next year, doing
so repeatedly until the 3.0 percent level is reached.) If this measuring
period ends in a year after the year in which an ad hoc increase was
enacted into law or took effect, there can be no cost-of-living increase
based on this measuring period, and we will apply the rule in paragraph
(d) of this section.
(c) Measuring period based on AWI. The measuring period we use for
finding the amount of the AWI increase --
(1) Begins with --
(i) The calendar year before the year in which an ad hoc benefit
increase is effective; or, if later,
(ii) The calendar year before the year in which the last automatic
increase became effective; and
(2) Ends with the following year, but only if the AWI has increased
by at least 3.0 percent (after rounding to the nearest one-tenth of one
percent) in that one-year period. (If the AWI increase is less than 3.0
percent, we extend the measuring period to the next year, doing so
repeatedly until the 3.0 percent level is reached.) If this measuring
period ends in a year in which an ad hoc increase was enacted into law
or took effect, there can be no cost-of-living increase based on this
measuring period, and we will apply the rule in paragraph (d) of this
section.
(d) When no automatic cost-of-living increase is possible. No
automatic cost-of-living increase is possible for the calendar year that
immediately follows a year in which an ad hoc increase was enacted into
law or took effect. The measuring period for the next automatic
cost-of-living increase --
(1) Where the measuring period is based on the CPI,
(i) Begins with the calendar quarter in which the ad hoc increase
took effect; and
(ii) Ends with the third calendar quarter of the next year in which
the CPI has risen by at least 3.0 percent if an ad hoc increase was not
enacted or effective in the preceding year. (If the CPI increase is
less than 3.0 percent, or an ad hoc increase was enacted or effective in
the prior year, we extend the end of the measuring period to the third
quarter of the following year, doing so repeatedly until the 3.0 percent
level is reached in a year which does not immediately follow an ad hoc
increase year.)
(2) Where the measuring period is based on the AWI,
(i) Begins with the calendar year before the year in which the ad hoc
increase took effect; and
(ii) Ends with the next calendar year in which the AWI has increased
by at least 3.0 percent and in which an ad hoc increase is not enacted
or effective. (If the AWI increase is less than 3.0 percent, we extend
the end of the measuring period to the following year, doing so
repeatedly until the 3.0 percent level is reached in a year in which an
ad hoc increase is not enacted or effective.)
(51 FR 12603, Apr. 21, 1986)
20 CFR 404.275 Amount of automatic cost-of-living increases.
(a) Based on CPI. When the average of the CPI for the three months
of the quarter ending the measuring period is at least 3.0 percent
higher than the average of the CPI for the three months of the quarter
in which the measuring period began, we compute an automatic
cost-of-living increase percentage to be effective beginning with
benefits payable for December of the year in which the measuring period
ended. To compute the average of the CPI, the three monthly CPI figures
(which are published to one decimal place) are added, the total is
divided by 3, and the result is rounded to the nearest 0.1. If the CPI
is the applicable index (see 404.272(d)), we apply the increase
(rounded to the nearest one-tenth of one percent) to the amounts
described in 404.271. We round the resulting amounts to the next lower
multiple of $0.10 if not already a multiple of $0.10.
(b) Based on AWI. When the AWI for the year which ends the measuring
period is at least 3.0 percent higher than the AWI for the year which
begins the measuring period and all the other conditions for an
AWI-based increase are met, that percent is the automatic cost-of-living
increase which is due beginning with benefits payable for December of
the year after the measuring period ended. If the AWI is the applicable
index (see 404.272(d)), we apply that percentage increase (rounded to
the nearest one-tenth of one percent) to the amounts described in
404.271. We round the resulting amounts to the next lower multiple of
$0.10 if not already a multiple of $0.10.
(c) Additional increase. See 404.278 for the additional increase
which might be possible.
(51 FR 12604, Apr. 21, 1986)
20 CFR 404.276 Publication of notice of increase.
When we determine that an automatic cost-of-living increase is due,
we publish in the Federal Register within 45 days of the end of the
measuring period used in finding the amount of the increase --
(a) The fact that an increase is due;
(b) The amount of the increase;
(c) The increased special minimum primary insurance amounts; and
(d) The range of increased maximum family benefits that corresponds
to the range of increased special minimum primary insurance amounts.
20 CFR 404.277 Automatic increases of ''frozen'' minimum primary
insurance amount.
(a) General. There are special rules for automatic cost-of-living
increases in the minimum primary insurance amount for people whose
primary insurance amount is computed under the
average-indexed-monthly-earnings method. The minimum primary insurance
amount is frozen, for people becoming eligible after 1978, and before
1982, at $122 (the least amount in the benefit table in effect in
December 1978, rounded to the next higher $1.00. See appendix III.). The
frozen minimum is subject to automatic cost-of-living increases only in
years in which you or your dependents or survivors are entitled to
benefits.
(b) Old-age insurance benefit based on frozen minimum primary
insurance amount. We apply automatic cost-of-living increases to your
minimum primary insurance amount beginning with the earliest of --
(1) December of the year you become entitled to benefits and get at
least a partial benefit; or
(2) December of the year you reach age 65 if you are entitled to
benefits at or before age 65, regardless of whether you get at least a
partial benefit; or
(3) December of the year you become entitled to benefits if that is
not until after you reach age 65.
(c) Survivor benefits based on minimum primary insurance amount
either before or after the worker's entitlement to old-age insurance
benefits. (1) We apply automatic cost-of-living increases to your
minimum primary insurance amount for purposes of adjusting the benefits
of your survivors --
(i) In June of any year in which your children, your surviving spouse
caring for your children, or your parents are entitled to survivors
benefits for at least one month; and
(ii) Beginning with June of the earlier of --
(A) The year your aged surviving spouse (as defined in 404.335 and
404.336) becomes entitled to benefits and gets at least a partial
benefit; or
(B) The year your surviving spouse is 65 or older and becomes
entitled to benefits.
(2) Automatic cost-of-living increases are not applied to your
minimum primary insurance amount in any year in which no survivor of
yours is entitled to benefits on your social security record.
(47 FR 30734, July 15, 1982, as amended at 48 FR 46143, Oct. 11,
1983; 51 FR 12604, Apr. 14, 1986)
20 CFR 404.278 Additional cost-of-living increase.
(a) General. In addition to the cost-of-living increase explained in
404.275 for a given year, we will further increase the amounts in
404.271 if --
(1) The OASDI fund ratio is more than 32.0 percent in the given year
in which a cost-of-living increase is due; and
(2) In any prior year, the cost-of-living increase was based on the
AWI as the lower of the CPI and AWI (or would have been based on the AWI
except that it was less than the required 3.0 percent increase).
(b) Measuring period for the additional increase -- (1) Beginning.
To compute the additional increase, we begin with --
(i) In the case of certain uninsured beneficiaries age 72 and older
(see 404.380), the first calendar year in which a cost-of-living
adjustment was based on the AWI rather than the CPI;
(ii) For all other individuals and for maximum benefits payable to a
family, the year in which the insured individual became eligible for
old-age or disability benefits to which he or she is currently entitled,
or died before becoming eligible.
(2) Ending. The end of the measuring period is the year before the
first year in which a cost-of-living increase is due based on the CPI
and in which the OASDI fund ratio is more than 32.0 percent.
(c) Compounded percentage benefit increase. To compute the
additional cost-of-living increase, we must first compute the compounded
percentage benefit increase (CPBI) for both the cost-of-living increases
that were actually paid during the measuring period and for the
increases that would have been paid if the CPI had been the basis for
all the increases.
(d) Computing the CPBI. The computation of the CPBI is as follows --
(1) Obtain the sum of (i) 1.000 and (ii) the actual cost-of-living
increase percentage (expressed as a decimal) for each year in the
measuring period;
(2) Multiply the resulting amount for the first year by that for the
second year, then multiply that product by the amount for the third
year, and continue until the last amount has been multiplied by the
product of the preceding amounts;
(3) Subtract 1 from the last product;
(4) Multiply the remaining product by 100. The result is what we
call the actual CPBI.
(5) Substitute the cost-of-living increase percentage(s) that would
have been used if the increase(s) had been based on the CPI (for some
years, this will be the percentage that was used), and do the same
computations as in paragraphs (d)(1) through (4) of this section. The
result is what we call the assumed CPBI.
(e) Computing the additional cost-of-living increase. To compute the
precentage increase, we --
(1) Subtract the actual CPBI from the assumed CPBI;
(2) Add 100 to the actual CPBI;
(3) Divide the answer from paragraph (e)(1) of this section by the
answer from paragraph (e)(2) of this section, multiply the quotient by
100, and round to the nearest 0.1. The result is the additional increase
percentage, which we apply to the appropriate amount described in
404.271 after that amount has been increased under 404.275 for a given
year. If that increased amount is not a multiple of $0.10, we will
decrease it to the next lower multiple of $0.10.
(f) Restrictions on paying an additional cost-of-living increase. We
will pay the additional increase to the extent necessary to bring the
benefits up to the level they would have been if they had been increased
based on the CPI. However, we will pay the additional increase only to
the extent payment will not cause the OASDI fund ratio to drop below
32.0 percent for the year after the year in which the increase is
effective.
(51 FR 12604, Apr. 21, 1986)
20 CFR 404.278 Recomputing Your Primary Insurance Amount
20 CFR 404.280 Recomputations.
At times after you or your survivors become entitled to benefits, we
will recompute your primary insurance amount. Usually we will recompute
only if doing so will increase your primary insurance amount. However,
we will also recompute your primary insurance amount if you first became
eligible for old-age or disability insurance benefits after 1985, and
later become entitled to a pension based on your noncovered employment,
as explained in 404.213. There is no limit on the number of times your
primary insurance amount may be recomputed, and we do most
recomputations automatically. In the following sections, we explain:
(a) Why a recomputation is made ( 404.281),
(b) When a recomputation takes effect ( 404.282),
(c) Methods of recomputing ( 404.283 and 404.284),
(d) Automatic recomputations ( 404.285),
(e) Requesting a recomputation ( 404.286),
(f) Waiving a recomputation ( 404.287), and
(g) Recomputing when you are entitled to a pension based on
noncovered employment ( 404.288).
(52 FR 47918, Dec. 17, 1987)
20 CFR 404.281 Why your primary insurance amount may be recomputed.
(a) Earnings not included in earlier computation or recomputation.
The most common reason for recomputing your primary insurance amount is
to include earnings of yours that were not used in the first computation
or in an earlier recomputation, as described in paragraphs (c) through
(e) of this section. These earnings will result in a revised average
monthly wage or revised average indexed monthly earnings.
(b) New computation method enacted. If a new method of computing or
recomputing primary insurance amounts is enacted into law and you are
eligible to have your primary insurance amount recomputed under the new
method, we will recompute it under the new method if doing so would
increase your primary insurance amount.
(c) Earnings in the year you reach age 62 or become disabled. In the
initial computation of your primary insurance amount, we do not use your
earnings in the year you become entitled to old-age insurance benefits
or become disabled. However, we can use those earnings (called lag
earnings) in a recomputation of your primary insurance amount. We
recompute and begin paying you the higher benefits in the year after the
year you become entitled to old-age benefits or become disabled.
(d) Earnings not reported to us in time to use them in the
computation of your primary insurance amount. Because of the way
reports of earnings are required to be submitted to us for years after
1977, the earnings you have in the year before you become entitled to
old-age insurance benefits, or become disabled or in the year you die
might not be reported to us in time to use them in computing your
primary insurance amount. We recompute your primary insurance amount
based on the new earnings information and begin paying you (or your
survivors) the higher benefits based on the additional earnings,
beginning with the month you became entitled or died.
(e) Earnings after entitlement that are used in a recomputation.
Earnings that you have after you become entitled to benefits will be
used in a recomputation of your primary insurance amount.
(f) Entitlement to a monthly pension. We will recompute your primary
insurance amount if in a month after you became entitled to old-age or
disability insurance benefits, you become entitled to a pension based on
noncovered employment, as explained in 404.213. Further, we will
recompute your primary insurance amount after your death to disregard a
monthly pension based on noncovered employment which affected your
primary insurance amount.
(47 FR 30734, July 15, 1982, as amended at 52 FR 47918, Dec. 17,
1987)
20 CFR 404.282 Effective date of recomputations.
Most recomputations are effective beginning with January of the
calendar year after the year in which the additional earnings used in
the recomputation were paid. However, a recomputation to include
earnings in the year of death (whether or not paid before death) is
effective for the month of death. Additionally if you first became
eligible for old-age or disability insurance benefits after 1985 and you
later also become entitled to a monthly pension based on noncovered
employment, we will recompute your primary insurance amount under the
rules in 404.213; this recomputed Social Security benefit amount is
effective for the first month you are entitled to the pension. Finally,
if your primary insurance amount was affected by your entitlement to a
pension, we will recompute the amount to disregard the pension,
effective with the month of your death.
(47 FR 30734, July 15, 1982, as amended at 52 FR 47918, Dec. 17,
1987)
20 CFR 404.283 Recomputation under method other than that used to find
your primary insurance amount.
In some cases, we may recompute your primary insurance amount under a
computation method different from the method used in the computation (or
earlier recomputation) of your primary insurance amount, if you are
eligible for a computation or recomputation under the different method.
20 CFR 404.284 Recomputations for people who reach age 62, or become
disabled or die before age 62 after 1978.
(a) General. Years of your earnings after 1978 not used in the
computation of your primary insurance amount (or in earlier
recomputations) under the average-indexed-monthly-earnings method may be
substituted for earlier years of your indexed earnings in a
recomputation, but only under the average-indexed-monthly-earnings
method. See 404.288 for the rules on recomputing when you are entitled
to a monthly pension based on noncovered employment.
(b) Substituting actual dollar amounts in earnings for earlier years
of indexed earnings. When we recompute your primary insurance amount
under the average-indexed-monthly earnings method, we use actual dollar
amounts, i.e., no indexing, for earnings not included in the initial
computation or earlier recomputation. These later earnings are
substituted for earlier years of indexed or actual earnings that are
lower.
(c) Benefit formula used in recomputation. The formula that was used
in the first computation of your primary insurance amount is also used
in recomputations of your primary insurance amount.
(d) Your recomputed primary insurance amount. We recompute your
primary insurance amount by applying the benefit formula to your average
indexed monthly earnings as revised to include additional earnings. See
404.281. We then increase the recomputed PIA by the amounts of any
automatic cost-of-living or ad hoc increases in primary insurance
amounts that have become effective since you reached age 62, or became
disabled or died before age 62.
(e) Minimum increase in primary insurance amounts. Your primary
insurance amount may not be recomputed unless doing so would increase it
by at least $1.
Example 1. Ms. A, whose primary insurance amount we computed to be
$432.40 in June 1979 in 404.210 through 404.212 (based on average
indexed monthly earnings of $903), had earnings of $11,000 in 1979 which
were not used in the initial computation of her primary insurance
amount. We may recompute her primary insurance amount effective for
January 1980. In this recomputation, her 1979 earnings may be
substituted in their actual dollar amount for the lowest year of her
indexed earnings that was used in the initial computation. In Ms. A's
case, we substitute the $11,000 for her 1966 indexed earnings of
$8,911.36. Her total indexed earnings are now $251,470.05 and her new
average indexed monthly earnings are $911. We apply to Ms. A's new
average indexed monthly earnings the same benefit formula we used in the
initial computation. Doing so produces an amount of $396.00. An
automatic cost-of-living increase of 9.9 percent was effective in June
1979. We increase the $396.00 amount by 9.9 percent to find Ms. A's
recomputed primary insurance amount of $435.30. Later we increased the
primary insurance amount to $497.60 to reflect the 14.3 percent
cost-of-living increase beginning June 1980 and to $553.40 to reflect
the 11.2 percent cost-of-living increase beginning June 1981.
Example 2. Mr. B, whose primary insurance amount we computed to be
$429.20 (based on average monthly wages of $502) in June 1978 in
404.220 through 404.222, had earnings of $12,000 in 1978 which were not
used in the initial computation of his primary insurance amount. We may
recompute his primary insurance amount effective for January 1979. In
this recomputation, his 1978 earnings are substituted for the lowest
year of earnings used in the initial computation ($2,700 in 1952). Mr.
B's total earnings are now $142,000 and his new average monthly wage is
$537.
We next find Mr. B's new average monthly wage in column III of the
December 1978 benefit table in appendix III. Reading across, we find
his recomputed primary insurance amount on the same line in column IV,
which is $407.70. We then apply the 9.9 percent, the 14.3 percent and
the 11.2 percent automatic cost-of-living increases for June 1979, June
1980, and June 1981, respectively, to compute Mr. B's primary insurance
amount of $569.60.
(f) Guaranteed alternatives. We may recompute your primary insurance
amount by any of the following methods for which you qualify, if doing
so would result in a higher amount than the one computed under the
average-indexed-monthly-earnings method. Earnings in or after the year
you reach age 62 cannot be used.
(1) If you reached age 62 after 1978 and before 1984, we may
recompute to include earnings for years before the year you reached age
62 by using the guaranteed alternative ( 404.231). We will increase the
result by any cost-of-living or ad hoc increases in the primary
insurance amounts that have become effective in and after the year you
reached age 62.
(2) We will also recompute under the old-start guarantee ( 404.242)
and the prior-disability guarantee ( 404.252) if you meet the
requirements of either or both these methods.
(47 FR 30734, July 15, 1982, as amended at 52 FR 47918, Dec. 17,
1987)
20 CFR 404.285 Recomputations performed automatically.
Each year, we examine the earnings record of every retired, disabled,
and deceased worker to see if the worker's primary insurance amount may
be recomputed under any of the methods we have described. When a
recomputation is called for, we perform it automatically and begin
paying the higher benefits based on your recomputed primary insurance
amount for the earliest possible month that the recomputation can be
effective. You do not have to request this service, although you may
request a recomputation at an earlier date than one would otherwise be
performed (see 404.286). Doing so, however, does not allow your
increased primary insurance amount to be effective any sooner than it
would be under an automatic recomputation. You may also waive a
recomputation if one would disadvantage you or your family (see
404.287).
20 CFR 404.286 How to request an immediate recomputation.
You may request that your primary insurance amount be recomputed
sooner than it would be recomputed automatically. To do so, you must
make the request in writing to us and provide acceptable evidence of
your earnings not included in the first computation or earlier
recomputation of your primary insurance amount. If doing so will
increase your primary insurance amount, we will recompute it. However,
we cannot begin paying higher benefits on the recomputed primary
insurance amount any sooner than we could under an automatic
recomputation, i.e., for January of the year following the year in which
the earnings were paid or derived.
20 CFR 404.287 Waiver of recomputation.
If you or your family would be disadvantaged in some way by a
recomputation of your primary insurance amount, or you and every member
of your family do not want your primary insurance amount to be
recomputed for any other reason, you may waive (that is, give up your
right to) a recomputation, but you must do so in writing. That you
waive one recomputation, however, does not mean that you also waive
future recomputations for which you might be eligible.
20 CFR 404.288 Recomputing when you are entitled to a monthly pension
based on noncovered employment.
(a) After entitlement to old-age or disability insurance benefits.
If you first become eligible for old-age or disability insurance
benefits after 1985 and you later become entitled to a monthly pension
based on noncovered employment, we may recompute your primary insurance
amount under the rules in 404.213. When recomputing, we will use the
amount of the pension to which you are entitled or deemed entitled in
the first month that you are concurrently eligible for both the pension
and old-age or disability insurance benefits. We will disregard the
rule in 404.284(e) that the recomputation must increase your primary
insurance amount by at least $1.
(b) Already entitled to benefits and to a pension based on noncovered
employment. If we have already computed or recomputed your primary
insurance amount to take into account your monthly pension, we may later
recompute for one of the reasons explained in 404.281. We will
recompute your primary insurance amount under the rules in 404.213 and
404.284. Any increase resulting from the recomputation under the rules
of 404.284 will be added to the most recent primary insurance amount
which we had computed to take into account your monthly pension.
(c) After your death. If one or more survivors are entitled to
benefits after your death, we will recompute the primary insurance
amount as though it had never been affected by your entitlement to a
monthly pension based in whole or in part on noncovered employment.
(52 FR 47918, Dec. 17, 1987)
20 CFR 404.288 Recalculations of Primary Insurance Amounts
20 CFR 404.290 Recalculations.
(a) Your primary insurance amount may be ''recalculated'' in certain
instances. When we recalculate your primary amount, we refigure it
under the same method we used in the first computation by taking into
account --
(1) Earnings (including compensation for railroad service)
incorrectly included or excluded in the first computation;
(2) Special deemed earnings credits including credits for military
service (see subpart N of this part) and for individuals interned during
World War II (see subpart K of this part), not available at the time of
the first computation;
(3) Correction of clerical or mathematical errors; or
(4) Other miscellaneous changes in status.
(b) Unlike recomputations, which may only serve to increase your
primary insurance amount, recalculations may serve to either increase or
reduce it.
20 CFR 404.290 Appendices to Subpart C
The following appendices contain data that are needed in computing
primary insurance amounts. Appendix I contains average of the total
wages figures, which we use to index a worker's earnings for purposes of
computing his or her average indexed monthly earnings. Appendix II
contains benefit formulas which we apply to a worker's average indexed
monthly earnings to find his or her primary insurance amount. Appendix
III contains the benefit table we use to find a worker's primary
insurance amount from his or her average monthly wage. We use the
figures in appendix IV to find your years of coverage for years after
1950 for purposes of your special minimum primary insurance amount.
Appendix V contains the table for computing the special minimum primary
insurance amount. Appendix VI is a table of the percentage increases in
primary insurance amounts since 1978. Appendix VII is a table of the
old-law contribution and benefit base that would have been effective
under the Social Security Act without enactment of the 1977 amendments.
The figures in the appendices are by law automatically adjusted each
year. We are required to announce the changes through timely
publication in the Federal Register. The only exception to the
requirement of publication in the Federal Register is the update of
benefit amounts shown in appendix III. We update the benefit amounts
for payment purposes but are not required by law to publish this
extensive table in the Federal Register. We have not updated the table
in appendix III, but the introductory paragraphs at appendix III explain
how you can compute the current benefit amount.
When we publish the figures in the Federal Register, we do not change
every one of these figures. Instead, we provide new ones for each year
that passes. We continue to use the old ones for various computation
purposes, as the regulations show. Most of the new figures for these
appendices are required by law to be published by November 1 of each
year. Notice of automatic cost-of-living increases in primary insurance
amounts is required to be published within 45 days of the end of the
applicable measuring period for the increase (see 404.274 and
404.276). In effect, publication is required within 45 days of the end
of the third calendar quarter of any year in which there is to be an
automatic cost-of-living increase.
We begin to use the new data in computing primary insurance amounts
as soon as required by law, even before we periodically update these
appendices. If the data you need to find your primary insurance amount
have not yet been included in the appendices, you may find the figures
in the Federal Register on or about November 1.
(52 FR 8247, Mar. 17, 1987)
20 CFR 404.290 Pt. 404, Subpt. C, App. I
20 CFR 404.290 Appendix I to Subpart C of Part 404 -- Average of the
Total Wages for Years After 1950
Explanation: We use these figures to index your social security
earnings (as described in 404.211) for purposes of computing your
average indexed monthly earnings.
(47 FR 30734, July 15, 1982, as amended at 52 FR 8247, Mar. 17, 1987;
57 FR 44096, Sept. 24, 1992)
20 CFR 404.290 Appendix II of Subpart C of Part 404 -- Benefit Formulas Used With Average Indexed Monthly Earnings
20 CFR 404.290 Pt. 404, Subpt. C, App. II
As explained in 404.212, we use one of the formulas below to compute
your primary insurance amount from your average indexed monthly earnings
(AIME). To select the appropriate formula, we find in the left-hand
column the year after 1978 in which you reach age 62, or become
disabled, or die before age 62. The benefit formula to be used in
computing your primary insurance amount is on the same line in the
right-hand columns. For example, if you reach age 62 or become disabled
or die before age 62 in 1979, then we compute 90 percent of the first
$180 of AIME, 32 percent of the next $905 of AIME, and 15 percent of
AIME over $1,085. After we figure your amount for each step in the
formula, we add the amounts. If the total is not already a multiple of
$0.10, we round the total as follows:
(1) For computations using the benefit formulas in effect for 1979
through 1982, we round the total upward to the nearest $0.10, and
(2) For computations using the benefit formulas in effect for 1983
and later, we round the total downward to the nearest $0.10.
(57 FR 44096, Sept. 24, 1992; 57 FR 45878, Oct. 5, 1992)
20 CFR 404.290 Pt. 404, Subpt. C, App. III
20 CFR 404.290 Appendix III of Subpart C of Part 404 -- Benefit Table
This benefit table shows primary insurance amounts and maximum family
benefits in effect in December 1978 based on cost-of-living increases
which became effective for June 1978. (See 404.403 for information on
maximum family benefits.) You will also be able to find primary
insurance amounts for an individual whose entitlement began in the
period June 1977 through May 1978.
The benefit table in effect in December 1978 had a minimum primary
insurance amount of $121.80. As explained in 404.222(b), certain
workers eligible, or who died without having been eligible, before 1982
had their benefit computed from this table. However, the minimum
benefit provision was repealed for other workers by the 1981 amendments
to the Act (the Omnibus Budget Reconciliation Act of 1981, Pub. L. 97-35
as modified by Pub. L. 97-123). As a result, this benefit table includes
a downward extension from the former minimum of $121.80 to the lowest
primary insurance amount now possible. The extension is calculated as
follows. For each single dollar of average monthly wage in the benefit
table, the primary insurance amount shown for December 1978 is $121.80
multiplied by the ratio of that average monthly wage to $76. The upper
limit of each primary insurance benefit range in column I of the table
is $16.20 multipled by the ratio of the average monthly wage in column
III of the table to $76. The maximum family benefit is 150 percent of
the corresponding primary insurance amount.
The repeal of the minimum benefit provision is effective with January
1982 for most workers and their families where the worker initially
becomes eligible for benefits after 1981 or dies after 1981 without
having been eligible before January 1982. For members of a religious
order who are required to take a vow of poverty, as explained in 20 CFR
404.1024, and which religious order elected Social Security coverage
before December 29, 1981, the repeal is effective with January 1992
based on first eligibility or death in that month or later.
To use this table, you must first compute the primary insurance
benefit (column I) or the average monthly wage (column III), then move
across the same line to either column II or column IV as appropriate.
To determine increases in primary insurance amounts since December 1978
you should see appendix VI. Appendix VI tells you, by year, the
precentage of the increases. In applying each cost-of-liviang increase
to primary insurance amounts, we round the increased primary insurance
amount to the next lower multiple of $0.10 if not already a multiple of
$0.10. (For cost-of-living increases which are effective before June
1982, we round to the next higher multiple of $0.10.)
(47 FR 30734, July 15, 1982; 47 FR 35479, Aug. 16, 1982, as amended
at 48 FR 46143, Oct. 11, 1983; 48 FR 50076, Oct. 31, 1983)
20 CFR 404.290 Pt. 404, Subpt. C, App. IV
20 CFR 404.290 Appendix IV of Subpart C of Part 404 -- Earnings Needed
for a Year of Coverage After 1950
Note: For 1951-78, the amounts shown are 25 percent of the
contribution and benefit base (the contribution and benefit base is the
same as the annual wage limitation as shown in 404.1047) in effect.
For years after 1978, however, the amounts are 25 percent of what the
contribution and benefit base would have been if the 1977 Social
Security Amendments had not been enacted, except, for special minimum
benefit purposes, the applicable percentage is 15 percent for years
after 1990.
(57 FR 44096, Sept. 24, 1992)
20 CFR 404.290 -- Pt. 404, Subpt. C, App. V
20 CFR 404.290 -- Appendix V of Subpart C of Part 404 -- Computing the
Special Minimum Primary Insurance Amount and Related Maximum Family
Benefits
These tables are based on section 215(a)(1)(C)(i) of the Social
Security Act, as amended. They include the percent cost-of-living
increase shown in appendix VI for each effective date.
(47 FR 30734, July 15, 1982, as amended at 52 FR 8248, Mar. 17, 1987;
57 FR 44097, Sept. 24, 1992; 57 FR 45878, Oct. 5, 1992)
20 CFR 404.290 -- Appendix VI of Subpart C of Part 404 -- Percentage of
Automatic Increases in Primary Insurance Amounts Since 1978
(57 FR 44097, Sept. 24, 1992)
20 CFR 404.290 -- Appendix VII of Subpart C of Part 404 -- ''Old-Law'' Contribution and Benefit Base
20 CFR 404.290 -- Pt. 404, Subpt. C, App. VII
Explanation: We use these figures to determine the earnings needed
for a year of coverage for years after 1978 (see 404.261 and appendix
IV). This is the contribution and benefit base that would have been
effective under the Social Security Act without the enactment of the
1977 amendments.
(52 FR 8248, Mar. 17, 1987, as amended at 57 FR 44097, Sept. 24,
1992; 57 FR 45878, Oct. 5, 1992)
20 CFR 404.290 -- Subpart D -- Old-Age, Disability, Dependents' and
Survivors' Insurance Benefits; Period of Disability
Authority: Secs. 202, 203 (a) and (b), 205(a), 216, 223, 228
(a)-(e), and 1102 of the Social Security Act; 42 U.S.C. 402, 403 (a)
and (b), 405(a), 416, 423, 428 (a)-(e), and 1302.
Source: 44 FR 34481, June 15, 1979, unless otherwise noted.
20 CFR 404.290 -- General
20 CFR 404.301 Introduction.
This subpart sets out what requirements you must meet to qualify for
social security benefits, how your benefit amounts are figured, when
your right to benefits begins and ends, and how family relationships are
determined. These benefits are provided by title II of the Social
Security Act. They include --
(a) For workers, old-age and disability benefits and benefit
protection during periods of disability;
(b) For a worker's dependents, benefits for a worker's wife, divorced
wife, husband, divorced husband, and child;
(c) For a worker's survivors, benefits for a worker's widow, widower,
divorced wife, child, and parent, and a lump-sum death payment; and
(d) For uninsured persons age 72 or older, special payments.
20 CFR 404.302 Other regulations related to this subpart.
This subpart is related to several others. Subpart H sets out what
evidence you need to prove you qualify for benefits. Subpart P
describes what is needed to prove you are disabled. Subpart E describes
when your benefits may be reduced or stopped for a time. Subpart G
describes the need for and the effect of an application for benefits.
Part 410 describes when you may qualify for black lung benefits. Part
416 describes when you may qualify for supplemental security income.
Also 42 CFR part 405 describes when you may qualify for hospital and
medical insurance if you are aged, disabled, or have chronic kidney
disease.
20 CFR 404.303 Definitions.
As used in this subpart:
Apply means to sign a form or statement that the Social Security
Administration accepts as an application for benefits under the rules
set out in subpart G.
Eligible means that a person would meet all the requirements for
entitlement to benefits for a period of time but has not yet applied.
Entitled means that a person has applied and has proven his or her
right to benefits for a period of time.
Insured person or the insured means someone who has enough earnings
under social security to permit payment of benefits on his or her
earnings record. The requirements for becoming insured are described in
subpart B.
Permanent home means the true and fixed home (legal domicile) of a
person. It is the place to which a person intends to return whenever he
or she is absent.
Primary insurance amount means an amount that is determined from the
average monthly earnings creditable to the insured person. This term
and the manner in which it is computed are explained in subpart C.
We or Us means the Social Security Administration.
You means the person who has applied for benefits or the person for
whom someone else has applied.
20 CFR 404.304 General rules on benefit amounts.
This subpart describes how the highest monthly benefit amount you
ordinarily could qualify for under each type of benefit is determined.
However, the highest monthly benefit amount you could qualify for may
not be the amount that you actually are paid each month. In a
particular month, your benefit amount may be reduced or not paid at all.
Under some circumstances, your benefit amount may be increased. The
most common reasons for a change in the amount of your benefit payments
are listed below:
(a) Reductions based on age or earnings. As explained in 404.410
through 404.413, your old-age, wife's, husband's, widow's, or widower's
benefits may be reduced if you choose to receive them before age 65.
Also, as explained in 404.415 through 404.417, deductions may be made
from your benefits if your earnings or the insured person's earnings go
over certain limits.
(b) Overpayments and underpayments. Your benefits may be increased
or decreased for a time to make up for any previous overpayment or
underpayment that was made on the insured person's record. For more
information about this, see subpart F.
(c) (Reserved)
(d) Family maximum. As explained in 404.403, there is a maximum
amount set for each insured person's earnings record that limits the
total benefits payable on that record. If you are entitled to benefits
as the insured's dependent or survivor, your benefits may be reduced to
keep total benefits payable to the insured's family within these limits.
(e) Government pension offset. If you are entitled to wife's,
husband's, mother's, father's, widow's or widower's benefits and receive
a Government pension for work that was not covered under social
security, your benefits may be reduced by the amount of that pension.
Special age 72 payments are also reduced by the amount of a Government
pension. For more information about this, see 404.408(a) which covers
benefits and 404.384(c) which covers special age 72 payments.
(f) Rounding. After all other deductions or reductions, any monthly
benefit which is not a multiple of $1 is reduced to the next lower
multiple of $1.
(44 FR 34481, June 15, 1979, as amended at 48 FR 46148, Oct. 11,
1983)
20 CFR 404.305 When you may not be entitled to benefits.
In addition to the situations described in 404.304 when you may not
receive a benefit payment, there are special circumstances when you may
not be entitled to benefits. These circumstances are --
(a) Waiver of benefits. If you have waived benefits on religious
grounds as described in 404.1086, no one may become entitled to any
benefits or payments on your earnings record and you may not be entitled
to benefits on anyone else's earnings record; and
(b) Person's death caused by an intentional act. You may not become
entitled to or continue to receive any survivor's benefits or payments
on the earnings record of any person, or receive any underpayment due a
person, if you were convicted of a felony or an act in the nature of a
felony of intentionally causing that person's death. If you were
subject to the juvenile justice system, you may not become entitled to
or continue to receive survivor's benefits or payments on the earnings
record of any person, or receive any underpayment due a person, if you
were 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.
(44 FR 34481, June 15, 1979, as amended at 47 FR 42098, Sept. 24,
1982; 52 FR 19136, May 21, 1987, 52 FR 21410, June 5, 1987.)
20 CFR 404.305 Old-Age and Disability Benefits
20 CFR 404.310 Who is entitled to old-age benefits.
You are entitled to old-age benefits if --
(a) You are at least 62 years old;
(b) You have enough social security earnings to be fully insured as
defined in 404.110 through 404.115; and
(c) You apply; or you are entitled to disability benefits up to the
month you become 65 years old. At age 65, your disability benefits
automatically become old-age benefits.
(44 FR 34481, June 15, 1979, as amended at 51 FR 10616, Mar. 28,
1986)
20 CFR 404.311 When entitlement to old-age benefits begins and ends.
(a) You are entitled to old-age benefits at age 65 beginning with the
first month covered by your application in which you meet all the
requirements for entitlement.
(b) You are entitled to old-age benefits if you have attained age 62,
but are under age 65, beginning with the first month covered by your
application throughout which you meet all the requirements for
entitlement.
(c) Your entitlement to benefits ends with the month before the month
of your death.
(48 FR 21926, May 16, 1983)
20 CFR 404.312 Old-age benefit amounts.
(a) If your old-age benefits begin at age 65, your monthly benefit is
equal to the primary insurance amount.
(b) If your old-age benefits begin after you become 65 years old,
your monthly benefit is your primary insurance amount plus an increase
for retiring after age 65. See 404.313 for a description of these
increases.
(c) If your old-age benefits begin before you become 65 years old,
your monthly benefit amount is the primary insurance amount minus a
reduction for each month you are entitled before you become 65 years
old. These reductions are described in 404.410 through 404.413.
(44 FR 34481, June 15, 1979, as amended at 51 FR 12604, Apr. 14,
1986)
20 CFR 404.313 Using delayed retirement credit to increase old-age
benefit amount.
(a) General. (1) If you do not receive old-age benefits for the
month you reach age 65 (retirement age) or for any later month before
the month in which you reach age 70 (72 before 1984), you may earn
delayed retirement credits which will increase your benefit amount when
you retire. You earn delayed retirement credits for each of those
months for which you are fully insured and are eligible for but do not
receive old-age benefits, either because of your work or earnings, or
because you have not applied for benefits. If you were entitled to
old-age benefits before age 65 you may still earn delayed retirement
credit for months beginning with age 65 in which your benefits were
reduced to zero because of your work or earnings.
(2) Retirement age is the age at which entitlement to full benefits
may begin and is the age at which you may begin to earn delayed
retirement credits. Age 65 is the retirement age for workers who reach
that age before the year 2003. For workers who reach age 65 after 2002,
retirement age will gradually increase from 65 to 67, depending on each
person's date of birth.
(b) How we determine delayed retirement credits -- (1) General. The
amount of the delayed retirement credit depends on the year you reach
retirement age, and the number of months you are eligible for and do not
receive old-age benefits from retirement age to age 70 (72 before 1984).
We total these months, which need not be consecutive, multiply the
total by the applicable percent as provided in paragraphs (b)(2), (3),
and (4) of this section, multiply your benefit amount by this product,
and round to the next lowest multiple of $0.10 if the answer is not
already a multiple of $0.10. The result is your delayed retirement
credit which we add to your benefit amount. The supplementary medical
insurance premium, if any, is then deducted and the result is rounded to
the next lowest multiple of $1.00 if it is not already a multiple of
$1.00.
(2) Before 1982. If you reach age 65 before 1982, your delayed
retirement credit equals one-twelfth of one percent of your benefit
amount times the number of months after 1970 in which you are age 65 or
older and for which you are eligible but do not receive old-age
benefits.
(3) After 1981 and before 1990. If you reach age 65 after 1981 and
before 1990, your delayed retirement credit equals one-fourth of one
percent of your monthly benefit amount times the number of months in
which you are age 65 or older and for which you are eligible but do not
receive old-age benefits.
(4) Beginning with 1990. If you reach age 65 in 1990 or later, the
rate of the delayed retirement credit (i.e., one-fourth of one percent
as stated in paragraph (b)(3) of this section) is increased by
one-twenty-fourth of one percent in each even year through 2008. Thus,
depending on when you reach age 65, your delayed retirement credit
percent will be as follows:
Example. Alan was qualified for old-age benefits when he reached age
65 in January 1983, but decided not to apply for old-age benefits
immediately because he was still working. When he became age 66 in
January 1984, he stopped working and applied for these benefits
beginning with that month. Based on his earnings, his primary insurance
amount was $226.60, and his monthly old-age benefit after deducting his
supplemental medical insurance premium was $211.00 ($226.60 minus $15.50
SMI premium equals $211.10, rounded to $211.00), if no delayed
retirement credits were added. However, he did not receive benefits for
the 12 months from the month in which he became 65 (January 1983) until
the first month in which he stopped working (January 1984). Therefore,
his monthly old-age benefit of $226.60 was increased by three percent
(one-quarter of one percent times 12 months) to yield a total $233.39,
which rounded to the next lower multiple of $0.10 is $233.30. After
deducting the SMI premium and rounding to the next lower multiple of $1,
the benefit amount is $217.00.
(c) Effective date of delayed retirement credit. If you are entitled
to benefits, we examine our records after the end of each calendar year
to determine whether you have earned the delayed retirement credit
(i.e., whether there were months in which you were fully insured and
eligible for benefits, but did not receive them). Any increase in your
benefit amount due to the delayed retirement credit is effective
beginning with January of the year after the year the credit is earned.
If you are age 65 or older and eligible for old-age benefits but have
not applied, we compute the delayed retirement credit for the year(s)
before you applied and pay it to you as part of your first benefit
check. The delayed retirement credit for the year you applied and later
years is added to your benefits beginning with the following January.
However, in either case, in the year in which you attain age 70 (72
before 1984), we compute the credit through the month before the month
you reach that age and add it to your benefit amount beginning with that
month.
(d) Delayed retirement credit and special minimum primary insurance
amounts. We do not add any delayed retirement credit to your old-age
benefit if your benefit is based on the special minimum primary
insurance amount described in 404.260. We add the delayed retirement
credit only to old-age benefits based on your regular primary insurance
amount, i.e., as computed under one of the other provisions of subpart C
of this part. If your benefit based on the regular primary insurance
amount plus your delayed retirement credit is higher than the benefit
based on your special minimum primary insurance amount, we pay the
higher amount to you. However, if the special minimum primary insurance
amount is higher than the regular primary insurance amount without the
delayed retirement credit, we use the special minimum primary insurance
amount to determine the family maximum and the benefits of others
entitled on your earnings record.
(e) Effect of delayed retirement credit on other benefits -- (1)
Surviving spouse or surviving divorced spouse. If you earned delayed
retirement credits during your lifetime, we compute your surviving
spouse's or surviving divorced spouse's benefit based on your regular
primary insurance amount plus the amount of the delayed retirement
credit. All delayed retirement credits, including credits in the year
of death, can be used in computing your surviving spouse's or surviving
divorced spouse's benefit beginning with the month of death. We compute
the delayed retirement credit up to, but not including, the month of
death.
(2) Other family members. We do not use your delayed retirement
credits to increase the benefits of other family members entitled on
your earnings record.
(3) Family maximum. The delayed retirement credits are added to your
benefit after we compute the family maximum. However, your delayed
retirement credits which are used to compute your surviving spouse's or
surviving divorced spouse's benefit are added to the spouse's benefits
before we reduce for the family maximum.
(51 FR 12605, Apr. 14, 1986)
20 CFR 404.315 Who is entitled to disability benefits.
You are entitled to disability benefits while disabled before age 65
if --
(a) You have enough social security earnings to be insured for
disability, as described in 404.130;
(b) You apply;
(c) You have a disability, as defined in 404.1505, or you are not
disabled, but you had a disability that ended within the 12-month period
before the month you applied; and
(d) You have been disabled for 5 full consecutive months. This
5-month waiting period begins with a month in which you were both
insured for disability and disabled. Your waiting period can begin no
earlier than the 17th month before the month you apply -- no matter how
long you were disabled before then. No waiting period is required if
you were previously entitled to disability benefits or to a period of
disability under 404.320 any time within 5 years of the month you again
became disabled.
(44 FR 34481, June 15, 1979, as amended at 48 FR 21930, May 16, 1983;
51 FR 10616, Mar. 28, 1986; 51 FR 16166, May 1, 1986; 53 FR 43681,
Oct. 28, 1988; 57 FR 30119, July 8, 1992)
20 CFR 404.316 When entitlement to disability benefits begins and ends.
(a) You are entitled to disability benefits beginning with the first
month covered by your application in which you meet all the other
requirements for entitlement. If a waiting period is required, your
benefits cannot begin earlier than the first month following that
period.
(b) Your entitlement to disability benefits ends with the earliest of
these months: (1) The month before the month of your death; (2) the
month before the month you become 65 years old (at age 65 your
disability benefits will be automatically changed to old-age benefits);
(3) the second month after the month in which your disability ends as
provided in 404.1594(b)(1), unless continued subject to paragraph (c);
or (4) subject to the provisions of paragraph (d) of this section, the
month before your termination month ( 404.325).
(c)(1) Your benefits, and those of your dependents, may be continued
after your impairment is no longer disabling if --
(i) Your disability did not end before December 1980, the effective
date of this provision of the law;
(ii) You are participating in an appropriate program of vocational
rehabilitation, that is, one that has been approved under a State plan
approved under title I of the Rehabilitation Act of 1973 and which meets
the requirements outlined in 34 CFR part 361 for a rehabilitation
program;
(iii) You began the program before your disability ended; and
(iv) We have determined that your completion of the program, or your
continuation in the program for a specified period of time, will
significantly increase the likelihood that you will not have to return
to the disability benefit rolls.
Example: While under a disability from a severe back impairment,
''A'' begins a vocational rehabilitation program under the direction of
a State vocational rehabilitation agency with a vocational goal of
jewelry repairman. ''A'' is 50 years old, has a high school education,
and worked as a route salesman for a bread company for 6 years before
becoming disabled. Before ''A'' completes his training, his disability
status is reviewed and a determination is made that he is able to do
light work. Considering his age, education and work experience, ''A''
is no longer disabled. However, if ''A'' is able to work as a jewelry
repairman, he will be considered able to engage in substantial gainful
activity even if he can do only sedentary work. Therefore, it is
determined that ''A's'' completion of the vocational rehabilitation
program will significantly increase the likelihood that he will be
permanently removed from the disability rolls. ''A'' will continue to
receive payments until he completes or stops his program, or until it is
determined that continued participation will no longer significantly
increase the likelihood of permanent removal from the disability rolls.
(2) Your benefits generally will be stopped with the month --
(i) You complete the program;
(ii) You stop participating in the program for any reason; or
(iii) We determine that your continuing participation in the program
will no longer significantly increase the likelihood that you will be
permanently removed from the disability benefit rolls.
Exception: In no case will your benefits be stopped with a month
earlier than the second month after the month your disability ends.
(d) If, after November 1980, you have a disabling impairment (
404.1511), you will be paid benefits for all months in which you do not
do substantial gainful activity during the reentitlement period (
404.1592a) following the end of your trial work period ( 404.1592). If
you are unable to do substantial gainful activity in the first month
following the reentitlement period, we will pay you benefits until you
are able to do substantial gainful activity. (Earnings during your
trial work period do not affect the payment of your benefit.) You will
also be paid benefits for the first month after the trial work period in
which you do substantial gainful activity and the two succeeding months,
whether or not you do substantial gainful activity during those
succeeding months. After those three months, you cannot be paid
benefits for any months in which you do substantial gainful activity.
(44 FR 34481, June 15, 1979, as amended at 47 FR 31542, July 21,
1982; 47 FR 52693, Nov. 23, 1982; 49 FR 22270, May 29, 1984; 51 FR
17617, May 14, 1986)
20 CFR 404.317 Disability benefit amounts.
Your monthly benefit is equal to the primary insurance amount. This
amount is computed under the rules in subpart C as if it were an old-age
benefit, and as if you were 62 years old at the beginning of the 5-month
waiting period mentioned in 404.315(d). If the 5-month waiting period
is not required because of your previous entitlement, your primary
insurance amount is figured as if you were 62 years old when you become
entitled to benefits this time. Your monthly benefit amount may be
reduced if you receive workmen's compensation payments before you become
62 years old as described in 404.408. Your benefits may also be reduced
if you were entitled to other retirement-age benefits before you became
65 years old.
20 CFR 404.320 Who is entitled to a period of disability.
(a) General. A period of disability is a continuous period of time
during which you are disabled. If you become disabled, you may apply to
have our records show how long your disability lasts. You may do this
even if you do not qualify for disability benefits. If we establish a
period of disability for you, the months in that period of time will not
be counted in figuring your average earnings. If benefits payable on
your earnings record would be denied or reduced because of a period of
disability, the period of disability will not be taken into
consideration.
(b) Who is entitled. You are entitled to a period of disability if
you meet all the following conditions:
(1) You have or had a disability as defined in 404.1505.
(2) You are insured for disability, as defined in 404.130 in the
calendar quarter in which you became disabled, or in a later calendar
quarter in which you were disabled.
(3) You file an application while disabled, or no later than 12
months after the month in which your period of disability ended. If you
were unable to apply within the 12-month period after your period of
disability ended because of a physical or mental condition as described
in 404.322, you may apply not more than 36 months after the month your
disability ended.
(4) At least 5 consecutive months go by from the month in which your
period of disability begins and before the month in which it would end.
(44 FR 34481, June 15, 1979, as amended at 48 FR 21930, May 16, 1983;
51 FR 10616, Mar. 28, 1986)
20 CFR 404.321 When a period of disability begins and ends.
(a) When a period of disability begins. Your period of disability
begins on the day your disability begins if you are insured for
disability on that day. If you are not insured for disability on that
day, your period of disability will begin on the first day of the first
calender quarter after your disability began in which you become insured
for disability. Your period of disability may not begin after you
become 65 years old.
(b) When disability ended before December 1, 1980. Your period of
disability ends on the last day of the month before the month in which
you become 65 years old or, if earlier, the last day of the second month
following the month in which your disability ended.
(c) When disability ends after November 1980. Your period of
disability ends with the close of whichever of the following is the
earliest --
(1) The month before the month in which you become 65 years old;
(2) The month immediately preceding your termination month (
404.325); or
(3) If you perform substantial gainful activity during the 15-month
period following the end of your trial work period, the last month for
which you received benefits.
(49 FR 22271, May 29, 1984)
20 CFR 404.322 When you may apply for a period of disability after a
delay due to a physical or mental condition.
If because of a physical or mental condition you did not apply for a
period of disability within 12 months after your period of disability
ended, you may apply not more than 36 months after the month in which
your disability ended. Your failure to apply within the 12-month time
period will be considered due to a physical or mental condition if
during this time --
(a) Your physical condition limited your activities to such an extent
that you could not complete and sign an application; or
(b) You were mentally incompetent.
20 CFR 404.325 The termination month.
If you do not have a disabling impairment, your termination month is
the third month following the month in which your impairment is not
disabling even if it occurs during the trial work period or the
reentitlement period. If you continue to have a disabling impairment
and complete 9 months of trial work, your termination month will be the
third month following the earliest month you perform substantial gainful
activity or are determined able to perform substantial gainful activity
but in no event earlier than the first month after the 15th month
following the end of your trial work period.
Example: You complete your trial work period in December 1980. You
are then working at the substantial gainful activity level and continue
to do so throughout the 15 months following completion of your trial
work period and thereafter. Your termination month will be April 1982,
which is the 16th month -- that is, the first month in which you
performed substantial gainful activity after the 15th month following
your trial work period.
Example: You complete your trial work period in December 1980 but
you are not able to work at the substantial gainful activity level until
December 1982. Your termination month will be March 1983 -- that is,
the third month after the earliest month you perform or are determined
able to perform substantial gainful activity.
(49 FR 22271, May 29, 1984)
20 CFR 404.325 Benefits for Spouses and Divorced Spouses
20 CFR 404.330 Who is entitled to wife's or husband's benefits.
You are entitled to benefits as the wife or husband of an insured
person who is entitled to old-age or disability benefits if --
(a) You are the insured's wife or husband based upon a relationship
described in 404.345 through 404.346 and one of the following
conditions is met:
(1) Your relationship to the insured as a wife or husband has lasted
at least 1 year. (You will be considered to meet the 1-year duration
requirement throughout the month in which the first anniversary of the
marriage occurs.)
(2) You and the insured are the natural parents of a child; or
(3) In the month before you married the insured you were entitled to,
or if you had applied and been old enough you could have been entitled
to, any of these benefits or payments: Wife's, husband's, widow's,
widower's, or parent's benefits; disabled child's benefits; or annuity
payments under the Railroad Retirement Act for widows, widowers,
parents, or children 18 years old or older;
(b) You apply;
(c) You are age 62 or older throughout a month and you meet all other
conditions of entitlement, or you are the insured's wife or husband and
have in your care (as defined in 404.348 through 404.349), throughout
a month in which all other conditions of entitlement are met, a child
who is entitled to child's benefits on the insured's earnings record and
the child is either under age 16 or disabled; and
(d) You are not entitled to an old-age or disability benefit based
upon a primary insurance amount that is equal to or larger than the full
wife's or husband's benefit.
(44 FR 34481, June 15, 1979; 44 FR 56691, Oct. 2, 1979, as amended
at 45 FR 68932, Oct. 17, 1980; 48 FR 21926, May 16, 1983)
20 CFR 404.331 Who is entitled to wife's or husband's benefits as a
divorced spouse.
You are entitled to wife's or husband's benefits as the divorced wife
or divorced husband of an insured person who is entitled to old-age or
disability benefits if you meet the requirements of paragraphs (a)
through (e). You are entitled to these benefits even though the insured
person is not yet entitled to benefits, if the insured person is at
least age 62 and if you meet the requirements of paragraphs (a) through
(f). The requirements are that --
(a) You are the insured's divorced wife or divorced husband and --
(1) You were validly married to the insured under State law as
described in 404.345; and
(2) You were married to the insured for at least 10 years immediately
before your divorce became final;
(b) You apply;
(c) You are not married. (For purposes of meeting this requirement,
you will be considered not to be married throughout the month in which
the divorce occurred);
(d) You are age 62 or older throughout a month in which all other
conditions of entitlement are met; and
(e) You are not entitled to an old-age or disability benefit based
upon a primary insurance amount that is equal to or larger than the full
wife's or husband's benefit.
(f) You have been divorced from the insured person for at least 2
years.
(44 FR 34481, June 15, 1979, as amended at 48 FR 21926, May 16, 1983;
51 FR 11911, Apr. 8, 1986)
20 CFR 404.332 When wife's and husband's benefits begin and end.
(a) You are entitled to wife's or husband's benefits beginning with
the first month covered by your application in which you meet all the
other requirements for entitlement under 404.330 or 404.331. However,
if you are entitled as a divorced spouse before the insured person
becomes entitled, your benefits cannot begin before January 1985 based
on an application filed no earlier than that month.
(b) Your entitlement to benefits ends with the month before the month
in which one of the following events first occurs:
(1) You become entitled to an old-age or disability benefit based
upon a primary insurance amount that is equal to or larger than the full
wife's or husband's benefit.
(2) You are the wife or husband and are divorced from the insured
person unless you meet the requirements for benefits as a divorced wife
or divorced husband as described in 404.331.
(3) You are the divorced wife or divorced husband and you marry
someone, other than the insured who is entitled to old-age benefits,
unless that other person is someone entitled to benefits as a wife,
husband, widow, widower, father, mother, parent or disabled child. Your
benefits will end if you remarry the insured who is not yet entitled to
old-age benefits.
(4) If you are under 62 years old, the child who was in your care
becomes age 16 (unless disabled) or is otherwise no longer entitled to
child's benefits. (See paragraph (c) of this section if you were
entitled to wife's or husband's benefits for August 1981 on the basis of
having a child in care.)
(5) The insured person dies or is no longer entitled to old age or
disability benefits.
(6) If your benefits are based upon a deemed valid marriage, you
marry someone other than the insured or someone else becomes entitled to
the same benefits as described in 404.346.
(7) You die.
(8) You became entitled as the divorced wife or the divorced husband
before the insured person became entitled, but he or she is no longer
insured.
(c) If you were entitled to wife's or husband's benefits for August
1981 on the basis of having a child in care, your entitlement will
continue until September 1983, until the child reaches 18 (unless
disabled) or is otherwise no longer entitled to child's benefits, or
until one of the events described in paragraph (b)(1), (2), (3), (5),
(6) or (7) of this section occurs, whichever is earliest.
(44 FR 34481, June 15, 1979, as amended at 48 FR 21926, May 16, 1983;
49 FR 24115, June 12, 1984; 51 FR 11911, Apr. 8, 1986)
20 CFR 404.333 Wife's and husband's benefit amounts.
Your wife's or husband's monthly benefit is equal to one-half the
insured person's primary insurance amount. If you are entitled as a
divorced wife or as a divorced husband before the insured person becomes
entitled, we will compute the primary insurance amount as if he or she
became entitled to old-age benefits in the first month you are entitled
as a divorced wife or as a divorced husband. The amount of your monthly
benefit may change as explained in 404.304.
(51 FR 11912, Apr. 8, 1986)
20 CFR 404.335 Who is entitled to widow's or widower's benefits.
You may be entitled to benefits as the widow or widower of a person
who was fully insured when he or she died. You are entitled to these
benefits if --
(a) You are the insured's widow or widower based upon a relationship
described in 404.345 through 404.346, and one of the following
conditions is met:
(1) Your relationship to the insured as a wife or husband lasted for
at least 9 months immediately before the insured died.
(2) Your relationship to the insured as a wife or husband did not
last 9 months before the insured died, but at the time of your marriage
the insured was reasonably expected to live for 9 months, and --
(i) The death of the insured was accidental. The death is accidental
if it was caused by an event that the insured did not expect; it was
the result of bodily injuries received from violent and external causes;
and as a direct result of these injuries, death occurred not later than
3 months after the day on which the bodily injuries were received. An
intentional and voluntary suicide will not be considered an accidental
death;
(ii) The death of the insured occurred in the line of duty while he
or she was serving on active duty as a member of the uniformed services
as defined in 404.1019; or
(iii) You had been previously married to the insured for at least 9
months.
(3) You and the insured were the natural parents of a child; or you
were married to the insured when either of you adopted the other's child
or when both of you adopted a child who was then under 18 years old.
(4) In the month before you married the insured, you were entitled to
or, if you had applied and had been old enough, could have been entitled
to any of these benefits or payments: widow's, widower's, father's,
mother's, wife's, husband's, parent's, or disabled child's benefits; or
annuity payments under the Railroad Retirement Act for widows, widowers,
parents, or children age 18 or older;
(b) You apply, except that you need not apply again if --
(1) You are entitled to wife's or husband's benefits for the month
before the month in which the insured dies and you are 65 years old or
you are not entitled to either old-age or disability benefits;
(2) You are entitled to mother's or father's benefits for the month
before the month in which you become 65 years old;
(3) You are entitled to wife's or husband's benefits and to either
old-age or disability benefits in the month before the month of the
insured's death, you are under age 65 in the month of death, and you
have filed a Certificate of Election in which you elect to receive
reduced widow's or widower's benefits; or
(4) You applied in 1990 for widow's or widower's benefits based on
disability, and:
(i) You were entitled to disability insurance benefits for December
1990, or eligible for supplemental security income or federally
administered State supplementary payments, as specified in subparts B
and T of part 416 of this chapter, respectively, for January 1991; and
(ii) You were found not disabled for any month based on the
definition of disability in 404.1577 and 404.1578, as in effect prior
to January 1991, but would have been entitled if the standard in
404.1505(a) had applied. (This exception to the requirement for filing
an application is effective only with respect to benefits payable for
months after December 1990.);
(c) You are at least 60 years old; or you are at least 50 years old
and have a disability as defined in 404.1505 and --
(1) Your disability started not later than 7 years after the insured
died or 7 years after you were last entitled to mother's or father's
benefits or to widow's or widower's benefits based upon a disability,
whichever occurred last;
(2) Your disability continued during a waiting period of 5 full
consecutive months, unless months beginning with the first month of
eligibility for supplemental security income or federally administered
State supplementary payments are counted, as explained in paragraph
(c)(3) of this section. The waiting period may begin no earlier than
the 17th month before you applied; the fifth month before the insured
died; or if you were previously entitled to mother's, father's,
widow's, or widower's benefits the 5th month before your entitlement to
benefits ended. If you were previously entitled to widow's or widower's
benefits based upon a disability, the waiting period is not required;
and
(3) For monthly benefits payable for months after December 1990, if
you were or have been eligible for supplemental security income or
federally administered State supplementary payments, as specified in
subparts B and T of part 416 of this chapter, respectively, your
disability does not have to have continued through a separate, full
5-month waiting period before you may begin receiving benefits. We will
include as months of the 5-month waiting period the months in a period
beginning with the first month you received supplemental security income
or a federally administered State supplementary payment and continuing
through all succeeding months, regardless of whether the months in the
period coincide with the months in which your waiting period would have
occurred, or whether you continued to be eligible for supplemental
security income or a federally administered State supplementary payment
after the period began, or whether you met the nondisability
requirements for entitlement to widow's or widower's benefits. However,
we will not pay you benefits under this provision for any month prior to
January 1991;
(d) You are not entitled to an old-age benefit that is equal to or
larger than the insured person's primary insurance amount; and
(e) You are unmarried, unless --
(1) You remarried after you became 60 years old; or
(2) For benefits for months after 1983 --
(i) You are now age 60 or older;
(ii) You remarried after attaining age 50 but before attaining age
60; and
(iii) At the time of the remarriage, you were entitled to widow(er)'s
benefits as a disabled widow(er); or
(3) For benefits for months after 1983 --
(i) You are now at least age 50 but not yet age 60;
(ii) You remarried after attaining age 50; and
(iii) You met the disability requirements in paragraph (c) of this
section at the time of your remarriage (i.e., your disability began
within the specified time and before your remarriage).
(44 FR 34481, June 15, 1979, as amended at 47 FR 12162, Mar. 22,
1982; 49 FR 24115, June 12, 1984; 51 FR 4482, Feb. 5, 1986; 51 FR
10616, Mar. 28, 1986; 55 FR 25825, June 25, 1990; 57 FR 30119, July 8,
1992)
20 CFR 404.336 Who is entitled to widow's or widower's benefits as a
surviving divorced spouse.
You may be entitled to widow's or widower's benefits as the surviving
divorced wife or the surviving divorced husband of a person who was
fully insured when he or she died. You are entitled to these benefits
if --
(a) You are the insured's surviving divorced wife or surviving
divorced husband and --
(1) You were validly married to the insured under State law as
described in 404.345; and
(2) You were married to the insured for at least 10 years immediately
before your divorce became final;
(b) You apply, except that you need not apply again if --
(1) You are entitled to wife's or husband's benefits for the month
before the month in which the insured dies and you are 65 years old or
you are not entitled to old-age or disability benefits;
(2) You are entitled to mother's or father's benefits for the month
before the month in which you become 65 years old;
(3) You are entitled to wife's or husband's benefits and to either
old-age or disability benefits in the month before the month of the
insured's death, you are under age 65 in the month of death, and you
have filed a Certificate of Election in which you elect to receive
reduced widow's or widower's benefits; or
(4) You applied in 1990 for widow's or widower's benefits based on
disability, and:
(i) You were entitled to disability insurance benefits for December
1990, or eligible for supplemental security income or federally
administered State supplementary payments, as specified in Subparts B
and T of part 416 of this chapter, respectively, for January 1991; and
(ii) You were found not disabled for any month based on the
definition of disability in 404.1577 and 404.1578, as in effect prior
to January 1991, but would have been entitled if the standard in
404.1505(a) had applied. (This exception to the requirement for filing
an application is effective only with respect to benefits payable for
months after December 1990.);
(c) You are at least 60 years old; or you are at least 50 years old
and have a disability as defined in 404.1505 and --
(1) Your disability started not later than 7 years after the insured
died or 7 years after you were last entitled to mother's or father's
benefits or to widow's or widower's benefits based upon a disability,
whichever occurred last;
(2) Your disability continued during a waiting period of 5 full
consecutive months, unless months beginning with the first month of
eligibility for supplemental security income or federally administered
State supplementary payments are counted, as explained in paragraph
(c)(3) of this section. This waiting period may begin no earlier than
the 17th month before you applied; the fifth month before the insured
died; or if you were previously entitled to mother's, father's,
widow's, or widower's benefits, the 5th month before your previous
entitlement to benefits ended. If you were previously entitled to
widow's or widower's benefits based upon a disability, the waiting
period is not required; and
(3) For monthly benefits payable for months after December 1990, if
you were or have been eligible for supplemental security income or a
federally administered State supplementary payments, as specified in
Subparts B and T of Part 416 of this chapter, respectively, your
disability does not have to have continued through a separate, full
5-month waiting period before you may begin receiving benefits. We will
include as months of the 5-month waiting period the months in a period
beginning with the first month you received supplemental security income
or a federally administered State supplementary payment and continuing
through all succeeding months, regardless of whether the months in the
period coincide with the months in which your waiting period would have
occurred, or whether you continued to be eligible for supplemental
security income or a federally administered State supplementary payment
after the period began, or whether you met the nondisability
requirements for entitlement to widow's or widower's benefits. However,
we will not pay you benefits under this provision for any month prior to
January 1991;
(d) You are not entitled to an old-age benefit that is equal to or
larger than the insured person's primary insurance amount; and
(e) You are unmarried, unless for benefits for months after 1983 --
(1) You remarried after you became 60 years old; or
(2)(i) You are now age 60 or older;
(ii) You remarried after attaining age 50 but before attaining age
60; and
(iii) At the time of the remarriage, you were entitled to widow(er)'s
benefits as a disabled widow(er); or
(3)(i) You are now at least age 50 but not yet age 60;
(ii) You remarried after attaining age 50; and
(iii) You met the disability requirements in paragraph (c) of this
section at the time of your remarriage (i.e., your disability began
within the specified time and before your remarriage).
(44 FR 34481, June 15, 1979, as amended at 47 FR 12162, Mar. 22,
1982; 51 FR 4482, Feb. 5, 1986; 55 FR 25300, June 21, 1990; 55 FR
25825, June 25, 1990; 57 FR 30119, July 8, 1992)
20 CFR 404.337 When widow's and widower's benefits begin and end.
(a) You are entitled to widow's or widower's benefits under 404.335
or 404.336 beginning with the first month covered by your application
in which you meet all the other requirements for entitlement.
(b) Your entitlement to benefits ends at the earliest of the
following times:
(1) The month before the month in which you become entitled to an
old-age benefit that is equal to or larger than the insured's primary
insurance amount.
(2) If your widow's or widower's benefit is based upon a disability,
the second month after the month your disability ends or, where
disability ends on or after December 1, 1980, the month before your
termination month ( 404.325). However payments are subject to the
provisions of paragraphs (c) and (d) of this section. You may remain
eligible for payment of benefits if you became 65 years old before your
termination month and you met the other requirements for widow's or
widower's benefits.
(3) If you are entitled to benefits based upon a deemed valid
marriage, the month before the month in which another person becomes
entitled to the same benefits as described in 404.346.
(4) The month before the month in which you die.
(c)(1) Your benefits may be continued after your impairment is no
longer disabling if --
(i) Your disability did not end before December 1980, the effective
date of this provision of the law;
(ii) You are participating in an appropriate program of vocational
rehabilitation as described in 404.316(c)(1)(ii);
(iii) You began the program before your disability ended; and
(iv) We have determined that your completion of the program, or your
continuation in the program for a specified period of time, will
significantly increase the likelihood that you will not have to return
to the disability benefit rolls.
(2) Your benefits generally will be stopped with the month --
(i) You complete the program;
(ii) You stop participating in the program for any reason; or
(iii) We determine that your continuing participation in the program
will no longer significantly increase the likelihood that you will be
permanently removed from the disability benefit rolls.
Exception: In no case will your benefits be stopped with a month
earlier than the second month after the month your disability ends.
(d) If, after November 1980, you have a disabling impairment (
404.1511), you will be paid benefits for all months in which you do not
do substantial gainful activity during the reentitlement period (
404.1592a) following the end of your trial work period ( 404.1592). If
you are unable to do substantial gainful activity in the first month
following the reentitlement period, we will pay you benefits until you
are able to do substantial gainful activity. (Earnings during your
trial work period do not affect the payment of your benefits.) You will
also be paid benefits for the first month after the trial work period in
which you do substantial gainful activity and the two succeeding months,
whether or not you do substantial gainful activity during those
succeeding months. After those three months, you cannot be paid
benefits for any months in which you do substantial gainful activity.
(44 FR 34481, June 15, 1979, as amended at 47 FR 31542, July 21,
1982; 49 FR 22271, May 29, 1984; 51 FR 4482, Feb. 5, 1986; 51 FR
17617, May 14, 1986)
20 CFR 404.338 Widow's and widower's benefits amounts.
Your widow's or widower's monthly benefit is equal to the insured
person's primary insurance amount. If the insured person died before
reaching age 62 and you are first eligible after 1984, we may compute a
special primary insurance amount for the purpose of determining the
amount of your monthly benefit (see 404.212(b)). We may increase your
monthly benefit amount if the insured person earned delayed retirement
credit after age 65 by working or by delaying filing for benefits (see
404.313). The amount of your monthly benefit may change as explained in
404.304. In addition, your monthly benefit will be reduced if the
insured person had been entitled to old-age benefits that were reduced
for age because he or she chose to receive them before becoming 65 years
old. In this instance, your benefit is reduced, if it would otherwise
be higher, to either the amount the insured would have been entitled to
if still alive or 82 1/2 percent of his or her primary insurance amount,
whichever is larger.
(44 FR 34481, June 15, 1979, as amended at 51 FR 4482, Feb. 5, 1986)
20 CFR 404.339 Who is entitled to mother's or father's benefits.
You may be entitled as the widow or widower to mother's or father's
benefits on the earnings record of someone who was fully or currently
insured when he or she died. You are entitled to these benefits if --
(a) You are the widow or widower of the insured and meet the
conditions described in 404.335(a)(1);
(b) You apply for these benefits; or you were entitled to wife's
benefits for the month before the insured died;
(c) You are unmarried;
(d) You are not entitled to widow's or widower's benefits, or to an
old-age benefit that is equal to or larger than the full mother's or
father's benefit; and
(e) You have in your care the insured's child who is entitled to
child's benefits and he or she is under 16 years old or is disabled.
Sections 404.348 and 404.349 describe when a child is in your care.
(44 FR 34481, June 15, 1979, as amended at 48 FR 21927, May 16, 1983)
20 CFR 404.340 Who is entitled to mother's or father's benefits as a
surviving divorced spouse.
You may be entitled to mother's or father's benefits as the suviving
divorced wife or the surviving divorced husband of someone who was fully
or currently insured when he or she died. You are entitled to these
benefits if --
(a) You were validly married to the insured under State law as
described in 404.345(a) but the marriage ended in a final divorce and
--
(1) You are the mother or father of the insured's child; or
(2) You were married to the insured when either of you adopted the
other's child or when both of you adopted a child and the child was then
under 18 years old;
(b) You apply for these benefits; or you were entitled to wife's or
husband's benefits for the month before the insured died;
(c) You are unmarried;
(d) You are not entitled to widow's or widower's benefits, or to an
old-age benefit that is equal to or larger than the full mother's or
father's benefit; and
(e) You have in your care the insured's child who is under age 16 or
disabled, is your natural or adopted child, and is entitled to child's
benefits on the insured person's record. Sections 404.348 and 404.349
describe when a child is in your care.
(44 FR 34481, June 15, 1979, as amended at 45 FR 68932, Oct. 17,
1980; 48 FR 21927, May 16, 1983)
20 CFR 404.341 When mother's and father's benefits begin and end.
(a) You are entitled to mother's or father's benefits beginning with
the first month covered by your application in which you meet all the
other requirements for entitlement.
(b) Your entitlement to benefits ends with the month before the month
in which one of the following events first occurs:
(1) You become entitled to a widow's or widower's benefit or to an
old-age benefit that is equal to or larger than the full mother's or
father's benefit.
(2) The child in your care becomes age 16 and not disabled or is
otherwise no longer entitled to child's benefits. (See paragraph (c) of
this section if you were entitled to mother's or father's benefits for
August 1981.)
(3) You remarry. Your benefits will not end, however, if you marry
someone entitled to old-age, disability, wife's, husband's, widow's,
widower's, father's, mother's, parent's or disabled child's benefits.
(4) If you are entitled to benefits based upon a deemed valid
marriage, another person becomes entitled to benefits as the widow or
widower as described in 404.346(d).
(5) You die.
(c) If you were entitled to spouse's benefits on the basis of having
a child in care, or to mother's or father's benefits for August 1981,
your entitlement will continue until September 1983, until the child
reaches 18 (unless disabled) or is otherwise no longer entitled to
child's benefits, or until one of the events described in paragraph
(b)(1), (3), (4) or (5) of this section occurs, whichever is earliest.
(44 FR 34481, June 15, 1979, as amended at 48 FR 21927, May 16, 1983;
49 FR 24115, June 12, 1984)
20 CFR 404.342 Mother's and father's benefit amounts.
Your mother's or father's monthly benefit is equal to 75 percent of
the insured person's primary insurance amount. The amount of your
monthly benefit may change as explained in 404.304.
20 CFR 404.344 Your relationship by marriage to the insured.
You may be eligible for benefits if your are related to the insured
person as a wife, husband, widow, or widower. To decide your
relationship to the insured, we look first to State laws. The State
laws that we use are discussed in 404.345. If your relationship cannot
be established under State law, you may still be eligible for benefits
if your relationship as the insured's wife, husband, widow, or widower
is based upon a deemed valid marriage as described in 404.346.
20 CFR 404.345 Your relationship as wife, husband, widow, or widower
under State law.
To decide your relationship as the insured's wife or husband, we look
to the laws of the State where the insured had a permanent home when you
applied for wife's or husband's benefits. To decide your relationship
as the insured's widow or widower, we look to the laws of the State
where the insured had a permanent home when he or she died. If the
insured's permanent home is not or was not in one of the 50 States, the
Commonwealth of Puerto Rico, the Virgin Islands, Guam, or American
Samoa, we look to the laws of the District of Columbia. For a
definition of permanent home, see 404.303. If you and the insured were
validly married under State law at the time you apply for wife's or
husband's benefits or at the time the insured died if you apply for
widow's, widower's, mother's, or father's benefits, the relationship
requirement will be met. The relationship requirement will also be met
if under State law you would be able to inherit a wife's, husband's,
widow's, or widower's share of the insured's personal property if he or
she were to die without leaving a will.
20 CFR 404.346 Your relationship as wife, husband, widow or widower
based upon a deemed valid marriage.
(a) General. If your relationship as the insured's wife, husband,
widow, or widower cannot be established under State law as explained in
404.345, you may be eligible for benefits based upon a deemed valid
marriage. You will be deemed to be the wife, husband, widow, or widower
of the insured if, in good faith, you went through a marriage ceremony
with the insured that would have resulted in a valid marriage except for
a legal impediment. A legal impediment includes only an impediment
which results because a previous marriage had not ended at the time of
the ceremony or because there was a defect in the procedure followed in
connection with the intended marriage. For example, a defect in the
procedure may be found where a marriage was performed through a
religious ceremony in a country that requires a civil ceremony for a
valid marriage. Good faith means that at the time of the ceremony you
did not know that a legal impediment existed, or if you did know, you
thought that it would not prevent a valid marriage.
(b) Entitlement based upon a deemed valid marriage. To be entitled
to benefits as the result of a deemed valid marriage, you and the
insured must have been living in the same household (see 404.347) at
the time the insured died or, if the insured is living, at the time you
apply for benefits. You may not be entitled to benefits as the result
of a deemed valid marriage if, at the time you apply, another person is
or has been entitled to benefits as the wife, husband, widow, or widower
of the insured and this person is a wife, husband, widow, or widower
under State law as explained in 404.345. If this person loses his or
her status as a wife, husband, widow or widower under State law you may
become entitled to benefits. Also, if after your entitlement, we find
that another person is the wife, husband, widow, or widower of the
insured under State law as explained in 404.345, your entitlement will
end with the month before the month in which this determination is made.
(44 FR 34481, June 15, 1979, as amended at 45 FR 65540, Oct. 3, 1980;
48 FR 21927, May 16, 1983)
20 CFR 404.347 ''Living in the same household'' defined.
You may be eligible for benefits as a wife, husband, widow, or
widower because your relationship to the insured is based upon a deemed
valid marriage, as described in 404.346, only if you and the insured
were living in the same household at the time you apply for wife's or
husband's benefits or at the time the insured died if you apply for
widow's, widower's, mother's, or father's benefits. Living in the same
household means that you and the insured customarily lived together as
husband and wife in the same residence. You may be considered to be
living in the same household although one of you is temporarily absent
from the residence. An absence will be considered temporary if it was
due to service in the U.S. Armed Forces. An absence of less than 6
months is also considered temporary if neither you nor the insured were
outside of the United States during this time and the absence was due to
business or employment; or to confinement in a hospital, nursing home,
other medical institution, or a penal institution. Other absences may
be considered temporary if it is shown that you and the insured could
have reasonably expected to live together in the near future.
20 CFR 404.348 When a child living with you is ''in your care''.
To become entitled to wife's benefits before you become 62 years old
or to mother's or father's benefits, you must have the insured's child
in your care. A child who has been living with you for at least 30 days
is in your care unless --
(a) The child is in active military service;
(b) The child is 16 years old or older and not disabled;
(c) The child is 16 years old or older with a mental disability, but
you do not actively supervise his or her activities and you do not make
important decisions about his or her needs, either alone or with help
from your spouse; or
(d) The child is 16 years old or older with a physical disability,
but it is not necessary for you to perform personal services for him or
her. Personal services are services such as dressing, feeding, and
managing money that the child cannot do alone because of a disability.
(44 FR 34481, June 15, 1979, as amended at 48 FR 21927, May 16, 1983)
20 CFR 404.349 When a child living apart from you is ''in your care''.
(a) In your care. A child living apart from you is in your care if
--
(1) The child lived apart from you for not more than 6 months, or the
child's current absence from you is not expected to last over 6 months;
(2) The child is under 16 years old, you supervise his or her
activities and make important decisions about his or her needs, and one
of the following circumstances exist:
(i) The child is living apart because of school but spends at least
30 days vacation with you each year unless some event makes having the
vacation unreasonable; and if you and the child's other parent are
separated, the school looks to you for decisions about the child's
welfare;
(ii) The child is living apart because of your employment but you
make regular and substantial contributions to his or her support; see
404.366(a) for a definition of contributions for support;
(iii) The child is living apart because of a physical disability that
the child has or that you have; or
(3) The child is 16 years old or older, is mentally disabled, and you
supervise his or her activities, make important decisions about his or
her needs, and help in his or her upbringing and development.
(b) Not in your care. A child living apart from you is not in your
care if --
(1) The child is in active military service;
(2) The child is living with his or her other parent;
(3) The child is removed from your custody and control by a court
order;
(4) The child is 16 years old or older, is mentally competent, and
either has been living apart from you for 6 months or more or begins
living apart from you and is expected to be away for more than 6 months;
(5) You gave your right to have custody and control of the child to
someone else; or
(6) You are mentally disabled.
(44 FR 34481, June 15, 1979, as amended at 48 FR 21927, May 16, 1983)
20 CFR 404.349 Child's Benefits
20 CFR 404.350 Who is entitled to child's benefits.
You are entitled to child's benefits on the earnings record of an
insured person who is entitled to old-age or disability benefits or who
has died if --
(a) You are the insured person's child, based upon a relationship
described in 404.355 through 404.359;
(b) You are dependent on the insured, as defined in 404.360 through
404.365;
(c) You apply;
(d) You are unmarried; and
(e) You are under age 18, you are 18 years old or older and have a
disability that began before you became 22 years old, or you are 18
years or older and qualify for benefits as a full-time student as
described in 404.367 or 404.369.
(44 FR 34481, June 15, 1979, as amended at 48 FR 21927, May 16, 1983)
20 CFR 404.351 Who may be reentitled to child's benefits.
If your entitlement to child's benefits has ended, you may be
reentitled on the same earnings record if you have not married and if
you apply for reentitlement. Your reentitlement may begin with --
(a) The first month in which you qualify as a full-time student.
(See 404.367 and 404.369)
(b) The first month in which you are disabled, if your disability
began before you became 22 years old; or
(c) The first month you are under a disability that began before the
end of the 84th month following the month in which your benefits had
ended because an earlier disability had ended.
(44 FR 34481, June 15, 1979, as amended at 48 FR 21927, May 16, 1983)
20 CFR 404.352 When child's benefits begin and end.
(a) When benefits begin. (1) If the insured is deceased, you are
entitled to child's benefits beginning with the first month covered by
your application in which you meet all other requirements for
entitlement.
(2) If the insured is living, you are entitled to child's benefits
beginning with the first month covered by your application:
(i) Throughout which you meet all the other requirements for
entitlement if your first month of entitlement is September 1981 or
later; or
(ii) In which you meet all the other requirements for entitlement if
your first month of entitlement is before September 1981.
(b) Your entitlement to benefits ends with the month before the month
in which one of the following events first occurs:
(1) You become 18 years old, unless you are disabled or a full-time
student. If you become 18 years old and you are disabled, your
entitlement to disability benefits ends with the second month following
the month in which your disability ends. If your disability ends on or
after December 1, 1980, your entitlement to disability benefits
continues, subject to the provisions of paragraphs (c) and (d) of this
section, until the month before your termination month ( 404.325). If
you become 18 years old and you qualify as a full-time student who is
not disabled, your entitlement ends with the last month you are a
full-time student or, if earlier, the month before the month you became
age 19 (age 22 in certain situations described in 404.369). If you
become age 19 in a month in which you have not completed the
requirements for, or received, a diploma or equivalent certificate from
an elementary or secondary school, your entitlement will end with the
month in which the quarter or semester in which you are enrolled ends if
you are required to enroll for each quarter or semester. If the school
you are attending does not have a quarter or semester system which
requires reenrollment, your benefits will end with the month you
complete the course or, if earlier, the first day of the third month
following the month in which you become 19 years old.
(2) You marry. Your benefits will not end, however, if you are age
18 or older, disabled, and you marry a person entitled to child's
benefits based on disability or person entitled to old-age, divorced
wife's, divorced husband's, widow's, widower's, mother's, father's,
parent's, or disability benefits.
(3) The insured's entitlement to old-age or disability benefits ends
for a reason other than death or the attainment of age 65.
(4) You die.
(c)(1) Your benefits may be continued after your impairment is no
longer disabling if --
(i) Your disability did not end before December 1980, the effective
date of this provision of the law;
(ii) You are participating in an appropriate program of vocational
rehabilitation as described in 404.316(c)(1)(ii);
(iii) You began the program before your disability ended; and
(iv) We have determined that your completion of the program, or your
continuation in the program for a specified period of time, will
significantly increase the likelihood that you will not have to return
to the disability benefit rolls.
(2) Your benefits generally will be stopped with the month --
(i) You complete the program;
(ii) You stop participating in the program for any reason; or
(iii) We determine that your continuing participation in the program
will no longer significantly increase the likelihood that you will be
permanently removed from the disability benefit rolls.
Exception: In no case will your benefits be stopped with a month
earlier than the second month after the month your disability ends.
(d) If, after November 1980, you have a disabling impairment (
404.1511), you will be paid benefits for all months in which you do not
do substantial gainful activity during the reentitlement period (
404.1592a) following the end of your trial work period ( 404.1592). If
you are unable to do substantial gainful activity in the first month
following the reentitlement period, we will pay you benefits until you
are able to do substantial gainful activity. (Earnings during your
trial work period do not affect the payment of your benefits during that
period.) You will also be paid benefits for the first month after the
trial work period in which you do substantial gainful activity and the
two succeeding months, whether or not you do substantial gainful
activity during those succeeding months. After those three months, you
cannot be paid benefits for any months in which you do substantial
gainful activity.
(44 FR 34481, June 15, 1979, as amended at 47 FR 31543, July 21,
1982; 48 FR 21927, May 16, 1983; 49 FR 22271, May 29, 1984; 49 FR
24115, June 12, 1984; 51 FR 17617, May 14, 1987)
20 CFR 404.353 Child's benefit amounts.
(a) General. Your child's monthly benefit is equal to one-half of
the insured person's primary insurance amount if he or she is alive and
three-fourths of the primary insurance amount if he or she has died.
The amount of your monthly benefit may change as explained in 404.304
and 404.369.
(b) Entitlement to more than one benefit. If you are entitled to a
child's benefit on more than one person's earnings record, you will
ordinarily receive only the benefit payable on the record with the
highest primary insurance amount. If your benefit before any reduction
would be larger on an earnings record with a lower primary insurance
amount and no other person entitled to benefits on any earnings record
would receive a smaller benefit as a result of your receiving benefits
on the record with the lower primary insurance amount, you will receive
benefits on that record. See 404.407(d) for a further explanation. If
you are entitled to a child's benefit and to other dependent's or
survivor's benefits, you can receive only the highest of the benefits.
(44 FR 34481, June 15, 1979; 44 FR 56691, Oct. 2, 1979, as amended
at 48 FR 21928, May 16, 1983; 51 FR 12606, Apr. 14, 1986)
20 CFR 404.354 Your relationship to the insured.
(a) General. You may be related to the insured person in one of
several ways and be entitled to benefits as his or her child -- as a
natural child, legally adopted child, stepchild, grandchild,
stepgrandchild, or equitably adopted child.
(b) Use of State laws. To decide your relationship to the insured,
we look to the laws that are in effect in the State where the insured
has his or her permanent home when you apply for benefits. If the
insured is deceased, we look to the laws that were in effect at the time
the insured worker died in the State where the insured had his or her
permanent home. If the insured's permanent home is not or was not in
one of the 50 States, the Commonwealth of Puerto Rico, the Virgin
Islands, Guam, or American Samoa, we will look at the laws of the
District of Columbia. For a definition of permanent home, see 404.303.
The State laws we use are the ones the courts would use to decide
whether you could inherit a child's share of the insured's personal
property if he or she were to die without leaving a will. If these laws
would not permit you to inherit the insured's personal property as his
or her child, you may still be eligible for child's benefits if you are
related to the insured in one of the other ways described in 404.355
through 404.359.
(44 FR 34481, June 15, 1979, as amended at 49 FR 21513, May 22, 1984)
20 CFR 404.355 Who is the insured's natural child.
You may be eligible for benefits as the insured's natural child if
one of the following conditions is met:
(a) You could inherit the insured's personal property as his or her
natural child under State inheritance laws as described in 404.354.
(b) You are the insured's natural child, and the insured and your
mother or father went through a ceremony which would have resulted in a
valid marriage between them except for a legal impediment described in
404.346(a).
(c) You are the insured's natural child and your mother or father has
not married the insured, but the insured has either acknowledged in
writing that you are his or her child, been decreed by a court to be
your father or mother, or been ordered by a court to contribute to your
support because you are his or her child. In the case where the insured
is deceased, the acknowledgement, court decree, or court order must have
been made before his or her death. For purposes of determining whether
the conditions of entitlement are met throughout the first month as
stated in 404.352(a), the written acknowledgement, court decree, or
court order will be considered to have occurred on the first day of the
month in which it actually occurred.
(d) Your mother or father has not married the insured but you have
evidence other than the evidence described in paragraph (c) of this
section to show that the insured is your natural father or mother.
Additionally, you must have evidence to show that the insured was either
living with you or contributing to your support at the time you applied
for benefits. See 404.366 for an explanation of the terms living with
and contributing to your support. If the insured is not alive at the
time of your application you must have evidence to show that the insured
was either living with you or contributing to your support when he or
she died.
(44 FR 34481, June 15, 1979, as amended at 45 FR 65540, Oct. 3, 1980;
49 FR 24115, June 12, 1984)
20 CFR 404.356 Who is the insured's legally adopted child.
You may be eligible for benefits as the insured's child if you were
legally adopted by the insured. If you were legally adopted after the
insured's death by his or her surviving spouse you may also be
considered the insured's legally adopted child.
20 CFR 404.357 Who is the insured's stepchild.
You may be eligible for benefits as the insured's stepchild if, after
you birth, your natural or adopting parent married the insured. The
marriage between the insured and your parent must be a valid marriage
under State law or a marriage which would be valid except for a legal
impediment described in 404.346(a). If the insured is alive when you
apply, you must have been his or her stepchild for at least 1 year
immediately preceding the day you apply. For purposes of determining
whether the conditions of entitlement are met throughout the first month
as stated in 404.352(a)(2)(i), you will be considered to meet the one
year duration requirement throughout the month in which the anniversary
of the marriage occurs. If the insured is not alive when you apply, you
must have been his or her stepchild for at least 9 months immediately
preceding the day the insured died. This 9-month requirement will not
have to be met if the marriage between the insured and your parent
lasted less than 9 months under the conditions described in
404.335(a)(2).
(48 FR 21928, May 16, 1983)
20 CFR 404.358 Who is the insured's grandchild or stepgrandchild.
(a) Grandchild and stepgrandchild defined. You may be eligible for
benefits as the insured's grandchild or
stepgrandchild if you are the natural child, adopted child, or
stepchild of a person who is the insured's child as defined in 404.355
through 404.357, or 404.359. Additionally, for you to be eligible as a
grandchild or stepgrandchild, your natural or adoptive parents must have
been either deceased or under a disability, as defined in 404.1501(a),
at the time your grandparent or stepgrandparent became entitled to
old-age or disability benefits or died; or if your grandparent or
stepgrandparent had a period of disability that continued until he or
she became entitled to benefits or died, at the time the period of
disability began. If your parent is deceased, for purposes of
determining whether the conditions of entitlement are met throughout the
first month as stated in 404.352(a)(2)(i), your parent will be
considered to be deceased as of the first day of the month of death.
(b) Legally adopted grandchild or stepgrandchild. If you are the
insured's grandchild or stepgrandchild and you are legally adopted by
the insured or by the insured's surviving spouse after his or her death,
you are considered an adopted child and the dependency requirements of
404.362 must be met.
(44 FR 34481, June 15, 1979, as amended at 48 FR 21928, May 16, 1983)
20 CFR 404.359 Who is the insured's equitably adopted child.
You may be eligible for benefits as an equitably adopted child if the
insured had agreed to adopt you as his or her child but the adoption did
not occur. The agreement to adopt you must be one that would be
recognized under State law so that you would be able to inherit a
child's share of the insured's personal property if he or she were to
die without leaving a will. The agreement must be in whatever form, and
you must meet whatever requirements for performance under the agreement,
that State law directs. If you apply for child's benefits after the
insured's death, the law of the State where the insured had his or her
permanent home at the time of his or her death will be followed. If you
apply for child's benefits during the insured's life, the law of the
State where the insured has his or her permanent home at the time or
your application will be followed.
20 CFR 404.360 When a child is dependent upon the insured person.
One of the requirements for entitlement to child's benefits is that
you be dependent upon the insured. The evidence you need to prove your
dependency is determined by how you are related to the insured. To
prove your dependency you may be asked to show that at a specific time
you lived with the insured, that you received contributions for your
support from the insured, or that the insured provided at least one-half
of your support. These dependency requirements, and the time at which
they must be met, are explained in 404.361 through 404.365. The terms
living with, contributions for support, and one-half support are defined
in 404.366.
20 CFR 404.361 When a natural child is dependent.
If you are the insured's natural child, as defined in 404.355, you
are considered dependent upon him or her. However, if you are legally
adopted by someone else during the insured's lifetime and after the
adoption you apply for child's benefits on the insured's earnings
record, you will be considered dependent upon the insured (your natural
parent) only if he or she was either living with you or contributing to
your support at one of these times --
(a) When you applied;
(b) When the insured died; or
(c) If the insured had a period of disability that lasted until he or
she died or became entitled to disability or old-age benefits, at the
beginning of the period of disability or at the time he or she became
entitled to benefits.
20 CFR 404.362 When a legally adopted child is dependent.
(a) General. If you were legally adopted by the insured before he or
she became entitled to old-age or disability benefits, you are
considered dependent upon him or her. If you were legally adopted by
the insured after he or she became entitled to old-age or disability
benefits and you apply for child's benefits during the life of the
insured, you must meet the dependency requirements stated in paragraph
(b) of this section. If you were legally adopted by the insured after
he or she became entitled to old-age or disability benefits and you
apply for child's benefits after the death of the insured, you are
considered dependent upon him or her. If you were adopted after the
insured's death by his or her surviving spouse, you may be considered
dependent upon the insured only under the conditions described in
paragraph (c) of this section.
(b) Adoption by the insured after he or she became entitled to
benefits. (1) General. If you are legally adopted by the insured after
he or she became entitled to benefits and you are not the insured's
natural child or stepchild, you are considered dependent on the insured
during his or her lifetime only if --
(i) You had not attained age 18 when adoption proceedings were
started, and your adoption was issued by a court of competent
jurisdiction within the United States; or
(ii) You had attained age 18 before adoption proceedings were
started; your adoption was issued by a court of competent jurisdiction
within the United States; and you were living with or receiving at
least one-half of your support from the insured for the year immediately
preceding the month in which your adoption was issued.
(2) Natural child and stepchild. If you were legally adopted by the
insured after he or she became entitled to benefits and you are the
insured's natural child or stepchild, you are considered dependent upon
the insured.
(c) Adoption by the insured's surviving spouse -- (1) General. If
you are legally adopted by the insured's surviving spouse after the
insured's death, you are considered dependent upon the insured as of the
date of his or her death if --
(i) You were either living with or receiving at least one-half of
your support from the insured at the time of his or her death; and,
(ii) The insured had started adoption proceedings before he or she
died; or if the insured had not started the adoption proceedings before
he or she died, his or her surviving spouse began and completed the
adoption within 2 years of the insured's death.
(2) Grandchild or stepgrandchild adopted by the insured's surviving
spouse. If you are the grandchild or stepgrandchild of the insured and
any time after the death of the insured you are legally adopted by the
insured's surviving spouse, you are considered the dependent child of
the insured as of the date of his or her death if --
(i) Your adoption took place in the United States;
(ii) At the time of the insured's death, your natural, adopting or
stepparent was not living in the insured's household and making regular
contributions toward your support; and
(iii) You meet the dependency requirements stated in 404.364.
(44 FR 34481, June 15, 1979; 44 FR 56691, Oct. 2, 1979, as amended
at 56 FR 24000, May 28, 1991; 57 FR 3938, Feb. 3, 1992)
20 CFR 404.363 When a stepchild is dependent.
If you are the insured's stepchild, as defined in 404.357, you are
considered dependent upon him or her if you were either living with or
receiving at least one-half of your support from him or her at one of
these times --
(a) When you applied;
(b) When the insured died; or
(c) If the insured had a period of disability that lasted until his
or her death or entitlement to disability or old-age benefits, at the
beginning of the period of disability or at the time the insured became
entitled to benefits.
20 CFR 404.364 When a grandchild or stepgrandchild is dependent.
If you are the insured's grandchild or stepgrandchild, as defined in
404.358(a), you are considered dependent upon the insured if --
(a) You began living with the insured before you became 18 years old;
and
(b) You were living with the insured in the United States and
receiving at least one-half of your support from him for the year before
he or she became entitled to old-age or disability benefits or died; or
if the insured had a period of disability that lasted until he or she
became entitled to benefits or died, for the year immediately before the
month in which the period of disability began. If you were born during
the 1-year period, the insured must have lived with you and provided at
least one-half of your support for substantially all of the period that
begins on the date of your birth. The term substantially all is defined
in 404.362(b)(1)(iii).
20 CFR 404.365 When an equitably adopted child is dependent.
If you are the insured's equitably adopted child, as defined in
404.359, you are considered dependent upon him or her if you were either
living with or receiving contributions for your support from the insured
at the time of his or her death. If your equitable adoption is found to
have occurred after the insured became entitled to old-age or disability
benefits, your dependency cannot be established during the insured's
life. If your equitable adoption is found to have occurred before the
insured became entitled to old-age or disability benefits, you are
considered dependent upon him or her if you were either living with or
receiving contributions for your support from the insured at one of
these times --
(a) When you applied; or
(b) If the insured had a period of disability that lasted until he or
she became entitled to old-age or disability benefits, at the beginning
of the period of disability or at the time the insured became entitled
to benefits.
20 CFR 404.366 ''Contributions for support,'' ''one-half support,'' and
''living with'' the insured defined -- determining first month of
entitlement.
To be eligible for child's or parent's benefits, and in certain
Government pension offset cases, you must be dependent upon the insured
person at a particular time or be assumed dependent upon him or her.
What it means to be a dependent child is explained in 404.360 through
404.365; what it means to be a dependent parent is explained in
404.370(f); and the Government pension offset is explained in
404.408a. Your dependency upon the insured person may be based upon
whether at a specified time you were receiving contributions for your
support or one-half of your support from the insured person, or whether
you were living with him or her. These terms are defined in paragraphs
(a) through (c) of this section.
(a) Contributions for support. The insured makes a contribution for
your support if the following conditions are met:
(1) The insured gives some of his or her own cash or goods to help
support you. Support includes food, shelter, routine medical care, and
other ordinary and customary items needed for your maintenance. The
value of any goods the insured contributes is the same as the cost of
the goods when he or she gave them for your support. If the insured
provides services for you that would otherwise have to be paid for, the
cash value of his or her services may be considered a contribution for
your support. An example of this would be work the insured does to
repair your home. The insured person is making a contribution for your
support if you receive an allotment, allowance, or benefit based upon
his or her military pay, veterans' pension or compensation, or social
security earnings.
(2) Contributions must be made regularly and must be large enough to
meet an important part of your ordinary living costs. Ordinary living
costs are the costs for your food, shelter, routine medical care, and
similar necessities. If the insured person only provides gifts or
donations once in a while for special purposes, they will not be
considered contributions for your support. Although the insured's
contributions must be made on a regular basis, temporary interruptions
caused by circumstances beyond the insured person's control, such as
illness or unemployment, will be disregarded unless during this
interrruption someone else takes over responsibility for supporting you
on a permanent basis.
(b) One-half support. The insured person provides one-half of your
support if he or she makes regular contributions for your ordinary
living costs; the amount of these contributions equals or exceeds
one-half of your ordinary living costs; and any income (from sources
other than the insured person) you have available for support purposes
is one-half or less of your ordinary living costs. We will consider any
income which is available to you for your support whether or not that
income is actually used for your ordinary living costs. Ordinary living
costs are the costs for your food, shelter, routine medical care, and
similar necessities. A contribution may be in cash, goods, or services.
The insured is not providing at least one-half of your support unless
he or she has done so for a reasonable period of time. Ordinarily, we
consider a reasonable period to be the 12-month period immediately
preceding the time when the one-half support requirement must be met
under the rules in 404.362 through 404.364 (for child's benefits), in
404.370(f) (for parent's benefits) and in 404.408a(c) (for benefits
where the Government pension offset may be applied). A shorter period
will be considered reasonable under the following circumstances:
(1) At some point within the 12-month period, the insured either
begins or stops providing at least one-half of your support on a
permanent basis and this is a change in the way you had been supported
up to then. In these circumstances, the time from the change up to the
end of the 12-month period will be considered a reasonable period,
unless paragraph (b)(2) of this section applies. The change in your
source of support must be permanent and not temporary. Changes caused
by seasonal employment or customary visits to the insured's home are
considered temporary.
(2) The insured provided one-half or more of your support for at
least 3 months of the 12-month period, but was forced to stop or reduce
contributions because of circumstances beyond his or her control, such
as illness or unemployment, and no one else took over the responsibility
for providing at least one-half of your support on a permanent basis.
Any support you received from a public assistance program is not
considered as a taking over of responsibility for your support by
someone else. Under these circumstances, a reasonable period is that
part of the 12-month period before the insured was forced to reduce or
stop providing at least one-half of your support.
(c) ''Living with'' the insured. You are living with the insured if
you ordinarily live in the same home with the insured and he or she is
exercising, or has the right to exercise, parental control and authority
over your activities. You are living with the insured during temporary
separations if you and the insured expect to live together in the same
place after the separation. Temporary separations may include the
insured's absence because of active military service or imprisonment if
he or she still exercises parental control and authority. However, you
are not considered to be living with the insured if you are in active
military service or in prison. If living with is used to establish
dependency for your eligibility to child's benefits and the date your
application is filed is used for establishing the point for determining
dependency, you must have been living with the insured throughout the
month your application is filed in order to be entitled to benefits for
that month.
(d) Determining first month of entitlement. In evaluating whether
dependency is established under paragraph (a), (b), or (c) of this
section, for purposes of determining whether the conditions of
entitlement are met throughout the first month as stated in
404.352(a)(2)(i), we will not use the temporary separation or temporary
interruption rules.
(44 FR 34481, June 15, 1979, as amended at 45 FR 65540, Oct. 3, 1980;
48 FR 21928, May 16, 1983; 52 FR 26955, July 17, 1987)
20 CFR 404.367 When you are a ''full-time elementary or secondary
school student''.
Beginning August 1982, you may be eligible for child's benefits if
you are a full-time elementary or secondary school student. For the
purposes of determining whether the conditions of entitlement are met
throughout the first month as stated in 404.352(a)(2)(i), if you are
entitled as a student on the basis of attendance at an elementary or
secondary school, you will be considered to be in full-time attendance
for a month during any part of which you are in full-time attendance.
You are a full-time elementary or secondary school student if you meet
all the following conditions:
(a) You attend a school which provides elementary or secondary
education, respectively, as determined under the law of the State or
other jurisdiction in which it is located;
(b) You are in full-time attendance in a day or evening
noncorrespondence course of at least 13 weeks duration and are carrying
a subject load which is considered full-time for day students under the
institution's standards and practices. Additionally, your scheduled
attendance must be at the rate of at least 20 hours per week unless we
find that:
(1) The school attended does not schedule at least 20 hours per week
and going to that particular school is your only reasonable alternative;
or
(2) Your medical condition prevents you from having scheduled
attendance of at least 20 hours per week. To prove that your medical
condition prevents you from scheduling 20 hours per week, we may request
that you provide appropriate medical evidence or a statement from the
school.
(c) You are not being paid while attending the school by an employer
who has requested or required that you attend the school;
(d) You are in grade 12 or below; and
(e) You are not confined in a jail, prison, or other penal
institution or correctional facility for conviction of a felony
committed after October 19, 1980. (See 404.468, paragraphs (b) and (c)
for the meaning of felony and an explanation of when we consider a
person to be confined in a penal or correctional facility.)
(48 FR 21928, May 16, 1983, as amended at 48 FR 55452, Dec. 13, 1983;
56 FR 35999, July 30, 1991)
20 CFR 404.368 When you are considered a full-time student during a
period of nonattendance.
If you are a full-time student, your eligibility may continue during
a period of nonattendance (including part-time attendance) if all the
following conditions are met:
(a) The period of nonattendance is 4 consecutive months or less;
(b) You show us that you intend to resume your studies as a full-time
student at the end of the period or at the end of the period you are a
full-time student; and
(c) The period of nonattendance is not due to your expulsion or
suspension from the school.
(48 FR 21929, May 16, 1983)
20 CFR 404.369 Special rules for entitlement to child's benefits if you
are a full-time student for months before August 1982.
(a) Full-time student for months before August 1982. You are a
full-time student for purposes of benefits for months before August 1982
if:
(1) You are under age 22;
(2) You are attending an educational institution as defined in
paragraph (b) of this section;
(3) You are enrolled in noncorrespondence courses and carrying a
subject load that is considered full-time for day students under the
practices and standards of the educational institution. If you are
enrolled in a junior college, college, or university, your course of
study must last at least 13 weeks. If you are enrolled in any other
educational institution, your course of study must last at least 13
weeks and your scheduled attendance must be at least 20 hours a week.
If your full-time attendance either begins or ends in a month, you will
be considered a full-time student for that month. You will not be
considered a full time student in the month you graduate if you complete
your course of study and stop carrying a full-time subject load in a
month before the month preceding the month you graduate; and
(4) You are not being paid while attending the educational
institution by an employer who has requested or required that you attend
the school.
(b) Educational institution defined. An educational institution is a
school (including a technical, trade, or vocational school), junior
college, college, or university that meets any one of the following
conditions:
(1) It is operated or directly supported by the United States, by any
State or local government, or by a political subdivision of any State or
local government;
(2) It is approved by a State agency or subdivision of the State or
accredited by a State or nationally recognized accrediting body. A
nationally recognized accrediting body is one determined to be such by
the U.S. Secretary of Education. A State-recognized accrediting body is
one designated or recognized by a State as the proper authority for
accrediting schools, colleges, or universities. Approval by a State
agency or subdivision includes approval of a school, college, or
university as an educational institution or approval of one or more of
the courses offered by a school, college or university; or
(3) It is a nonaccredited school, college, or university, but its
credits are accepted by at least 3 educational institutions that have
been accedited by a State or nationally recognized accrediting body.
(c) When benefits can be paid after July 1982 based on attendance at
a school other than an elementary or secondary school. If you meet the
conditions for entitlement to student benefits for months before August
1982 as explained in paragraphs (a) and (b) of this section, but do not
meet the conditions for entitlement beginning in August 1982 (see
404.367), your benefits will end with July 1982 unless you meet the
following requirements:
(1) You have attained age 18;
(2) You are not under a disability;
(3) You were entitled to child's benefits (as a child, student or
disabled child) for August 1981; and
(4) You were in full-time attendance as described in paragraph (a)(3)
of this section at a post-secondary school for any month before May
1982. (A post-secondary school is any school which meets the definition
of an educational institution as defined in paragraph (b) of this
section but is not an elementary or secondary school as defined in
404.367(a).)
(d) Limitations on payments for months after July 1982. If you are
entitled to child's benefits based on the requirements of paragraphs (a)
and (c) of this section, your benefit amount (prior to any reduction due
to the family maximum or deduction on account of work) will be subject
to the following limitations:
(1) You will receive no benefits for May through August beginning
with calendar year 1982;
(2) Your benefit for September 1982 through April 1983 will be 75
percent of the benefit to which you were entitled for August 1981;
(3) Your benefit for September 1983 through April 1984 will be 50
percent of the benefit to which you were entitled for August 1981;
(4) Your benefit for September 1984 through April 1985 will be 25
percent of the benefit to which you were entitled for August 1981;
(5) You will receive no benefit for months after April 1985; and
(6) If your student benefits continue beyond July 1982 but later end
for any reason, you may not become reentitled to student benefits.
(48 FR 21929, May 16, 1983)
20 CFR 404.369 Parent's Benefits
20 CFR 404.370 Who is entitled to parent's benefits.
You may be entitled to parent's benefits on the earnings record of
someone who has died and was fully insured. You are entitled to these
benefits if all the following conditions are met:
(a) You are related to the insured person as his or her parent in one
of the ways described in 404.374.
(b) You are at least 62 years old.
(c) You have not married since the insured person died.
(d) You apply.
(e) You are not entitled to an old-age benefit equal to or larger
than the parent's benefit amount.
(f) You were receiving at least one-half of your support from the
insured at the time he or she died, or at the beginning of any period of
disability he or she had that continued up to death. See 404.366(b)
for a definition of one-half support. If you were receiving one-half of
your support from the insured at the time of the insured's death, you
must give us proof of this support within 2 years of the insured's
death. If you were receiving one-half of your support from the insured
at the time his or her period of disability began, you must give us
proof of this support within 2 years of the month in which the insured
filed his or her application for the period of disability. You must
file the evidence of support even though you may not be eligible for
parent's benefits until a later time. There are two exceptions to the
2-year filing requirement:
(1) If there is a good cause for failure to provide proof of support
within the 2-year period, we will consider the proof you give us as
though it were provided within the 2-year period. Good cause does not
exist if you were informed of the need to provide the proof within the
2-year period and you neglected to do so or did not intend to do so.
Good cause will be found to exist if you did not provide the proof
within the time limit due to --
(i) Circumstances beyond your control, such as extended illness,
mental or physical incapacity, or a language barrier;
(ii) Incorrect or incomplete information we furnished you;
(iii) Your efforts to get proof of the support without realizing that
you could submit the proof after you gave us some other evidence of that
support; or
(iv) Unusual or unavoidable circumstances that show you could not
reasonably be expected to know of the 2-year time limit.
(2) The Soldiers' and Sailors' Civil Relief Act of 1940 provides for
extending the filing time.
20 CFR 404.371 When parent's benefits begin and end.
(a) You are entitled to parent's benefits beginning with the first
month covered by your application in which you meet all the other
requirements for entitlement.
(b) Your entitlement to benefits ends with the month before the month
in which one of the following events first occurs:
(1) You become entitled to an old-age benefit equal to or larger than
the parent's benefit.
(2) You marry, unless your marriage is to someone entitled to wife's,
husband's, widow's, widower's, mother's, father's, parent's or disabled
child's benefits. If you marry a person entitled to these benefits, the
marriage does not affect your benefits.
(3) You die.
(44 FR 34481, June 15, 1979, as amended at 49 FR 24116, June 12,
1984)
20 CFR 404.373 Parent's benefit amounts.
Your parent's monthly benefit before any reduction that may be made
as explained in 404.304, is figured in one of the following ways:
(a) One parent entitled. Your parent's monthly benefit is equal to
82 1/2 percent of the insured person's primary insurance amount if you
are the only parent entitled to benefits on his or her earnings record.
(b) More than one parent entitled. Your parent's monthly benefit is
equal to 75 percent of the insured person's primary insurance amount if
there is another parent entitled to benefits on his or her earnings
record.
20 CFR 404.374 Parent's relationship to the insured.
You may be eligible for benefits as the insured person's parent if --
(a) You are the mother or father of the insured and would be
considered his or her parent under the laws of the State where the
insured had a permanent home when he or she died;
(b) You are the adoptive parent of the insured and legally adopted
him or her before the insured person became 16 years old; or
(c) You are the stepparent of the insured and you married the
insured's parent or adoptive parent before the insured became 16 years
old. The marriage must be valid under the laws of the State where the
insured had his or her permanent home when he or she died. See 404.303
for a definition of permanent home.
20 CFR 404.374 Special Payment at Age 72
20 CFR 404.380 General.
Some older persons had little or no chance to become fully insured
for regular social security benefits during their working years. For
those who became 72 years old several years ago but are not fully
insured, a special payment may be payable as described in the following
sections.
20 CFR 404.381 Who is entitled to special age 72 payments.
You are entitled to a special age 72 payment if --
(a) You have attained the age of 72; and
(1) You attained such age before 1968; or
(2) You attained such age after 1967 -- or, for applications filed
after November 5, 1990, you attained age 72 after 1967 and before 1972
-- and have at least 3 quarters of coverage for each calendar year
elapsing after 1966 and before the year in which you attained age 72
(see subpart B for a description of quarters of coverage);
(b) You reside in one of the 50 states, the District of Columbia, or
the Northern Mariana Islands;
(c) You apply; and
(d) You are a U.S. citizen or a citizen of the Northern Mariana
Islands; or you are an alien who was legally admitted for permanent
residence in the United States and who has resided here continuously for
5 years. Residence in the United States includes residence in the
Northern Mariana Islands, Guam, American Samoa, Puerto Rico, and the
Virgin Islands.
(44 FR 34481, June 15, 1979, as amended at 57 FR 21598, May 21, 1992)
20 CFR 404.382 When special age 72 payments begin and end.
(a) Your entitlement to the special age 72 payment begins with the
first month covered by your application in which you meet all the other
requirements for entitlement.
(b) Your entitlement to this payment ends with the month before the
month of your death.
20 CFR 404.383 Special age 72 payment amounts.
(a) Payment from May 1983 on. If you are entitled to special age 72
payments from May 1983 on, you will receive a monthly payment of
$125.60. If your spouse is also entitled to special age 72 payments, he
or she will also receive $125.60. This amount, first payable for June
1982, will be increased when cost-of-living adjustments of Social
Security benefits occur. This special payment may be reduced, suspended
or not paid at all as explained in 404.384.
(b) Payment prior to May 1983. If a husband or a single individual
is entitled to special age 72 payments for months prior to May 1983, the
amount payable was $125.60 for the months since June 1982. The wife
received an amount approximiately one-half the husband's amount (i.e.,
$63.00 for months in the period June 1982-April 1983).
(49 FR 24116, June 12, 1984)
20 CFR 404.384 Reductions, suspensions, and nonpayments of special age
72 payments.
(a) General. Special age 72 payments may not be paid for any month
you receive public assistance payments. The payment may be reduced if
you or your spouse are eligible for a government pension. In some
instances, the special payment may not be paid while you are outside the
United States. The rules on when special payments may be suspended,
reduced, or not paid are provided in paragraphs (b) through (e) of this
section.
(b) Suspension of special age 72 payments when you receive certain
assistance payments. You cannot receive the special payment if
supplemental security income or aid to families with dependent children
(AFDC) payments are payable to you, or if your needs are considered in
setting the amounts of these assistance payments made to someone else.
However, if these assistance payments are stopped, you may receive the
special payment beginning with the last month for which the assistance
payments were paid.
(c) Reduction of special age 72 payments when you or your spouse are
eligible for a government pension. Special payments are reduced for any
regular government pension (or lump-sum payment given instead of a
pension) that you or your spouse are eligible for at retirement. A
government pension is any annuity, pension, or retirement pay from the
Federal Government, a State government or political subdivision, or any
organization wholly owned by the Federal or State government. Also
included as a government pension is any social security benefit. The
term government pension does not include workmen's compensation payments
or Veterans Administration payments for a service-connected disability
or death.
(d) Amount of reduction because of a government pension. If you are
eligible for a government pension, the amount of the pension will be
subtracted from your special age 72 payment. If your spouse is eligible
for a government pension but is not entitled to the special payment,
your special payment is reduced (after any reduction due to your own
government pension) by the difference between the pension amount and the
full special payment amount. If both you and your spouse are entitled
to the special payment, each spouse's payment is first reduced by the
amount of his or her own government pension (if any). Then, the wife's
special payment is reduced by the amount that the husband's government
pension exceeds the full special payment. The husband's special payment
is also reduced by the amount that the wife's government pension exceeds
the full special payment.
(e) Nonpayment of special age 72 payments when you are not residing
in the United States. No special payment is due you for any month you
are not a resident of one of the 50 States, the District of Columbia, or
the Northern Mariana Islands. Also, payment to you may not be permitted
under the rules in 404.463 if you are an alien living outside the
United States.
(44 FR 34481, June 15, 1979, as amended at 49 FR 24116, June 12,
1984)
20 CFR 404.384 Lump-Sum Death Payment
20 CFR 404.390 General.
If a person is fully or currently insured when he or she dies, a
lump-sum death payment of $255 may be paid to the widow or widower of
the deceased if he or she was living in the same household with the
deceased at the time of his or her death. If the insured is not
survived by a widow or widower who meets this requirement, all or part
of the $255 payment may be made to someone else as described in
404.392 and 404.393.
(44 FR 34481, June 15, 1979, as amended at 48 FR 21929, May 16, 1983)
20 CFR 404.391 Who is entitled to the lump-sum death payment as a widow
or widower who was living in the same household.
You are entitled to the lump-sum death payment as a widow or widower
who was living in the same household if --
(a) You are the widow or widower of the deceased insured individual
based upon a relationship described in 404.345 or 404.346;
(b) You apply for this payment within two years after the date of the
insured's death. You need not apply again if, in the month prior to the
death of the insured, you were entitled to wife's or husband's benefits
on his or her earnings record; and
(c) You were living in the same household with the insured at the
time of his or her death. The term living in the same household is
defined in 404.347.
(44 FR 34481, June 15, 1979, as amended at 48 FR 21929, May 16, 1983)
20 CFR 404.392 Who is entitled to the lump-sum death payment when there
is no widow or widower who was living in the same household -- death
occurs after August 1981.
(a) General. If the insured individual dies after August 1981 and is
not survived by a widow or widower who meets the requirements of
404.391, the lump-sum death payment shall be paid as follows:
(1) To a person who is entitled (or would have been entitled had a
timely application been filed) to widow's or widower's benefits (as
described in 404.335) or mother's or father's benefits (as described in
404.339) on the work record of the deceased worker for the month of
that worker's death; or
(2) If no person described in (1) survives, in equal shares to each
person who is entitled (or would have been entitled had a timely
application been filed) to child's benefits (as described in 404.350)
on the work record of the deceased worker for the month of that worker's
death.
(b) Application requirement. A person who meets the requirements of
paragraph (a)(1) of this section need not apply to receive the lump-sum
death payment if, for the month prior to the death of the insured, that
person was entitled to wife's or husband's benefits on the insured's
earnings record. Otherwise, an application must be filed within 2 years
of the insured's death.
(48 FR 21929, May 16, 1983)
20 CFR 404.393 Who is entitled to the lump-sum death payment when there
is no widow or widower who was living in the same household -- death
occurs before September 1, 1981.
If the insured individual dies before September 1, 1981 and is not
survived by a widow or widower who meets the requirements of 404.391,
the lump-sum death payment shall be paid as follows:
(a) If all or part of the burial expenses of the deceased incurred by
a funeral home remain unpaid, the funeral home may receive the lump-sum
death payment to the extent of the unpaid expenses if --
(1) A person who has assumed the responsibility for paying these
expenses applies for the lump-sum death payment within 2 years of the
insured's death, asking that the payment be made to the funeral home;
or
(2) At least 90 days have gone by since the death of the insured, no
person has assumed responsibility for paying the burial expenses, and
the funeral home director or other official of the funeral home applies
for the payment.
(b) If all the burial expenses of the insured that were incurred by a
funeral home have been paid, and any part of the lump-sum death payment
remains, it may be paid to a person who paid these burial expenses and
who applies for the payment within 2 years of the insured's death.
(c) If the body of the deceased is not available for burial, but
expenses were incurred in connection with a memorial service or any
other item for which expenses are customarily incurred in connection
with disposing of a deceased's remains, the lump-sum death payment may
be paid to a person who paid the expenses and applies for the payment
within 2 years of the insured's death.
(d) If any part of the lump-sum death payment remains after payments
have been made under paragraphs (a), (b), and (c) of this section, that
part of the payment may be made to a person who applies within 2 years
of the insured's death and who has paid other expenses of a burial in
the following order of priority --
(1) Expenses of opening and closing the grave;
(2) Expenses of providing the burial plot; and
(3) Any remaining expenses in connection with the burial.
(44 FR 34481, June 15, 1979; 44 FR 56691, Oct. 2, 1979.
Redesignated and amended at 48 FR 21929, 21930, May 16, 1983)
20 CFR 404.394 Who is entitled to the lump-sum death payment when
burial expenses are paid from the deceased's funds.
If funds of a deceased person were used to pay any of the burial
expenses for which payment of the lump-sum can be made under the rules
in 404.393, the deceased person's estate may be entitled to the
lump-sum death payment. If you apply for the payment on behalf of a
person's estate, you must show you are the legal representative
(administrator or executor) of the estate. If there is no legal
representative and none will be appointed, you must agree to divide the
payment among those who have a right to it under State law, or under
foreign law, that applies where the deceased had his or her permanent
home at death. We may also require that you get written approval to
receive the payment from any of the deceased's closest relatives who are
available. A person's closest relatives follow this order: widower or
widow; children and the children of any deceased children; parents;
brothers and sisters and the children of any deceased brothers and
sisters; and other relatives by blood or adoption.
(44 FR 34481, June 15, 1979. Redesignated and amended at 48 FR 21929,
21930, May 16, 1983)
20 CFR 404.395 Who is not entitled to the lump-sum death payment.
The following persons and organizations are not entitled to the
lump-sum payment --
(a) The U.S. Government or a foreign government;
(b) Any person who has received or will receive repayment from any
other source for the burial expenses he or she paid;
(c) Persons and organizations who are required by a contract to pay
the burial expenses except for a tax-exempt, nonprofit home for the sick
or aged that paid for burial of a deceased resident or guest or a
tax-exempt, nonprofit fraternal organization that paid a member's burial
expenses not covered by an express contract;
(d) An employer or organization that paid burial expenses of an
employee or member under a plan, system, or general practice other than
a home for the sick or aged or a fraternal organization mentioned in
paragraph (c) of this section; and
(e) A person or organization that furnished goods or services for the
burial unless the goods or services were furnished by --
(1) A State or a political subdivision of a State;
(2) An organization exempt from income tax under section 501(c)(3) or
(13) of the Internal Revenue Code; or
(3) A funeral director in connection with burial of a close relative.
(44 FR 34481, June 15, 1979. Redesignated at 48 FR 21929, May 16,
1983)
20 CFR 404.395 Subpart E -- Deductions; Reductions; and Nonpayments
of Benefits
Authority: Secs. 202, 203, 204(a) and (e), 205(a) and (c), 222(b),
223(e), 224, 227, and 1102 of the Social Security Act; 42 U.S.C. 402,
403, 404(a) and (e), 405(a) and (c), 422(b), 423(e), 424, 427, and 1302.
Source: 32 FR 19159, Dec. 20, 1967, unless otherwise noted.
20 CFR 404.401 Deduction, reduction, and nonpayment of monthly benefits
or lump-sum death payments.
Under certain conditions the amount of a monthly insurance benefit
(see 404.377 through 404.380 for provisions concerning special
payments at age 72) or the lump-sum death payment as calculated under
the pertinent provisions of sections 202 and 203 of the Act (including
reduction for age under section 202(q) of a monthly benefit) must be
increased or decreased to determine the amount to be actually paid to a
beneficiary. Increases in the amount of a monthly benefit or lump-sum
death payment are based upon recomputation and recalculations of the
primary insurance amount (see subpart C of this part). A decrease in
the amount of a monthly benefit or lump-sum death payment is required in
the following instances:
(a) Reductions. A reduction of a person's monthly benefit is
required where:
(1) The total amount of the monthly benefits payable on an earnings
record exceeds the maximum that may be paid (see 404.403);
(2) An application for monthly benefits is effective for a month
during a retroactive period, and the maximum has already been paid for
that month or would be exceeded if such benefit were paid for that month
(see 404.406);
(3) An individual is entitled to old-age or disability insurance
benefits in addition to any other monthly benefit (see 404.407);
(4) An individual under age 65 is concurrently entitled to disability
insurance benefits and to certain public disability benefits (see
404.408);
(5) An individual is entitled in a month to a widow's or widower's
insurance benefit that is reduced under section 202 (e)(4) or (f)(5) of
the Act and to any other monthly insurance benefit other than an old-age
insurance benefit (see 404.407(b)); or
(6) An individual is entitled in a month to old-age, disability,
wife's, husband's, widow's, or widower's insurance benefit and reduction
is required under section 202(q) of the Act (see 404.410).
(b) Deductions. A deduction from a monthly benefit or a lump-sum
death payment may be required because of:
(1) An individual's earnings or work (see 404.415 and 404.417);
(2) Failure of certain beneficiaries receiving wife's or mother's
insurance benefits to have a child in her care (see 404.421);
(3) The earnings or work of an old-age insurance beneficiary where a
wife, husband, or child is also entitled to benefits (see 404.415 and
404.417);
(4) Failure to report within the prescribed period either certain
work outside the United States or not having the care of a child (see
404.451);
(5) Failure to report within the prescribed period earnings from work
in employment or self-employment (see 404.453);
(6) Refusal to accept rehabilitation services in certain cases (see
404.422); or
(7) Certain taxes which were neither deducted from the wages of
maritime employees nor paid to the Federal Government (see 404.457).
(c) Adjustments. Adjustments may be required because an error has
been made in payments to an individual (see subpart F of this part).
(d) Nonpayments. Nonpayment of monthly benefits may be required
because:
(1) The individual is an alien who has been outside the United States
for more than 6 months (see 404.460);
(2) The individual on whose earnings record entitlement is based has
been deported (see 404.464);
(3) The individual is engaged in substantial gainful activity while
entitled to disability insurance benefits based on ''statutory
blindness'' (see 404.467); or
(4) The individual has not provided satisfactory proof that he or she
has a Social Security number or has not properly applied for a Social
Security number (see 404.469).
(e) Recalculation. A reduction by recalculation of a benefit amount
may be prescribed because an individual has been convicted of certain
offenses (see 404.465) or because the primary insurance amount is
recalculated (see subpart C of this part).
(f) Suspensions. Suspension of monthly benefits may be required
pursuant to section 203(h)(3) of the Act (the Social Security
Administration has information indicating that work deductions may
reasonably be expected for the year), or pursuant to section 225 of the
Act (the Social Security Administration has information indicating a
beneficiary is no longer disabled).
(40 FR 30813, July 23, 1975, as amended at 48 FR 37016, Aug. 16,
1983; 56 FR 41789, Aug. 23, 1991)
20 CFR 404.401a When we do not pay a disabled person because of work
activity.
If you are receiving benefits because you are disabled or blind as
defined in title II of the Social Security Act, we will stop your
monthly benefits even though you have a disabling impairment (
404.1511), if you engage in substantial gainful activity during the
reentitlement period ( 404.1592a) following completion of the trial work
period ( 404.1592). You will, however, be paid benefits for the first
month after the trial work period in which you do substantial gainful
activity and the two succeeding months, whether or not you do
substantial gainful activity in those two months. Earnings from work
activity during a trial work period will not stop your benefits.
(49 FR 22271, May 29, 1984)
20 CFR 404.402 Interrelationship of deductions, reductions,
adjustments, and nonpayment of benefits.
(a) Deductions, reductions, adjustment. Deductions because of
earnings or work (see 404.415 and 404.417), failure to have a child in
her care (see 404.421), refusal to accept rehabilitation services (see
404.422), as a penalty (for failure to timely report noncovered work
outside the United States, failure by a woman to report that she no
longer has a child in her care, or failure to timely report earnings
(see 404.451 and 404.453)), or because of unpaid maritime taxes (see
404.457), are made:
(1) Before making any reductions because of the maximum (see
404.403),
(2) Before applying the benefit rounding provisions (see
404.304(f)), and,
(3) Except for deductions imposed as a penalty (see 404.451 and
404.453), before making any adjustment necessary because an error has
been made in the payment of benefits (see subpart F). However, for
purposes of charging excess earnings for taxable years beginning after
December 1960 or ending after June 1961, see paragraph (b) of this
section and 404.437 for reductions that apply before such charging.
(b) Reductions, nonpayments. (1) Reduction because of the maximum
(see 404.403) is made:
(i) Before reduction because of simultaneous entitlement to old-age
or disability insurance benefits and to other benefits (see 404.407);
(ii) Before reduction in benefits for age (see 404.410 through
404.413);
(iii) Before adjustment necessary because an error has been made in
the payment of benefits (see subpart F of this part);
(iv) Before reduction because of entitlement to certain public
disability benefits provided under Federal, State, or local laws or
plans (see 404.408);
(v) Before nonpayment of an individual's benefits because he is an
alien living outside the United States for 6 months (see 404.460), or
because of deportation (see 404.464); and
(vi) Before the redetermination of the amount of benefit payable to
an individual who has been convicted of certain offenses (see 404.465).
(2) Reduction of benefits because of entitlement to certain public
disability benefits (see 404.408) is made before deduction:
(i) Under section 203 of the Act relating to work (see 404.415,
404.417, 404.451, and 404.453) and failure to have care of a child (see
404.421 and 404.451), and
(ii) Under section 222(b) of the Act on account of refusal to accept
rehabilitation services (see 404.422).
(3) Reduction of the benefit of a spouse who is receiving a
Government pension (see 404.408(a)) is made after the withholding of
payments as listed in paragraph (d)(1) of this section and after
reduction because of receipt of certain public disability benefits
(paragraph (b)(2) of this section).
(c) Alien outside the United States; deportation nonpayment --
deduction. If an individual is subject to nonpayment of a benefit for a
month under 404.460 or 404.464, no deduction is made from his benefit
for that month under 404.415, 404.417, or 404.421, and no deduction
is made because of that individual's work from the benefit of any person
entitled or deemed entitled to benefits under 404.420, on his earnings
record, for that month.
(d) Order of priority -- deductions and other withholding provisions.
Deductions and other withholding provisions are applied in accordance
with the following order of priority:
(1) Current nonpayments under 404.460, 404.464, 404.465, 404.467,
and 404.469;
(2) Current reductions under 404.408;
(3) Current reductions under 404.408a;
(4) Current deductions under 404.417, 404.421, and 404.422;
(5) Current withholding of benefits under 404.456;
(6) Unpaid maritime tax deductions ( 404.457);
(7) Withholdings to recover overpayments (see subpart F of this
part);
(8) Penalty deductions under 404.451 and 404.453.
(40 FR 30813, July 23, 1975, as amended at 44 FR 29047, May 18, 1979;
48 FR 37016, Aug. 16, 1983; 48 FR 46148, Oct. 11, 1983; 56 FR 41789,
Aug. 23, 1991)
20 CFR 404.403 Reduction where total monthly benefits exceed maximum
family benefits payable.
(a) General. (1) The Social Security Act limits the amount of
monthly benefits that can be paid for any month based on the earnings of
an insured individual. If the total benefits to which all persons are
entitled on one earnings record exceed a maximum amount prescribed by
law, then those benefits must be reduced so that they do not exceed that
maximum.
(2) The method of determining the total benefits payable (the family
maximum) depends on when the insured individual died or became eligible,
whichever is earlier. For purposes of this section, the year in which
the insured individual becomes eligible refers generally to the year in
which the individual attains age 62 or becomes disabled. However, where
eligibility or death is in 1979 or later, the year of death, attainment
of age 62, or beginning of current disability does not control if the
insured individual was entitled to a disability benefit within the 12
month period preceding current eligibility or death. Instead the year
in which the individual became eligible for the former disability
insurance benefit is the year of eligibility.
(b) Eligibility or death before 1979. Where more than one individual
is entitled to monthly benefits for the same month on the same earnings
record, a reduction in the total benefits payable for that month may be
required (except in cases involving a saving clause -- see 404.405) if
the maximum family benefit is exceeded. The maximum is exceeded if the
total of the monthly benefits exceeds the amount appearing in column V
of the applicable table in section 215(a) of the Act on the line on
which appears in column IV the primary insurance amount of the insured
individual whose earnings record is the basis for the benefits payable.
Where the maximum is exceeded, the total benefits for each month after
1964 are reduced to the amount appearing in column V. However, when any
of the persons entitled to benefits on the insured individual's earnings
would, except for the limitation described in 404.353(b), be entitled
to child's insurance benefits on the basis of the earnings record of one
or more other insured individuals, the total benefits payable may not be
reduced to less than the smaller of --
(1) The sum of the maximum amounts of benefits payable on the basis
of the earnings records of all such insured individuals, or
(2) The last figure in column V of the applicable table in (or deemed
to be in) section 215(a) of the Act. The applicable table refers to the
table which is effective for the month the benefit is payable.
(c) Eligible for old-age insurance benefits or dies in 1979. If an
insured individual becomes eligible for old-age insurance benefits or
dies in 1979, the monthly maximum is as follows --
(1) 150 percent of the first $230 of the individual's primary
insurance amount, plus
(2) 272 percent of the primary insurance amount over $230 but not
over $332, plus
(3) 134 percent of the primary insurance amount over $332 but not
over $433, plus
(4) 175 percent of the primary insurance amount over $433.
If the total of this computation is not a multiple of $0.10, it will
be rounded to the next lower multiple of $0.10.
(d) Eligible for old-age insurance benefits or dies after 1979. (1)
If an insured individual becomes eligible for old-age insurance benefits
or dies after 1979, the monthly maximum is computed as in paragraph (c)
of this section. However, the dollar amounts shown there will be
updated each year as average earnings rise. This updating is done by
first dividing the average of the total wages (see 404.203(m)) for the
second year before the individual dies or becomes eligible, by the
average of the total wages for 1977. The result of that computation is
then multiplied by each dollar amount in the formula in paragraph (c) of
this section. Each updated dollar amount will be rounded to the nearer
dollar; if the amount is an exact multiple of $0.50 (but not of $1), it
will be rounded to the next higher $1.
(2) Before November 2 of each calendar year after 1978, the Secretary
will publish in the Federal Register the formula and updated dollar
amounts to be used for determining the monthly maximum for the following
year.
(d-1) Entitled to disability insurance benefits after June 1980. If
you first become eligible for old-age or disability insurance benefits
after 1978 and first entitled to disability insurance benefits after
June 1980, we compute the monthly family maximum under a formula which
is different from that in paragraphs (c) and (d) of this section. The
computation under the new formula is as follows:
(1) We take 85 percent of your average indexed monthly earnings (as
computed in 404.212a of this part) and compare that figure with your
primary insurance amount (as computed in 404.212). We work with the
larger of these two amounts.
(2) We take 150 percent of your primary insurance amount.
(3) We compare the results of paragraphs (d-1) (1) and (2) of this
section. The smaller amount is the monthly family maximum. As a result
of this rule, the entitled spouse and children of some workers will not
be paid any benefits because the family maximum does not exceed the
primary insurance amount.
(e) Person entitled on more than one record during years after 1978
and before 1984. (1) If any of the persons entitled to monthly benefits
on the earnings record of an insured individual would, except for the
limitation described in 404.353(b), be entitled to child's insurance
benefits on the earnings record of one or more other insured
individuals, the total benefits payable may not be reduced to less than
the smaller of -- (i) the sum of the maximum amounts of benefits payable
on the earnings records of all the insured individuals, or (ii) 1.75
times the highest primary insurance amount possible for that month based
on the average indexed monthly earnings equal to one-twelfth of the
contribution and benefit base determined for that year.
(2) If benefits are payable on the earnings of more than one
individual and the primary insurance amount of one of the insured
individuals was computed under the provisions in effect before 1979 and
the primary insurance amount of the others was computed under the
provisions in effect after 1978, the maximum monthly benefits cannot be
more than the amount computed under paragraph (e)(1) of this section.
(f) Person entitled on more than one record for years after 1983.
(1) If any person for whom paragraphs (c) and (d) would apply is
entitled to monthly benefits on the earnings record of an insured
individual would, except for the limitation described in 404.353(b), be
entitled to child's insurance benefits on the earnings record of one or
more other insured individuals, the total benefits payable to all
persons on the earnings record of any of those insured individuals may
not be reduced to less than the smaller of:
(i) The sum of the maximum amounts of benefits payable on the
earnings records of all the insured individuals, or
(ii) 1.75 times the highest primary insurance amount possible for
January 1983, or if later, January of the year that the person becomes
entitled or reentitled on more than one record.
This highest primary insurance amount possible for that year will be
based on the average indexed monthly earnings equal to one-twelfth of
the contribution and benefit base determined for that year. Thereafter,
the total monthly benefits payable to persons on the earnings record of
those insured individuals will then be increased only when monthly
benefits are increased because of cost-of-living adjustments (see
404.270ff).
(2) If benefits are payable on the earnings of more than one
individual and the primary insurance amount of one of the insured
individuals was computed under the provisions in effect before 1979 and
the primary insurance amount of the other was computed under the
provisions in effect after 1978, the maximum monthly benefits cannot be
more than the amount computed under paragraph (f)(1) of this section.
(45 FR 1611, Jan. 8, 1980, as amended at 46 FR 25601, May 8, 1981;
48 FR 46148, Oct. 11, 1983; 51 FR 12606, Apr. 14, 1986)
20 CFR 404.404 How reduction for maximum affects insured individual and
other persons entitled on his earnings record.
If a reduction of monthly benefits is required under the provisions
of 404.403, the monthly benefit amount of each of the persons entitled
to a monthly benefits on the same earnings record (with the exception of
the individual entitled to old-age or disability insurance benefits) is
proportionately reduced so that the total benefits that can be paid in 1
month (including an amount equal to the primary insurance amount of the
old-age or disability insurance beneficiary, when applicable) does not
exceed the maximum family benefit (except as provided in 404.405 where
various savings clause provisions are described).
20 CFR 404.405 Situations where total benefits can exceed maximum
because of ''savings clause.''
The following provisions are savings clauses and describe exceptions
to the rules concerning the maximum amount payable on an individual's
earnings record in a month as described in 404.403. The effect of a
savings clause is to avoid lowering benefit amounts or to guarantee
minimum increases to certain persons entitled on the earnings record of
the insured individual when a statutory change has been made that would
otherwise disadvantage them. The reduction described in 404.403 does
not apply in the following instances:
(a) -- (m) (Reserved)
(n) Months after August 1972. The reduction described in 404.403(a)
shall not apply to benefits for months after August 1972 where two or
more persons were entitled to benefits for August 1972 based upon the
filing of an application in August 1972 or earlier and the total of such
benefits was subject to reduction for the maximum under 404.403 (or
would have been subject to such reduction except for this paragraph) for
January 1971. In such a case, maximum family benefits on the insured
individual's earnings record for any month after August 1972 may not be
less than the larger of:
(1) The maximum family benefits for such month determined under the
applicable table in section 215(a) of the Act (the applicable table in
section 215(a) is that table which is effective for the month the
benefit is payable or in the case of a lump-sum payment, the month the
individual died); or
(2) The total obtained by multiplying each benefit for August 1972
after reduction for the maximum but before deduction or reduction for
age, by 120 percent and raising each such increased amount, if it is not
a multiple of 10 cents, to the next higher multiple of 10 cents.
(o) Months after December 1972. The reduction described in 404.403
shall not apply to benefits for months after December 1972 in the
following cases:
(1) In the case of a redetermination of widow's or widower's
benefits, the reduction described in 404.403 shall not apply if:
(i) Two or more persons were entitled to benefits for December 1972
on the earnings records of a deceased individual and at least one such
person is entitled to benefits as the deceased individual's widow or
widower for December 1972 and for January 1973; and
(ii) The total of benefits to which all persons are entitled for
January 1973 is reduced (or would be reduced if deductions were not
applicable) for the maximum under 404.403.
In such case, the benefit of each person referred to in paragraph
(o)(1)(i) of this section for months after December 1972 shall be no
less than the amount it would have been if the widow's or widower's
benefit had not been redetermined under the Social Security Amendments
of 1972.
(2) In the case of entitlement to child's benefits based upon
disability which began between ages 18 and 22 the reduction described in
404.403 shall not apply if:
(i) One or more persons were entitled to benefits on the insured
individual's earnings record for December 1972 based upon an application
filed in that month or earlier; and
(ii) One or more persons not included in paragraph (o)(2)(i) of this
section are entitled to child's benefits on that earnings record for
January 1973 based upon disability which began in the period from ages
18 to 22; and
(iii) The total benefits to which all persons are entitled on that
record for January 1973 is reduced (or would be reduced if deductions
were not applicable) for the maximum under 404.403.
In such case, the benefit of each person referred to in paragraph
(o)(2)(i) of this section for months after December 1972 shall be no
less than the amount it would have been if the person entitled to
child's benefits based upon disability in the period from ages 18 to 22
were not so entitled.
(3) In the case of entitlement of certain surviving divorced mothers,
the reduction described in 404.403 shall not apply if:
(i) One or more persons were entitled to benefits on the insured
individual's earnings record for December 1972 based upon an application
filed in December 1972 or earlier; and
(ii) One or more persons not included in paragraph (o)(3)(i) of this
section are entitled to benefits on that earnings record as a surviving
divorced mother for a month after December 1972; and
(iii) The total of benefits to which all persons are entitled on that
record for any month after December 1972 is reduced (or would be reduced
if deductions were not applicable) for the maximum under 404.403.
In such case, the benefit of each such person referred to in
paragraph (o)(3)(i) of this section for months after December 1972 in
which any person referred to in paragraph (o)(3)(ii) of this section is
entitled shall be no less than it would have been if the person(s)
referred to in paragraph (o)(3)(ii) of this section had not become
entitled to benefits.
(p) Months after December 1973. The reduction described in 404.403
shall not apply to benefits for months after December 1973 where two or
more persons were entitled to monthly benefits for January 1971 or
earlier based upon applications filed in January 1971 or earlier, and
the total of such benefits was subject to reduction for the maximum
under 404.403 for January 1971 or earlier. In such a case, maximum
family benefits payable on the insured individual's earnings record for
any month after January 1971 may not be less than the larger of:
(1) The maximum family benefit for such month shown in the applicable
table in section 215(a) of the Act (the applicable table in section
215(a) of the Act is that table which is effective for the month the
benefit is payable or in the case of a lump-sum payment, the month the
individual died); or
(2) The largest amount which has been determined payable for any
month for persons entitled to benefits on the insured individual's
earnings records; or
(3) In the case of persons entitled to benefits on the insured
individual's earnings record for the month immediately preceding the
month of a general benefit or cost-of-living increase after September
1972, an amount equal to the sum of the benefit amount for each person
(excluding any part of an old-age insurance benefit increased because of
delayed retirement under the provisions of 404.305(a) for the month
immediately before the month of increase in the primary insurance amount
(after reduction for the family maximum but before deductions or
reductions for age) multiplied by the percentage of increase. Any such
increased amount, if it is not a multiple of $0.10, will be raised to
the next higher multiple of $0.10 for months before June 1982 and
reduced to the next lower multiple of $0.10 for months after May 1982.
(q) Months after May 1978. The family maximum for months after May
1978 is figured for all beneficiaries just as it would have been if none
of them had gotten a benefit increase because of the retirement credit
if:
(1) One or more persons were entitled (without the reduction required
by 404.406) to monthly benefits for May 1978 on the wages and
self-employment income of a deceased wage earner;
(2) The benefit for June 1978 of at least one of those persons is
increased by reason of a delayed retirement credit (see 404.330(b)(4)
or 404.333(b)(4)); and
(3) The total amount of monthly benefits to which all those persons
are entitled is reduced because of the maximum or would be so reduced
except for certain restrictions (see 404.403 and 404.402(a)).
(32 FR 19159, Dec. 20, 1967, as amended at 40 FR 30814, July 23,
1975; 43 FR 8132, Feb. 28, 1978; 43 FR 29277, July 7, 1978; 48 FR
46148, Oct. 11, 1983)
20 CFR 404.406 Reduction for maximum because of retroactive effect of
application for monthly benefits.
Under the provisions described in 404.403, beginning with the month
in which a person files an application and becomes entitled to benefits
on an insured individual's earnings record, the benefit rate of other
persons entitled on the same earnings record (aside from the individual
on whose earnings record entitlement is based) are adjusted downward, if
necessary, so that the maximum benefits payable on one earnings record
will not be exceeded. An application may also be effective
(retroactively) for benefits for months before the month of filing (see
404.607). For any month before the month of filing, however, benefits
that have been previously certified by the Administration for payment to
other persons (on the same earnings record) are not changed. Rather,
the benefit payment of the person filing the application in the later
month is reduced for each month of the retroactive period to the extent
that may be necessary, so that no earlier payment to some other person
is made erroneous. This means that for each month of the retroactive
period the amount payable to the person filing the later application is
the difference, if any, between (a) the total amount of benefits
actually certified for payment to other persons for that month, and (b)
the maximum amount of benefits payable for that month to all persons,
including the person filing later.
20 CFR 404.407 Reduction because of entitlement to other benefits.
(a) Entitlement to old-age or disability insurance benefit and other
monthly benefit. If an individual is entitled to an old-age insurance
benefit or disability insurance benefit for any month after August 1958
and to any other monthly benefit payable under the provisions of title
II of the Act (see subpart D of this part) for the same month, such
other benefit for the month, after any reduction under section 202(q) of
the Act because of entitlement to such benefit for months before
retirement age and any reduction under section 203(a) of the Act, is
reduced (but not below zero) by an amount equal to such old-age
insurance benefit (after reduction under section 202(q) of the Act) or
such disability insurance benefit, as the case may be.
(b) Entitlement to widow's or widower's benefit and other monthly
benefit. If an individual is entitled for any month after August 1965
to a widow's or widower's insurance benefit under the provisions of
section 202 (e)(4) or (f)(5) of the Act and to any other monthly benefit
payable under the provisions of title II of the Act (see subpart D) for
the same month, except an old-age insurance benefit, such other
insurance benefit for that month, after any reduction under paragraph
(a) of this section, any reduction for age under section 202(q) of the
Act, and any reduction under the provisions described in section 203(a)
of the Act, shall be reduced, but not below zero, by an amount equal to
such widow's or widower's insurance benefit after any reduction or
reductions under paragraph (a) of this section or section 203(a) of the
Act.
(c) Entitlement to old-age insurance benefit and disability insurance
benefit. Any individual who is entitled for any month after August 1965
to both an old-age insurance benefit and a disability insurance benefit
shall be entitled to only the larger of such benefits for such month,
except that where the individual so elects, he or she shall instead be
entitled to only the smaller of such benefits for such month. Only a
person defined in 404.612 (a), (c), or (d) may make the above described
election.
(d) Child's insurance benefits. A child may, for any month, be
simultaneously entitled to a child's insurance benefit on more than one
individual's earnings if all the conditions for entitlement described in
404.350 are met with respect to each claim. Where a child is
simultaneously entitled to child's insurance benefits on more than one
earnings record, the general rule is that the child will be paid an
amount which is based on the record having the highest primary insurance
amount. However, the child will be paid a higher amount which is based
on the earnings record having a lower primary insurance amount if no
other beneficiary entitled on any record would receive a lower benefit
because the child is paid on the record with the lower primary insurance
amount. (See 404.353(b)).
(e) Entitlement to more than one benefit where not all benefits are
child's insurance benefits and no benefit is an old-age or disability
insurance benefit. If an individual (other than an individual to whom
section 202 (e)(4) or (f)(5) of the Act applies) is entitled for any
month to more than one monthly benefit payable under the provisions of
this subpart, none of which is an old-age or disability insurance
benefit and all of which are not child's insurance benefits, only the
greater of the monthly benefits to which he would (but for the
provisions of this paragraph) otherwise be entitled is payable for such
month. For months after August 1965, an individual who is entitled for
any month to more than one widow's or widower's insurance benefit to
which section 202 (e)(4) or (f)(5) of the Act applies is entitled to
only one such benefit for such month, such benefit to be the largest of
such benefits.
(32 FR 19159, Dec. 20, 1967, as amended at 51 FR 12606, Apr. 14,
1986; 54 FR 5603, Feb. 6, 1989)
20 CFR 404.408 Reduction of benefits based on disability on account of
receipt of certain other disability benefits provided under Federal,
State, or local laws or plans.
(a) When reduction required. Under section 224 of the Act, a
disability insurance benefit to which an individual is entitled under
section 223 of the Act for a month (and any monthly benefit for the same
month payable to others under section 202 on the basis of the same
earnings record) is reduced (except as provided in paragraph (b) of this
section) by an amount determined under paragraph (c) of this section if:
(1) The individual first became entitled to disability insurance
benefits after 1965 but before September 1981 based on a period of
disability that began after June 1, 1965, and before March 1981, and
(i) The individual entitled to the disability insurance benefit is
also entitled to periodic benefits under a workers' compensation law or
plan of the United States or a State for that month for a total or
partial disability (whether or not permanent), and
(ii) The Secretary has, in a month before that month, received a
notice of the entitlement, and
(iii) The individual has not attained age 62, or
(2) The individual first became entitled to disability insurance
benefits after August 1981 based on a disability that began after
February 1981, and
(i) The individual entitled to the disability insurance benefit is
also, for that month, concurrently entitled to a periodic benefit
(including workers' compensation or any other payments based on a work
relationship) on account of a total or partial disability (whether or
not permanent) under a law or plan of the United States, a State, a
political subdivision, or an instrumentality of two or more of these
entities, and
(ii) The individual has not attained age 65.
(b) When reduction not made. (1) The reduction of a benefit
otherwise required by paragraph (a)(1) of this section is not made if
the workers' compensation law or plan under which the periodic benefit
is payable provides for the reduction of such periodic benefit when
anyone is entitled to a benefit under title II of the Act on the basis
of the earnings record of an individual entitled to a disability
insurance benefit under section 223 of the Act.
(2) The reduction of a benefit otherwise required by paragraph (a)(2)
of this section is not to be made if:
(i) The law or plan under which the periodic public disability
benefit is payable provides for the reduction of that benefit when
anyone is entitled to a benefit under title II of the Act on the basis
of the earnings record of an individual entitled to a disability
insurance benefit under section 223 of the Act and that law or plan so
provided on February 18, 1981. (The reduction required by paragraph
(a)(2) of this section will not be affected by public disability
reduction provisions not actually in effect on this date or by changes
made after February 18, 1981, to provisions that were in effect on this
date providing for the reduction of benefits previously not subject to a
reduction); or
(ii) The benefit is a Veterans Administration benefit, a public
disability benefit (except workers' compensation) payable to a public
employee based on employment covered under Social Security, a public
benefit based on need, or a wholly private pension or private insurance
benefit.
(c) Amount of reduction -- (1) General. The total of benefits
payable for a month under sections 223 and 202 of the Act to which
paragraph (a) of this section applies is reduced monthly (but not below
zero) by the amount by which the sum of the monthly disability insurance
benefits payable on the disabled individual's earnings record and the
other public disability benefits payable for that month exceeds the
higher of:
(i) Eighty percent of his average current earnings, as defined in
paragraph (c)(3) of this section, or
(ii) The total of such individual's disability insurance benefit for
such month and all other benefits payable for such month based on such
individual's earnings record, prior to reduction under this section.
(2) Limitation on reduction. In no case may the total of monthly
benefits payable for a month to the disabled worker and to the persons
entitled to benefits for such month on his earnings record be less than:
(i) The total of the benefits payable (after reduction under
paragraph (a) of this section) to such beneficiaries for the first month
for which reduction under this section is made, and
(ii) Any increase in such benefits which is made effective for months
after the first month for which reduction under this section is made.
(3) Average current earnings defined. (i) Beginning January 1, 1979,
for purposes of this section, an individual's average current earnings
is the largest of either paragraph (c)(3)(i) (a), (b) or (c) of this
section (after reducing the amount to the next lower multiple of $1 when
the amount is not a multiple of $1):
(a) The average monthly wage (determined under section 215(b) of the
Act as in effect prior to January 1979) used for purposes of computing
the individual's disability insurance benefit under section 223 of the
Act;
(b) One-sixtieth of the total of the individual's wages and earnings
from self-employment, without the limitations under sections 209(a) and
211(b)(1) of the Act (see paragraph (c)(3)(ii) of this section), for the
5 consecutive calendar years after 1950 for which the wages and earnings
from self-employment were highest; or
(c) One-twelfth of the total of the individual's wages and earnings
from self-employment, without the limitations under sections 209(a) and
211(b)(1) of the Act (see paragraph (c)(3)(ii) of this section), for the
calendar year in which the individual had the highest wages and earnings
from self-employment during the period consisting of the calendar year
in which the individual became disabled and the 5 years immediately
preceding that year. Any amount so computed which is not a multiple of
$1 is reduced to the next lower multiple of $1.
(ii) Method of determining calendar year earnings in excess of the
limitations under sections 209(a) and 211(b)(1) of the Act. For the
purposes of paragraph (c)(3)(i) of this section, the extent by which the
wages or earnings from self-employment of an individual exceed the
maximum amount of earnings creditable under sections 209(a) and
211(b)(1) of the Act in any calendar year after 1950 and before 1978
will ordinarily be estimated on the basis of the earnings information
available in the records of Administration. (See subpart I of this
part.) If an individual provides satisfactory evidence of his actual
earnings in any year, the extent, if any, by which his earnings exceed
the limitations under sections 209(a) and 211(b)(1) of the Act shall be
determined by the use of such evidence instead of by the use of
estimates.
(4) Reentitlement to disability insurance benefits. If an
individual's entitlement to disability insurance benefits terminates and
such individual again becomes entitled to disability insurance benefits,
the amount of the reduction is again computed based on the figures
specified in this paragraph (c) applicable to the subsequent
entitlement.
(5) Computing disability insurance benefits. When reduction is
required, the total monthly Social Security disability insurance
benefits payable after reduction can be more easily computed by
subtracting the monthly amount of the other public disability benefit
from the higher of paragraph (c)(1) (i) or (ii). This is the method
employed in the examples used in this section.
(d) Items not counted for reduction. Amounts paid or incurred, or to
be incurred, by the individual for medical, legal, or related expenses
in connection with the claim for public disability payments (see
404.408 (a) and (b)) or the injury or occupational disease on which the
public disability award or settlement agreement is based, are excluded
in computing the reduction under paragraph (a) of this section to the
extent they are consonant with the applicable Federal, State, or local
law or plan and reflect either the actual amount of expenses already
incurred or a reasonable estimate, given the circumstances in the
individual's case, of future expenses. Any expenses not established by
evidence required by the Administration or not reflecting a reasonable
estimate of the individual's actual future expenses will not be
excluded. These medical, legal, or related expenses may be evidenced by
the public disability award, compromise agreement, a court order, or by
other evidence as the Administration may require. This other evidence
may consist of:
(1) A detailed statement by the individual's attorney, physician, or
the employer's insurance carrier; or
(2) Bills, receipts, or canceled checks; or
(3) Other clear and convincing evidence indicating the amount of
expenses; or
(4) Any combination of the foregoing evidence from which the amount
of expenses may be determinable.
(e) Certification by individual concerning eligibility for public
disability benefits. Where it appears that an individual may be
eligible for a public disability benefit which would give rise to a
reduction under paragraph (a) of this section, the individual may be
required, as a condition of certification for payment of any benefit
under section 223 of the Act to any individual for any month, and of any
benefit under section 202 of the Act for any month based on such
individual's earnings record, to furnish evidence as requested by the
Administration and to certify as to:
(1) Whether he or she has filed or intends to file any claim for a
public disability benefit, and
(2) If he or she has so filed, whether there has been a decision on
the claim. The Secretary may rely, in the absence of evidence to the
contrary, upon a certification that he or she has not filed and does not
intend to file such a claim, or that he or she has filed and no decision
has been made, in certifying any benefit for payment pursuant to section
205(i) of the Act.
(f) Verification of eligibility or entitlement to a public disability
benefit under paragraph (a). Section 224 of the Act requires the head
of any Federal agency to furnish the Secretary information from the
Federal agency's records which is needed to determine the reduction
amount, if any, or verify other information to carry out the provisions
of this section. The Secretary is authorized to enter into agreements
with States, political subdivisions, and other organizations that
administer a law or plan of public disability benefits in order to
obtain information that may be required to carry out the provisions of
this section.
(g) Public disability benefit payable on other than a monthly basis.
Where public disability benefits are paid periodically but not monthly,
or in a lump sum as a commutation of or a substitute for periodic
benefits, such as a compromise and release settlement, the reduction
under this section is made at the time or times and in the amounts that
the Administration determines will approximate as nearly as practicable
the reduction required under paragraph (a) of this section.
(h) Priorities. (1) For an explanation of when a reduction is made
under this section where other reductions, deductions, etc., are
involved, see 404.402.
(2) Whenever a reduction in the total of benefits for any month based
on an individual's earnings record is made under paragraph (a) of this
section, each benefit, except the disability insurance benefit, is first
proportionately decreased. Any excess reduction over the sum of all the
benefits, other than the disability insurance benefit, is then applied
to the disability insurance benefit.
Example 1: Effective September 1981, Harold is entitled to a monthly
disability primary insurance amount of $507.90 and a monthly public
disability benefit of $410.00 from the State. Eighty percent of
Harold's averge current earnings is $800.00. Because this amount
($800.00) is higher than Harold's disability insurance benefit
($507.90), we subtract Harold's monthly public disability benefit
($410.00) from eighty percent of his average current earnings ($800.00).
This leaves Harold a reduced monthly disability benefit of $390.00.
Example 2: In September 1981, Tom is entitled to a monthly
disability primary insurance amount of $559.30. His wife and two
children are also entitled to monthly benefits of $93.20 each. The total
family benefit is $838.90. Tom is also receiving a monthly workers'
compensation benefit of $500.00 from the State. Eighty percent of Tom's
average current earnings is $820.10. Because the total family benefit
($838.90) is higher than 80 percent of the average current earnings
($820.10), we subtract the monthly workers' compensation benefit
($500.00) from the total family benefit ($838.90), leaving $338.90
payable. This means the monthly benefits to Tom's wife and children are
reduced to zero, and Tom's monthly disability benefit is reduced to
$338.90.
(i) Effect of changes in family composition. The addition or
subtraction in the number of beneficiaries in a family may cause the
family benefit to become, or cease to be, the applicable limit for
reduction purposes under this section. When the family composition
changes, the amount of the reduction is recalculated as though the new
number of beneficiaries were entitled for the first month the reduction
was imposed. If the applicable limit both before and after the change
is 80 percent of the average current earnings and the limitation on
maximum family benefits is in effect both before and after the change,
the amount payable remains the same and is simply redistributed among
the beneficiaries entitled on the same earnings record.
Example 1: Frank is receiving $500.00 a month under the provisions
of a State workers' compensation law. He had a prior period of
disability which terminated in June 1978. In September 1981, Frank
applies for a second period of disability and is awarded monthly
disability insurance benefits with a primary insurance amount of
$370.20. His child, Doug, qualifies for benefits of $135.10 a month on
Frank's earnings record. The total family benefits is $505.30 monthly.
Frank's average monthly wage (as used to compute the primary
insurance amount) is $400.00; eighty percent of his average current
earnings (computed by using the 5 consecutive years in which his
earnings were highest) is $428.80 (80% of $536.00); eighty percent of
Frank's average current earnings (computed by using the 1 calendar year
in which his earnings were highest) is $509.60 (80% of $637.00). The
highest value for 80 percent of average current earnings is therefore
$509.60 (80%). Since this is higher than the total family benefit
($505.30), the $509.60 is the applicable limit in determining the amount
of the reduction (or offset). The amount payable after the reduction is
--
No monthly benefits are payable to Doug because the reduction is
applied to Doug's benefit first. In December 1981, another child, Mike,
becomes entitled on Frank's earnings record. The monthly benefit to
each child before reduction is now $109.10, the amount payable when
there are two beneficiaries in addition to the wage earner. Thus, the
total family benefit becomes $588.40. Because this is now higher than
$509.60 (80% of Frank's average current earnings), $588.40 becomes the
applicable limit in determining the amount of reduction. The amount
payable after the increase in the total family benefit is --
No monthly benefits are payable to either child because the reduction
(or offset) is applied to the family benefits first.
Example 2: Jack became entitled to disability insurance benefits in
December 1973 (12/73), with a primary insurance amount (PIA) of $220.40.
He was also receiving a workers' compensation benefit. An offset was
imposed against the disability insurance benefit. By June 1977 (6/77),
Jack's PIA had increased to $298.00 because of several statutory benefit
increases. In December 1977 (12/77), his wife, Helen, attained age 65
and filed for unreduced wife's benefits. (She was not entitled to a
benefit on her own earnings record.) This benefit was terminated in May
1978 (5/78), at her death. Helen's benefit was computed back to 12/73
as though she were entitled in the first month that offset was imposed
against Jack. Since there were no other beneficiaries entitled and
Helen's entire monthly benefit amount is subject to offset, the benefit
payable to her for 12/77 through April 1978 (4/78), would be $38.80.
This gives Helen the protected statutory benefit increases since 12/73.
The table below shows how Helen's benefit was computed beginning with
the first month offset was imposed.
(j) Effect of social security disability insurance benefit increases.
Any increase in benefits due to a recomputation or a statutory increase
in benefit rates is not subject to the reduction for public disability
benefits under paragraph (a) and does not change the amount to be
deducted from the family benefit. The increase is simply added to what
amount, if any, is payable. If a new beneficiary becomes entitled to
monthly benefits on the same earnings record after the increase, the
amount of the reduction is redistributed among the new beneficiaries
entitled under section 202 of the Act and deducted from their current
benefit rate.
Example: In March 1981, Chuck became entitled to disability
insurance benefits with a primary insurance amount of $362.40 a month.
He has a wife and two children who are each entitled to a monthly
benefit of $60.40. Chuck is receiving monthly disability compensation
from a worker's compensation plan of $410.00. Eighty percent of his
average current earnings is $800.00. Because this is higher than the
total family benefit ($543.60), $800.00 is the applicable limit in
computing the amount of reduction. The amount of monthly benefits
payable after the reduction is --
In June 1981, the disability benefit rates were raised to reflect an
increase in the cost-of-living. Chuck is now entitled to $403.00 a
month and each family member is entitled to $67.20 a month (an increase
of $6.80 to each family member). The monthly amounts payable after the
cost-of-living increase are now $403.00 to Chuck and $16.00 to each
family member ($9.20 plus the $6.80 increase).
In September 1981, another child becomes entitled to benefits based
on Chuck's earnings record. The monthly amount payable to the family
(excluding Chuck) must now be divided by 4:
The June 1981 cost-of-living increase is added to determine the
amount payable. Chuck continues to receive $403.00 monthly. Each family
member receives a cost-of-living increase of $5.10. Thus, the amount
payable to each is $12.00 in September 1981 ($6.90 plus the $5.10
increase). (See Example 2 under (i).)
(k) Effect of changes in the amount of the public disability benefit.
Any change in the amount of the public disability benefit received will
result in a recalculation of the reduction under paragraph (a) and,
potentially, an adjustment in the amount of such reduction. If the
reduction is made under paragraph (a)(1) of this section, any increased
reduction will be imposed effective with the month after the month the
Secretary received notice of the increase in the public disability
benefit (it should be noted that only workers' compensation can cause
this reduction). Adjustments due to a decrease in the amount of the
public disability benefit will be effective with the actual date the
decreased amount was effective. If the reduction is made under
paragraph (a)(2) of this section, any increase or decrease in the
reduction will be imposed effective with the actual date of entitlement
to the new amount of the public disability benefit.
Example: In September 1981, based on a disability which began March
12, 1981, Theresa became entitled to Social Security disability
insurance benefits with a primary insurance amount of $445.70 a month.
She had previously been entitled to Social Security disability insurance
benefits from March 1967 through July 1969. She is receiving a
temporary total workers' compensation payment of $227.50 a month.
Eighty percent of her average current earnings is $610.50. The amount of
monthly disability insurance benefit payable after reduction is --
On November 15, 1981, the Secretary was notified that Theresa's
workers' compensation rate was increased to $303.30 a month effective
October 1, 1981. This increase reflected a cost-of-living adjustment
granted to all workers' compensation recipients in her State. The
reduction to her monthly disability insurance benefit is recomputed to
take this increase into account --
Effective January, 1, 1982, Theresa's workers' compensation payment
is decreased to $280.10 a month when she begins to receive a permanent
partial payment. The reduction to her monthly disability insurance
benefit is again recalculated to reflect her decreased workers'
compensation amount --
If, in the above example, Theresa had become entitled to disability
insurance benefits in August 1981, the increased reduction to her
benefit, due to the October 1, 1981 increase in her workers'
compensation payment, would have been imposed beginning with December
1981, the month after the month she notified the Social Security
Administration of the increase. The later decrease in her workers'
compensation payment would still affect her disability insurance benefit
beginning with January 1982.
(l) Redetermination of benefits -- (1) General. In the second
calendar year after the year in which reduction under this section in
the total of an individual's benefits under section 223 of the Act and
any benefits under section 202 of the Act based on his or her wages and
self-employment income is first required (in a continuous period of
months), and in each third year thereafter, the amount of those benefits
which are still subject to reduction under this section are
redetermined, provided this redetermination does not result in any
decrease in the total amount of benefits payable under title II of the
Act on the basis of the workers' wages and self-employment income. The
redetermined benefit is effective with the January following the year in
which the redetermination is made.
(2) Average current earnings. In making the redetermination required
by paragraph (l)(1) of this section, the individual's average current
earnings (as defined in paragraph (c)(3) of this section) is deemed to
be the product of his average current earnings as initially determined
under paragraph (c)(3) of this section and:
(i) The ratio of the average of the total wages (as defined in
404.1049) of all persons for whom wages were reported to the Secretary
of the Treasury or his delegate for the calendar year before the year in
which the redetermination is made, to the average of the total wages of
all person reported to the Secretary of the Treasury or his delegate for
calendar year 1977 or, if later, the calendar year before the year in
which the reduction was first computed (but not counting any reduction
made in benefits for a previous period of disability); and
(ii) In any case in which the reduction was first computed before
1978, the ratio of the average of the taxable wages reported to the
Secretary of Health and Human Services for the first calendar quarter of
1977 to the average of the taxable wages reported to the Secretary of
Health and Human Services for the first calendar quarter of the calendar
year before the year in which the reduction was first computed (but not
counting any reduction made in benefits for a previous period of
disability). Any amount determined under the preceding two sentences
which is not a multiple of $1 is reduced to the next lower multiple of
$1.
(3) Effect of redetermination. Where the applicable limit on total
benefits previously used was 80 percent of the average current earnings,
a redetermination under this paragraph may cause an increase in the
amount of benefits payable. Also, where the limit previously used was
the total family benefit, the redetermination may cause the average
current earnings to exceed the total family benefit and thus become the
new applicable limit. If for some other reason (such as a statutory
increase or recomputation) the benefit has already been increased to a
level which equals or exceeds the benefit resulting from a
redetermination under this paragraph, no additional increase is made. A
redetermination is designed to bring benefits into line with current
wage levels when no other change in payments has done so.
Example: In October 1978, Alice became entitled to disability
insurance benefits with a primary insurance amount of $505.10. Her two
children were also entitled to monthly benefits of $189.40 each. Alice
was also entitled to monthly disability compensation benefits of $667.30
from the State. Eighty percent of Alice's average current earnings is
$1340.80, and that amount is the applicable limit. The amount of
monthly benefits payable after the reduction is --
In June 1979 and June 1980, cost-of-living increases in Social
Security benefits raise Alice's benefit by $50.10 (to $555.20) and
$79.40 (to $634.60) respectively. The children's benefits (before
reduction) are each raised by $18.80 (to $208.20) and $29.80 (to
$238.00). These increases in Social Security benefits are not subject to
the reduction (i.e., offset).
In 1980, Alice's average current earnings are redetermined as
required by law. The offset is recalculated, and if the amount payable
to the family is higher than the current amount payable to the family,
that higher amount becomes payable the following January (i.e., January
1981). The current amount payable to the family after the reduction is
recalculated --
The amount payable to the family after reduction is then recalculated
using the redetermined average current earnings --
We then compare the total amount currently being paid to the family
($899.80) to the total amount payable after the redetermination
($906.30). In this example, the redetermination yields a higher amount
and, therefore, becomes payable the following January (i.e., January
1981). Additional computations are required to determine the amount
that will be paid to each family member --
(32 FR 19159, Dec. 20, 1967; 33 FR 3060, Feb. 16, 1968, as amended
at 37 FR 3425, Feb. 16, 1972; 48 FR 37017, Aug. 16, 1983; 48 FR 38814,
Aug. 26, 1983)
20 CFR 404.408a Reduction where spouse is receiving a Government
pension.
(a) When reduction is required. Unless you meet one of the
exceptions in paragraph (b) of this section, your monthly Social
Security benefits as a wife, husband, widow, widower, mother, or father
will be reduced each month you are receiving a monthly pension from a
Federal, State, or local government agency (Government pension) for
which you were employed in work not covered by Social Security on the
last day of such employment. Your monthly Social Security benefit as a
spouse will always be reduced because of your Government pension even if
you afterwards return to work for a government agency and that work is
covered by Social Security. For purposes of this section, Federal
Government employees are not considered to be covered by Social Security
if they are covered for Medicare but are not otherwise covered by Social
Security. If the government pension is not paid monthly or is paid in a
lump-sum, we will determine how much the pension would be if it were
paid monthly and then reduce the monthly Social Security benefit
accordingly. The number of years covered by a lump-sum payment, and
thus the period when the Social Security benefit will be reduced, will
generally be clear from the pension plan. If one of the alternatives to
a lump-sum payment is a life annuity, and the amount of the monthly
benefit for the life annuity can be determined, the reduction will be
based on that monthly benefit amount. Where the period or the
equivalent monthly pension benefit is not clear it may be necessary for
us to determine the reduction period on an individual basis.
(b) Exceptions. The reduction does not apply:
(1) If you are receiving a Government pension based on employment for
an interstate instrumentality.
(2) If you received or are eligible to receive a Government pension
for one or more months in the period December 1977 through November 1982
and you meet the requirements for Social Security benefits that were
applied in January 1977, even though you don't claim benefits, and you
don't actually meet the requirements for receiving benefits until a
later month. The January 1977 requirements are, for a man, a one-half
support test (see paragraph (c) of this section), and, for a woman
claiming benefits as a divorced spouse, marriage for at least 20 years
to the insured worker. You are considered eligible for a Government
pension for any month in which you meet all the requirements for payment
except that you are working or have not applied.
(3) If you were receiving or were eligible (as defined in paragraph
(b)(2) of this section) to receive a Government pension for one or more
months before July 1983, and you meet the dependency test of one-half
support that was applied to claimants for husband's and widower's
benefits in 1977, even though you don't claim benefits, and you don't
actually meet the requirements for receiving benefits until a later
month. If you meet the exception in this paragraph but you do not meet
the exception in paragraph (b)(2), December 1982 is the earliest month
for which the reduction will not affect your benefits.
(4) If you would have been eligible for a pension in a given month
except for a requirement which delayed eligibility for such pension
until the month following the month in which all other requirements were
met, we will consider you to be eligible in that given month for the
purpose of meeting one of the exceptions in paragraphs (b) (2) and (3)
of this section. If you meet an exception solely because of this
provision, your benefits will be unreduced for months after November
1984 only.
(c) The one-half support test. For a man to meet the January 1977
requirement as provided in the exception in paragraph (b)(2) and for a
man or a woman to meet the exception in paragraph (b)(3) of this
section, he or she must meet a one-half support test. One-half support
is defined in 404.366 of this part. One-half support must be met at
one of the following times:
(1) If the insured person had a period of disability which did not
end before he or she became entitled to old-age or disability insurance
benefits, or died, you must have been receiving at least one-half
support from the insured either --
(i) At the beginning of his or her period of disability;
(ii) At the time he or she became entitled to old-age or disability
insurance benefits; or
(iii) If deceased, at the time of his or her death.
(2) If the insured did not have a period of disability at the time of
his or her entitlement or death, you must have been receiving at least
one-half support from the insured either --
(i) At the time he or she became entitled to old-age insurance
benefits; or
(ii) If deceased, at the time of his or her death.
(d) Amount and priority of reduction. (1) If you became eligible for
a Government pension after June 1983, we will reduce (to zero, if
necessary) your monthly Social Security benefits as a spouse by
two-thirds the amount of your monthly pension. If the reduction is not
a multiple of 10 cents, we will round it to the next higher multiple of
10 cents.
(2) If you became eligible for a Government pension before July 1983
and do not meet one of the exceptions in paragraph (b) of this section,
we will reduce (to zero, if necessary) your monthly Social Security
benefits as a spouse by the full amount of your pension for months
before December 1984 and by two-thirds the amount of your monthly
pension for months after November 1984. If the reduction is not a
multiple of 10 cents, we will round it to the next higher multiple of 10
cents.
(3) Your benefit as a spouse will be reduced, if necessary, for age
and for simultaneous entitlement to other Social Security benefits
before it is reduced because you are receiving a Government pension. In
addition, this reduction follows the order of priority as stated in
404.402(b).
(4) If the monthly benefit payable to you after the required
reduction(s) is not a multiple of $1.00, we will reduce it to the next
lower multiple of $1.00 as required by 404.304(f).
(e) When effective. This reduction was put into the Social Security
Act by the Social Security Amendments of 1977. It only applies to
applications for benefits filed in or after December 1977 and only to
benefits for December 1977 and later.
(49 FR 41245, Oct. 22, 1984; 50 FR 20902, May 21, 1985, as amended
at 51 FR 23052, June 25, 1986)
20 CFR 404.408b Reduction of retroactive monthly social security
benefits where supplemental security income (SSI) payments were received
for the same period.
(a) When reduction is required. We will reduce your retroactive
social security benefits if --
(1) You are entitled to monthly social security benefits for a month
or months before the first month in which those benefits are paid; and
(2) SSI payments (including federally administered State
supplementary payments) which were made to you for the same month or
months would have been reduced or not made if your social security
benefits had been paid when regularly due instead of retroactively.
(b) Amount of reduction. Your retroactive monthly social security
benefits will be reduced by the amount of the SSI payments (including
federally administered State supplementary payments) that would not have
been paid to you, if you had received your monthly social security
benefits when they were regularly due instead of retroactively.
(c) Benefits subject to reduction. The reduction described in this
section applies only to monthly social security benefits. Social
security benefits which we pay to you for any month after you have begun
receiving recurring monthly social security benefits, and for which you
did not have to file a new application, are not subject to reduction.
The lump-sum death payment, which is not a monthly benefit, is not
subject to reduction.
(d) Refiguring the amount of the reduction. We will refigure the
amount of the reduction if there are subsequent changes affecting your
claim which relate to the reduction period described in paragraph (a) of
this section. Refiguring is generally required where there is a change
in your month of entitlement or the amount of your social security
benefits or SSI payments (including federally administered State
supplementary payments) for the reduction period.
(e) Reimbursement of reduced retroactive monthly social security
benefits. The amount of the reduction will be --
(1) First used to reimburse the States for the amount of any
federally administered State supplementary payments that would not have
been made to you if the monthly social security benefits had been paid
when regularly due instead of retroactively; and
(2) The remainder, if any, shall be covered into the general fund of
the U.S. Treasury for the amount of SSI benefits that would not have
been paid to you if the monthly social security benefits had been paid
to you when regularly due instead of retroactively.
(47 FR 4988, Feb. 3, 1982)
404.409 (Reserved)
20 CFR 404.410 Reduction in benefits for age -- general.
An individual's old-age insurance benefit, wife's or husband's
benefit or widow's or widower's benefit is reduced if he or she is
entitled to the benefit for a month before the month he or she reaches
retirement age. For purposes of this section and 404.411 through
404.413, retirement age is age 65; except that for months prior to
January 1973, retirement age for widows and widowers is age 62.
However, in the case of an individual entitled to wife's or husband's
benefits, there is no reduction in benefits for any month he or she has
in his or her care a child of the insured individual on whose earnings
record he or she is entitled if the child is entitled to child's
insurance benefits. Similarly, in the case of an individual entitled to
widow's or widower's benefits, such benefits will not be reduced below
the amount an individual entitled to mother's or father's benefits would
receive for any month he or she has in his or her care a child of the
insured individual on whose earnings record he or she is entitled if the
child is entitled to child's benefits. Reductions in benefits are,
subject to 404.411 through 404.413, made in the amounts described
below:
(a) In the case of old-age insurance benefits, the individual's
primary insurance amount is reduced by 5/9 of 1 percent multiplied by
the number of months preceding the month in which he or she attains
retirement age for which he or she is entitled to such benefits;
(b) In the case of wife's or husband's benefits, the individual's
benefit amount before any reduction (see 404.304 and 404.333) is
reduced first (if necessary) for the family maximum under 404.403, and
then further reduced by 25/36 of 1 percent multiplied by the number of
months preceding the month in which he or she attains retirement age for
which he or she is entitled to such benefits (but not including any
month in which such wife or husband has in his or her care a child of
the insured individual on whose earnings record he or she is entitled if
the child is entitled to child's benefits);
(c)(1) In the case of widow's or widower's benefits, the individual's
benefit amount (for months after December 1972, the amount equal to the
insured person's primary insurance amount and for earlier months, the
amounts described in 404.304 and 404.338), after any reduction for the
family maximum under 404.403, is reduced or further reduced by 19/40 of
1 percent multiplied by the number of months in the period beginning
with the month of attainment of age 60 and ending with the month
immediately before the month of attainment of age 65, for which he or
she is entitled to such benefits (but not including any month in which
such widow or widower has a child of the insured individual in his or
her care if the child is entitled to child's benefits). For months
prior to January 1973, the widow's or widower's benefit is reduced in
the way described in the preceding sentence except that the percentage
rate is 5/9 of 1 percent multiplied by the number of months from age 60
to 62 instead of 19/40 of 1 percent multiplied by the number of months
from age 60 to 65.
(2) For those widows and widowers receiving benefits based on
disability and whose entitlement begins prior to their attaining age 60,
their benefits are --
(i) For months after December 1983, not subject to any reduction of
their benefits in addition to that under paragraph (c)(1) of this
section;
(ii) For the period January 1, 1973-December 31, 1983, subject to a
reduction under paragraph (c)(1) of this section and an additional
reduction formula of 43/240 of 1 percent multiplied by: (A) The benefit
before any reduction for age and (B) the number of months of entitlement
to such benefit in the period beginning with month of attainment of age
50 and ending with the month preceding month of attainment of age 60;
and
(iii) For months prior to January 1973, subject to the reduction
formula described in paragraph (c)(2)(ii) of this section with, however,
the percentage rate set at 43/198 of 1 percent.
(d) Benefits reduced under this section may be later adjusted to
eliminate reduction for certain months of entitlement prior to
retirement age as provided in 404.412. For special provisions on
reducing benefits for months prior to retirement age involving
entitlement to two or more benefits and for reducing widow's and
widower's benefits on the earnings record of a deceased individual
previously entitled to old-age insurance benefits, see 404.411 and
404.338, respectively.
(49 FR 24116, June 12, 1984)
20 CFR 404.411 Special reduction in benefits for age involving
entitlement to two or more benefits.
(a) General. (1) Except as specifically provided in this section,
benefits of an individual entitled to more than one benefit will be
reduced for months of entitlement before retirement age according to the
provisions of 404.410. Such age reductions are made before any
reduction under the provisions of 404.407.
(2) If an individual was born after January 1, 1928 and becomes
disabled after December 31, 1989, his or her disability insurance
benefits are reduced in accordance with paragraph (b)(1) of this
section. In other situations involving prior receipt of widow's or
widower's insurance benefits, disability insurance benefits are reduced
in accordance with paragraph (b)(2) of this section.
(3) If an individual was born after January 1, 1928, his or her
old-age insurance benefits are reduced in accordance with 404.410(a).
In other situations involving prior receipt of widow's or widower's
insurance benefits, old-age insurance benefits are reduced in accordance
with paragraph (c) of this section.
(b) Reduction in disability insurance benefits after entitlement to
old-age insurance benefits, widow's or widower's benefits. An
individual's disability insurance benefits are reduced following
entitlement to old-age insurance benefits, widow's or widower's
insurance benefits (or following the month in which all conditions for
entitlement to widow's or widower's insurance benefits are met except
that the individual is entitled to an old-age insurance benefit which
equals or exceeds the primary insurance amount on which the widow's or
widower's insurance benefit is based) in accordance with the following
provisions:
(1) In the case of an individual entitled to disability insurance
benefits for a month after the month in which he becomes entitled to an
old-age insurance benefit which is reduced for age under 404.410, the
disability insurance benefit is reduced by the amount by which the
old-age insurance benefit would be reduced under 404.410 if he attained
age 65 in the first month of his most recent period of entitlement to
disability insurance benefits.
(2) In the case of an individual who is first entitled to disability
insurance benefits for a month in which or after which he or she attains
age 62 and for which he or she is first entitled to a widow's or
widower's insurance benefit (or would be so entitled except for
entitlement to an equal or higher old-age insurance benefit as explained
in the material preceding paragraph (b) of this section) before
retirement age, the disability insurance benefits are reduced by the
larger of:
(i) The amount the disability insurance benefit would have been
reduced under paragraph (b)(1) of this section; or
(ii) The amount equal to the sum of the amount the widow's or
widower's benefit would have been reduced under the provisions of
404.410 if retirement age were 62 (instead of 65) plus the amount by
which the disability insurance benefit would have been reduced under
paragraph (b)(1) of this section if the benefit were equal to the excess
of such benefit over the amount of the widow's or widower's benefit
(without consideration of this paragraph (b)(2)) of this section.
(3) In the case of an individual who is first entitled to disability
insurance benefits for a month before the month in which he or she
attains age 62 and he or she is also entitled to a widow's or widower's
insurance benefit (or would be so entitled except for entitlement to an
equal or higher old-age insurance benefit as explained in the material
preceding paragraph (b) of this section), the disability insurance
benefit is reduced as if the widow or widower attained retirement age in
the month immediately preceding the first month of his or her most
recent period of entitlement to disability insurance benefits;
(c) Reduction in old-age insurance benefits after entitlement to
widow's or widower's insurance benefits. An individual's old-age
insurance benefit is reduced if, in his or her first month of
entitlement to that benefit, he or she is also entitled to a widow's or
widower's insurance benefit to which he or she was first entitled for a
month before attainment of retirement age or if, before attainment of
retirement age, he or she met all conditions for entitlement to widow's
or widower's benefits in or before the first month for which he or she
was entitled to old-age insurance benefits except that the old-age
insurance benefit equals or exceeds the primary insurance amount on
which the widow's or widower's insurance benefit would be based. Under
these circumstances, the old-age insurance benefit is reduced by the
larger of the following:
(1) The amount by which the old-age insurance benefit would be
reduced under the regular age reduction provisions of 404.410; or
(2) An amount equal to the sum of:
(i) The amount by which the widow's or widower's insurance benefit
would be reduced under 404.410 for months prior to age 62; and
(ii) The amount by which the old-age insurance benefit would be
reduced under 404.410 if it were equal to the excess of the
individual's primary insurance amount over the widow's or widower's
insurance benefit before any reduction for age (but after any reduction
for the family maximum under 404.403).
(d) Reduction in wife's or husband's insurance benefits when entitled
to reduced old-age insurance benefits in the same month. A wife's or
husband's insurance benefit to which a person is first entitled in or
after the month of attainment of age 62 is reduced if, in his or her
first month of entitlement to that benefit, he or she is also entitled
to an old-age insurance benefit (but is not entitled to a disability
insurance benefit) to which he or she was first entitled for a month
before attainment of age 65. Under these circumstances, the wife's or
husband's insurance benefit is reduced by the sum of:
(1) The amount by which the old-age insurance benefit would be
reduced under the provisions of 404.410; and
(2) The amount by which the wife's or husband's insurance benefit
would be reduced under the provisions of 404.410 if it were equal to
the excess of such benefit (before any reduction for age but after
reduction for the family maximum under 404.403) over the individual's
own primary insurance amount.
(e) Reduction in wife's, husband's, widow's or widower's insurance
benefit because of entitlement to disability insurance benefits in the
same month. A wife's, husband's, widow's, or widower's insurance
benefit to which a person is first entitled in or after the month of
attainment of age 62 (or in the case of widow's or widower's insurance
benefits, age 50) is reduced if, in his or her first month of
entitlement to that benefit, he or she is also entitled to a disability
insurance benefit. Under these circumstances, the wife's, husband's,
widow's, or widower's insurance benefit is reduced by the sum of:
(1) The amount (if any) by which the disability insurance benefit is
reduced under paragraph (b)(1) of this section, and
(2) The amount by which the wife's, husband's, widow's, or widower's
insurance benefit would be reduced under 404.410 if it were equal to
the excess of such benefit (before any reduction for age but after
reduction for the family maximum under 404.403) over the disability
insurance benefit (before any reduction under paragraph (b) of this
section).
(40 FR 30816, July 23, 1975, as amended at 55 FR 50551, Dec. 7, 1990)
20 CFR 404.412 Adjustments in benefit reductions for age.
(a) General. The following months are not counted for purposes of
reducing benefits in accordance with 404.410;
(1) Months subject to deduction under 404.415, 404.417, or
404.422;
(2) In the case of wife's or husband's insurance benefits, any month
in which she or he had a child of the insured individual in her or his
care and for which the child was entitled to child's benefits;
(3) In the case of wife's or husband's insurance benefits, any month
for which entitlement to such benefits is precluded because the insured
person's disability ceased (and, as a result, the insured individual's
entitlement to disability insurance benefits ended);
(4) In the case of widow's or widower's insurance benefits, any month
in which she or he had in her or his care a child of the deceased
insured individual and for which the child was entitled to child's
benefits;
(5) In the case of widow's or widower's insurance benefits, any month
before attainment of age 62 and any month between age 62 and attainment
of age 65 for which he or she was not entitled to such benefits;
(6) In the case of old-age insurance benefits, any month for which
the individual was entitled to disability insurance benefits.
(b) Adjustment by Social Security Administration. Adjustments in
benefits to exclude those months of entitlement which are described in
paragraphs (a) (1) through (6) of this section from consideration in
determining the amount by which such benefits are reduced are made
automatically. Each year the Social Security Administration examines
beneficiary records to identify those instances in which an individual
has attained age 65 (or age 62 in the case of widow's or widower's
insurance benefits) and one or more months described in paragraphs (a)
(1) through (6) of this section occurred prior to such age during the
period of entitlement to benefits reduced for age. Increases in benefit
amounts based upon this adjustment are effective with the month of
attainment of age 65, or in the case of widow's and widower's insurance
benefits, the month of attainment of age 65 or age 62 (whichever
applies).
(40 FR 30817, July 23, 1975, as amended at 49 FR 24117, June 12,
1984)
20 CFR 404.413 Reduction in benefits for age following an increase in
primary insurance amounts.
(a) General. When an individual's benefits have been reduced for age
under the provisions of 404.410 through 404.411, the primary insurance
amount on which such benefits are based may be subsequently increased
because of recomputation, a general benefit increase pursuant to an
amendment of the Act, or increases based upon rises in the
cost-of-living under section 215(i) of the Social Security Act. Where
the individual's benefits are increased because of an increase in the
primary insurance amount, such benefits are reduced separately under
404.410 and 404.411. The benefit amount for months before the effective
date of the increase in the primary insurance amount is reduced under
404.410 (and 404.411, if applicable) and added to the amount of
increase in benefit amount which has been reduced for months of
entitlement to the increase prior to the individual's retirement age;
the resulting sum will be the total benefit amount to which the
individual is entitled for the month of such increase and months
thereafter.
(b) Subsequent reduction of increases in reduced benefit after 1977
applies as or original entitlement. When an individual's benefits have
been reduced for age and the benefit is increased after 1977 due to a
rise in the primary insurance amount, the amount of the increase to
which the individual is entitled is proportionately reduced as provided
in paragraph (c) of this section. When an individual is entitled to
more than one benefit which is reduced for age, the rules for reducing
the benefit increases apply to each reduced benefit.
(c) How reduction is computed -- (1) Entitlement to reduced benefits
after 1977. If an individual becomes entitled after 1977 to a benefit
reduced for age, and the primary insurance amount on which the reduced
benefit is based is increased, the amount of the increase payable to the
individual is reduced by the same percentage as used to reduce the
benefit in the month of initial entitlement. Where the reduced benefit
of an individual has been adjusted at age 65 (age 62 and 65 for widows)
any increase to which the individual becomes entitled thereafter is
reduced by the adjusted percentage.
(2) Entitlement to reduced benefits before 1978. An individual who
became entitled to a benefit reduced for age before 1978, and whose
benefit may be increased as a result of an increase in the primary
insurance amount after 1977, shall have the amount of the benefit to
which he or she is entitled increased by the same percentage as the
increase in the primary insurance amount.
(40 FR 30817, July 23, 1975, as amended at 43 FR 33706, Aug. 1, 1978)
20 CFR 404.415 Deductions because of excess earnings; annual earnings
test.
(a) Deductions because of beneficiary's earnings. Under the annual
earnings test, deductions are made from monthly benefits (except
disability insurance benefits, child's insurance benefits based on the
child's disability, or widow's or widower's insurance benefits based on
the widow's or widower's disability) payable to a beneficiary for each
month in a taxable year (whether a calendar year or a fiscal year)
beginning after December 1954 in which the beneficiary is under age 72
(age 70 after December 1982) and to which excess earnings are charged
under the provisions described in 404.434.
(b) Deductions from husband's, wife's, or child's benefits because of
excess earnings of the insured individual. Deductions are made from the
wife's, husband's, or child's insurance benefits payable (or deemed
payable -- see 404.420) on the insured individual's earnings record
because of the excess earnings of the insured individual under the
provisions described in 404.416. However, beginning with January 1985,
deductions will not be made from the benefits payable to a divorced wife
or a divorced husband who has been divorced from the insured individual
for at least 2 years.
(32 FR 19159, Dec. 20, 1967, as amended at 48 FR 4281, Jan. 31, 1983;
51 FR 11912, Apr. 8, 1986)
20 CFR 404.416 Amount of deduction because of excess earnings.
(a) Deductions because of excess earnings of insured individual. For
taxable years beginning after 1960, or ending after June 1961, if excess
earnings (as described in 404.430) of an insured individual are
chargeable under the annual earnings test to a month, a deduction is
made from the total of the benefits payable to him and to all other
persons entitled (or deemed entitled -- see 404.420) on his earnings
record for that month. This deduction is an amount equal to that amount
of the excess earnings so charged. (See 404.434 concerning the manner
of charging such excess earnings.) However, beginning with January 1985,
deductions will not be made from the benefits payable to a divorced wife
or a divorced husband who has been divorced from the insured individual
for at least 2 years, and the divorced spouse will be considered as not
entitled for purposes of computing the amount of deductions from other
beneficiaries.
(b) Deductions because of excess earnings of other beneficiary. For
taxable years beginning after 1960, or ending after June 1961, if
benefits are payable to a person entitled (or deemed entitled -- see
404.420) on the earnings record of the insured individual, and such
person has excess earnings (as described in 404.430) charged to a
month, a deduction is made from his benefits only for that month. This
deduction is an amount equal to the amount of the excess earnings so
charged. (See 404.434 for charging of excess earnings where both the
insured individual and such person have excess earnings.)
(43 FR 8132, Feb. 28, 1978, as amended at 51 FR 11912, Apr. 8, 1986)
20 CFR 404.417 Deductions because of noncovered remunerative activity
outside the United States; 45 hour and 7-day work test.
(a) Deductions because of individual's activity. -- (1) Prior to May
1983. For months prior to May 1983, a 7-day work test applies in a
month before benefit deductions are made for noncovered remunerative
activity outside the United States. A deduction is made from any
monthly benefit (except disability insurance benefits, child's insurance
benefits based on the child's disability, or widow's or widower's
insurance benefits based on the widow's or widower's disability) payable
to an individual for each month in a taxable year beginning after
December 1954 in which the beneficiary, while under age 72 (age 70 after
December 1982), engages in noncovered remunerative activity (see
404.418) outside the United States on 7 or more different calendar days.
The deduction is for an amount equal to the benefit payable to the
individual for that month.
(2) From May 1983 on. Effective May 1983, a 45-hour work test
applies before a benefit deduction is made for the non-covered
remunerative activity performed outside the United States in a month by
the type of beneficiary described in paragraph (a)(1) of this section.
(b) Deductions from benefits because of the earnings or work of an
insured individual -- (1) Prior to September 1984. Where the insured
individual entitled to old-age benefits works on 7 or more days in a
month prior to September 1984 while under age 72 (age 70 after December
1982), a deduction is made for that month from any:
(i) Wife's, husband's, or child's insurance benefit payable on the
insured individual's earnings record; and
(ii) Mother's, father's, or child's insurance benefit based on
child's disability, which under 404.420 is deemed payable on the
insured individual's earnings record because of the beneficiary's
marriage to the insured individual.
(2) From September 1984 on. Effective September 1984, a benefit
deduction is made for a month from the benefits described in paragraph
(b)(1) of this section only if the insured individual, while under age
70, has worked in excess of 45 hours in that month.
(3) Amount of deduction. The amount of the deduction required by
this paragraph (b) is equal to the wife's, husband's or child's benefit.
(4) From January 1985 on. Effective January 1985, no deduction will
be made from the benefits payable to a divorced wife or a divorced
husband who has been divorced from the insured individual for at least 2
years.
(49 FR 24117, June 12, 1984, as amended at 51 FR 11912, Apr. 21,
1986; 52 FR 26145, July 13, 1987)
20 CFR 404.418 ''Noncovered remunerative activity outside the United
States,'' defined.
An individual is engaged in noncovered remunerative activity outside
the United States for purposes of deductions described in 404.417 if:
(a) He performs services outside the United States as an employee and
the services do not constitute employment as defined in subpart K of
this part and, for taxable years ending after 1955, the services are not
performed in the active military or naval service of the United States;
or
(b) He carries on a trade or business outside the United States
(other than the performance of services as an employee) the net income
or loss of which is not includable in computing his net earnings from
self-employment (as defined in 404.1050) for a taxable year and would
not be excluded from net earnings from self-employment (see 404.1052)
if the trade or business were carried on in the United States. When
used in the preceding sentence with respect to a trade or business, the
term United States does not include the Commonwealth of Puerto Rico, the
Virgin Islands and, with respect to taxable years beginning after 1960,
Guam or American Samoa, in the case of an alien who is not a resident of
the United States (including the Commonwealth of Puerto Rico, the Virgin
Islands and, with respect to taxable years beginning after 1960, Guam
and American Samoa), and the term trade or business shall have the same
meaning as when used in section 162 of the Internal Revenue Code of
1954.
20 CFR 404.420 Persons deemed entitled to benefits based on an
individual's earnings record.
For purposes of imposing deductions under the annual earnings test
(see 404.415) and the foreign work test (see 404.417), a person who is
married to an old-age insurance beneficiary and who is entitled to a
mother's or father's insurance benefit or a child's insurance benefit
based on the child's disability (and all these benefits are based on the
earnings record of some third person) is deemed entitled to such benefit
based on the earnings record of the old-age insurance beneficiary to
whom he or she is married. This section is effective for months in any
taxable year of the old-age insurance beneficiary that begins after
August 1958.
(49 FR 24117, June 12, 1984)
20 CFR 404.421 Deductions because beneficiary failed to have a child in
his or her care.
Deductions for failure to have a child in care (as defined in subpart
D of this part) are made as follows:
(a) Wife's or husband's insurance benefits. A deduction is made from
the wife's or husband's insurance benefit to which he or she is entitled
for any month if he or she is under age 65 and does not have in his or
her care a child of the insured entitled to a child's insurance benefit.
However, a deduction is not made for any month in which he or she is
age 62 or over, but under age 65, and there is in effect a certificate
of election for him or her to receive an actuarially reduced wife's or
husband's insurance benefit for such month (see subpart D of this part).
(b) Mother's or father's insurance benefits -- (1) Widow or Widower.
A deduction is made from the mother's or father's insurance benefit to
which he or she is entitled as the widow or widower (see subpart D of
this part) of the deceased individual upon whose earnings such benefit
is based, for any month in which he or she does not have in his or her
care a child who is entitled to a child's insurance benefit based on the
earnings of the deceased insured individual.
(2) Surviving divorced mother or father. A deduction is made from
the mother's or father's insurance benefit to which he or she is
entitled as the surviving divorced mother or father (see subpart D of
this part) of the deceased individual upon whose earnings record such
benefit is based, for any month in which she or he does not have in care
a child of the deceased individual who is her or his son, daughter, or
legally adopted child and who is entitled to a child's insurance benefit
based on the earnings of the deceased insured individual.
(c) Amount to be deducted. The amount deducted from the benefit, as
described in paragraphs (a) and (b) of this section, is equal to the
amount of the benefit which is otherwise payable for the month in which
she or he does not have a child in his or her care.
(d) When child is considered not entitled to benefits. For purposes
of paragraphs (a) and (b) of this section a person is considered not
entitled to a child's insurance benefit for any month in which he is age
18 or over, and:
(1) Is entitled to a child's insurance benefit based on his own
disability and a deduction is made from the child's insurance benefit
because of his refusal of rehabilitation services as described in
404.422(b); or
(2) Is entitled to a child's insurance benefit because he is a
full-time student at an educational institution. This paragraph applies
to benefits for months after December 1964.
(32 FR 19159, Dec. 20, 1967, as amended at 49 FR 24117, June 12,
1984)
20 CFR 404.422 Deductions because of refusal to accept rehabilitation
services.
(a) Deductions because individual entitled to disability insurance
benefits refuses rehabilitation services -- (1) Disability insurance
beneficiary. A deduction is made from any benefit payable to a
disability insurance beneficiary for each month in which he refuses
without good cause to accept rehabilitation services available to him
under a State plan approved under the Vocational Rehabilitation Act.
(2) Other beneficiaries. For each month in which a deduction is made
from an individual's disability insurance benefit because of his refusal
to accept rehabilitation services (as described in paragraph (a)(1) of
this section), a deduction is also made from:
(i) Any wife's, husband's, or child's insurance benefit payable for
that month on the earnings record of the individual entitled to
disability insurance benefits;
(ii) Benefits payable for that month to the disability insurance
beneficiary's spouse who is entitled (on the earnings record of a third
person) to a mother's insurance benefit or to a child's insurance
benefit based on disability.
(b) Deductions because individual entitled to a child's insurance
benefit based on disability refuses rehabilitation services. A
deduction is made from any benefit payable to an individual who has
attained age 18 and is entitled to a child's insurance benefit based on
disability, for each month in which he refuses without good cause to
accept rehabilitation services available to him under a State plan
approved under the Vocational Rehabilitation Act unless, in that month,
he is a full-time student at an educational institution.
(c) Deductions because individual entitled to widow's or widower's
insurance benefit based on disability refuses rehabilitation services --
(1) Widow's insurance beneficiary. A deduction is made from any
benefits payable to an individual entitled to a widow's insurance
benefit based on disability for each month in which she is under age 60
and refuses without good cause to accept rehabilitation services
available to her under a State plan approved under the Vocational
Rehabilitation Act.
(2) Widower's insurance beneficiary. A deduction is made from any
benefits payable to an individual entitled to a widower's insurance
benefit based on disability for each month in which he is under age 60
(age 62 for months prior to January 1973) and refuses without good cause
to accept rehabilitation services available to him under a State plan
approved under the Vocational Rehabilitation Act.
(d) Amount of deduction. The amount deducted from an individual's
benefit for a month under the provisions of paragraph (a), (b), or (c)
of this section is an amount equal to the benefit otherwise payable for
that month.
(e) Good cause for refusal of rehabilitation services. An individual
may refuse to accept rehabilitation services (for the purposes of
paragraph (a), (b), or (c) of this section) if his refusal is based on
good cause. For example, an individual has good cause for refusing
rehabilitation services where:
(1) The individual is a member or adherent of any recognized church
or religious sect which teaches its members or adherents to rely solely,
in the treatment and care of any physical or mental impairment, on
prayer or spiritual means through the application and use of the tenets
or teachings of such church or sect; and
(2) His refusal to accept rehabilitation services was due solely to
his adherence to the teachings or tenets of his church or sect.
(32 FR 19159, Dec. 20, 1967, as amended at 38 FR 9429, Apr. 16, 1973)
20 CFR 404.423 Manner of making deductions.
Deductions provided for in 404.415, 404.417, 404.421, and 404.422
(as modified in 404.458) are made by withholding benefits (in whole or
in part, depending upon the amount to be withheld) for each month in
which an event causing a deduction occurred. If the amount to be
deducted is not withheld from the benefits payable in the month in which
the event causing the deduction occurred, such amount constitutes a
deduction overpayment and is subject to adjustment or recovery in
accordance with the provisions of subpart F of this part.
20 CFR 404.424 Total amount of deductions where more than one deduction
event occurs in a month.
If more than one of the deduction events specified in 404.415,
404.417, and 404.421 occurred in any 1 month, each of which would
occasion a deduction equal to the benefit for such month, only an amount
equal to such benefit is deducted.
20 CFR 404.425 Total amount of deductions where deduction events occur
in more than 1 month.
If a deduction event described in 404.415, 404.417, 404.421, and
404.422 occurs in more than 1 month, the total amount deducted from an
individual's benefits is equal to the sum of the deductions for all
months in which any such event occurred.
20 CFR 404.428 Earnings in a taxable year.
(a) General. (1) In applying the annual earnings test (see
404.415(a)) under this subpart, all of a beneficiary's earnings (as
defined in 404.429) for all months of the beneficiary's taxable year
are used even though the individual may not be entitled to benefits
during all months of the taxable year. (See, however, 404.430 for the
rule which applies to earnings of a beneficiary who attains age 72
during the taxable year (age 70 for months after December 1982)).
(2) The taxable year of an employee is presumed to be a calendar year
until it is shown to the satisfaction of the Social Security
Administration that the individual has a different taxable year. A
self-employed individual's taxable year is a calendar year unless the
individual has a different taxable year for the purposes of subtitle A
of the Internal Revenue Code of 1954. In either case, the number of
months in a taxable year is not affected by -- (i) The time a claim for
social security benefits is filed, (ii) attainment of any particular
age, (iii) marriage or the termination of marriage, or (iv) adoption.
For beneficiaries who die on or before November 10, 1988, a taxable year
ends with the month of the death of the beneficiary. The month of death
is counted as a month of the deceased beneficiary's taxable year in
determining whether the beneficiary had excess earnings for the year
under 404.430. For beneficiaries who die after November 10, 1988, the
number of months used in determining whether the beneficiary had excess
earnings for the year under 404.430 is 12.
(b) When derived. Wages as defined in 404.429(c) are derived and
includable as earnings for the months and year in which the beneficiary
rendered the services. Net earnings from self-employment, or net losses
therefrom, are derived, or incurred, and are includable as earnings or
losses, in the year for which such earnings or losses are reportable for
Federal income tax purposes.
(32 FR 19159, Dec. 20, 1967, as amended at 45 FR 48116, July 18,
1980; 48 FR 4282, Jan. 31, 1983; 55 FR 37461, Sept. 12, 1990)
20 CFR 404.429 Earnings; defined.
(a) General. When the term earnings is used in this subpart other
than as a part of the phrase net earnings from self-employment, it means
an individual's earnings for a taxable year after 1954. It includes the
sum of his wages for services rendered in such year, and his net
earnings from self-employment for the taxable year, minus any net loss
from self-employment for the same taxable year.
(b) Net earnings from self-employment; net loss from
self-employment. An individual's net earnings from self-employment and
his net loss from self-employment are determined under the provisions in
subpart K of this part except that:
(1) For the purposes of this section, the provisions in subpart K of
this part shall not apply that exclude from the definition of trade or
business the following occupations:
(i) The performance of the functions of a public office;
(ii) The performance of a service of a duly ordained, commissioned,
or licensed minister of a church in the exercise of his ministry or by a
member of a religious order in the exercise of duties required by the
order;
(iii) The performance of service by an individual in the exercise of
his profession as a Christian Science practitioner;
(iv) For taxable years ending before 1965, the performance by an
individual in the exercise of his profession as a doctor of medicine;
(v) For taxable years ending before 1956, the performance of service
by an individual in the exercise of his profession as a lawyer, dentist,
osteopath, veterinarian, chiropractor, naturopath, or optometrist.
(2) For the sole purpose of the earnings test under this subpart --
(i) An individual who has attained age 65 on or before the last day
of his or her taxable year shall have excluded from his or her gross
earnings from self-employment, royalties attributable to a copyright or
patent obtained before the taxable year in which he or she attained age
65 if the copyright or patent is on property created by his or her own
personal efforts; and
(ii) An individual entitled to insurance benefits, under title II of
the Act, other than disability insurance benefits or child's insurance
benefits payable by reason of being under a disability, shall have
excluded from gross earnings for any year after 1977 any self-employment
income received in a year after his or her initial year of entitlement
that is not attributable to services performed after the first month he
or she became entitled to benefits. As used in this paragraph
(b)(2)(ii) of this section, services means any significant work activity
performed by the individual in the operation or management of a trade,
profession, or business which can be related to the income received.
Such services will be termed significant services. Where a portion of
the income received in a year is not related to any significant services
performed after the month of initial entitlement, only that portion may
be excluded from gross earnings for deduction purposes. The balance of
the income counts for deduction purposes. Not counted as significant
services are --
(A) Actions taken after the initial month of entitlement to sell a
crop or product if the crop or product was completely produced or
created in or before the month of entitlement. This rule does not apply
to income received by an individual from a trade or business of buying
and selling products produced or made by others; for example, a grain
broker.
(B) Those activities that are related solely to protecting an
investment in a currently operating business or that are too irregular,
occasional, or minor to be considered as having a bearing on the income
received, such as --
(1) Hiring an agent, manager, or other employee to operate the
business;
(2) Signing contracts where the owner's signature is required so long
as the major contract negotiations were handled by the owner's agent,
manager, or other employees in running the business for the owner;
(3) Looking over the company's financial records to assess the
effectiveness of those agents, managers, or employees in running the
business for the owner;
(4) Personally contacting an old and valued customer solely for the
purpose of maintaining good will when such contact has a minimal effect
on the ongoing operation of the trade or business; or
(5) Occasionally filling in for an agent, manager, or other employee
or partner in an emergency.
(iii) An individual is presumed to have royalties or other
self-employment income countable for purposes of the earnings test until
it is shown to the satisfaction of the Social Security Administration
that such income may be excluded under 404.429(b)(2) (i) or (ii).
(3) In figuring an individual's net earnings or net loss from
self-employment, all net income or net loss is includable even though
(i) the individual did not perform personal services in carrying on the
trade or business, (ii) the net profit was less than $400, (iii) the net
profit was in excess of the maximum amount creditable to his earnings
record, or (iv) the net profit was not reportable for social security
tax purposes.
(4) An individual's net earnings from self-employment is the excess
of gross income over the allowable business deductions (allowed under
the Internal Revenue Code). An individual's net loss from
self-employment is the excess of business deductions (that are allowed
under the Internal Revenue Code) over gross income. Expenses arising in
connection with the production of income excluded from gross income
under 404.429(b)(2)(ii) cannot be deducted from wages or net earnings
from self-employment that are not excluded under that section.
(c) Wages defined. Wages include the gross amount of an individual's
wages rather than the net amount paid after deductions by the employer
for items such as taxes and insurance. For purposes of this section, an
individual's wages are determined under the provisions of subpart K of
this part, except that, notwithstanding the provisions of subpart K,
wages also includes:
(1) Remuneration in excess of the amounts in the annual wage
limitation table in 404.1047;
(2) Cash remuneration of less than $50 paid in a calendar quarter to
an employee for (i) domestic service in the private home of the
employer, or (ii) service not in the course of the employer's trade or
business; and
(3) Payments for agricultural labor excluded under 404.1055.
(4) Remuneration, cash and noncash, for service as a homeworker even
though the cash remuneration paid the employee is less than $50 in a
calendar quarter; and
(5) For taxable years ending after 1955, services performed outside
the United States in the military or naval service of the United States;
and
(6) Remuneration for services excepted from employment performed
within the United States by an individual as an employee that are for
that reason not considered wages under subpart K of this part, if the
remuneration for such services is not includable in computing his net
earnings from self-employment or net loss from self-employment, as
defined in paragraph (b) of this section.
(d) Presumptions concerning wages. For purposes of this section,
where reports received by the Administration show wages (as defined in
paragraph (c) of this section) were paid to an individual during a
taxable year, it is presumed that they were paid to him for services
rendered in that year until such time as it is shown to the satisfaction
of the Administration that the wages were paid for services rendered in
another taxable year. If the reports of wages paid to an individual
show his wages for a calendar year, the individual's taxable year is
presumed to be a calendar year for purposes of this section until it is
shown to the satisfaction of the Administration that his taxable year is
not a calendar year.
(32 FR 19159, Dec. 20, 1967, as amended at 41 FR 13912, Apr. 1, 1976;
47 FR 46690, Oct. 20, 1982; 52 FR 8249, Mar. 17, 1987; 57 FR 59913,
Dec. 17, 1992)
20 CFR 404.430 Excess earnings defined for taxable years ending after
December 1972; monthly exempt amount defined.
(a) Method of determining excess earnings for years ending after
December 1972. For taxable years ending after 1972, an individual's
excess earnings for a taxable year are 50 percent of his or her earnings
(as described in 404.429) for the year which are above the exempt
amount. For an individual who has attained retirement age, as defined
in section 216(l) of the Act, excess earnings for a taxable year
beginning after December 31, 1989, are 33 1/3 percent of his or her
earnings (as described in 404.429) for the year which are above the
exempt amount. For deaths after November 10, 1988, an individual who
dies in the taxable year in which he or she would have attained
retirement age shall have his or her excess earnings computed as if he
or she had attained retirement age. The exempt amount is obtained by
multiplying the number of months in the taxable year (except that the
number of months in the taxable year in which the individual dies shall
be 12, if death occurs after November 10, 1988) by the following
applicable monthly exempt amount.
(1) $175 for taxable years ending after December 1972 and before
January 1974;
(2) $200 for taxable years beginning after December 1973 and before
January 1975; and
(3) The exempt amount for taxable years ending after December 1974,
as determined under paragraphs (c) and (d) of this section. However,
earnings in and after the month an individual attains age 72 will not be
used to figure excess earnings for retirement test purposes. For the
employed individual, wages for months prior to the month of attainment
of age 72 are used to figure the excess earnings for retirement test
purposes. For the self-employed individual, the pro rata share of the
net earnings or net loss for the taxable year for the period prior to
the month of attainment of age 72 is used to figure the excess earnings.
If the beneficiary was not engaged in self-employment prior to the
month of attainment of age 72, any subsequent earnings or losses from
self-employment in the taxable year will not be used to figure the
excess earnings. Where the excess amount figured under the provisions
of this section is not a multiple of $1, it is reduced to the next lower
dollar. (All references to age 72 will be age 70 for months after
December 1982.)
Example 1. The self-employed beneficiary attained age 72 in July
1979. His net earnings for 1979, his taxable year, were $12,000. The
pro rata share of the net earnings for the period prior to July is
$6,000. His excess earnings for 1979 for retirement test purposes are
$750. This is computed by subtracting $4,500 ($375 12), the exempt
amount for 1979, from $6,000 and dividing the result by 2.
Example 2. The beneficiary attained age 72 in July 1979. His
taxable year was calendar year 1979. His wages for the period prior to
July were $6,000. From August through December 1979, he worked in
self-employment and had net earnings in the amount of $2,000. His net
earnings from self-employment are not used to figure his excess
earnings. Only his wages for the period prior to July 1979 ($6,000) are
used to figure his excess earnings. As in example 1, his excess
earnings are $750.
Example 3. The facts are the same as in example 2, except that the
beneficiary worked in self-employment throughout all of 1979 and had a
net loss of $500 from the self-employment activity. The pro rata share
of the net loss for the period prior to July is $250. His earnings for
the taxable year to be used in figuring excess earnings are $5,750.
This is computed by subtracting the $250 net loss from
self-employment from the $6,000 in wages. The excess earnings are $625
(($5,750^$4,500) 2).
(b) Monthly exempt amount defined. The retirement test monthly
exempt amount is the amount of wages which a social security beneficiary
may earn in any month without part of his or her monthly benefit being
deducted because of excess earnings. For benefits payable for months
after 1977, the monthly exempt amount applies only in a beneficiary's
grace year or years. (See 404.435(a) and (c)).
(c) Method of determining monthly exempt amount for taxable years
ending after December 1974. (1) Except as provided under paragraph (d)
of this section, for purposes of paragraph (a)(3) of this section, the
applicable monthly exempt amount effective for an individual's taxable
year that ends in the calendar year after the calendar year in which an
automatic cost-of-living increase in old-age, survivors, and disability
insurance benefits is effective is the larger of --
(i) The exempt amount in effect for months in the taxable year in
which the exempt amount determination is being made; or
(ii) The amount determined by:
(a) Multiplying the monthly exempt amount effective during the
taxable year in which the exempt amount determination is being made by
the ratio of:
(1) The average amount, per employee, of the taxable wages of all
employees as reported to the Secretary for the first calendar quarter of
the calendar year in which the exempt amount determination is made, to
(2) The average amount, per employee, of the taxable wages of all
employees as reported to the Secretary for the first calendar quarter of
the most recent calendar year in which an increase in the exempt amount
was enacted or a determination resulting in such an increase was made,
and
(b) Rounding the result of such multiplication: (1) To the next
higher multiple of $10 where such result is a multiple of $5 but not of
$10, or (2) to the nearest multiple of $10 in any other case.
(2) For purposes of paragraph (c)(1) of this section, reported for
the first calendar quarter means reported for such first calendar
quarter and posted to the earnings records by the Secretary on or before
the last day of the Social Security Administration's quarterly updating
operations in September of the same year. Earnings items received or
posted thereafter are not counted even though they pertain to the first
quarter.
(d) Method of determining monthly exempt amount for taxable years
ending after December 1977 for beneficiaries, age 65 or over. (1) For
purposes of paragraph (a)(3) of this section, for all months of taxable
years ending after 1977, the applicable monthly exempt amount for an
individual who has attained (or, but for the individual's death
occurring after November 10, 1988, would have attained) retirement age
as defined in section 216(l) of the Act before the close of the taxable
year involved is --
(i) $333.33 1/3 for each month of any taxable year ending in 1978;
(ii) $375 for each month of any taxable year ending in 1979;
(iii) $416.66 2/3 for each month of any taxable year ending in 1980;
and
(iv) $458.33 1/3 for each month of any taxable year ending in 1981;
(v) $500 for each month of any taxable year ending in 1982;
(vi) $550 for each month of any taxable year ending in 1983;
(vii) $580 for each month of any taxable year ending in 1984;
(viii) $610 for each month of any taxable year ending in 1985;
(ix) $650 for each month of any taxable year ending in 1986;
(x) $680 for each month of any taxable year ending in 1987;
(xi) $700 for each month of any taxable year ending in 1988;
(xii) $740 for each month of any taxable year ending in 1989; and
(xiii) $780 for each month of any taxable year ending in 1990.
(2) Fractional amounts listed in paragraph (d)(1) of this section
shall be rounded to the next higher whole dollar amount, unless the
individual shows that doing so results in a different grace year (see
404.435 (a) and (c)).
(40 FR 42865, Sept. 17, 1975; 40 FR 45805, Oct. 3, 1975, as amended
at 45 FR 48117, July 18, 1980; 45 FR 58107, Sept. 2, 1980; 48 FR 4282,
Jan. 31, 1983; 55 FR 37461, Sept. 12, 1990)
20 CFR 404.434 Excess earnings; method of charging.
(a) Months charged. For purposes of imposing deductions for taxable
years after 1960, the excess earnings (as described in 404.430) of an
individual are charged to each month beginning with the first month the
individual is entitled in the taxable year in question and continuing,
if necessary, to each succeeding month in such taxable year until all of
the individual's excess earnings have been charged. Excess earnings,
however, are not charged to any month described in 404.435 and
404.436.
(b) Amount of excess earnings charged -- (1) Insured individual's
excess earnings. The insured individual's excess earnings are charged
on the basis of $1 of excess earnings for each $1 of monthly benefits to
which he and all other persons are entitled (or deemed entitled -- see
404.420) for such month on the insured individual's earnings record.
(See 404.439 where the excess earnings for a month are less than the
total benefits payable for that month.)
(2) Excess earnings of beneficiary other than insured individual.
The excess earnings of a person other than the insured individual are
charged on the basis of $1 of excess earnings for each $1 of monthly
benefits to which he is entitled (see 404.437) for such month. The
excess earnings of such person, however, are charged only against his
own benefits.
(3) Insured individual and person entitled (or deemed entitled) on
his earnings record both have excess earnings. If both the insured
individual and a person entitled (or deemed entitled) on his earnings
record have excess earnings (as described in 404.430), the insured
individual's excess earnings are charged first against the total family
benefits payable (or deemed payable) on his earnings record, as
described in paragraph (b)(1) of this section. Next, the excess
earnings of a person entitled on the insured individual's earnings
record are charged (as described in paragraph (c)(2) of this section)
against his own benefits, but only to the extent that his benefits have
not already been charged with the excess earnings of the insured
individual. See 404.441 for an example of this process and the manner
in which partial monthly benefits are apportioned.
(32 FR 19159, Dec. 20, 1967, as amended at 38 FR 17716, July 3, 1973;
43 FR 8133, Feb. 28, 1978)
20 CFR 404.435 Excess earnings; months to which excess earnings cannot
be charged.
(a) Monthly benefits payable for months after 1977. Beginning with
monthly benefits payable for months after 1977, no matter how much a
beneficiary earns in a given taxable year, no deduction on account of
excess earnings will be made in the benefits payable for any month --
(1) In which he or she was not entitled to a monthly benefit;
(2) In which he or she was considered not entitled to benefits (due
to noncovered work outside the United States, no child in care, or
refusal of rehabilitation, as described in 404.436);
(3) In which he or she was age 72 or over (age 70 for months after
December 1982);
(4) In which he or she was entitled to payment of disability
insurance benefit;
(5) In which he or she was age 18 or over and entitled to a child's
insurance benefit based on disability;
(6) In which he or she was entitled to a widow's or widower's
insurance benefit based on disability; or
(7) Which was a nonservice month (see paragraph (b) of this section)
in the beneficiary's grace year (see paragraph (c) of this section).
(b) Nonservice month defined. A nonservice month is any month in
which an individual, while entitled to retirement or survivors benefits
-- (1) does not work in self-employment (see paragraphs (d) and (e) of
this section); (2) does not perform services for wages greater than the
monthly exempt amount set for that month (see paragraph (f) of this
section and 404.430 (b), (c), and (d)); and (3) does not work in
noncovered remunerative activity on 7 or more days in a month while
outside the United States. A nonservice month occurs even if there are
no excess earnings in the year.
(c) Grace year defined. (1) A beneficiary's initial grace year is
the first taxable year after 1977 in which the beneficiary has a
nonservice month (see paragraph (b) of this section) in or after the
month in which he or she is entitled to a retirement, auxiliary, or
survivor's benefit.
(2) A beneficiary may have another grace year each time his or her
entitlement to one type of benefit ends and, after a break in
entitlement of at least one month, he or she becomes entitled to a
different type of retirement or survivors benefit. The new grace year
would then be the taxable year in which occurs the first nonservice
month after the break in entitlement.
(3) A month will not be counted as a nonservice month for purposes of
determining whether a given year is a beneficiary's grace year if the
nonservice month occurred while the beneficiary was entitled to
disability benefits under section 223 of the Social Security Act or as a
disabled widow, widower, or child under section 202.
(4) A beneficiary entitled to child's benefits, to young wife's or
young husband's benefits (entitled only by reason of having a child in
his or her care), or to mother's or father's benefits, is entitled to a
termination grace year in any year(s) the beneficiary's entitlement to
these types of benefits terminates. This provision does not apply if
the termination is because of death or if the beneficiary is entitled to
a Social Security benefit for the month following the month in which the
entitlement ended. The beneficiary is entitled to a termination grace
year in addition to any other grace year(s) available to him or her.
Example 1: Don, age 65, will retire from his regular job in April of
next year. Although he will have earned $11,000 for January-April of
that year and plans to work part time, he will not earn over the monthly
exempt amount after April. Don's taxable year is the calendar year.
Since next year will be the first year in which he has a nonservice
month while entitled to benefits, it will be his grace year and he will
be entitled to the monthly earnings test for that year only. He will
receive benefits for all months in which he does not earn over the
monthly exempt amount (May-December) even though his earnings have
substantially exceeded the annual exempt amount. However, in the years
that follow, only the annual earnings test will be applied if he has
earnings that exceed the annual exempt amount, regardless of his monthly
earnings.
Example 2: Marion was entitled to mother's insurance benefits from
1978 because she had a child in her care under age 18. Because she had
a nonservice month in 1978, 1978 was her initial grace year. Marion's
child married in May 1980 and entitlement to mother's benefits
terminated in April 1980. Since Marion's entitlement did not terminate
by reason of her death and she was not entitled to another type of
Social Security benefit in the month after her entitlement to mother's
benefit ended, she is entitled to a termination grace year for 1980, the
year in which her entitlement to mother's insurance benefits terminated.
She applied for and became entitled to widow's insurance benefits
effective February 1981. Because there was a break in entitlement to
benefits of at least one month before entitlement to another type of
benefit, 1981 will be a subsequent grace year if Marion has a nonservice
month in 1981.
(d) When an individual works in self-employment. An individual works
in self-employment in any month in which he or she performs substantial
services (see 404.446) in the operation of a trade or business (or in a
combination of trades and businesses if there are more than one) as an
owner or partner even though there may be no earnings or net earnings
caused by the individual's services during the month.
(e) Presumption regarding work in self-employment. An individual is
presumed to have worked in self-employment in each month of the
individual's taxable year until it is shown to the satisfaction of the
Social Security Administration that in a particular month the individual
did not perform substantial services (see 404.446(c)) in any trade or
business (or in a combination of trades and businesses if there are more
than one) from which the net income or loss is included in computing the
individual's annual earnings (see 404.429).
(f) Presumption regarding services for wages. An individual is
presumed to have performed services in any month for wages (as defined
in 404.429) of more than the applicable monthly exempt amount set for
that month until it is shown to the satisfaction of the Social Security
Administration that the individual did not perform services in that
month for wages of more than the monthly exempt amount.
(45 FR 48117, July 18, 1980, as amended at 47 FR 46691, Oct. 20,
1982; 48 FR 4282, Jan. 31, 1983)
20 CFR 404.436 Excess earnings; months to which excess earnings cannot
be charged because individual is deemed not entitled to benefits.
Under the annual earnings test, excess earnings (as described in
404.430) are not charged to any month in which an individual is deemed
not entitled to a benefit. A beneficiary (i.e., the insured individual
or any person entitled or deemed entitled on the individual's earnings
record) is deemed not entitled to a benefit for a month if he is subject
to a deduction for that month because of:
(a) Engaging in noncovered remunerative activity outside the United
States (as described in 404.417 and 404.418); or
(b) Failure to have a child in her care (in the case of a wife under
age 65 or a widow or surviving divorced mother under age 62, as
described in 404.421); or
(c) Refusal by a person entitled to a child's insurance benefit based
on disability to accept rehabilitation services (as described in
404.422). (An insured individual's excess earnings are not charged
against the benefit of a child entitled (or deemed entitled) on the
insured individual's earnings record for any month in which the child is
subject to a deduction for refusing rehabilitation services); or
(d) Refusal by an individual entitled to a disability insurance
benefit to accept rehabilitation services as described in 404.422
(e.g., a wife's excess earnings may not be charged against her benefits
for months in which the disability insurance beneficiary on whose
account she is entitled to wife's benefits incurs a deduction because he
refuses rehabilitation services; also, a woman's earnings may not be
charged against the mother's insurance benefit or child's insurance
benefit she is receiving (on the earnings record of another individual)
for months in which her husband refuses rehabilitation services while he
is entitled to a disability insurance benefit).
(e) Refusal by a person entitled before age 60 to a widow's/or to a
widower's insurance benefit based on disability (before age 62 in the
case of a widower's insurance benefit for months before 1973) to accept
rehabilitation services (as described in 404.422).
(32 FR 19159, Dec. 20, 1967, as amended at 38 FR 9429, Apr. 16, 1973;
38 FR 17716, July 3, 1973; 43 FR 8133, Feb. 28, 1978)
20 CFR 404.437 Excess earnings; benefit rate subject to deductions
because of excess earnings.
For purposes of deductions because of excess earnings (as described
in 404.430), the benefit rate against which excess earnings are charged
is the amount of the benefit (other than a disability insurance benefit)
to which the person is entitled for the month:
(a) After reduction for the maximum (see 404.403 and 404.404). The
rate as reduced for the maximum as referred to in this paragraph is the
one applicable to remaining entitled beneficiaries after exclusion of
beneficiaries deemed not entitled under 404.436 (due to a deduction for
engaging in noncovered remunerative activity outside the United States,
failure to have a child in her care, or refusal to accept rehabilitation
services);
(b) After any reduction under section 202(q) of the Act because of
entitlement to benefits for months before age 65 (this applies only to
old-age, wife's, widow's, or husband's benefits);
(c) After any reduction in benefits payable to a person entitled (or
deemed entitled; see 404.420) on the earnings record of the insured
individual because of entitlement on his own earnings record to other
benefits (see 404.407); and
(d) After any reduction of benefits payable to a person entitled or
deemed entitled on the earnings record of an individual entitled to a
disability insurance benefit because of such individual's entitlement to
workmen's compensation for months after 1965 (see 404.408).
(32 FR 19159, Dec. 20, 1967, as amended at 38 FR 17716, July 3, 1973;
43 FR 8133, Feb. 28, 1978)
20 CFR 404.439 Partial monthly benefits; excess earnings of the
individual charged against his benefits and the benefits of persons
entitled (or deemed entitled) to benefits on his earnings record.
Deductions are made against the total family benefits where the
excess earnings (as described in 404.430) of an individual entitled to
old-age insurance benefits are charged to a month and require deductions
in an amount less than the total family benefits payable on his earnings
record for that month (including the amount of a mother's or child's
insurance benefit payable to a spouse who is deemed entitled on the
individual's earnings record -- see 404.420). The difference between
the total benefits payable and the deductions made under the annual
earnings test for such month is paid (if otherwise payable under title
II of the Act) to each person in the proportion that the benefit to
which each is entitled (before the application of the reductions
described in 404.403 for the family maximum, 404.407 for entitlement
to more than one type of benefit, and section 202(q) of the Act for
entitlement to benefits before retirement age) and before the
application of 404.304(f) to round to the next lower dollar bears to
the total of the benefits to which all of them are entitled, except that
the total amount payable to any such person may not exceed the benefits
which would have been payable to that person if none of the insured
individual's excess earnings had been charged to that month.
Example: A is entitled to an old-age insurance benefit of $165 and
his wife is entitled to $82.50 before rounding, making a total of
$247.50. After A's excess earnings have been charged to the appropriate
months, there remains a partial benefit of $200 payable for October,
which is apportioned as follows:
(38 FR 9429, Apr. 16, 1973, as amended at 38 FR 17717, July 3, 1973;
43 FR 8133, Feb. 28, 1978; 48 FR 46149, Oct. 11, 1983)
20 CFR 404.440 Partial monthly benefits; pro-rated share of partial
payment exceeds the benefit before deduction for excess earnings.
Where, under the apportionment described in 404.439, a person's
prorated share of the partial benefit exceeds the benefit rate to which
he was entitled before excess earnings of the insured individual were
charged, such person's share of the partial benefit is reduced to the
amount he would have been paid had there been no deduction for excess
earnings (see example). The remainder of the partial benefit is then
paid to other persons eligible to receive benefits in the proportion
that the benefit of each such other person bears to the total of the
benefits to which all such other persons are entitled (before reduction
for the family maximum). Thus, if only two beneficiaries are involved,
payment is made to one as if no deduction had been imposed; and the
balance of the partial benefit is paid to the other. If three or more
beneficiaries are involved, however, reapportionment of the excess of
the beneficiary's share of the partial benefit over the amount he would
have been paid without the deduction is made in proportion to his
original entitlement rate (before reduction for the family maximum). If
the excess amount involved at any point totals less than $1, it is not
reapportioned; instead, each beneficiary is paid on the basis of the
last calculation.
Example: Family maximum is $150. Insured individual's excess
earnings charged to the month are $25. The remaining $125 is prorated
as partial payment.
(32 FR 19159, Dec. 20, 1967, as amended at 48 FR 46149, Oct. 11,
1983)
20 CFR 404.441 Partial monthly benefits; insured individual and
another person entitled (or deemed entitled) on the same earnings record
both have excess earnings.
Where both the insured individual and another person entitled (or
deemed entitled) on the same earnings record have excess earnings (as
described in 404.430), their excess earnings are charged, and their
partial monthly benefit is apportioned, as follows:
Example: M and his wife are initially entitled to combined total
benefits of $264 per month based on M's old-age insurance benefit of
$176. For the taxable year in question, M's excess earnings were $1,599
and his wife's excess earnings were $265. Both were under age 65. M
had wages of more than $340 in all months of the year except February,
while his wife had wages of more than $340 in all months of the year.
After M's excess earnings have been charged to the appropriate months
(all months through July except February), there remains a partial
benefit payment for August of $249, which is allocated to M and his wife
in the ratio that the original benefit of each bears to the sum of their
original benefits: $166 and $83. His wife's excess earnings are
charged against her full benefit for February ($88), her partial benefit
for August ($83), her full benefit for September, and from $6 of her
October benefit, leaving an $82 benefit payable to her for that month.
(48 FR 46149, Oct. 11, 1983)
20 CFR 404.446 Definition of ''substantial services'' and ''services.''
(a) General. In general, the substantial services test will be
applicable only in a grace year (including a termination grace year) as
defined in 404.435(c)(1). It is a test of whether, in view of all the
services rendered by the individual and the surrounding circumstances,
the individual reasonably can be considered retired in the month in
question. In determining whether an individual has or has not performed
substantial services in any month, the following factors are considered:
(1) The amount of time the individual devoted to all trades and
businesses;
(2) The nature of the services rendered by the individual;
(3) The extent and nature of the activity performed by the individual
before he allegedly retired as compared with that performed thereafter;
(4) The presence or absence of an adequately qualified paid manager,
partner, or family member who manages the business;
(5) The type of business establishment involved;
(6) The amount of capital invested in the trade or business; and
(7) The seasonal nature of the trade or business.
(b) Individual engaged in more than one trade or business. When an
individual, in any month, performs services in more than one trade or
business, his services in all trades or businesses are considered
together in determining whether he performed substantial services in
self-employment in such month.
(c) Evidentiary requirements. An individual who alleges that he did
not render substantial services in any month, or months, shall submit
detailed information about the operation of the trades or businesses,
including the individual's activities in connection therewith. When
requested to do so by the Administration, the individual shall also
submit such additional statements, information, and other evidence as
the Administration may consider necessary for a proper determination of
whether the individual rendered substantial services in self-employment.
Failure of the individual to submit the requested statements,
information, and other evidence is a sufficient basis for a
determination that the individual rendered substantial services in
self-employment during the period in question.
(32 FR 19159, Dec. 20, 1967, as amended at 47 FR 46691, Oct. 20,
1982)
20 CFR 404.447 Evaluation of factors involved in substantial services
test.
In determining whether an individual's services are substantial,
consideration is given to the following factors:
(a) Amount of time devoted to trades or businesses. Consideration is
first given to the amount of time the self-employed individual devotes
to all trades or businesses, the net income or loss of which is
includable in computing his earnings as defined in 404.429. For the
purposes of this paragraph, the time devoted to a trade or business
includes all the time spent by the individual in any activity, whether
physical or mental, at the place of business or elsewhere in furtherance
of such trade or business. This includes the time spent in advising and
planning the operation of the business, making business contacts,
attending meetings, and preparing and maintaining the facilities and
records of the business. All time spent at the place of business which
cannot reasonably be considered unrelated to business activities is
considered time devoted to the trade or business. In considering the
weight to be given to the time devoted to trades or businesses the
following rules are applied:
(1) Forty-five hours or less in a month devoted to trade or business.
Where the individual establishes that the time devoted to his trades
and businesses during a calendar month was not more than 45 hours, the
individual's services in that month are not considered substantial
unless other factors (see paragraphs (b), (c), and (d) of this section),
make such a finding unreasonable. For example, an individual who worked
only 15 hours in a month might nevertheless be found to have rendered
substantial services if he was managing a sizeable business or engaging
in a highly skilled occupation. However, the services of less than 15
hours rendered in all trades and businesses during a calendar month are
not substantial.
(2) More than 45 hours in a month devoted to trades and businesses.
Where an individual devotes more than 45 hours to all trades and
businesses during a calendar month, it will be found that the
individual's services are substantial unless it is established that the
individual could reasonably be considered retired in the month and,
therefore, that such services were not, in fact, substantial.
(b) Nature of services rendered. Consideration is also given to the
nature of the services rendered by the individual in any case where a
finding that the individual was retired would be unreasonable if based
on time alone (see paragraph (a) of this section). The more highly
skilled and valuable his services in self-employment are, the more
likely the individual rendering such services could not reasonably be
considered retired. The performance of services regularly also tends to
show that the individual has not retired. Services are considered in
relation to the technical and management needs of the business in which
they are rendered. Thus, skilled services of a managerial or technical
nature may be so important to the conduct of a sizable business that
such services would be substantial even though the time required to
render the services is considerably less than 45 hours.
(c) Comparison of services rendered before and after retirement.
Where consideration of the amount of time devoted to a trade or business
(see paragraph (a) of this section) and the nature of services rendered
(see paragraph (b) of this section) is not sufficient to establish
whether an individual's services were substantial, consideration is
given to the extent and nature of the services rendered by the
individual before his retirement, as compared with the services
performed during the period in question. A significant reduction in the
amount or importance of services rendered in the business tends to show
that the individual is retired; absence of such reduction tends to show
that the individual is not retired.
(d) Setting in which services performed. Where consideration of the
factors described in paragraphs (a), (b), and (c) of this section is not
sufficient to establish that an individual's services in self-employment
were or were not substantial, all other factors are considered. The
presence or absence of a capable manager, the kind and size of the
business, the amount of capital invested and whether the business is
seasonal, as well as any other pertinent factors, are considered in
determining whether the individual's services are such that he can
reasonably be considered retired.
20 CFR 404.450 Required reports of work outside the United States or
failure to have care of a child.
(a) Beneficiary engaged in noncovered remunerative activity; report
by beneficiary. Any individual entitled to a benefit which is subject
to a deduction in that month because of noncovered remunerative activity
outside the United States (see 404.417) shall report the occurrence of
such an event to the Social Security Administration before the receipt
and acceptance of a benefit for the second month following the month in
which such event occurred.
(b) Beneficiary receiving wife's, husband's, mother's or father's
insurance benefits does not have care of a child; report by
beneficiary. Any person receiving wife's, husband's, mother's, or
father's insurance benefits which are subject to a deduction (as
described in 404.421) because he or she did not have a child in his or
her care shall report the occurrence of such an event to the Social
Security Administration before the receipt and acceptance of a benefit
for the second month following the month in which the deduction event
occurred.
(c) Report required by person receiving benefits on behalf of
another. Where a person is receiving benefits on behalf of a
beneficiary (see subpart U of this part) it is his duty to make the
report to the Administration required by paragraph (a) or (b) of this
section, on behalf of the beneficiary.
(d) Report; content and form. A report required under the
provisions of this section shall be filed with the Social Security
Administration. (See 404.608 for procedures concerning place of filing
and date of receipt of such a report.) The report should be made on a
form prescribed by the Administration and in accordance with
instructions, printed thereon or attached thereto, as prescribed by the
Administration. Prescribed forms may be obtained at any office of the
Administration. If the prescribed form is not used, the report should
be properly identified (e.g., show the name and social security claim
number of the beneficiary about whom the report is made), describe the
events being reported, tell when the events occurred, furnish any other
pertinent data (e.g., who has care of the children), and be properly
authenticated (e.g., bear the signature and address of the beneficiary
making the report or the person reporting on his behalf). The report
should contain all the information needed for a proper determination of
whether a deduction applies and, if it does, the period for which such
deductions should be made.
(32 FR 19159, Dec. 20, 1967, as amended at 49 FR 24117, June 12,
1984; 51 FR 10616, Mar. 28, 1986)
20 CFR 404.451 Penalty deductions for failure to report within
prescribed time limit noncovered remunerative activity outside the
United States or not having care of a child.
(a) Penalty for failure to report. If an individual (or the person
receiving benefits on his behalf) fails to comply with the reporting
obligations of 404.450 within the time specified in 404.450 and it is
found that good cause for such failure does not exist (see 404.454), a
penalty deduction is made from the individual's benefits in addition to
the deduction described in 404.417 (relating to noncovered remunerative
activity outside the United States) or 404.421 (relating to failure to
have care of a child).
(b) Determining amount of penalty deduction. The amount of the
penalty deduction for failure to report noncovered remunerative activity
outside the United States or not having care of a child within the
prescribed time is determined as follows:
(1) First failure to make timely report. The penalty deduction for
the first failure to make a timely report is an amount equal to the
individual's benefit or benefits for the first month for which the
deduction event was not reported timely.
(2) Second failure to make timely report. The penalty deduction for
the second failure to make a timely report is an amount equal to twice
the amount of the individual's benefit or benefits for the first month
for which the deduction event in the second failure period was not
reported timely.
(3) Subsequent failures to make timely reports. The penalty
deduction for the third or subsequent failure to file a timely report is
an amount equal to three times the amount of the individual's benefit or
benefits for the first month for which the deduction event in the third
failure period was not reported timely.
(c) Determining whether a failure to file a timely report is first,
second, third, or subsequent failure -- (1) Failure period. A failure
period runs from the date of one delinquent report (but initially
starting with the date of entitlement to monthly benefits) to the date
of the next succeeding delinquent report, excluding the date of the
earlier report and including the date of the later report. The failure
period includes each month for which succeeding delinquent report,
excluding a report becomes overdue during a failure period, but it does
not include any month for which a report is not yet overdue on the
ending date of such period. If good cause (see 404.454) is found for
the entire period, the period is not regarded as a failure period.
(2) First failure. When no penalty deduction under paragraph (b) of
this section has previously been imposed against the beneficiary for
failure to report noncovered remunerative activity outside the United
States or for failure to report not having care of a child, the earliest
month in the first failure period for which a report is delinquent and
for which good cause (see 404.454) for failure to make the required
report is not found is considered to be the first failure.
(3) Second failure. After one penalty deduction under paragraph (b)
of this section has been imposed against the beneficiary, the first
month for which a report is delinquent in the second failure period is
considered to be the second failure.
(4) Third and subsequent failures. After a second penalty deduction
under paragraph (b) of this section has been imposed against the
beneficiary, the first month for which a report is delinquent in the
third failure period is considered to be the third failure. Subsequent
failures will be determined in the same manner.
Example. M became entitled in January 1966 to mother's benefits;
these benefits are not payable for any month in which the mother does
not have a child in her care. M accepted benefits for each month from
January 1966 through June 1967. In July 1967 she reported that she had
not had a child in her care in January 1967. As she was not eligible
for a benefit for any month in which she did not have a child in her
care, M's July 1967 benefit was withheld to recover the overpayment she
had received for January 1967, and the next payment she received was for
August 1967. No penalty was imposed for her failure to make a timely
report of the deduction event that occurred in January 1967 because it
was determined that good cause existed.
In March 1968 M reported that she had not had a child in her care in
September or October 1967; however, she had accepted benefit payments
for each month from August 1967 through February 1968. Her benefits for
March and April 1968 were withheld to recover the overpayment for
September and October 1967. Also, it was determined that good cause was
not present for M's failure to make a timely report of the deduction
event that had occurred in September 1967. A penalty equal to her
benefit for September 1967 was deducted from M's May 1968 payment since
this was her first failure to report not having a child in her care.
Payments to her then were continued.
On November 4, 1968, it was learned that M had not had a child in her
care in November 1967 or in June, July, or August 1968 although she had
accepted benefits for June through October 1968. Consequently, M's
benefits for November 1968 through February 1969 were withheld to
recover the 4 months' overpayment she received for months in which she
did not have a child in her care. In addition, it was determined that
good cause was not present for M's failure to report the deduction
events, and a penalty was imposed equal to twice the amount of M's
benefit for the month of June 1968. This was M's second failure to
report not having a child in her care. No further penalty applied for
November 1967 because that month was included in M's first-failure
period.
(5) Penalty deductions imposed under 404.453 not considered. A
failure to make a timely report of earnings as required by 404.452 for
which a penalty deduction is imposed under 404.453 is not counted as a
failure to report in determining the first or subsequent failure to
report noncovered remunerative activity outside the United States or not
having care of a child.
(d) Limitation on amount of penalty deduction. Notwithstanding the
provisions described in paragraph (b) of this section, the amount of the
penalty deduction imposed for failure to make a timely report of
noncovered remunerative activity outside the United States or for
failure to report not having care of a child may not exceed the number
of months in that failure period for which the individual received and
accepted a benefit and for which a deduction is imposed by reason of his
noncovered remunerative activity outside the United States or failure to
have care of a child. (See 404.458 for other limitations on the amount
of the penalty deduction.)
(38 FR 3596, Feb. 8, 1973, as amended at 38 FR 9430, Apr. 16, 1973)
20 CFR 404.452 Reports to Social Security Administration of earnings;
wages; net earnings from self-employment.
(a) Conditions under which a report of earnings, wages, and net
earnings from self-employment is required. An individual who, during a
taxable year, is entitled to a monthly benefit (except if in each month
of his taxable year he was entitled only to a disability insurance
benefit) is required to report to the Social Security Administration the
total amount of his earnings (as defined in 404.429) for each such
taxable year. A report is required when the individual's total earnings
or wages (as defined in 404.429) for any taxable year ending after 1972
exceed the product of $175 multiplied by the number of months in his
taxable year, except that the report is not required for a taxable year
if:
(1) The individual attained the age of 72 in or before the first
month of his entitlement to benefits in his taxable year, or
(2) The individual's benefit payments were suspended under the
provisions described in 404.456 for all months in a taxable year in
which he was entitled to benefits and was under age 72.
(b) Time within which report must be filed. The report for any
taxable year beginning after 1954 shall be filed with the Social
Security Administration on or before the 15th day of the fourth month
following the close of the taxable year; for example, April 15 when the
beneficiary's taxable year is a calendar year. (See 404.3(c) where the
last day for filing the report falls on a Saturday, Sunday, or legal
holiday, or any other day all or part of which is declared to be a
nonwork day for Federal employees by statute or Executive order.) The
filing of an income tax return with the Internal Revenue Service is not
such a report as is required to be filed under the provisions of this
section even where the income tax return shows the same wages and net
earnings from self-employment that must be reported to the
Administration under this section.
(c) Report required by person receiving benefits on behalf of
another. Where a person is receiving benefits on behalf of a
beneficiary (see subpart U of this part), it is his duty to make the
report to the Administration required by this section.
(d) Report to be made on forms prescribed by the Social Security
Administration. A report required under the provisions of this section
shall be filed with the Social Security Administration. (See 404.608
for procedures concerning place of filing and date of receipt of such a
report.) The report shall be made on a form prescribed by the Social
Security Administration and in accordance with the instructions printed
on or attached to the form. The prescribed forms may be obtained from
any office of the Social Security Administration. If the prescribed
form is not used, the report should show the name and social security
claim number of the beneficiary about whom the report is made; identify
the taxable year for which the report is made; show the total amount of
wages for which the beneficiary rendered services during his taxable
year, the amount of his net earnings from self-employment for such year,
and the amount of his net loss from self-employment for such year; and
show the name and address of the individual making the report. To
overcome the presumptions that the beneficiary rendered services for
wages exceeding the allowable amount and rendered substantial services
in self-employment in each month (see 404.435), the report should also
show the specific months in which the beneficiary did not render
services in employment for wages of more than the allowable amount (as
described in 404.435) and did not render substantial services in
self-employment (as described in 404.446 and 404.447).
(e) Requirement to furnish requested information. A beneficiary, or
the person reporting on his behalf, is required to furnish any other
information about the beneficiary's earnings and services that the
Administration requests for the purpose of determining the correct
amount of benefits payable for a taxable year (see 404.455).
(f) Extension of time for filing report -- (1) General.
Notwithstanding the provision described in paragraph (b) of this
section, the Administration may grant a reasonable extension of time for
making the report of earnings required under this section if it finds
that there is valid reason for a delay, but in no case may the period be
extended more than 3 months for any taxable year.
(2) Requirements applicable to requests for extensions. Before his
annual report of earnings is due, a beneficiary may request an extension
of time for filing his report. The request must meet all of these
requirements:
(i) Be in writing, and
(ii) Be made by the beneficiary, his representative payee, or his
authorized agent,
(iii) Be made before the required report is overdue (If an extension
of time already has been granted, a request for further extension must
be made before the due date as extended previously.),
(iv) Be made to an office of the Administration,
(v) Name the beneficiary for whom the annual report must be made and
furnish his claim number,
(vi) Identify the year for which an annual report is due and for
which an extension of time is requested,
(vii) Explain in the requester's own words the reasons why an
extension of time is needed, and how much extended time is needed,
(viii) Show the date the request is made, and
(ix) Be signed by the requester.
(3) Valid reason defined. A valid reason is a bona fide need,
problem, or situation which makes it impossible or difficult for a
beneficiary (or his representative payee) to meet the annual report due
date prescribed by law. This may be illness or disability of the one
required to make the report, absence or travel so far from home that he
does not have and cannot readily obtain the records needed for making
his report, inability to obtain evidence required from another source
when such evidence is necessary in making the report, inability of his
accountant to compile the data needed for the annual report, or any
similar situation which has a direct bearing on the individual's ability
to comply with his reporting obligation within the specified time limit.
(4) Evidence that extension of time has been granted. In the absence
of written evidence of a properly approved extension of time for making
an annual report of earnings, it will be presumed that no extension of
filing time was granted. In such case it will be necessary for the
beneficiary to establish whether he otherwise had good cause ( 404.454)
for filing his annual report after the normal due date.
(32 FR 19159, Dec. 20, 1967, as amended at 38 FR 9430, Apr. 16, 1973;
43 FR 8133, Feb. 28, 1978; 51 FR 10616, Mar. 28, 1986)
20 CFR 404.453 Penalty deductions for failure to report earnings
timely.
(a) Penalty for failure to report earnings; general. Penalty
deductions are imposed against an individual's benefits, in addition to
the deductions required because of his excess earnings (see 404.415),
if:
(1) He fails to make a timely report of his earnings as specified in
404.452 for a taxable year beginning after 1954;
(2) It is found that good cause for failure to report earnings timely
(see 404.454) does not exist;
(3) A deduction is imposed because of his earnings (see 404.415) for
that year; and
(4) He received and accepted any payment of benefits for that year.
(b) Determining amount of penalty deduction. The amount of the
penalty deduction for failure to report earnings for a taxable year
within the prescribed time is determined as follows:
(1) First failure to file timely report. The penalty deduction for
the first failure to file a timely report is an amount equal to the
individual's benefit or benefits for the last month for which he was
entitled to such benefit or benefits during the taxable year, except
that with respect to any deductions imposed on or after January 2, 1968,
if the amount of the deduction imposed for the taxable year is less than
the benefit or benefits for the last month of the taxable year for which
he was entitled to a benefit under section 202 of the Act, the penalty
deduction is an amount equal to the amount of the deduction imposed but
not less than $10.
(2) Second failure to file timely report. The penalty deduction for
the second failure to file a timely report is an amount equal to twice
the amount of the individual's benefit or benefits for the last month
for which he was entitled to such benefit or benefits during such
taxable year.
(3) Subsequent failures to file timely reports. The penalty
deduction for the third or subsequent failure to file a timely report is
an amount equal to three times the amount of the individual's benefit or
benefits for the last month for which he was entitled to such benefit or
benefits during such taxable year.
(c) Determining whether a failure to file a timely report is first,
second, or subsequent failure -- (1) No prior failure. Where no penalty
deduction under this section has previously been imposed against the
beneficiary for failure to make a timely report of his earnings, all
taxable years (and this may include 2 or more years) for which a report
of earnings is overdue as of the date the first delinquent report is
made are included in the first failure. The latest of such years for
which good cause for failure to make the required report (see 404.454)
is not found is considered the first failure to file a timely report.
Example. X became entitled to benefits in 1964 and had reportable
earnings for 1964, 1965, and 1966. He did not make his annual reports
for those years until July 1967. At that time it was found that 1966
was the only year for which he has good cause for not making a timely
report of his earnings. Since all taxable years for which a report is
overdue as of the date of the first delinquent report are included in
the first failure period, it was found that his first failure to make a
timely report was for 1965. The penalty is equal to his December 1965
benefit rate. If good cause had also been found for both 1965 and 1964,
then X would have no prior failure within the meaning of this
subsection.
(2) Second and subsequent failures. After one penalty deduction
under paragraph (b) of this section has been imposed against an
individual, each taxable year for which a timely report of earnings is
not made (and the count commences with reports of earnings which become
delinquent after the date the first delinquent report described in
paragraph (c)(1) of this section was made), and for which good cause for
failure to make the required report is not found, is considered
separately in determining whether the failure is the second or
subsequent failure to report timely.
Example. Y incurred a penalty deduction for not making his 1963
annual report until July 1964. In August 1966 it was found that he had
not made a timely report of either his 1964 or 1965 earnings, and good
cause was not present with respect to either year. The penalty for 1964
is equal to twice his benefit rate for December 1964. The penalty for
1965 is equal to three times his benefit rate for December 1965.
(3) Penalty deduction imposed under 404.451 not considered. A
failure to make a report as required by 404.450, for which a penalty
deduction is imposed under 404.451, is not counted as a failure to
report in determining, under this section, whether a failure to report
earnings or wages is the first or subsequent failure to report.
(d) Limitation on amount of penalty deduction. Notwithstanding the
provisions described in paragraph (b) of this section, the amount of the
penalty deduction imposed for failure to file a timely report of
earnings for a taxable year may not exceed the number of months in that
year for which the individual received and accepted a benefit and for
which deductions are imposed by reason of his earnings for such year.
(See 404.458 for other limitations on the amount of the penalty
deduction.)
(32 FR 19159, Dec. 20, 1967, as amended at 38 FR 3597, Feb. 8, 1973;
38 FR 9431, Apr. 16, 1973)
20 CFR 404.454 Good cause for failure to make required reports.
(a) General. The failure of an individual to make a timely report
under the provisions described in 404.450 and 404.452 will not result
in a penalty deduction if the individual establishes to the satisfaction
of the Administration that his failure to file a timely report was due
to good cause. Before making any penalty determination as described in
404.451 and 404.453, the individual shall be advised of the penalty and
good cause provisions and afforded an opportunity to establish good
cause for failure to report timely. The failure of the individual to
submit evidence to establish good cause within a specified time may be
considered a sufficient basis for a finding that good cause does not
exist (see 404.701(c)). In determining whether good cause for failure
to report timely has been established by the individual, consideration
is given to whether the failure to report within the proper time limit
was the result of untoward circumstances, misleading action of the
Administration, or confusion as to the requirements of the Act resulting
from amendments to the Act or other legislation. For example, good
cause may be found where failure to file a timely report was caused by:
(1) Serious illness of the individual, or death or serious illness in
his immediate family;
(2) Inability of the individual to obtain, within the time required
to file the report, earnings information from his employer because of
death or serious illness of the employer or one in the employer's
immediate family; or unavoidable absence of his employer; or
destruction by fire or other damage of the employer's business records;
(3) Destruction by fire, or other damage, of the individual's
business records;
(4) Transmittal of the required report within the time required to
file the report, in good faith to another Government agency even though
the report does not reach the Administration until after the period for
reporting has expired;
(5) Unawareness of the statutory provision that an annual report of
earnings is required for the taxable year in which the individual
attained age 72 provided his earnings for such year exceeded the
applicable amount, e.g., $1,680 for a 12-month taxable year ending after
December 1967;
(6) Failure on the part of the Administration to furnish forms in
sufficient time for an individual to complete and file the report on or
before the date it was due, provided the individual made a timely
request to the Administration for the forms;
(7) Belief that an extension of time for filing income tax returns
granted by the Internal Revenue Service was also applicable to the
annual report to be made to the Social Security Administration; or
(8) Reliance upon a written report to the Social Security
Administration made by, or on behalf of, the beneficiary before the
close of the taxable year, if such report contained sufficient
information about the beneficiary's earnings or work, to require
suspension of his benefits (see 404.456) and the report was not
subsequently refuted or rescinded.
(b) Notice of determination. In every case in which it is determined
that a penalty deduction should be imposed, the individual shall be
advised of the penalty determination and of his reconsideration rights.
If it is found that good cause for failure to file a timely report does
not exist, the notice will include an explanation of the basis for this
finding; the notice will also explain the right to partial adjustment
of the overpayment, in accordance with the provisions of 404.502(c).
(c) Good cause for subsequent failure. Where circumstances are
similar and an individual fails on more than one occasion to make a
timely report, good cause normally will not be found for the second or
subsequent violation.
(38 FR 3597, Feb. 8, 1973, as amended at 43 FR 8133, Feb. 28, 1978)
20 CFR 404.455 Request by Social Security Administration for reports of
earnings and estimated earnings; effect of failure to comply with
request.
(a) Request by Social Security Administration for report during
taxable year; effect of failure to comply. The Social Security
Administration may, during the course of a taxable year, request a
beneficiary to estimate his or her earnings (as defined in 404.429) for
the current taxable year and for the next taxable year, and to furnish
any other information about his or her earnings that the Social Security
Administration may specify. If a beneficiary fails to comply with a
request for an estimate of earnings for a taxable year, the
beneficiary's failure, in itself, constitutes justification under
section 203(h) of the Act for a determination that it may reasonably be
expected that the beneficiary will have deductions imposed under the
provisions described in 404.415, due to his or her earnings for that
taxable year. Furthermore, the failure of the beneficiary to comply
with a request for an estimate of earnings for a taxable year will, in
itself, constitute justification for the Social Security Administration
to use the preceding taxable year's estimate of earnings (or, if
available, reported earnings) to suspend payment of benefits for the
current or next taxable year.
(b) Request by Social Security Administration for report after close
of taxable year; failure to comply. After the close of his or her
taxable year, the Social Security Administration may request a
beneficiary to furnish a report of his or her earnings for the closed
taxable year and to furnish any other information about his or her
earnings for that year that the Social Security Administration may
specify. If he or she fails to comply with this request, this failure
shall, in itself, constitute justification under section 203(h) of the
Act for a determination that the beneficiary's benefits are subject to
deductions as described in 404.415 for each month in the taxable year
(or only for the months thereof specified by the Social Security
Administration).
(56 FR 11373, Mar. 18, 1991)
20 CFR 404.456 Current suspension of benefits because an individual
works or engages in self-employment.
(a) Circumstances under which benefit payments may be suspended. If,
on the basis of information obtained by or submitted to the
Administration, it is determined that an individual entitled to monthly
benefits for any taxable year may reasonably be expected to have
deductions imposed against his benefits (as described in 404.415) by
reason of his earnings for such year, the Administration may, before the
close of the taxable year, suspend all or part, as the Administration
may specify, of the benefits payable to the individual and to all other
persons entitled (or deemed entitled -- see 404.420) to benefits on the
basis of the individual's earnings record.
(b) Duration of suspension. The suspension described in paragraph
(a) of this section shall remain in effect with respect to the benefits
for each month until the Administration has determined whether or not
any deduction under 404.415 applies for such month.
(c) When suspension of benefits becomes final. For taxable years
beginning after August 1958, if benefit payments were suspended (as
described in paragraph (a) of this section) for all months of
entitlement in an individual's taxable year, no benefit payment for any
month in that year may be made after the expiration of the period of 3
years, 3 months, and 15 days following the close of the individual's
taxable year unless, within that period, the individual, or any person
entitled to benefits based on his earnings record, files with the
Administration information showing that a benefit for a month is payable
to the individual. Subject to the limitations of this paragraph, a
determination about deductions may be reopened under the circumstances
described in 404.957.
20 CFR 404.457 Deductions where taxes neither deducted from wages of
certain maritime employees nor paid.
(a) When deduction is required. A deduction is required where:
(1) An individual performed services after September 1941 and before
the termination of Title I of the First War Powers Act, 1941, on or in
connection with any vessel as an officer or crew member; and
(2) The services were performed in the employ of the United States
and employment was through the War Shipping Administration or, for
services performed before February 11, 1942, through the United States
Maritime Commission; and
(3) The services, under the provisions described in 403.803(d) of
this chapter (Regulations No. 3 of the Social Security Administration),
constituted employment for purposes of title II of the Social Security
Act; and
(4) The taxes imposed (by section 1400 of the Internal Revenue Code
of 1939, as amended) with respect to such services were neither deducted
from the individual's wages nor paid by the employer.
(b) Amount of deduction. The deduction required by paragraph (a) of
this section is an amount equal to 1 percent of the wages with respect
to which the taxes described in paragraph (a)(4) of this section were
neither deducted nor paid by the employer.
(c) How deduction is made. The deduction required by paragraph (a)
of this section is made by withholding an amount as determined under
paragraph (b) of this section from any monthly benefit or lump-sum death
payment based on the earnings record of the individual who performed the
services described in paragraph (a) of this section.
20 CFR 404.458 Limiting deductions where total family benefits payable
would not be affected or would be only partly affected.
Notwithstanding the provisions described in 404.415, 404.417,
404.421, 404.422, 404.451, and 404.453 about the amount of the deduction
to be imposed for a month, no such deduction is imposed for a month when
the benefits payable for that month to all persons entitled to benefits
on the same earnings record and living in the same household remain
equal to the maximum benefits payable to them on that earnings record.
Where making such deductions and increasing the benefits to others in
the household (for the month in which the deduction event occurred)
would give members of the household less than the maximum (as determined
under 404.404) payable to them, the amount of deduction imposed is
reduced to the difference between the maximum amount of benefits payable
to them and the total amount which would have been paid if the benefits
of members of the household not subject to deductions were increased for
that month. The individual subject to the deduction for such month may
be paid the difference between the deduction so reduced and his benefit
as adjusted under 404.403 (without application of 404.402(a)). All
other persons in the household are paid, for such month, their benefits
as adjusted under 404.403 without application of 404.402(a).
(47 FR 43673, Oct. 4, 1982)
20 CFR 404.460 Nonpayment of monthly benefits of aliens outside the
United States.
(a) Nonpayment of monthly benefits to aliens outside the United
States more than 6 months. Except as described in paragraph (b) and
subject to the limitations in paragraph (c) of this section after
December 1956 no monthly benefit may be paid to any individual who is
not a citizen or national of the United States, for any month after the
sixth consecutive calendar month during all of which he is outside the
United States, and before the first calendar month for all of which he
is in the United States after such absence. (See 404.380 regarding
special payments at age 72.)
(1) For nonpayment of benefits under this section, it is necessary
that the beneficiary be an alien and while an alien be outside the
United States for more than six full consecutive calendar months. In
determining whether at the time of a beneficiary's initial entitlement
to benefits he has been outside the United States for a period exceeding
six full consecutive calendar months, not more than the six calendar
months immediately preceding the month of initial entitlement may be
considered. For the purposes of this section, outside the United States
means outside the territorial boundaries of the 50 States, the District
of Columbia, Puerto Rico, the Virgin Islands of the United States, Guam,
and American Samoa.
(2) Effective with 6-month periods beginning after January 2, 1968,
after an alien has been outside the United States for any period of 30
consecutive days, he is deemed to be outside the United States
continuously until he has returned to the United States and remained in
the United States for a period of 30 consecutive days.
(3) Payments which have been discontinued pursuant to the provisions
of this section will not be resumed until the alien beneficiary has been
in the United States for a full calendar month. A full calendar month
includes 24 hours of each day of the calendar month.
(4) Nonpayment of benefits to an individual under this section does
not cause nonpayment of benefits to other persons receiving benefits
based on the individual's earnings record.
Example. R, an alien, leaves the United States on August 15, 1967,
and returns on February 1, 1968. He leaves again on February 15, 1968,
and does not return until May 15, 1968, when he spends 1 day in the
United States. He has been receiving monthly benefits since July 1967.
R's first 6-month period of absence begins September 1, 1967. Since
this period begins before January 2, 1968, his visit (Feb. 1, 1968, to
Feb. 15, 1968) to the United States for less than 30 consecutive days is
sufficient to break this 6-month period.
R's second 6-month period of absence begins March 1, 1968. Since
this period begins after January 2, 1968, and he was outside the United
States for 30 consecutive days, he must return and spend 30 consecutive
days in the United States prior to September 1, 1968, to prevent
nonpayment of benefits beginning September 1968. If R fails to return
to the United States for 30 consecutive days prior to September 1, 1968,
payments will be discontinued and will not be resumed until R spends at
least 1 full calendar month in the United States.
(b) When nonpayment provisions do not apply. The provisions
described in paragraph (a) of this section do not apply, subject to the
limitations in paragraph (c) of this section, to a benefit for any month
if:
(1) The individual was, or upon application would have been, entitled
to a monthly benefit for December 1956, based upon the same earnings
record; or
(2)(i) The individual upon whose earnings the benefit is based,
before that month, has resided in the United States for a period or
periods aggregating 10 years or more or has earned not less than 40
quarters of coverage;
(ii) Except that, effective with the month of July 1968, the
provisions of paragraph (b)(2)(i) of this section do not apply if (a)
the beneficiary is a citizen of a country having a social insurance or
pension system which meets the conditions described in paragraphs (b)(7)
(i), (ii), and (iii) of this section but does not meet the condition
described in paragraph (b)(7)(iv) of this section, or (b) the
beneficiary is a citizen of a country that has no social insurance or
pension system of general application if at any time within 5 years
prior to January 1968 (or the first month after December 1967 in which
his benefits are subject to suspension pursuant to paragraph (a) of this
section) payments to individuals residing in such country were withheld
by the Treasury Department under the first section of the Act of October
9, 1940 (31 U.S.C. 123) (see paragraph (c) of this section);
(iii) For purposes of this subparagraph a period of residence begins
with the day the insured individual arrives in the United States with
the intention of establishing at least a temporary home here; it
continues so long as he maintains an attachment to an abode in the
United States, accompanied by actual physical presence in the United
States for a significant part of the period; and ends with the day of
departure from the United States with the intention to reside elsewhere;
or
(3) The individual is outside the United States while in the active
military or naval service of the United States; or
(4) The individual on whose earnings the benefit is based died before
that month and:
(i) Death occurred while the individual was on active duty or
inactive duty training as a member of a uniformed service, or
(ii) Death occurred after the individual was discharged or released
from a period of active duty or inactive duty training as a member of a
uniformed service, and the Administrator of Veterans' Affairs
determines, and certifies to the Secretary, that the discharge or
release was under conditions other than dishonorable and that death was
as a result of a disease or injury incurred or aggravated in line of
duty while on active duty or inactive duty training; or
(5) The individual on whose earnings record the benefit is based
worked in service covered by the Railroad Retirement Act, and such work
is treated as employment covered by the Social Security Act under the
provisions described in subpart O of this part; or
(6) The nonpayment of monthly benefits under the provisions described
in paragraph (a) of this section would be contrary to a treaty
obligation of the United States in effect on August 1, 1956 (see
404.463(b)); or
(7) The individual is a citizen of a foreign country that the
Secretary determines has in effect a social insurance or pension system
(see 404.463) which meets all of the following conditions:
(i) Such system pays periodic benefits or the actuarial equivalent
thereof; and
(ii) The system is of general application; and
(iii) Benefits are paid in this system on account of old age,
retirement, or death; and
(iv) Individuals who are citizens of the United States but not
citizens of the foreign country and who qualify for such benefits are
permitted to receive benefits without restriction or qualification, at
their full rate, or the actuarial equivalent thereof, while outside of
the foreign country and without regard to the duration of their absence
therefrom.
(c) Nonpayment of monthly benefits to aliens residing in certain
countries -- (1) Benefits for months after June 1968. Notwithstanding
the provisions of paragraphs (a) and (b) of this section, no monthly
benefit may be paid for any month after June 1968 to any individual who
is not a citizen or national of the United States for any month such
individual resides in a country to which payments to individuals in such
country are being withheld by the Treasury Department pursuant to the
first section of the Act of October 9, 1940 (31 U.S.C. 123).
(2) Benefits for months before July 1968. If any benefits which an
individual who is not a citizen or national of the United States was
entitled to receive under title II of the Social Security Act are, on
June 30, 1968, being withheld by the Treasury Department pursuant to the
first section of the Act of October 9, 1940 (31 U.S.C. 123), upon
removal of the restriction such benefits, payable to such individual for
months after the month in which the determination by the Treasury
Department that the benefits should be so withheld was made, shall not
be paid --
(i) To any person other than such individual, or, if such individual
dies before such benefits can be paid, to any person other than an
individual who was entitled for the month in which the deceased
individual died (with the application of section 202(j)(1) of the Social
Security Act) to a monthly benefit under title II of such Act on the
basis of the same wages and self-employment income as such deceased
individual; or
(ii) In excess of an amount equal to the amount of the last 12
months' benefits that would have been payable to such individual.
(3) List of countries under Treasury Department alien payment
restriction. Pursuant to the provisions of the first section of the Act
of October 9, 1940 (31 U.S.C. 123) the Treasury Department is currently
withholding payments to individuals residing in the following countries.
Further additions to or deletions from the list of countries will be
published in the Federal Register.
Albania
Cuba
Democratic Kampuchea (formerly Cambodia)
German Democratic Republic (East Germany and East Berlin)
North Korea
Vietnam
(d) Nonpayment of monthly benefits to certain aliens entitled to
benefits on a worker's earnings record. An individual who after
December 31, 1984 becomes eligible for benefits on the earnings record
of a worker for the first time, is an alien, has been outside the United
States for more than 6 consecutive months, and is qualified to receive a
monthly benefit by reason of the provisions of paragraphs (b)(2),
(b)(3), (b)(5), or (b)(7) of this section, must also meet a U.S.
residence requirement described in this section to receive benefits:
(1) An alien entitled to benefits as a child of a living or deceased
worker --
(i) Must have resided in the U.S. for 5 or more years as the child of
the parent on whose earnings record entitlement is based; or
(ii) The parent on whose earnings record the child is entitled and
the other parent, if any, must each have either resided in the United
States for 5 or more years or died while residing in the U.S.
(2) An alien who meets the requirements for child's benefits based on
paragraph (d)(1) of this section above, whose status as a child is based
on an adoptive relationship with the living or deceased worker, must
also --
(i) Have been adopted within the United States by the worker on whose
earnings record the child's entitlement is based; and
(ii) Have lived in the United States with, and received one-half
support from, the worker for a period, beginning prior to the child's
attainment of age 18, of
(A) At least one year immediately before the month in which the
worker became eligible for old-age benefits or disability benefits or
died (whichever occurred first), or
(B) If the worker had a period of disability which continued until
the worker's entitlement to old-age or disability benefits or death, at
least one year immediately before the month in which that period of
disability began.
(3) An alien entitled to benefits as a spouse, surviving spouse,
divorced spouse, surviving divorced spouse, or surviving divorced mother
or father must have resided in the United States for 5 or more years
while in a spousal relationship with the person on whose earnings record
the entitlement is based. The spousal relationship over the required
period can be that of wife, husband, widow, widower, divorced wife,
divorced husband, surviving divorced wife, surviving divorced husband,
surviving divorced mother, surviving divorced father, or a combination
of two or more of these categories.
(4) An alien who is entitled to parent's benefits must have resided
in the United States for 5 or more years as a parent of the person on
whose earnings record the entitlement is based.
(5) Individuals eligible for benefits before January 1, 1985
(including those eligible for one category of benefits on a particular
worker's earnings record after December 31, 1984, but also eligible for
a different category of benefits on the same worker's earnings record
before January 1, 1985), will not have to meet the residency
requirement.
(6) Definitions applicable to paragraph (d) of this section are as
follows:
Eligible for benefits means that an individual satisfies the criteria
described in subpart D of this part for benefits at a particular time
except that the person need not have applied for those benefits at that
time.
Other parent for purposes of paragraph (d)(1)(ii) of this section
means any other living parent who is of the opposite sex of the worker
and who is the adoptive parent by whom the child was adopted before the
child attained age 16 and who is or was the spouse of the person on
whose earnings record the child is entitled; or the natural mother or
natural father of the child; or the step-parent of the child by a
marriage, contracted before the child attained age 16, to the natural or
adopting parent on whose earnings record the child is entitled. (Note:
Based on this definition, a child may have more than one living other
parent. However, the child's benefit will be payable for a month if in
that month he or she has one other parent who had resided in the U.S.
for at least 5 years.)
Resided in the United States for satisfying the residency requirement
means presence in the United States with the intention of establishing
at least a temporary home. A period of residence begins upon arrival in
the United States with that intention and continues so long as an
attachment to an abode in the United States is maintained, accompanied
by actual physical presence in the United States for a significant part
of the period, and ending the day of departure from the United States
with the intention to reside elsewhere. The period need not have been
continuous and the requirement is satisfied if the periods of U.S.
residence added together give a total of 5 full years.
(7) The provisions described in paragraph (d) of this section shall
not apply if the beneficiary is a citizen or resident of a country with
which the United States has a totalization agreement in force, except to
the extent provided by that agreement.
(32 FR 19159, Dec. 20, 1967, as amended at 34 FR 13366, Aug. 19,
1969; 52 FR 8249, Mar. 17, 1987; 52 FR 26145, July 13, 1987)
20 CFR 404.461 Nonpayment of lump sum after death of alien outside
United States for more than 6 months.
Where an individual dies outside the United States after January 1957
and no monthly benefit was or could have been paid to him for the month
preceding the month in which he died because of the provisions described
in 404.460, no lump-sum death payment may be made upon the basis of the
individual's earnings record.
20 CFR 404.462 Nonpayment of hospital and medical insurance benefits of
alien outside United States for more than 6 months.
No payments may be made under part A (hospital insurance benefits) of
title XVIII for items or services furnished to an individual in any
month for which the prohibition described in 404.460 against payment of
benefits to an individual outside the United States for more than six
full consecutive calendar months is applicable (or would be if he were
entitled to any such benefits). Also, no payments may be made under
part B (supplementary medical insurance benefits) of title XVIII for
expenses incurred by an individual during any month the individual is
not paid a monthly benefit by reason of the provisions described in
404.460 or for which no monthly benefit would be paid if he were
otherwise entitled thereto.
20 CFR 404.463 Nonpayment of benefits of aliens outside the United
States; ''foreign social insurance system,'' and ''treaty obligation''
exceptions defined.
(a) Foreign social insurance system exception. The following
criteria are used to evaluate the social insurance or pension system of
a foreign country to determine whether the exception described in
404.460(b) to the alien nonpayment provisions applies:
(1) Social insurance or pension system. A social insurance system
means a governmental plan which pays benefits as an earned right, on the
basis either of contributions or work in employment covered under the
plan, without regard to the financial need of the beneficiary. However,
a plan of this type may still be regarded as a social insurance system
though it may provide, in a subordinate fashion, for a supplemental
payment based on need. A pension system means a governmental plan which
pays benefits based on residence or age, or a private employer's plan
for which the government has set up uniform standards for coverage,
contributions, eligibility, and benefit amounts provided that, in both
of these types of plans, the financial need of the beneficiary is not a
consideration.
(2) In effect. The social insurance or pension system of the foreign
country must be in effect. This means that the foreign social insurance
or pension system is in full operation with regard to taxes (or
contributions) and benefits, or is in operation with regard to taxes (or
contributions), and provision is made for payments to begin immediately
upon the expiration of the period provided in the law for acquiring
earliest eligibility. It is not in effect if the law leaves the
beginning of operation to executive or other administrative action; nor
is it in effect if the law has been temporarily suspended.
(3) General application. The term of general application means that
the social insurance or pension system (or combination of systems)
covers a substantial portion of the paid labor force in industry and
commerce, taking into consideration the industrial classification and
size of the paid labor force and the population of the country, as well
as occupational, size of employer, and geographical limitations on
coverage.
(4) Periodic benefit or actuarial equivalent. The term periodic
benefit means a benefit payable at stated regular intervals of time such
as weekly, biweekly, or monthly. Actuarial equivalent of a periodic
benefit means the commutation of the value of the periodic benefit into
a lump-sum payment, taking life expectancy and interest into account.
(5) Benefits payable on account of old age, retirement, or death.
The requirement that benefits be payable on account of old age,
retirement, or death, is satisfied if the foreign social insurance plan
or system includes provision for payment of benefits to aged or retired
persons and to dependents and survivors of covered workers. The
requirement is also met where the system pays benefits based only on old
age or retirement. The requirement is not met where the only benefits
payable are workmen's compensation payments, cash sickness payments,
unemployment compensation payments, or maternity insurance benefits.
(6) System under which U.S. citizens who qualify may receive payment
while outside the foreign country. The foreign social insurance or
pension system must permit payments to qualified U.S. citizens while
outside such foreign country, regardless of the duration of their
absence therefrom and must make the payments without restriction or
qualification to these U.S. citizens at full rate, or at the full
actuarial value. The foreign system is considered to pay benefits at
the full rate if the U.S. citizen receives the full benefit rate in
effect for qualified beneficiaries at the time of his award, whether he
is then inside or outside the paying country; and he continues to
receive the same benefit amount so long as he remains outside that
country, even though he may not receive any increases going into effect
after his award provided that in those other countries in which such
increases are denied to beneficiaries, they are denied to all
beneficiaries including nationals of the paying country.
(7) List of countries which meet the social insurance or pension
system exception in section 202(t)(2) of the act. The following
countries have been found to have in effect a social insurance or
pension system which meets the requirements of section 202(t)(2) of the
Act. Unless otherwise specified, each country meets such requirements
effective January 1957. The effect of these findings is that
beneficiaries who are citizens of such countries and not citizens of the
United States may be paid benefits regardless of the duration of their
absence from the United States unless for months beginning after June
1968 they are residing in a country to which payments to individuals are
being withheld by the Treasury Department pursuant to the first section
of the Act of October 9, 1940 (31 U.S.C. 123). Further additions to or
deletions from the list of countries will be published in the Federal
Register.
Antigua and Barbuda (effective November 1981)
Argentina (effective July 1968)
Austria (except from January 1958 through June 1961)
Bahamas, Commonwealth of the (effective October 1974)
Barbados (effective July 1968)
Belgium (effective July 1968)
Belize (effective September 1981)
Bolivia
Brazil
Burkina Faso, Republic of (formerly Upper Volta)
Canada (effective January 1966)
Chile
Colombia (effective January 1967)
Costa Rica (effective May 1962)
Cyprus (effective October 1964)
Czechoslovakia (effective July 1968)
Denmark (effective April 1964)
Dominica (effective November 1978)
Dominican Republic (effective November 1984)
Ecuador
El Salvador (effective January 1969)
Finland (effective May 1968)
France (effective June 1968)
Gabon (effective June 1964)
Grenada (effective April 1983)
Guatemala (effective October 1978)
Guyana (effective September 1969)
Iceland (effective December 1980)
Ivory Coast
Jamaica (effective July 1968)
Liechtenstein (effective July 1968)
Luxembourg
Malta (effective September 1964)
Mexico (effective March 1968)
Monaco
Netherlands (effective July 1968)
Nicaragua (effective May 1986)
Norway (effective June 1968)
Panama
Peru (effective February 1969)
Philippines (effective June 1960)
Poland (effective March 1957)
Portugal (effective May 1968)
San Marino (effective January 1965)
Spain (effective May 1966)
St. Christopher and Nevis (effective September 1983)
St. Lucia (effective August 1984)
Sweden (effective July 1966)
Switzerland (effective July 1968)
Trinidad and Tobago (effective July 1975)
Trust Territory of the Pacific Islands (Micronesia)
(effective July 1976)
Turkey
United Kingdom
Western Samoa (effective August 1972)
Yugoslavia
Zaire (effective July 1961) (formerly Congo (Kinshasa)).
(b) The ''treaty obligation'' exception. It is determined that the
Treaties of Friendship, Commerce, and Navigation now in force between
the United States and the Federal Republic of Germany, Greece, the
Republic of Ireland, Israel, Italy, and Japan, respectively, create
treaty obligations precluding the application of 404.460(a) to citizens
of such countries; and that the Treaty of Friendship, Commerce, and
Navagation now in force between the United States and the Kingdom of the
Netherlands creates treaty obligations precluding the application of
404.460(a) to citizens of that country with respect to monthly survivors
benefits only. There is no treaty obligation that would preclude the
application of 404.460(a) to citizens of any country other than those
listed above.
(32 FR 19159, Dec. 20, 1967, as amended at 43 FR 2628, Jan. 18, 1978;
52 FR 8249, Mar. 17, 1987)
20 CFR 404.464 Nonpayment of benefits where individual is deported;
prohibition against payment of lump sum based on deported individual's
earnings records.
(a) Old-age or disability insurance benefits. When an individual is
deported (after September 1, 1954) under the provisions of paragraph
(1), (2), (4), (5), (6), (7), (10), (11), (12), (14), (15), (16), (17),
or (18), of section 241(a) of the Immigration and Nationality Act, no
old-age or disability insurance benefit is payable to the individual for
any month occurring after the month in which the Administration is
notified by the Attorney General of the United States that the
individual has been deported and before the month in which the
individual is thereafter lawfully admitted to the United States for
permanent residence. An individual is considered lawfully admitted for
permanent residence as of the month he enters the United States with
permission to reside here permanently.
(b) Other monthly benefits. If, under the provisions described in
paragraph (a) of this section, no old-age or disability insurance
benefit is payable to an individual for a month, no monthly insurance
benefit is payable for that month, based upon the individual's earnings
record, to any other person who is not a citizen of the United States
and who is outside the United States for any part of that month.
(c) Lump-sum death payment. No lump-sum death payment is payable on
the basis of the earnings of an individual deported under paragraph (1),
(2), (4), (5), (6), (7), (10), (11), (12), (14), (15), (16), (17), or
(18) of section 241(a) of the Immigration and Nationality Act if the
individual dies in or after the month in which notice that he has been
deported is received by the Administration and before the month in which
the individual is thereafter lawfully admitted to the United States for
permanent residence.
20 CFR 404.465 Conviction for subversive activities; effect on monthly
benefits and entitlement to hospital insurance benefits.
(a) Effect of conviction. Where an individual is convicted of any
offense (committed after August 1, 1956) under chapter 37 (relating to
espionage and censorship), chapter 105 (relating to sabotage), or
chapter 115 (relating to treason, sedition, and subversive activities)
of title 18 U.S.C., or under section 4, 112, or 113 of the Internal
Security Act of 1950, as amended, the court, in addition to all other
penalties provided by law, may order that, in determining whether any
monthly benefit is payable to the individual for the month in which he
is convicted or for any month thereafter, and in determining whether the
individual is entitled to hospital insurance benefits under part A of
title XVIII for any such month, and in determining the amount of the
benefit for that month, the following are not to be taken into account:
(1) Any wages paid to such individual, or to any other individual, in
the calendar quarter in which such conviction occurred or in any prior
calendar quarter, and
(2) Any net earnings from self-employment derived by the individual,
or any other individual, during the taxable year in which the conviction
occurred or during any prior taxable year.
(b) Recalculation of benefit. When notified by the Attorney General
that the additional penalty as described in paragraph (a) of this
section has been imposed against any individual entitled to benefits
under section 202 or section 223 of the Act (see subpart D), the
Administration, for the purposes of determining the individual's
entitlement to such benefits as of the month in which convicted and the
amount of the benefit, will exclude the applicable wages and net
earnings in accordance with the order of the court.
(c) Effect of pardon. In the event that an individual, with respect
to whom the additional penalty as described in paragraph (a) of this
section has been imposed, is granted a pardon of the offense by the
President of the United States, such penalty is not applied in
determining such individual's entitlement to benefits, and the amount of
such benefit, for any month beginning after the date on which the pardon
is granted.
20 CFR 404.466 Conviction for subversive activities; effect on
enrollment for supplementary medical insurance benefits.
An individual may not enroll under part B (supplementary medical
insurance benefits) of title XVIII if he has been convicted of any
offense described in 404.465.
20 CFR 404.467 Nonpayment of benefits; individual entitled to
disability insurance benefits or childhood disability benefits based on
statutory blindness is engaging in substantial gainful activity.
(a) Disability insurance benefits. An individual who has attained
age 55 and who meets the definition of disability for disability
insurance benefits purposes based on statutory blindness, as defined in
404.1581, may be entitled to disability insurance benefits for months in
which he is engaged in certain types of substantial gainful activity.
No payment, however, may be made to the individual or to beneficiaries
entitled to benefits on his earnings record for any month in which such
individual engages in any type of substantial gainful activity.
(b) Childhood disability benefits. An individual who has attained
age 55 and who meets the definition of disability prescribed in
404.1583 for childhood disability benefits on the basis of statutory
blindness may be entitled to childhood disability benefits for months in
which he engages in certain types of substantial gainful activity.
However, no payment may be made to such individual for any month after
December 1972 in which such individual engages in substantial gainful
activity.
(39 FR 43715, Dec. 18, 1974, as amended at 51 FR 10616, Mar. 28,
1986)
20 CFR 404.468 Nonpayment of benefits to prisoners.
(a) General. No monthly benefits will be paid to any individual for
any month any part of which the individual is confined in a jail,
prison, or other penal institution or correctional facility for
conviction of a felony. This rule applies to disability benefits (
404.315) and child's benefits based on disability ( 404.350) effective
with benefits payable for months beginning on or after October 1, 1980.
For all other monthly benefits, this rule is effective with benefits
payable for months beginning on or after May 1, 1983. However, it
applies only to the prisoner; benefit payments to any other person who
is entitled on the basis of the prisoner's wages and self-employment
income are payable as though the prisoner were receiving benefits.
(b) Felonious offenses. An offense will be considered a felony if --
(1) It is a felony under applicable law: or
(2) In a jurisdiction which does not classify any crime as a felony,
it is an offense punishable by death or imprisonment for a term
exceeding one year.
(c) Confinement. In general, a jail, prison, or other penal
institution or correctional facility is a facility which is under the
control and jurisdiction of the agency in charge of the penal system or
in which convicted criminals can be incarcerated. Confinement in such a
facility continues as long as the individual is under a sentence of
confinement and has not been released due to parole or pardon. An
individual is considered confined even though he or she is temporarily
or intermittently outside of that facility (e.g., on work release,
attending school, or hospitalized).
(d) Vocational rehabilitation exception. The nonpayment provision of
paragraph (a) of this section does not apply if a prisoner who is
entitled to benefits on the basis of disability is actively and
satisfactorily participating in a rehabilitation program which has been
specifically approved for the individual by court of law. In addition,
the Secretary must determine that the program is expected to result in
the individual being able to do substantial gainful activity upon
release and within a reasonable time. No benefits will be paid to the
prisoner for any month prior to the approval of the program.
(49 FR 48182, Dec. 11, 1984)
20 CFR 404.469 Nonpayment of benefits where individual has not
furnished or applied for a Social Security number.
No monthly benefits will be paid to an entitled individual unless he
or she either furnishes to the Social Security Administration (SSA)
satisfactory proof of his or her Social Security number, or, if the
individual has not been assigned a number, he or she makes a proper
application for a number (see 422.103). An individual submits
satisfactory proof of his or her Social Security number by furnishing to
SSA the number and sufficient additional information that can be used to
determine whether that Social Security number or another number has been
assigned to the individual. Sufficient additional information may
include the entitled individual's date and place of birth, mother's
maiden name, and father's name. If the individual does not know his or
her Social Security number, SSA will use this additional information to
determine the Social Security number, if any, that it assigned to the
individual. This rule applies to individuals who become entitled to
benefits beginning on or after June 1, 1989.
(56 FR 41789, Aug. 23, 1991)
20 CFR 404.469 Subpart F -- Overpayments, Underpayments, Waiver of
Adjustment or Recovery of Overpayments, and Liability of a Certifying
Officer
Authority: Secs. 204(a)-(d), 205(a), and 1102 of the Social Security
Act; 31 U.S.C. 3720A; 42 U.S.C. 404(a)-(d), 405(a), and 1302.
20 CFR 404.501 General applicability of section 204 of the Act.
(a) In general. Section 204 of the Act provides for adjustment as
set forth in 404.502 and 404.503, in cases where an individual has
received more or less than the correct payment due under title II of the
Act. As used in this subpart, the term overpayment includes a payment
in excess of the amount due under title II of the Act, a payment
resulting from the failure to impose deductions or to suspend or reduce
benefits under sections 203, 222(b), 224, and 228(c), and (d), and (e)
of the Act (see subpart E of this part), a payment pursuant to section
205(n) of the Act in an amount in excess of the amount to which the
individual is entitled under section 202 or 223 of the Act, a payment
resulting from the failure to terminate benefits, and a payment where no
amount is payable under title II of the Act. The term underpayment as
used in this subpart refers only to monthly insurance benefits and
includes nonpayment where some amount of such benefits was payable. An
underpayment may be in the form of an accrued unpaid benefit amount for
which no check has been drawn or in the form of an unnegotiated check
payable to a deceased individual. The provisions for adjustment also
apply in cases where through error:
(1) A reduction required under section 202(j)(1), 202(k)(3), 203(a),
or 205(n) of the Act is not made, or
(2) An increase or decrease required under section 202(d)(2), or 215
(f) or (g) of the Act is not made, or
(3) A deduction required under section 203(b) (as may be modified by
the provisions of section 203(h)), 203(c), 203(d), 203(i), 222(b), or
223(a)(1)(D) of the Act or section 907 of the Social Security Amendments
of 1939 is not made, or
(4) A suspension required under section 202(n) or 202(t) of the Act
is not made, or
(5) A reduction under section 202(q) of the Act is not made, or
(6) A reduction, increase, deduction, or suspension is made which is
either more or less than required, or
(7) A payment in excess of the amount due under title XVIII of the
Act was made to or on behalf of an individual (see 42 CFR 405.350
through 405.351) entitled to benefits under title II of the Act, or
(8) A payment of past due benefits is made to an individual and such
payment had not been reduced by the amount of attorney's fees payable
directly to an attorney under section 206 of the Act (see 404.977).
(9) A reduction under 404.408b is made which is either more or less
than required.
(b) Payments made on the basis of an erroneous report of death. Any
monthly benefit or lump sum paid under title II of the Act on the basis
of an erroneous report by the Department of Defense of the death of an
individual in the line of duty while such individual was a member of the
uniformed services (as defined in section 210(m) of the Act) on active
duty (as defined in section 210(l) of the Act) is deemed a correct
payment for any month prior to the month such Department notifies the
Administration that such individual is alive.
(c) Payments made by direct deposit to a financial institution. When
a payment in excess of the amount due under title II of the Act is made
by direct deposit to a financial institution to or on behalf of an
individual who has died, and the financial institution credits the
payment to a joint account of the deceased individual and another person
who was entitled to a monthly benefit on the basis of the same earnings
record as the deceased individual for the month before the month in
which the deceased individual died, the amount of the payment in excess
of the correct amount will be an overpayment to the other person.
(34 FR 14887, Sept. 27, 1969, as amended at 44 FR 34942, June 18,
1979; 47 FR 4988, Feb. 3, 1982; 48 FR 46149, Oct. 11, 1983; 55 FR
7313, Mar. 1, 1990)
20 CFR 404.502 Overpayments.
Upon determination that an overpayment has been made, adjustments
will be made against monthly benefits and lump sums as follows:
(a) Individual overpaid is living. (1) If the individual to whom an
overpayment was made is at the time of a determination of such
overpayment entitled to a monthly benefit or a lump sum under title II
of the Act, or at any time thereafter becomes so entitled, no benefit
for any month and no lump sum is payable to such individual, except as
provided in paragraphs (c) and (d) of this section, until an amount
equal to the amount of the overpayment has been withheld or refunded.
Such adjustments will be made against any monthly benefit or lump sum
under title II of the Act to which such individual is entitled whether
payable on the basis of such individual's earnings or the earnings of
another individual.
(2) If any other individual is entitled to benefits for any month on
the basis of the same earnings as the overpaid individual, except as
adjustment is to be effected pursuant to paragraphs (c) and (d) of this
section by withholding a part of the monthly benefit of either the
overpaid individual or any other individual entitled to benefits on the
basis of the same earnings, no benefit for any month will be paid on
such earnings to such other individual until an amount equal to the
amount of the overpayment has been withheld or refunded.
(b) Individual overpaid dies before adjustment. If an overpaid
individual dies before adjustment is completed under the provisions of
paragraph (a) of this section, no lump sum and no subsequent monthly
benefit will be paid on the basis of earnings which were the basis of
the overpayment to such deceased individual until full recovery of the
overpayment has been effected, except as provided in paragraphs (c) and
(d) of this section or under 404.515. Such recovery may be effected
through:
(1) Payment by the estate of the deceased overpaid individual,
(2) Withholding of amounts due the estate of such individual under
title II of the Act,
(3) Withholding a lump sum or monthly benefits due any other
individual on the basis of the same earnings which were the basis of the
overpayment to the deceased overpaid individual, or
(4) Any combination of the amount above.
(c) Adjustment by withholding part of a monthly benefit. (1) Where
it is determined that withholding the full amount each month would
defeat the purpose of title II, i.e., deprive the person of income
required for ordinary and necessary living expenses (see 404.508),
adjustment under paragraphs (a) and (b) of this section may be effected
by withholding an amount of not less than $10 of the monthly benefit
payable to an individual.
(2) Adjustment as provided by this paragraph will not be available if
the overpayment was caused by the individual's intentional false
statement or representation, or willful concealment of, or deliberate
failure to furnish, material information. In such cases, recovery of
the overpayment will be accomplished as provided in paragraph (a) of
this section.
(d) Individual overpaid enrolled under supplementary insurance plan.
Notwithstanding the provisions of paragraphs (a), (b), and (c) of this
section, if the individual liable for the overpayment is an enrollee
under part B of title XVIII of the Act and the overpayment was not
caused by such individual's intentional false statement or
representation, or willful concealment of, or deliberate failure to
furnish, material information, an amount of such individual's monthly
benefit which is equal to his obligation for supplementary medical
insurance premiums will be applied toward payment of such premiums, and
the balance of the monthly benefit will be applied toward recovery of
the overpayment. Further adjustment with respect to such balance may be
made if the enrollee so requests and meets the conditions of paragraph
(c) of this section.
(35 FR 5943, Apr. 10, 1970, as amended at 44 FR 20653, Apr. 6, 1979)
20 CFR 404.502a Notice of right to waiver consideration.
Whenever an initial determination is made that more than the correct
amount of payment has been made, notice of the provisions of sections
204(b) and 1870(c) of the Act regarding waiver of adjustment or recovery
shall be sent to the overpaid individual and to any other individual
against whom adjustment or recovery of the overpayment is to be effected
(see 404.506).
(37 FR 10554, May 25, 1972)
20 CFR 404.503 Underpayments.
Underpayments will be adjusted as follows:
(a) Individual underpaid is living. If an individual to whom an
underpayment is due is living, the amount of such underpayment will be
paid to such individual either in a single payment (if he is not
entitled to a monthly benefit or a lump-sum death payment) or by
increasing one or more monthly benefits or a lump-sum death payment to
which such individual is or becomes entitled.
(b) Individual dies before adjustment of underpayment. If an
individual to whom an underpayment is due dies before receiving payment
or negotiating a check or checks representing such payment, such
underpayment will be distributed to the living person (or persons) in
the highest order of priority as follows:
(1) The deceased individual's surviving spouse as defined in section
216(c), (g), or (h) of the Act who was either:
(i) Living in the same household (as defined in 404.347) with the
deceased individual at the time of such individual's death, or
(ii) Entitled to a monthly benefit on the basis of the same earnings
record as was the deceased individual for the month in which such
individual died.
(2) The child or children of the deceased individual (as defined in
section 216(e) or (h) of the Act) entitled to a monthly benefit on the
basis of the same earnings record as was the deceased individual for the
month in which such individual died (if more than one such child, in
equal shares to each such child).
(3) The parent or parents of the deceased individual (as defined in
404.374) entitled to a monthly benefit on the basis of the same earnings
record as was the deceased individual for the month in which such
individual died (if more than one such parent, in equal shares to each
such parent).
(4) The surviving spouse of the deceased individual (as defined in
section 216(c), (g), or (h) of the Act) who does not qualify under
paragraph (b)(1) of this section.
(5) The child or children of the deceased individual (as defined in
section 216(e) or (h) of the Act) who do not qualify under paragraph
(b)(2) of this section (if more than one such child, in equal shares to
each such child).
(6) The parent or parents of the deceased individual (as defined in
404.374) who do not qualify under paragraph (b)(3) of this section (if
more than one such parent, in equal shares to each such parent).
(7) The legal representative of the estate of the deceased individual
as defined in paragraph (d) of this section.
(c) In the event that a person who is otherwise qualified to receive
an underpayment under the provisions of paragraph (b) of this section,
dies before receiving payment or before negotiating the check or checks
representing such payment, his share of the underpayment will be divided
among the remaining living person(s) in the same order of priority. In
the event that there is (are) no other such person(s), the underpayment
will be paid to the living person(s) in the next lower order of priority
under paragraph (b) of this section.
(d) Definition of legal representative. The term legal
representative, for the purpose of qualifying to receive an
underpayment, generally means the administrator or executor of the
estate of the deceased individual. However, it may also include an
individual, institution or organization acting on behalf of an
unadministered estate, provided that such person can give the
Administration good acquittance (as defined in paragraph (e) of this
section). The following persons may qualify as legal representative for
the purposes of this subpart, provided they can give the Administration
good acquittance:
(1) A person who qualifies under a State's small estate statute,
(2) A person resident in a foreign country who, under the laws and
customs of that country, has the right to receive assets of the estate,
(3) A public administrator, or
(4) A person who has the authority, under applicable law, to collect
the assets of the estate of the deceased individual.
(e) Definition of ''good acquittance.'' A person is considered to
give the Administration good acquittance when payment to that person
will release the Administration from further liability for such payment.
(34 FR 14487, Sept. 27, 1969, as amended at 35 FR 14129, Sept. 5,
1970; 55 FR 7313, Mar. 1, 1990)
20 CFR 404.504 Relation to provisions for reductions and increases.
The amount of an overpayment or underpayment is the difference
between the amount paid to the beneficiary and the amount of the payment
to which the beneficiary was actually entitled. Such payment, for
example, would be equal to the difference between the amount of a
benefit in fact paid to the beneficiary and the amount of such benefit
as reduced under section 202(j)(1), 202(k)(3), 203(a), or 224(a), or as
increased under section 202(d)(2), 202(m), or 215(f) and (g). In
effecting an adjustment with respect to an overpayment, no amount can be
considered as having been withheld from a particular benefit which is in
excess of the amount of such benefit as so decreased.
(34 FR 14888, Sept. 27, 1969)
20 CFR 404.505 Relationship to provisions requiring deductions.
Adjustments required by any of the provisions in this subpart F are
made in addition to, but after, any deductions required by section
202(t), 203(b), 203(c), 203(d), and 222(b) of the Act, or section 907 of
the Social Security Act Amendments of 1939, and before any deductions
required by section 203(g) or 203(h)(2) of the Act.
(34 FR 14888, Sept. 27, 1969)
20 CFR 404.506 When waiver of adjustment or recovery may be applied.
Sections 204(b) and 1870(c) of the Act provide that there shall be no
adjustment or recovery in any case where an incorrect payment under
title II (old-age, dependent's, survivor's and disability insurance
benefits) or under title XVIII (hospital and supplementary medical
insurance benefits) has been made (including a payment under section
1814(e) of the Act) with respect to an individual:
(a) Who is without fault, and
(b) Adjustment or recovery would either:
(1) Defeat the purpose of title II of the Act, or
(2) Be against equity and good conscience.
(32 FR 18026, Dec. 16, 1967)
20 CFR 404.507 Fault.
Fault as used in without fault (see 404.506 and 42 CFR 405.355)
applies only to the individual. Although the Administration may have
been at fault in making the overpayment, that fact does not relieve the
overpaid individual or any other individual from whom the Administration
seeks to recover the overpayment from liability for repayment if such
individual is not without fault. In determining whether an individual
is at fault, the Administration will consider all pertinent
circumstances, including his age, intelligence, education, and physical
and mental condition. What constitutes fault (except for deduction
overpayments -- see 404.510) on the part of the overpaid individual or
on the part of any other individual from whom the Administration seeks
to recover the overpayment depends upon whether the facts show that the
incorrect payment to the individual or to a provider of services or
other person, or an incorrect payment made under section 1814(e) of the
Act, resulted from:
(a) An incorrect statement made by the individual which he knew or
should have known to be incorrect; or
(b) Failure to furnish information which he knew or should have known
to be material; or
(c) With respect to the overpaid individual only, acceptance of a
payment which he either knew or could have been expected to know was
incorrect.
(34 FR 14888, Sept. 27, 1969; 34 FR 15646, Oct. 9, 1969, as amended
at 44 FR 34942, June 18, 1979)
20 CFR 404.508 Defeat the purpose of Title II.
(a) General. Defeat the purpose of title II, for purposes of this
subpart, means defeat the purpose of benefits under this title, i.e., to
deprive a person of income required for ordinary and necessary living
expenses. This depends upon whether the person has an income or
financial resources sufficient for more than ordinary and necessary
needs, or is dependent upon all of his current benefits for such needs.
An individual's ordinary and necessary expenses include:
(1) Fixed living expenses, such as food and clothing, rent, mortgage
payments, utilities, maintenance, insurance (e.g., life, accident, and
health insurance including premiums for supplementary medical insurance
benefits under title XVIII), taxes, installment payments, etc.;
(2) Medical, hospitalization, and other similar expenses;
(3) Expenses for the support of others for whom the individual is
legally responsible; and
(4) Other miscellaneous expenses which may reasonably be considered
as part of the individual's standard of living.
(b) When adjustment or recovery will defeat the purpose of title II.
Adjustment or recovery will defeat the purposes of title II in (but is
not limited to) situations where the person from whom recovery is sought
needs substantially all of his current income (including social security
monthly benefits) to meet current ordinary and necessary living
expenses.
(32 FR 18026, Dec. 16, 1967, as amended at 34 FR 14888, Sept. 27,
1969)
20 CFR 404.509 Against equity and good conscience; defined.
(a) Recovery of an overpayment is against equity and good conscience
(under title II and title XVIII) if an individual --
(1) Changed his or her position for the worse (Example 1) or
relinquished a valuable right (Example 2) because of reliance upon a
notice that a payment would be made or because of the overpayment
itself; or
(2) Was living in a separate household from the overpaid person at
the time of the overpayment and did not receive the overpayment
(Examples 3 and 4).
(b) The individual's financial circumstances are not material to a
finding of against equity and good conscience.
Example 1. A widow, having been awarded benefits for herself and
daughter, entered her daughter in private school because the monthly
benefits made this possible. After the widow and her daughter received
payments for almost a year, the deceased worker was found to be not
insured and all payments to the widow and child were incorrect. The
widow has no other funds with which to pay the daughter's private school
expenses. Having entered the daughter in private school and thus
incurred a financial obligation toward which the benefits had been
applied, she was in a worse position financially than if she and her
daughter had never been entitled to benefits. In this situation, the
recovery of the payments would be against equity and good conscience.
Example 2. After being awarded old-age insurance benefits, an
individual resigned from employment on the assumption he would receive
regular monthly benefit payments. It was discovered 3 years later that
(due to a Social Security Administration error) his award was erroneous
because he did not have the required insured status. Due to his age,
the individual was unable to get his job back and could not get any
other employment. In this situation, recovery of the overpayments would
be against equity and good conscience because the individual gave up a
valuable right.
Example 3. M divorced K and married L. M died a few years later.
When K files for benefits as a surviving divorced wife, she learns that
L had been overpaid $3,200 on M's earnings record. Because K and L are
both entitled to benefits on M's record of earnings and we could not
recover the overpayment from L, we sought recovery from K. K was living
in a separate household from L at the time of the overpayment and did
not receive the overpayment. K requests waiver of recovery of the
$3,200 overpayment from benefits due her as a surviving divorced wife of
M. In this situation, it would be against equity and good conscience to
recover the overpayment from K.
Example 4. G filed for and was awarded benefits. His daughter, T,
also filed for student benefits on G's earnings record. Since T was an
independent, full-time student living in another State, she filed for
benefits on her own behalf. Later, after T received 12 monthly
benefits, the school reported that T had been a full-time student only 2
months and had withdrawn from school. Since T was overpaid 10 monthly
benefits, she was requested to return the overpayment to SSA. T did not
return the overpayment and further attempts to collect the overpayment
were unsuccessful. G was asked to repay the overpayment because he was
receiving benefits on the same earnings record. G requested waiver. To
support his waiver request G established that he was not at fault in
causing the overpayment because he did not know that T was receiving
benefits. Since G is without fault and, in addition, meets the
requirements of not living in the same household at the time of the
overpayment and did not receive the overpayment, it would be against
equity and good conscience to recover the overpayment from G.
(53 FR 25483, July 7, 1988)
20 CFR 404.510 When an individual is ''without fault'' in a
deduction-overpayment.
Except as provided in 404.511, or elsewhere in this subpart F, an
individual will be considered without fault in accepting a payment which
is incorrect because he failed to report an event specified in sections
203(b) and (c) of the Act, or an event specified in section 203(d) of
the Act as in effect for monthly benefits for months after December
1960, or because a deduction is required under section 203(b), (c), (d),
or section 222(b) of the Act, or payments were not withheld as required
by section 202(t) or section 228 of the Act, if it is shown that such
failure to report or acceptance of the overpayment was due to one of the
following circumstances:
(a) Reasonable belief that only his net cash earnings (take-home pay)
are included in determining the annual earnings limitation or the
monthly earnings limitation under section 203(f) of the Act.
(b) Reliance upon erroneous information from an official source
within the Social Security Administration (or other governmental agency
which the individual had reasonable cause to believe was connected with
the administration of benefits under title II of the Act) with respect
to the interpretation of a pertinent provision of the Social Security
Act or regulations pertaining thereto. For example, this circumstance
could occur where the individual is misinformed by such source as to the
interpretation of a provision in the Act or regulations relating to
deductions, or relating to the effect of residence of an alien outside
the United States for more than 6 months.
(c) The beneficiary's death caused the earnings limit applicable to
his earnings for purposes of deduction and the charging of excess
earnings to be reduced below $1,680 for a taxable year ending after
1967.
(d) (Reserved)
(e) Reasonable belief that in determining, for deduction purposes,
his earnings from employment and/or net earnings from self-employment in
the taxable year in which he became entitled to benefits, earnings in
such year prior to such entitlement would be excluded. However, this
provision does not apply if his earnings in the taxable year, beginning
with the first month of entitlement, exceeded the earnings limitation
amount for such year.
(f) Unawareness that his earnings were in excess of the earnings
limitation applicable to the imposition of deductions and the charging
of excess earnings or that he should have reported such excess where
these earnings were greater than anticipated because of:
(1) Retroactive increases in pay, including back-pay awards;
(2) Work at a higher pay rate than realized;
(3) Failure of the employer of an individual unable to keep accurate
records to restrict the amount of earnings or the number of hours worked
in accordance with a previous agreement with such individual;
(4) The occurrence of five Saturdays (or other work days, e.g., five
Mondays) in a month and the earnings for the services on the fifth
Saturday or other work day caused the deductions.
(g) The continued issuance of benefit checks to him after he sent
notice to the Administration of the event which caused or should have
caused the deductions provided that such continued issuance of checks
led him to believe in good faith that he was entitled to checks
subsequently received.
(h) Lack of knowledge that bonuses, vacation pay, or similar
payments, constitute earnings for purposes of the annual earnings
limitation.
(i) (Reserved)
(j) Reasonable belief that earnings in excess of the earnings
limitation amount for the taxable year would subject him to deductions
only for months beginning with the first month in which his earnings
exceeded the earnings limitation amount. However, this provision is
applicable only if he reported timely to the Administration during the
taxable year when his earnings reached the applicable limitation amount
for such year.
(k) Lack of knowledge by a wife, husband, or child entitled to
wife's, husband's, or child's insurance benefits, as the case may be,
that the individual entitled to old-age insurance benefits on the same
earnings record has incurred or would incur deductions because of a
violation of the annual earnings or 7-day foreign work test, whichever
is applicable, provided the wife, husband, or child is not living with
such old-age insurance beneficiary and did not know and had no reason to
know that such beneficiary's earnings activity or the income derived
therefrom has caused or would cause such deductions.
(l) Reasonable belief, with respect to earning activity for months
after December 1972, that net earnings from self-employment after the
attainment of age 72 in the taxable year in which age 72 was attained
would not cause deductions (see 404.430(a)) with respect to benefits
payable for months in that taxable year prior to the attainment of age
72.
(m) Reasonable belief by an individual entitled to child's, wife's,
husband's, widow's, widower's, mother's, or parent's insurance benefits
that earnings from employment and/or net earnings from self-employment
after the termination of entitlement (other than termination by reason
of entitlement to an old-age insurance benefit) in the taxable year in
which the termination event occurred would not cause deductions with
respect to benefits payable for months in that taxable year prior to the
month in which the termination event occurred.
(n) Failure to understand the deduction provisions of the Act or the
occurrence of unusual or unavoidable circumstances the nature of which
clearly shows that the individual was unaware of a violation of such
deduction provisions. However, these provisions do not apply unless he
made a bona fide attempt to restrict his annual earnings or otherwise
comply with the deduction provisions of the Act.
(27 FR 1162, Feb. 8, 1962, as amended at 28 FR 14492, Dec. 31, 1963;
34 FR 14888, Sept. 27, 1969; 36 FR 23361, Dec. 9, 1971; 43 FR 31318,
July 21, 1978; 44 FR 20653, Apr. 6, 1979)
20 CFR 404.510a When an individual is ''without fault'' in an
entitlement overpayment.
A benefit payment under title II or title XVIII of the Act to or on
behalf of an individual who fails to meet one or more requirements for
entitlement to such payment or a benefit payment exceeding the amount to
which he is entitled, constitutes an entitlement overpayment. Where an
individual or other person on behalf of an individual accepts such
overpayment because of reliance on erroneous information from an
official source within the Social Security Administration (or other
governmental agency which the individual had reasonable cause to believe
was connected with the administration of benefits under title II or
title XVIII of the Act) with respect to the interpretation of a
pertinent provision of the Social Security Act or regulations pertaining
thereto, or where an individual or other person on behalf of an
individual is overpaid as a result of the adjustment upward (under the
family maximum provision in section 203 of the Act) of the benefits of
such individual at the time of the proper termination of one or more
beneficiaries on the same social security record and the subsequent
reduction of the benefits of such individual caused by the reentitlement
of the terminated beneficiary(ies) pursuant to a change in a provision
of the law, such individual, in accepting such overpayment, will be
deemed to be without fault. For purposes of this section governmental
agency includes intermediaries and carriers under contract pursuant to
sections 1816 and 1842 of the Act.
(39 FR 43716, Dec. 18, 1974)
20 CFR 404.511 When an individual is at ''fault'' in a
deduction-overpayment.
(a) Degree of care. An individual will not be without fault if the
Administration has evidence in its possession which shows either a lack
of good faith or failure to exercise a high degree of care in
determining whether circumstances which may cause deductions from his
benefits should be brought to the attention of the Administration by an
immediate report or by return of a benefit check. The high degree of
care expected of an individual may vary with the complexity of the
circumstances giving rise to the overpayment and the capacity of the
particular payee to realize that he is being overpaid. Accordingly,
variances in the personal circumstances and situations of individual
payees are to be considered in determining whether the necessary degree
of care has been exercised by an individual to warrant a finding that he
was without fault in accepting a deduction overpayment.
(b) Subsequent deduction-overpayments. An individual will not be
without fault where, after having been exonerated for a deduction
overpayment and after having been advised of the correct interpretation
of the deduction provision, he incurs another deduction overpayment
under the same circumstances as the first overpayment.
(16 FR 13054, Dec. 28, 1951)
20 CFR 404.512 When adjustment or recovery of an overpayment will be
waived.
(a) Adjustment or recovery deemed ''against equity and good
conscience.'' In the situations described in 404.510(a), (b), and (c),
and 404.510a, adjustment or recovery will be waived since it will be
deemed such adjustment or recovery is against equity and good
conscience. Adjustment or recovery will also be deemed against equity
and good conscience in the situation described in 404.510(e), but only
as to a month in which the individual's earnings from wages do not
exceed the total monthly benefits affected for that month.
(b) Adjustment or recovery considered to defeat the purpose of title
II or be against equity and good conscience under certain circumstances.
In the situation described in 404.510(e) (except in the case of an
individual whose monthly earnings from wages in employment do not exceed
the total monthly benefits affected for a particular month), and in the
situations described in 404.510(f) through (n), adjustment or recovery
shall be waived only where the evidence establishes that adjustment or
recovery would work a financial hardship (see 404.508) or would
otherwise be inequitable (see 404.509).
(27 FR 1163, Feb. 8, 1962, as amended at 35 FR 6321, Apr. 18, 1970;
36 FR 23361, Dec. 9, 1971)
20 CFR 404.513 Liability of a certifying officer.
No certifying or disbursing officer shall be held liable for any
amount certified or paid by him to any individual.
(a) Where adjustment or recovery of such amount is waived under
section 204(b) of the Act; or
(b) Where adjustment under section 204(a) of the Act is not completed
prior to the death of all individuals against whose benefits or lump
sums deductions are authorized; or
(c) Where a claim for recovery of an overpayment is compromised or
collection or adjustment action is suspended or terminated pursuant to
the Federal Claims Collection Act of 1966 (31 U.S.C. 951-953) (see
404.515).
(34 FR 14889, Sept. 27, 1969)
20 CFR 404.515 Collection and compromise of claims for overpayment.
(a) General effect of the Federal Claims Collection Act of 1966.
Claims by the Administration against an individual for recovery of
overpayments under title II or title XVIII (not including title XVIII
overpayments for which refund is requested from providers, physicians,
or other suppliers of services) of the Act, not exceeding the sum of
$20,000, exclusive of interest, may be compromised, or collection
suspended or terminated where such individual or his estate does not
have the present or prospective ability to pay the full amount of the
claim within a reasonable time (see paragraph (c) of this section) or
the cost of collection is likely to exceed the amount of recovery (see
paragraph (d) of this section) except as provided under paragraph (b) of
this section.
(b) When there will be no compromise, suspension or termination of
collection of a claim for overpayment -- (1) Overpaid individual alive.
In any case where the overpaid individual is alive, a claim for
overpayment will not be compromised, nor will there be suspension or
termination of collection of the claim by the Administration if there is
an indication of fraud, the filing of a false claim, or
misrepresentation on the part of such individual or on the part of any
other party having an interest in the claim.
(2) Overpaid individual deceased. In any case where the overpaid
individual is deceased (i) a claim for overpayment in excess of $5,000
will not be compromised, nor will there be suspension or termination of
collection of the claim by the Administration if there is an indication
of fraud; the filing of a false claim, or misrepresentation on the part
of such deceased individual, and (ii) a claim for overpayment regardless
of the amount will not be compromised, nor will there be suspension or
termination of collection of the claim by the Administration if there is
an indication that any person other than the deceased overpaid
individual had a part in the fraudulent action which resulted in the
overpayment.
(c) Inability to pay claim for recovery of overpayment. In
determining whether the overpaid individual is unable to pay a claim for
recovery of an overpayment under title II or title XVIII of the Act, the
Administration will consider such individual's age, health, present and
potential income (including inheritance prospects), assets (e.g., real
property, savings account), possible concealment or improper transfer of
assets, and assets or income of such individual which may be available
in enforced collection proceedings. The Administration will also
consider exemptions available to such individual under the pertinent
State or Federal law in such proceedings. In the event the overpaid
individual is deceased, the Administration will consider the available
assets of the estate, taking into account any liens or superior claims
against the estate.
(d) Cost of collection or litigative probabilities. Where the
probable costs of recovering an overpayment under title II or title
XVIII of the Act would not justify enforced collection proceedings for
the full amount of the claim or there is doubt concerning the
Administration's ability to establish its claim as well as the time
which it will take to effect such collection, a compromise or settlement
for less than the full amount will be considered.
(e) Amount of compromise. The amount to be accepted in compromise of
a claim for overpayment under title II or title XVIII of the Act shall
bear a reasonable relationship to the amount which can be recovered by
enforced collection proceedings giving due consideration to the
exemptions available to the overpaid individual under State or Federal
law and the time which such collection will take.
(f) Payment. Payment of the amount which the Administration has
agreed to accept as a compromise in full settlement of a claim for
recovery of an overpayment under title II or title XVIII of the Act must
be made within the time and in the manner set by the Administration. A
claim for such recovery of the overpayment shall not be considered
compromised or settled until the full payment of the compromised amount
has been made within the time and manner set by the Administration.
Failure of the overpaid individual or his estate to make such payment as
provided shall result in reinstatement of the full amount of the
overpayment less any amounts paid prior to such default.
(34 FR 14889, Sept. 27, 1969; 34 FR 15413, Oct. 3, 1969)
20 CFR 404.520 Referral of overpayments to the Internal Revenue Service
for tax refund offset -- General.
(a) The standards we will apply and the procedures we will follow
before requesting the Internal Revenue Service (IRS) to offset income
tax refunds due taxpayers who have an outstanding overpayment are set
forth in 404.520 through 404.526. These standards and procedures are
authorized by the Deficit Reduction Act of 1984 (31 U.S.C. 3720A), as
amended by section 5129 of the Omnibus Budget Reconciliation Act of
1990, and as implemented through Department of the Treasury regulations
at 26 CFR 301.6402-6T and Department of Health and Human Services
regulations at 45 CFR Part 31.
(b) We will use the IRS tax refund offset procedure to collect
overpayments that are certain in amount, past due and legally
enforceable, and eligible for tax refund offset under regulations issued
by the Secretary of the Treasury. We will use these procedures to
collect overpayments only from individuals who are not currently
entitled to monthly Social Security benefits under title II of the Act.
We will refer an overpayment to the Secretary of the Treasury for offset
against tax refunds no sooner than 3 months after our right to collect
the overpayment first accrued and no later than 10 years after our right
to collect the overpayment first accrued.
(56 FR 52468, Oct. 21, 1991)
20 CFR 404.521 Notice to overpaid individual.
A request for reduction of an IRS tax refund will be made only after
we determine that an amount is owed and past due and provide the
overpaid individual with 60 calendar days written notice. Our notice of
intent to collect an overpayment through IRS tax refund offset will
state:
(a) The amount of the overpayment;
(b) That unless, within 60 calendar days from the date of our notice,
the overpaid individual repays the overpayment, sends evidence to us at
the address given in our notice that the overpayment is not past due or
not legally enforceable, or asks us to waive collection of the
overpayment under section 204(b) of the Act, we intend to seek
collection of the overpayment by requesting that the IRS reduce any
amounts payable to the overpaid individual as refunds of Federal income
taxes by an amount equal to the amount of the overpayment;
(c) The conditions under which we will waive recovery of an
overpayment under section 204(b) of the Act;
(d) That we will review any evidence presented that the overpayment
is not past due or not legally enforceable;
(e) That the overpaid individual has the right to inspect and copy
our records related to the overpayment as determined by us and will be
informed as to where and when the inspection and copying can be done
after we receive notice from the overpaid individual that inspection and
copying are requested.
(56 FR 52468, Oct. 21, 1991)
20 CFR 404.522 Review within SSA that an overpayment is past due and
legally enforceable.
(a) Notification by overpaid individual. An overpaid individual who
receives a notice as described in 404.521 has the right to present
evidence that all or part of the overpayment is not past due or not
legally enforceable. To exercise this right, the individual must notify
us and present evidence regarding the overpayment within 60 calendar
days from the date of our notice.
(b) Submission of evidence. The overpaid individual may submit
evidence showing that all or part of the debt is not past due or not
legally enforceable as provided in paragraph (a) of this section.
Failure to submit the notification and evidence within 60 calendar days
will result in referral of the overpayment to the IRS, unless the
overpaid individual, within this 60-day time period, has asked us to
waive collection of the overpayment under section 204(b) of the Act and
we have not yet determined whether we can grant the waiver request. If
the overpaid individual asks us to waive collection of the overpayment,
we may ask that evidence to support the request be submitted to us.
(c) Review of the evidence. After a timely submission of evidence by
the overpaid individual, we will consider all available evidence related
to the overpayment. If the overpaid individual has not requested a
waiver we will make findings based on a review of the written record,
unless we determine that the question of indebtedness cannot be resolved
by a review of the documentary evidence. If the overpaid individual has
asked us to make a waiver determination and our records do not show that
after an oral hearing we had previously determined that he was at
''fault'' in accepting the overpayment, we will not deny the waiver
request without first scheduling an oral hearing.
(56 FR 52469, Oct. 21, 1991)
20 CFR 404.523 Findings by SSA.
(a) Following the hearing or a review of the record, we will issue
written findings which include supporting rationale for the findings.
Issuance of these findings concerning whether the overpayment or part of
the overpayment is past due and legally enforceable is the final Agency
action with respect to the past-due status and enforceability of the
overpayment. If we make a determination that a waiver request cannot be
granted, we will issue a written notice of this determination in
accordance with the regulations in subpart J of this part. Our referral
of the overpayment to the IRS will not be suspended under 404.525
pending any further administrative review of the waiver request that the
individual may seek.
(b) Copies of the findings described in paragraph (a) of this section
will be distributed to the overpaid individual and the overpaid
individual's attorney or other representative, if any.
(c) If the findings referred to in paragraph (a) of this section
affirm that all or part of the overpayment is past due and legally
enforceable and, if waiver is requested, we determine that the request
cannot be granted, we will refer the overpayment to the IRS. No
referral will be made to the IRS if, based on our review of the
overpayment, we reverse our prior finding that the overpayment is past
due and legally enforceable or, upon consideration of a waiver request,
we determine that waiver of our collection of the overpayment is
appropriate.
(56 FR 52469, Oct. 21, 1991)
20 CFR 404.524 Review of our records related to the overpayment.
(a) Notification by the overpaid individual. An overpaid individual
who intends to inspect or copy our records related to the overpayment as
determined by us must notify us stating his or her intention to inspect
or copy.
(b) Our response. In response to a notification by the overpaid
individual as described in paragraph (a) of this section, we will notify
the overpaid individual of the location and time when the overpaid
individual may inspect or copy our records related to the overpayment.
We may also, at our discretion, mail copies of the overpayment-related
records to the overpaid individual.
(56 FR 52469, Oct. 21, 1991)
20 CFR 404.525 Suspension of offset.
If, within 60 days of the date of the notice described in 404.521,
the overpaid individual notifies us that he or she is exercising a right
described in 404.522(a) and submits evidence pursuant to 404.522(b) or
requests a waiver under 404.506, we will suspend any notice to the IRS
until we have issued written findings that affirm that an overpayment is
past due and legally enforceable and, if applicable, make a
determination that a waiver request cannot be granted.
(56 FR 52469, Oct. 21, 1991)
20 CFR 404.526 Tax refund insufficient to cover amount of overpayment.
If a tax refund is insufficient to recover an overpayment in a given
year, we will recertify the remainder of the overpayment to the IRS in
the following year, assuming that all criteria for certification are met
at that time.
(56 FR 52469, Oct. 21, 1991)
20 CFR 404.526 Subpart G -- Filing of Applications and Other Forms
Authority: Secs. 202 (i), (j), (o), (p), and (r), 205(a), 216(i)(2),
223(b), 228(a), and 1102 of the Social Security Act; 42 U.S.C. 402 (i),
(j), (o), (p), and (r), 405(a), 416(i)(2), 423(b), 428(a), and 1302.
Source: 44 FR 37209, June 26, 1979, unless otherwise noted.
20 CFR 404.526 General Provisions
20 CFR 404.601 Introduction.
This subpart contains the Social Security Administration's rules for
filing a claim for old-age, disability, dependents', and survivors'
insurance benefits as described in subpart D of part 404. It tells what
an application is, who may sign it, where and when it must be signed and
filed, the period of time it is in effect and how it may be withdrawn.
This subpart also explains when a written statement, request, or notice
will be considered filed. Since the application form and procedures for
filing a claim under this subpart are the same as those used to
establish entitlement to Medicare benefits under 42 CFR part 405,
persons who wish to become entitled to Medicare benefits should refer to
the provisions of this subpart. Requirements concerning applications
for the black lung benefits program are contained in part 410.
Requirements concerning applications for the supplemental security
income program are contained in part 416. Part 422 contains the
requirements for applying for a social security number.
20 CFR 404.602 Definitions.
For the purpose of this subpart --
Applicant means the person who files an application for benefits for
himself or herself or for someone else. A person who files for himself
or herself is both the applicant and the claimant.
Application refers only to an application on a form described in
404.611.
Benefits means any old-age, disability, dependents', and survivors'
insurance benefits described in subpart D, including a period of
disability.
Claimant means the person who files an application for benefits for
himself or herself or the person for whom an application is filed.
We, us, or our means the Social Security Administration (SSA).
You or your means, as appropriate, the person who applies for
benefits, the person for whom an application is filed, or the person who
may consider applying for benefits.
20 CFR 404.603 You must file an application to receive benefits.
In addition to meeting other requirements, you must file an
application to become entitled to benefits. If you believe you may be
entitled to benefits, you should file an application. Filing an
application will --
(a) Permit a formal decision to be made on your entitlement to
benefits;
(b) Protect your entitlement to any benefits that may be payable for
as many as 6 months or 12 months (depending on the type of benefit, as
explained in 404.621) before the application was filed; and
(c) Give you the right to appeal if you are dissatisfied with the
decision.
(44 FR 37209, June 26, 1979, as amended at 46 FR 47444, Sept. 28,
1981)
20 CFR 404.603 Applications
20 CFR 404.610 What makes an application a claim for benefits.
To be considered a claim for benefits, an application must generally
meet all of the following conditions:
(a) It must be on an application form as described in 404.611.
(b) It must be completed and filed with SSA as described in 404.611.
(c) It must be signed by the claimant or someone described in
404.612. who may sign an application for the claimant.
(d) The claimant, with the limited exceptions in 404.615, must be
alive at the time it is filed.
20 CFR 404.611 Filing of application with Social Security
Administration.
(a) General rule. You must apply for benefits on an applications we
prescribe. See 404.614 for places where an application for benefits
may be filed.
(b) Effect of claims filed with the Railroad Retirement Board. An
application filed with the Railroad Retirement Board on one of its forms
is also considered an application for social security benefits if the
application is filed --
(1) By or for a claimant who has less than 10 years of service in the
railroad industry;
(2) By or for a claimant who has 10 or more years of service in the
railroad industry and the applicant does not limit the application to
benefits payable only under the Railroad Retirement Act; or
(3) By the spouse or by or for the child of a claimant who has worked
any length of time in the railroad industry and the applicant does not
limit the application to benefits payable only under the Railroad
Retirement Act.
(c) Effect of claims filed with the Veterans Administration. An
application filed with the Veterans Administration on one of its forms
for survivors' dependency and indemnity compensation (see section 3005
of title 38 U.S.C.) is also considered an application for social
security dependents' and survivors' benefits except the lump-sum death
payment.
(44 FR 37209, June 26, 1979, as amended at 51 FR 41951, Nov. 20,
1986)
20 CFR 404.612 Who may sign an application.
We will determine who may sign an application according to the
following rules:
(a) A claimant who is 18 years old or over, mentally competent, and
physically able to do so, must sign his or her own application. If the
claim is for child's benefits for a person who is not yet 22 years old,
the application may be signed by a parent or a person standing in place
of the parent.
(b) A claimant who is between 16 and 18 years old may sign his or her
own application if he or she is mentally competent, has no court
appointed representative, and is not in the care of any person.
(c) If the claimant is under age 18, or mentally incompetent, or
physically unable to sign, the application may be signed by a court
appointed representative or a person who is responsible for the care of
the claimant, including a relative. If the claimant is in the care of
an institution, the manager or principal officer of the institution may
sign the application.
(d) If a person who could receive disability benefits or who could
have a period of disability established dies before filing, an
application for disability benefits or for a period of disability may be
signed by a person who would be qualified to receive any benefits due
the deceased.
(e) If a person who paid burial expenses for which a lump-sum death
payment may be made dies before filing an application for the payment,
the application may be signed by a person who could receive the payment
for the deceased's estate.
(f) If a written statement showing an intent to claim benefits is
filed with us, but the person for whom the benefits are claimed dies
before an application is filed, an application may be filed as explained
in 404.630(d).
(g) If it is necessary to protect a claimant from losing benefits and
there is good cause for the claimant not signing the application, we may
accept an application signed by some one other than a person described
in this section.
Example: Mr. Smith comes to a social security office a few days
before the end of a month to file an application for old-age benefits
for his neighbor, Mr. Jones. Mr. Jones, a 63 year old widower, just
suffered a heart attack and is in the hospital. He asked Mr. Smith to
file the application for him. We will accept an application signed by
Mr. Smith since it would not be possible to have Mr. Jones sign and
file the application until the next calendar month and a loss of one
month's benefits would result.
20 CFR 404.613 Evidence of authority to sign an application for
another.
(a) A person who signs an application for someone else will be
required to provide evidence of his or her authority to sign the
application for the person claiming benefits under the following rules:
(1) If the person who signs is a court appointed representative, he
or she must submit a certificate issued by the court showing authority
to act for the claimant.
(2) If the person who signs is not a court appointed representative,
he or she must submit a statement describing his or her relationship to
the claimant. The statement must also describe the extent to which the
person is responsible for the care of the claimant. This latter
information will not be requested if the application is signed by a
parent for a child with whom he or she is living.
(3) If the person who signs is the manager or principal officer of an
institution which is responsible for the care of the claimant, he or she
must submit a statement indicating the person's position of
responsibility at the institution.
(b) We may, at any time, require additional evidence to establish the
authority of a person to sign an application for someone else.
20 CFR 404.614 When an application or other form is considered filed.
(a) General rule. An application for benefits, or a written
statement, request, or notice is filed on the day it is received by an
SSA employee at one of our offices or by an SSA employee who is
authorized to receive it at a place other than one of our offices.
(b) Other places and dates of filing. We will also accept as the
date of filing --
(1) The date an application for benefits, or a written statement,
request or notice is received by any office of the U.S. Foreign Service
or by the Veterans Administration Regional Office in the Philippines;
(2) The date an application for benefits or a written statement,
request or notice is mailed to us by the U.S. mail, if using the date we
receive 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, we will consider other
evidence of when you mailed it to us; or
(3) The date an application for benefits is filed with the Railroad
Retirement Board or the Veterans Administration. See 404.611 (b) and
(c) for an explanation of when an application for benefits filed with
the Railroad Retirement Board or the Veterans Administration is
considered an application for social security benefits.
20 CFR 404.615 Claimant must be alive when an application is filed.
A claimant must be alive at the time an application is filed. There
are the following exceptions to this general rule:
(a) If a disabled person dies before filing an application for
disability benefits or a period of disability, a person who would be
qualified to receive any benefits due the deceased may file an
application. The application must be filed within 3 months after the
month in which the disabled person died.
(b) If a person who paid burial expenses for which a lump-sum death
payment may be made dies before filing an application for the payment,
the application may be signed by a person who could receive the payment
for the deceased's estate.
(c) If a written statement showing an intent to claim benefits is
filed with us, but the person for whom the benefits are claimed dies
before an application is filed, an application may be filed as explained
in 404.630(d).
20 CFR 404.615 Effective Filing Period of Application
20 CFR 404.620 Filing before the first month you meet the requirements
for benefits.
(a) General rule. If you file an application for benefits (except
special age 72 payments) before the first month you meet all the other
requirements for entitlement, the application will remain in effect
until we make a final determination on your application unless there is
an administrative law judge hearing decision on your application. If
there is an administrative law judge hearing decision, your application
will remain in effect until the administrative law judge hearing
decision is issued.
(1) If you meet all the requirements for entitlement while your
application is in effect, we may pay you benefits from the first month
that you meet all the requirements.
(2) If you first meet all the requirements for entitlement after the
period for which your application was in effect, you must file a new
application for benefits. In this case, we may pay you benefits only
from the first month that you meet all the requirements based on the new
application.
(b) Filing for special age 72 payments. The requirements for
entitlement to special age 72 payments must be met no later than 3
months after the month an application is filed.
(44 FR 37209, June 26, 1979, as amended at 52 FR 4003, Feb. 9, 1987)
20 CFR 404.621 Filing after the first month you meet the requirements
for benefits.
(a) Filing for disability benefits and for old-age, survivors', or
dependents' benefits. (1)(i) If you file an application for disability
benefits, widow's or widower's benefits based on disability, or wife's,
husband's, or child's benefits based on the earnings record of a person
entitled to disability benefits, after the first month you could have
been entitled to them, you may receive benefits for up to 12 months
immediately before the month in which your application is filed. Your
benefits may begin with the first month in this 12-month period in which
you meet all the requirements for entitlement. However, entitlement to
wife's or husband's benefits under this rule is limited by paragraph
(a)(1)(iii) of this section.
(ii) If you file an application for old-age benefits, widow's or
widower's benefits not based on disability, wife's, husband's, or
child's benefits based on the earnings record of a person not entitled
to disability benefits, or mother's, father's, or parent's benefits,
after the first month you could have been entitled to them, you may
receive benefits for up to 6 months immediately before the month in
which your application is filed. Your benefits may begin with the first
month in this 6-month period in which you meet all the requirements for
entitlement. However, entitlement to old-age, wife's, husband's,
widow's, or widower's benefits under this rule is limited by paragraph
(a)(1)(iii) of this section.
(iii) If the effect of the payment of benefits for a month before the
month you file would be to reduce your benefits because of your age, you
cannot be entitled to old-age, wife's, husband's, widow's, or widower's
benefits for any month before the month in which your application is
filed, unless you meet one of the conditions in paragraph (a)(2) of this
section. (An explanation of the reduction that occurs because of age if
you are entitled to these benefits for a month before you reach the
retirement age of 65, is in 404.410.) An example follows that assumes
you do not meet any of the conditions in paragraph (a)(2) of this
section.
Example: You become 65 years old in April 1981. If you apply for
old-age benefits in April, you cannot be entitled to benefits for months
in the 6-month period before April because the payment of benefits for
any of these months would result in your benefits being reduced for age.
If you do not file your application until July 1981, you may be
entitled to benefits for the months of April, May, and June 1981 because
the payment of benefits for these months would not result in your
benefits being reduced for age. You will not, however, receive benefits
for the 3 months before April.
(2) The limitation in paragraph (a)(1)(iii) of this section on your
entitlement to old-age, wife's, husband's, widow's, or widower's
benefits for months before you file an application does not apply if --
(i) You are a widow, widower, surviving divorced wife, or surviving
divorced husband who is disabled and could be entitled to retroactive
benefits for any month before age 60. If you could not be entitled
before age 60, the limitation will prevent payment of benefits to you
for past months, but it will not affect the month you become entitled to
hospital insurance benefits.
(ii) You are a widow, widower, or surviving divorced spouse of the
insured person who died in the month before you applied and you were at
least age 60 in the month of death of the insured person on whose
earnings record you are claiming benefits. In this case, you can be
entitled beginning with the month the insured person died if you choose
and if you file your application on or after July 1, 1983.
(b) Filing for lump-sum death payment. An application for a lump-sum
death payment must be filed within 2 years after the death of the person
on whose earnings record the claim is filed. There are two exceptions
to the 2-year filing requirement:
(1) If there is a good cause for failure to file within the 2-year
period, we will consider your application as though it were filed within
the 2-year period. Good cause does not exist if you were informed of
the need to file an application within the 2-year period and you
neglected to do so or did not desire to make a claim. Good cause will
be found to exist if you did not file within the time limit due to --
(i) Circumstances beyond your control, such as extended illness,
mental or physical incapacity, or a language barrier;
(ii) Incorrect or incomplete information we furnished you;
(iii) Your efforts to get evidence to support your claim without
realizing that you could submit the evidence after filing an
application; or
(iv) Unusual or unavoidable circumstances which show that you could
not reasonably be expected to know of the time limit.
(2) The Soldiers' and Sailors' Civil Relief Act of 1940 provides for
extending the filing time.
(c) Filing for special age 72 payments. An application for special
age 72 payments is not effective as a claim for benefits for any month
before you actually file.
(d) Filing for a period of disability. You must file an application
for a period of disability while you are disabled or no later than 12
months after the month in which your period of disability ended. If you
were unable to apply within the 12-month time period because of a
physical or mental condition, you may apply not more than 36 months
after your disability ended. The general rule we use to decide whether
your failure to file was due to a physical or mental condition is stated
in subpart D.
(e) Filing after death of person eligible for disability benefits or
period of disability. If you file for disability benefits or a period
of disability for another person who died before filing an application
and you would qualify under 404.503(b) to receive any benefits due the
deceased, you must file an application no later than the end of the
third month following the month in which the disabled person died.
(44 FR 37209, June 26, 1979, as amended at 46 FR 47444, Sept. 28,
1981; 51 FR 4482, Feb. 5, 1986; 56 FR 58846, Nov. 22, 1991)
20 CFR 404.622 Limiting an application.
Your application may entitle you to benefits for up to 6 months or 12
months (depending on the type of benefit, as explained in 404.621)
before the month in which it is filed. You may limit the number of
months of your entitlement in the 6-month or 12-month period. You may
state this choice any time before a decision is made on your claim by
indicating, in writing, the month you want your benefits to begin. You
may change the first month of entitlement in this 6-month or 12-month
period after a decision has been made on your claim under the following
conditions:
(a) You file the request in writing.
(b) If you are filing for the claimant, he or she is alive when the
request is filed.
(c) If any other person who is entitled to benefits would lose some
or all of those benefits because of the change, that person, or the
person who filed for him or her, consents in writing.
(d) Any benefit payments that would become improper as a result of
the change in entitlement month are repaid, or we are satisfied that
they will be repaid.
(44 FR 37209, June 26, 1979, as amended at 46 FR 47445, Sept. 28,
1981)
20 CFR 404.623 Filing by person eligible for old-age and husband's or
wife's benefits.
(a) Presumed filing for husband's or wife's benefits. If you file an
application for old-age benefits, you are presumed to have filed an
application for husband's or wife's benefits in the first month of your
entitlement to old-age benefits, if --
(1) Your old-age benefits are reduced for age because you choose to
receive them before you become 65 years old; and
(2) You are eligible for either a husband's or a wife's benefit for
the first month of your entitlement to old-age benefits.
(b) Presumed filing for old-age benefits. (1) If you file an
application for husband's or a wife's benefits, you are presumed to have
filed an application for old-age benefits in the first month of your
entitlement to husband's or wife's benefits if --
(i) Your husband's or wife's benefits are reduced for age because you
choose to receive them before you become 65 years old; and
(ii) You are eligible for old-age benefits for the first month of
your entitlement to husband's or wife's benefits.
(2) The rule in paragraph (b)(1) of this section is not used if you
are also entitled to disability benefits in the first month of your
entitlement to husband's or wife's benefits. In this event, you are
presumed to have filed for old-age benefits only if your disability
benefits end before you become 65 years old.
20 CFR 404.623 Filing Date Based on Written Statement
20 CFR 404.630 Use of date of written statement as filing date.
If a written statement, such as a letter, indicating your intent to
claim benefits either for yourself or for another person is filed with
us under the rules stated in 404.614, we will use the filing date of
the written statement as the filing date of the application, if all of
the following requirements are met:
(a) The statement indicates an intent to claim benefits.
(b) The statement is signed by the claimant, the claimant's spouse,
or a person described in 404.612. If you telephone us and advise us
that you intend to file a claim but cannot file an application before
the end of the month, we will prepare and sign a written statement if it
is necessary to prevent the loss of benefits.
(c) The claimant files an application with us on an application form
as described in 404.611, or one is filed for the claimant by a person
described in 404.612, within 6 months after the date of a notice we
will send advising of the need to file an application. We will send the
notice to the claimant. However, if it is clear from the information we
receive that the claimant is a minor or is mentally incompetent, we will
send the notice to the person who submitted the written statement.
(d) The claimant is alive when the application is filed; or if the
claimant has died after the written statement was filed, an application
is filed --
(1) By or for a person who would be eligible to receive benefits on
the deceased's earnings record;
(2) By a person acting for the deceased's estate; or
(3) If the statement was filed with a hospital under 404.632, by the
hospital if --
(i) No person described in paragraph (d) (1) or (2) of this section
can be located; or
(ii) A person described in paragraphs (d) (1) or (2) of this section
is located but refuses or fails to file the application unless the
refusal or failure to file is because it would be harmful to the
deceased person or the deceased's estate.
20 CFR 404.631 Statements filed with the Railroad Retirement Board.
A written statement filed with the Railroad Retirement Board will be
considered a written statement filed with us under the rules in 404.630
if --
(a) The statement indicates an intent to claim any payments under the
Railroad Retirement Act;
(b) It bears the signature of the person filing the statement;
(c) No application is filed with the Railroad Retirement Board on one
of its forms. If an application has been filed, we will use the date of
filing of that application as determined by the Railroad Retirement
Board (see 404.614(b)(3)); and
(d) The statement is sent to us by the Railroad Retirement Board.
20 CFR 404.632 Statements filed with a hospital.
A statement (generally a hospital admission form) filed with a
hospital may serve as a written statement under 404.630 if the
requirements of this section are met. The statement will be considered
filed with us as of the date it was filed with the hospital and will
serve to protect entitlement to benefits. A statement filed with a
hospital by you or some other person for you requesting or indicating an
intent to claim benefits will be considered a written statement filed
with us and 404.630 will apply to it if --
(a) You are a patient in the hospital;
(b) The hospital provides services covered by hospital insurance
under the Medicare program;
(c) An application has not already been filed; and
(d) The statement is sent to us.
20 CFR 404.632 Withdrawal of Application
20 CFR 404.640 Withdrawal of an application.
(a) Request for withdrawal filed before a determination is made. An
application may be withdrawn before we make a determination on it if --
(1) A written request for withdrawal is filed at a place described in
404.614 by the claimant or a person who may sign an application for the
claimant under 404.612; and
(2) The claimant is alive at the time the request is filed.
(b) Request for withdrawal filed after a determination is made. An
application may be withdrawn after we make a determination on it if --
(1) The conditions in paragraph (a) of this section are met;
(2) Any other person whose entitlement would be rendered erroneous
because of the withdrawal consents in writing to it. Written consent
for the person may be given by someone who could sign an application for
him or her under 404.612; and
(3) All benefits already paid based on the application being
withdrawn are repaid or we are satisfied that they will be repaid.
(c) Request for withdrawal filed after the claimant's death. An
application may be withdrawn after the claimant's death, regardless of
whether we have made a determination on it, if --
(1) The claimant's application was for old-age benefits that would be
reduced because of his or her age;
(2) The claimant died before we certified his or her benefit
entitlement to the Treasury Department for payment;
(3) A written request for withdrawal is filed at a place described in
404.614 by or for the person eligible for widow's or widower's benefits
based on the claimant's earnings; and
(4) The conditions in paragraphs (b)(2) and (3) of this section are
met.
(d) Effect of withdrawal. If we approve a request to withdraw an
application, the application will be considered as though it was never
filed. If we disapprove a request for withdrawal, the application is
treated as though the request was never filed.
(44 FR 37209, June 26, 1979, as amended at 48 FR 21931, May 16, 1983;
51 FR 37720, Oct. 24, 1986)
20 CFR 404.641 Cancellation of a request to withdraw.
A request to withdraw an application may be cancelled and the
application reinstated if --
(a) A written request for cancellation is filed at a place described
in 404.614 by the claimant or someone who may sign an application for
the claimant under 404.612;
(b) The claimant is alive at the time the request for cancellation is
filed; and
(c) For a cancellation request received after we have approved the
withdrawal, the request is filed no later than 60 days after the date of
the notice of approval.
20 CFR 404.641 Subpart H -- Evidence
Authority: Secs. 205(a) and 1102 of the Social Security Act; 42
U.S.C. 405(a) and 1302.
Source: 43 FR 24795, June 7, 1978, unless otherwise noted.
20 CFR 404.641 General
20 CFR 404.701 Introduction.
This subpart contains the Social Security Administration's basic
rules about what evidence is needed when a person claims old-age,
disability, dependents' and survivors' insurance benefits as described
in subpart D. In addition, there are special evidence requirements for
disability benefits. These are contained in subpart P. Evidence of a
person's earnings under social security is described in subpart I.
Evidence needed to obtain a social security number card is described in
part 422. Evidence requirements for the supplemental security income
program are contained in part 416.
20 CFR 404.702 Definitions.
As used in this subpart:
Apply means to sign a form or statement that the Social Security
Administration accepts as an application for benefits under the rules
set out in subpart G.
Benefits means any old-age, disability, dependents' and survivors'
insurance benefits described in subpart D, including a period of
disability.
Convincing evidence means one or more pieces of evidence that prove
you meet a requirement for eligibility. See 404.708 for the guides we
use in deciding whether evidence is convincing.
Eligible means that a person would meet all the requirements for
entitlement to benefits for a period of time but has not yet applied.
Entitled means that a person has applied and has proven his or her
right to benefits for a period of time.
Evidence means any record, document, or signed statement that helps
to show whether you are eligible for benefits or whether you are still
entitled to benefits.
Insured person means someone who has enough earnings under social
security to permit the payment of benefits on his or her earnings
record. He or she is fully insured, transitionally insured, currently
insured, or insured for disability as defined in subpart B.
We or Us refers to the Social Security Administration.
You refers to the person who has applied for benefits, or the person
for whom someone else has applied.
20 CFR 404.703 When evidence is needed.
When you apply for benefits, we will ask for evidence that you are
eligible for them. After you become entitled to benefits, we may ask
for evidence showing whether you continue to be entitled to benefits;
or evidence showing whether your benefit payments should be reduced or
stopped. See 404.401 for a list showing when benefit payments must be
reduced or stopped.
20 CFR 404.704 Your responsibility for giving evidence.
When evidence is needed to prove your eligibility or your right to
continue to receive benefit payments, you will be responsible for
obtaining and giving the evidence to us. We will be glad to advise you
what is needed and how to get it and we will consider any evidence you
give us. If your evidence is a foreign-language record or document, we
can have it translated for you. Evidence given to us will be kept
confidential and not disclosed to anyone but you except under the rules
set out in part 401. You should also be aware that Section 208 of the
Social Security Act provides criminal penalties for misrepresenting the
facts or for making false statements to obtain social security benefits
for yourself or someone else.
20 CFR 404.705 Failure to give requested evidence.
Generally, you will be asked to give us by a certain date specific
kinds of evidence or information to prove you are eligible for benefits.
If we do not receive the evidence or information by that date, we may
decide you are not eligible for benefits. If you are already receiving
benefits, you may be asked to give us by a certain date information
needed to decide whether you continue to be entitled to benefits or
whether your benefits should be stopped or reduced. If you do not give
us the requested information by the date given, we may decide that you
are no longer entitled to benefits or that your benefits should be
stopped or reduced. You should let us know if you are unable to give us
the requested evidence within the specified time and explain why there
will be a delay. If this delay is due to illness, failure to receive
timely evidence you have asked for from another source, or a similar
circumstance, you will be given additional time to give us the evidence.
20 CFR 404.706 Where to give evidence.
Evidence should be given to the people at a Social Security
Administration office. In the Philippines evidence should be given to
the people at the Veterans Administration Regional Office. Elsewhere
outside the United States, evidence should be given to the people at a
United States Foreign Service Office.
20 CFR 404.707 Original records or copies as evidence.
(a) General. To prove your eligibility or continuing entitlement to
benefits, you may be asked to show us an original document or record.
These original records or documents will be returned to you after we
have photocopied them. We will also accept copies of original records
that are properly certified and some uncertified birth notifications.
These types of records are described below in this section.
(b) Certified copies of original records. You may give us copies of
original records or extracts from records if they are certified as true
and exact copies by --
(1) The official custodian of the record;
(2) A Social Security Administration employee authorized to certify
copies;
(3) A Veterans Administration employee if the evidence was given to
that agency to obtain veteran's benefits;
(4) A U.S. Consular Officer or employee of the Department of State
authorized to certify evidence received outside the United States; or
(5) An employee of a State Agency or State Welfare Office authorized
to certify copies of original records in the agency's or office's files.
(c) Uncertified copies of original records. You may give us an
uncertified photocopy of a birth registration notification as evidence
where it is the practice of the local birth registrar to issue them in
this way.
20 CFR 404.708 How we decide what is enough evidence.
When you give us evidence, we examine it to see if it is convincing
evidence. If it is, no other evidence is needed. In deciding if
evidence is convincing, we consider whether --
(a) Information contained in the evidence was given by a person in a
position to know the facts;
(b) There was any reason to give false information when the evidence
was created;
(c) Information contained in the evidence was given under oath, or
with witnesses present, or with the knowledge there was a penalty for
giving false information;
(d) The evidence was created at the time the event took place or
shortly thereafter;
(e) The evidence has been altered or has any erasures on it; and
(f) Information contained in the evidence agrees with other available
evidence, including our records.
20 CFR 404.709 Preferred evidence and other evidence.
If you give us the type of evidence we have shown as preferred in the
following sections of this subpart, we will generally find it is
convincing evidence. This means that unless we have information in our
records that raises a doubt about the evidence, other evidence of the
same fact will not be needed. If preferred evidence is not available,
we will consider any other evidence you give us. If this other evidence
is several different records or documents which all show the same
information, we may decide it is convincing evidence even though it is
not preferred evidence. If the other evidence is not convincing by
itself, we will ask for additional evidence. If this additional
evidence shows the same information, all the evidence considered
together may be convincing. When we have convincing evidence of the
facts that must be proven or it is clear that the evidence provided does
not prove the necessary facts, we will make a formal decision about your
benefit rights.
20 CFR 404.709 Evidence of Age, Marriage, and Death
20 CFR 404.715 When evidence of age is needed.
(a) If you apply for benefits, we will ask for evidence of age which
shows your date of birth unless you are applying for --
(1) A lump-sum death payment;
(2) A wife's benefit and you have the insured person's child in your
care;
(3) A mother's or father's benefit; or
(4) A disability benefit (or for a period of disability) and neither
your eligibility nor benefit amount depends upon your age.
(b) If you apply for wife's benefits while under age 62 or if you
apply for a mother's or father's benefit, you will be asked for evidence
of the date of birth of the insured person's children in your care.
(c) If you apply for benefits on the earnings record of a deceased
person, you may be asked for evidence of his or her age if this is
needed to decide whether he or she was insured at the time of death or
what benefit amount is payable to you.
20 CFR 404.716 Type of evidence of age to be given.
(a) Preferred evidence. The best evidence of your age, if you can
obtain it, is either: a birth certificate or hospital birth record
recorded before age 5; or a religious record which shows your date of
birth and was recorded before age 5.
(b) Other evidence of age. If you cannot obtain the preferred
evidence of your age, you will be asked for other convincing evidence
that shows your date of birth or age at a certain time such as: an
original family bible or family record; school records; census
records; a statement signed by the physician or midwife who was present
at your birth; insurance policies; a marriage record; a passport; an
employment record; a delayed birth certificate, your child's birth
certificate; or an immigration or naturalization record.
20 CFR 404.720 Evidence of a person's death.
(a) When evidence of death is required. If you apply for benefits on
the record of a deceased person, we will ask for evidence of the date
and place of his or her death. We may also ask for evidence of another
person's death if this is needed to prove you are eligible for benefits.
(b) Preferred evidence of death. The best evidence of a person's
death is --
(1) A certified copy or extract from the public record of death,
coroner's report of death, or verdict of a coroner's jury; or a
certificate by the custodian of the public record of death;
(2) A statement of the funeral director, attending physician, intern
of the institution where death occurred;
(3) A certified copy of, or extract from an official report or
finding of death made by an agency or department of the United States;
or
(4) If death occurred outside the United States, an official report
of death by a United States Consul or other employee of the State
Department; or a copy of the public record of death in the foreign
country.
(c) Other evidence of death. If you cannot obtain the preferred
evidence of a person's death, you will be asked to explain why and to
give us other convincing evidence such as: the signed statements of two
or more people with personal knowledge of the death, giving the place,
date, and cause of death.
20 CFR 404.721 Evidence to presume a person is dead.
If you cannot prove the person is dead but evidence of death is
needed, we will presume he or she died at a certain time if you give us
the following evidence:
(a) A certified copy of, or extract from, an official report or
finding by an agency or department of the United States that a missing
person is presumed to be dead as set out in Federal law (5 U.S.C.
5565). Unless we have other evidence showing an actual date of death, we
will use the date he or she was reported missing as the date of death.
(b) Signed statements by those in a position to know and other
records which show that the person has been absent from his or her
residence for no apparent reason, and has not been heard from, for at
least 7 years. If there is no evidence available that he or she is
still alive, we will use as the person's date of death either the date
he or she left home, the date ending the 7 year period, or some other
date depending upon what the evidence shows is the most likely date of
death.
(c) If you are applying for benefits as the insured person's
grandchild or stepgrandchild but the evidence does not identify a
parent, we will presume the parent died in the first month in which the
insured person became entitled to to benefits.
20 CFR 404.723 When evidence of marriage is required.
If you apply for benefits as the insured person's husband or wife,
widow or widower, divorced wife or divorced husband, we will ask for
evidence of the marriage and where and when it took place. We may also
ask for this evidence if you apply for child's benefits or for the
lump-sum death payment as the widow or widower. If you are a widow,
widower, or divorced wife who remarried after your marriage to the
insured person ended, we may also ask for evidence of the remarriage.
You may be asked for evidence of someone else's marriage if this is
necessary to prove your marriage to the insured person was valid. In
deciding whether the marriage to the insured person is valid or not, we
will follow the law of the State where the insured person had his or her
permanent home when you applied or, if earlier, when he or she died --
see 404.770. What evidence we will ask for depends upon whether the
insured person's marriage was a ceremonial marriage, a common-law
marriage, or a marriage we will deem to be valid.
(43 FR 24795, June 7, 1978, as amended at 44 FR 34493, June 15, 1979)
20 CFR 404.725 Evidence of a valid ceremonial marriage.
(a) General. A valid ceremonial marriage is one that follows
procedures set by law in the State or foreign country where it takes
place. These procedures cover who may perform the marriage ceremony,
what licenses or witnesses are needed, and similar rules. A ceremonial
marriage can be one that follows certain tribal Indian custom, Chinese
custom, or similar traditional procedures. We will ask for the evidence
described in this section.
(b) Preferred evidence. Preferred evidence of a ceremonial marriage
is --
(1) If you are applying for wife's or husband's benefits, signed
statements from you and the insured about when and where the marriage
took place. If you are applying for the lump-sum death payment as the
widow or widower, your signed statement about when and where the
marriage took place; or
(2) If you are applying for any other benefits or there is evidence
causing some doubt about whether there was a ceremonial marriage: a
copy of the public record of marriage or a certified statement as to the
marriage; a copy of the religious record of marriage or a certified
statement as to what the record shows; or the original marriage
certificate.
(c) Other evidence of a ceremonial marriage. If preferred evidence
of a ceremonial marriage cannot be obtained, we will ask you to explain
why and to give us a signed statement of the clergyman or official who
held the marriage ceremony, or other convincing evidence of the
marriage.
20 CFR 404.726 Evidence of common-law marriage.
(a) General. A common-law marriage is one considered valid under
certain State laws even though there was no formal ceremony. It is a
marriage between two persons free to marry, who consider themselves
married, live together as man and wife, and, in some States, meet
certain other requirements. We will ask for the evidence described in
this section.
(b) Preferred evidence. Preferred evidence of a common-law marriage
is --
(1) If both the husband and wife are alive, their signed statements
and those of two blood relatives;
(2) If either the husband or wife is dead, the signed statements of
the one who is alive and those of two blood relatives of the deceased
person; or
(3) If both the husband and wife are dead, the signed statements of
one blood relative of each;
Note: All signed statements should show why the signer believes
there was a marriage between the two persons. If a written statement
cannot be gotten from a blood relative, one from another person can be
used instead.
(c) Other evidence of common-law marriage. If you cannot get
preferred evidence of a common-law marriage, we will ask you to explain
why and to give us other convincing evidence of the marriage. We may
not ask you for statements from a blood relative or other person if we
believe other evidence presented to us proves the common-law marriage.
20 CFR 404.727 Evidence of a deemed valid marriage.
(a) General. A deemed valid marriage is a ceremonial marriage we
consider valid even though the correct procedures set by State law were
not strictly followed or a former marriage had not yet ended. We will
ask for the evidence described in this section.
(b) Preferred evidence. Preferred evidence of a deemed valid
marriage is --
(1) Evidence of the ceremonial marriage as described in
404.725(b)(2);
(2) If the insured person is alive, his or her signed statement that
the other party to the marriage went through the ceremony in good faith
and his or her reasons for believing the marriage was valid or believing
the other party thought it was valid;
(3) The other party's signed statement that he or she went through
the marriage ceremony in good faith and his or her reasons for believing
it was valid;
(4) If needed to remove a reasonable doubt, the signed statements of
others who might have information about what the other party knew about
any previous marriage or other facts showing whether he or she went
through the marriage in good faith; and
(5) Evidence the parties to the marriage were living in the same
household when you applied for benefits or, if earlier, when the insured
person died (see 404.760).
(c) Other evidence of a deemed valid marriage. If you cannot obtain
preferred evidence of a deemed valid marriage, we will ask you to
explain why and to give us other convincing evidence of the marriage.
20 CFR 404.728 Evidence a marriage has ended.
(a) When evidence is needed that a marriage has ended. If you apply
for benefits as the insured person's divorced wife or divorced husband,
you will be asked for evidence of your divorce. If you are the insured
person's widow or divorced wife who had remarried but that husband died,
we will ask you for evidence of his death. We may ask for evidence that
a previous marriage you or the insured person had was ended before you
married each other if this is needed to show the latter marriage was
valid. If you apply for benefits as an unmarried person and you had a
marriage which was annulled, we will ask for evidence of the annulment.
We will ask for the evidence described in this section.
(b) Preferred evidence. Preferred evidence a marriage has ended is
--
(1) A certified copy of the decree of divorce or annulment; or
(2) Evidence the person you married has died (see 404.720).
(c) Other evidence a marriage has ended. If you cannot obtain
preferred evidence the marriage has ended, we will ask you to explain
why and to give us other convincing evidence the marriage has ended.
(43 FR 24795, June 7, 1978, as amended at 44 FR 34493, June 15, 1979)
20 CFR 404.728 Evidence for Child's and Parent's Benefits
20 CFR 404.730 When evidence of a parent or child relationship is
needed.
If you apply for parent's or child's benefits, we will ask for
evidence showing your relationship to the insured person. What evidence
we will ask for depends on whether you are the insured person's natural
parent or child; or whether you are the stepparent, stepchild,
grandchild, stepgrandchild, adopting parent or adopted child.
20 CFR 404.731 Evidence you are a natural parent or child.
If you are the natural parent of the insured person, we will ask for
a copy of his or her public or religious birth record made before age 5.
If you are the natural child of the insured person, we will ask for a
copy of your public or religious birth record made before age 5. In
either case, if this record shows the same last name for the insured and
the parent or child, we will accept it as convincing evidence of the
relationship. However, if other evidence raises some doubt about this
record or if the record cannot be gotten, we will ask for other evidence
of the relationship. We may also ask for evidence of marriage of the
insured person or of his or her parent if this is needed to remove any
reasonable doubt about the relationship. To show you are the child of
the insured person, you may be asked for evidence you would be able to
inherit his or her personal property under State law where he or she had
a permanent home (see 404.770). In addition, we may ask for the insured
persons signed statement that you are his or her natural child, or for a
copy of any court order showing the insured has been declared to be your
natural parent or any court order requiring the insured to contribute to
you support because you are his or her son or daughter.
20 CFR 404.732 Evidence you are a stepparent or stepchild.
If you are the stepparent or stepchild of the insured person, we will
ask for the evidence described in 404.731 or 404.733 that which shows
your natural or adoptive relationship to the insured person's husband,
wife, widow, or widower. We will also ask for evidence of the
husband's, wife's, widow's, or widower's marriage to the insured person
-- see 404.725.
20 CFR 404.733 Evidence you are the legally adopting parent or legally
adopted child.
If you are the adopting parent or adopted child, we will ask for the
following evidence:
(a) A copy of the birth certificate made following the adoption; or
if this cannot be gotten, other evidence of the adoption; and, if
needed, evidence of the date of adoption;
(b) If the widow or widower adopted the child after the insured
person died, the evidence described in paragraph (a) of this section;
your written statement whether the insured person was living in the same
household with the child when he or she died (see 404.760); what
support the child was getting from any other person or organization;
and if the widow or widower had a deemed valid marriage with the insured
person, evidence of that marriage -- see 404.727;
(c) If you are the insured's stepchild, grandchild, or stepgrandchild
as well as his or her adopted child, we may also ask you for evidence to
show how you were related to the insured before the adoption.
20 CFR 404.734 Evidence you are an equitably adopted child.
In many States, the law will treat someone as a child of another if
he or she agreed to adopt the child, the natural parents or the person
caring for the child were parties to the agreement, he or she and the
child then lived together as parent and child, and certain other
requirements are met. If you are a child who had this kind or
relationship to the insured person (or to the insured persons's wife,
widow, or husband), we will ask for evidence of the agreement if it is
in writing. If it is not in writing or cannot be gotten, other evidence
may be accepted. Also, the following evidence will be asked for:
Written statements of your natural parents and the adopting parents and
other evidence of the child's relationship to the adopting parents.
20 CFR 404.735 Evidence you are the grandchild or stepgrandchild.
If you are the grandchild or stepgrandchild of the insured person, we
will ask you for the kind of evidence described in 404.731 through
404.733 that shows your relationship to your parent and your parent's
relationship to the insured.
20 CFR 404.736 Evidence of a child's dependency.
(a) When evidence of a child's dependency is needed. If you apply
for child's benefit's we may ask for evidence you were the insured
person's dependent at a specific time -- usually the time you applied or
the time the insured died or became disabled. What evidence we ask for
depends upon how you are related to the insured person.
(b) Natural or adopted child. If you are the insured person's
natural or adopted child, we may ask for the following evidence:
(1) A signed statement by someone who knows the facts that confirms
this relationship and which shows whether you were legally adopted by
someone other than the insured. If you were adopted by someone else
while the insured person was alive, but the adoption was annulled, we
may ask for a certified copy of the annulment decree or other convincing
evidence of the annulment.
(2) A signed statement by someone in a position to know showing when
and where you lived with the insured and when and why you may have lived
apart; and showing what contributions the insured made to your support
and when and how they were made.
(c) Stepchild. If you are the insured person's stepchild, we will
ask for the following evidence:
(1) A signed statement by someone in a position to know -- showing
when and where you lived with the insured and when and why you may have
lived apart.
(2) A signed statement by someone in a position to know showing you
received at least one-half of your support from the insured for the
one-year period ending at one of the times mentioned in paragraph (a) of
this section; and the income end support you had in this period from
any other source.
(d) Grandchild or Stepgrandchild. If you are the insured person's
grandchild or stepgrandchild, we will ask for evidence described in
paragraph (c) of this section showing that you were living together with
the insured and receiving one-half of your support from him or her for
the year before the insured became entitled to benefits or to a period
of disability, or died. We will also ask for evidence of your parent's
death or disability.
20 CFR 404.745 Evidence of school attendance for child age 18 or older.
If you apply for child's benefits as a student age 18 or over, we may
ask for evidence you are attending school. We may also ask for evidence
from the school you attend showing your status at the school. We will
ask for the following evidence:
(a) Your signed statement that you are attending school full-time and
are not being paid by an employer to attend school.
(b) If you apply before the school year has started and the school is
not a high school, a letter of acceptance from the school, receipted
bill, or other evidence showing you have enrolled or been accepted at
that school.
20 CFR 404.750 Evidence of a parent's support.
If you apply for parent's benefits, we will ask you for evidence to
show that you received at least one-half of your support from the
insured person in the one-year period before he or she died or became
disabled. We may also ask others who know the facts for a signed
statement about your sources of support. We will ask you for the
following evidence:
(a) The parent's signed statement showing his or her income, any
other sources of support, and the amount from each source over the
one-year period.
(b) If the statement described in paragraph (a) of this section
cannot be obtained, other convincing evidence that the parent received
one-half of his or her support from the insured person.
20 CFR 404.750 Other Evidence Requirements
20 CFR 404.760 Evidence of living in the same household with insured
person.
If you apply for the lump-sum death payment as the insured person's
widow or widower, or for wife's, husband's, widow's, or widower's
benefits based upon a deemed valid marriage as described in 404.727, we
will ask for evidence you and the insured were living together in the
same household when he or she died; or if the insured is alive, when
you applied for benefits. We will ask for the following as evidence of
this:
(a) If the insured person is living, his or her signed statement and
yours showing whether you were living together when you applied for
benefits.
(b) If the insured person is dead, your signed statement showing
whether you were living together when he or she died.
(c) If you and the insured person were temporarily living apart, a
signed statement explaining where each was living, how long the
separation lasted, and why you were separated. If needed to remove any
reasonable doubts about this, we may ask for the signed statements of
others in a position to know, or for other convincing evidence you and
the insured were living together in the same household.
20 CFR 404.762 Evidence of having a child in your care.
If you are under age 65 and apply for wife's benefits based upon
caring for a child, or for mother's benefits as a widow or divorced
wife, or for father's benefits as a widower, we will ask for evidence
that you have the insured person's child in your care. What evidence we
will ask for depends upon whether the child is living with you or with
someone else. You will be asked to give the following evidence:
(a) If the child is living with you, your signed statement showing
that the child is living with you.
(b) If the child is living with someone else --
(1) Your signed statement showing with whom he or she is living and
why he or she is living with someone else. We will also ask when he or
she last lived with you and how long this separation will last, and what
care and contributions you provide for the child;
(2) The signed statement of the one with whom the child is living
showing what care you provide and the sources and amounts of support
received for the child. If the child is in an institution, an official
there should sign the statement. These statements are preferred
evidence. If there is a court order or written agreement showing who
has custody of the child, you may be asked to give us a copy; and
(3) If you cannot get the preferred evidence described in paragraph
(b)(2) of this section, we will ask for other convincing evidence that
the child is in your care.
20 CFR 404.765 Evidence of responsibility for or payment of burial
expenses.
(a) When evidence of burial expenses is needed. If you apply for the
lump-sum death payment because you are responsible for paying the
funeral home or burial expenses of the insured or because you have paid
some or all of these expenses, we will ask for evidence of this.
(b) What evidence is needed. We will ask for the following evidence:
(1) Your signed statement showing --
(i) You accepted responsibility for the funeral home expenses or paid
some or all of these expenses or other burial expenses; your
relationship to the insured person; and, if you are not related by
blood or marriage, why you accepted responsibility for, or paid, these
expenses;
(ii) Total funeral home expenses and, if necessary, the total of
other burial expenses; and if someone else paid part of the expenses,
the person's name, address, relationship to the insured person, and
amount he or she paid;
(iii) The amount of cash or property you expect to receive as
repayment for any burial expenses you paid; and whether anyone has
applied for or will apply for any burial allowance from the Veterans
Administration or other Federal agency for these expenses; and
(iv) If you are applying as an owner or official of a funeral home, a
signed statement from anyone, other than an employee of the home, who
helped make the burial arrangements showing whether he or she accepted
responsibility for paying the burial expenses; and
(2) Unless you are applying as an owner or official of a funeral
home, a signed statement from the owner or official and, if necessary,
from those who supplied other burial goods or services which shows --
(i) The name, address, and relationship to the insured person of
everyone who accepted responsibility for, or paid any part of, the
burial expenses; and
(ii) Information the owner or official of the funeral home and, if
necessary, the supplier has about the expenses and payments mentioned in
paragraphs (b)(1)(ii) and (b)(1)(iii) of this section.
20 CFR 404.770 Evidence of where the insured person had a permanent
home.
(a) When evidence of the insured's permanent home is needed. We may
ask for evidence of where the insured person's permanent home was at the
time you applied or, if earlier, the time he or she died if --
(1) You apply for benefits as the insured's wife, husband, widow,
widower, parent or child; and
(2) Your relationship to the insured depends upon the State law that
would be followed in the place where the insured had his or her
permanent home when you applied for benefits or when he or she died.
(b) What evidence is needed. We will ask for the following evidence
of the insured person's permanent home:
(1) Your signed statement showing where the insured considered his
permanent home to be.
(2) If the statement in paragraph (b)(1) of this section or other
evidence we have raises a reasonable doubt about where the insured's
permanent home was, evidence of where he or she paid personal, property,
or income taxes, or voted; or other convincing evidence of where his or
her permanent home was.
20 CFR 404.780 Evidence of ''good cause'' for exceeding time limits on
accepting proof of support or application for a lump-sum death payment.
(a) When evidence of good cause is needed. We may ask for evidence
that you had good cause (as defined in 404.370(f)) for not giving us
sooner proof of the support you received from the insured as his or her
parent. We may also ask for evidence that you had good cause (as
defined in 404.621(b)) for not applying sooner for the lump-sum death
payment. You may be asked for evidence of good cause for these delays
if --
(1) You are the insured person's parent giving us proof of support
more than 2 years after he or she died, or became disabled; or
(2) You are applying for the lump-sum death payment more than 2 years
after the insured died.
(b) What evidence of good cause is needed. We will ask for the
following evidence of good cause:
(1) Your signed statement explaining why you did not give us the
proof of support or the application for lump-sum death payment within
the specified 2 year period.
(2) If the statement in paragraph (b)(1) of the section or other
evidence raises a reasonable doubt whether there was good cause, other
convincing evidence of this.
(43 FR 24795, June 7, 1978, as amended at 44 FR 34493, June 15, 1979)
20 CFR 404.780 Subpart I -- Records of Earnings
Authority: Secs. 205(a), (c)(1), (c)(2)(A), (c)(4), (c)(5), (c)(6),
and (p), 1102 and 1143 of the Social Security Act; 42 U.S.C. 405(a),
(c)(1), (c)(2)(A), (c)(4), (c)(5), (c)(6), and (p), 1302, and 1320b-13.
Source: 44 FR 38454, July 2, 1979, unless otherwise noted.
20 CFR 404.780 General Provisions
20 CFR 404.801 Introduction.
The Social Security Administration (SSA) keeps a record of the
earnings of all persons who work in employment or self-employment
covered under social security. We use these earnings records to
determine entitlement to and the amount of benefits that may be payable
based on a person's earnings under the retirement, survivors',
disability and health insurance program. This subpart tells what is
evidence of earnings, how you can find out what the record of your
earnings shows, and how and under what circumstances the record of your
earnings may be changed to correct errors.
20 CFR 404.802 Definitions.
For the purpose of this subpart --
Earnings means wages and self-employment income earned by a person
based on work covered by social security. (See subpart K for the rules
about what constitutes wages and self-employment income for benefit
purposes.)
Period means a taxable year when referring to self-employment income.
When referring to wages it means a calendar quarter if the wages were
reported or should have been reported quarterly by your employer or a
calendar year if the wages were reported or should have been reported
annually by your employer.
Record of earnings, earnings record, or record means SSA's records of
the amounts of wages paid to you and the amounts of self-employment
income you received, the periods in which the wages were paid and the
self-employment income was received, and the quarters of coverage which
you earned based on these earnings.
Survivor means your spouse, divorced wife, child, or parent, who
survives you. Survivor also includes your surviving divorced wife who
may be entitled to benefits as a surviving divorced mother.
Tax return means, as appropriate, a tax return of wages or a tax
return of self-employment income (including information returns and
other written statements filed with the Commissioner of Internal Revenue
under chapter 2 or 21 of the Internal Revenue Code of 1954, as amended).
Time limit means a period of time 3 years, 3 months, and 15 days
after any year in which you received earnings. The period may be
extended by the Soldiers and Sailors Relief Act of 1940 because of your
military service or the military service of certain relatives who
survive you (50 U.S.C. App. 501 and following sections). Where the time
limit ends on a Federal nonwork day, we will extend it to the next
Federal work day.
Wage report means a statement filed by a State under section 218 of
the Social Security Act or related regulations. This statement includes
wage amounts for which a State is billed and wage amounts for which
credits or refunds are made to a State according to an agreement under
section 218 of the Act.
We, us, or our means the Social Security Administration (SSA).
Year means a calendar year when referring to wages and a taxable year
when referring to self-employment income.
You or your means any person for whom we maintain a record of
earnings.
20 CFR 404.803 Conclusiveness of the record of your earnings.
(a) Generally. For social security purposes, SSA records are
evidence of the amounts of your earnings and the periods in which they
were received.
(b) Before time limit ends. Before the time limit ends for a year,
SSA records are evidence, but not conclusive evidence, of the amounts
and periods of your earnings in that year.
(c) After time limit ends. After the time limit ends for a year --
(1) If SSA records show an entry of self-employment income or wages
for an employer for a period in that year, our records are conclusive
evidence of your self-employment income in that year or the wages paid
to you by that employer and the periods in which they were received
unless one of the exceptions in 404.822 applies;
(2) If SSA records show no entry of wages for an employer for a
period in that year, our records are conclusive evidence that no wages
were paid to you by that employer in that period unless one of the
exceptions in 404.822 applies; and
(3) If SSA records show no entry of self-employment income for that
year, our records are conclusive evidence that you did not receive
self-employement income in that year unless the exception in
404.822(b)(2) (i) or (iii) applies.
20 CFR 404.803 Obtaining Earnings Information
20 CFR 404.810 How to obtain a statement of earnings and a benefit
estimate statement.
(a) Right to a statement of earnings and a benefit estimate. You or
your legal representative or, after your death, your survivor or the
legal representative of your estate may obtain a statement of your
earnings as shown on our records at the time of the request. If you
have a social security number and have wages or net earnings from
self-employment, you may also request and receive an earnings statement
that will include an estimate of the monthly old-age, disability,
dependents', and survivors' insurance benefits potentially payable on
your earnings record, together with a description of the benefits
payable under the medicare program. You may request these statements by
writing, calling, or visiting a social security office.
(b) Contents of request. When you request a statement of your
earnings, we will ask you to complete a prescribed form, giving us your
name, social security number, date of birth, and sex. You, your
authorized representative or, after your death, your survivor or the
legal representative of your estate will be asked to sign and date the
form. If you are requesting an estimate of the monthly benefits
potentially payable on your earnings record, we will also ask you to
give us the amount of your earnings for the last year, an estimate of
your earnings for the current year, an estimate of your earnings for
future years before your planned retirement, and the age at which you
plan to retire, so that we can give you a more realistic estimate of the
benefits that may be payable on your record. A request for a statement
of earnings and a benefit estimate not made on the prescribed form will
be accepted if the request is in writing, is signed and dated by the
appropriate individual noted above, and contains all the information
that is requested on the prescribed form.
(57 FR 54919, Nov. 23, 1992)
20 CFR 404.811 The statement of earnings and benefit estimate.
(a) General. After receiving a request for a statement of earnings
and the information we need to comply with the request, we will provide
you or your authorized representative a statement of the earnings
credited to your record at the time of your request. In addition, we
will include estimates of the benefits potentially payable on your
record with the statement of earnings. If we are unable to provide all
this information, we will explain why we are unable to do so.
(b) Contents of statement of earnings and benefit estimate. A
statement of your earnings that includes an estimate of the monthly
benefits potentially payable on your record will contain the following
information:
(1) The social security taxed earnings you have received as shown by
our records as of the date of your request;
(2) An estimate of the social security and medicare hospital
insurance taxes you have paid as shown on our records as of the date of
your request;
(3) The number of credits, i.e., quarters of coverage, not exceeding
40, you have for both social security and medicare health insurance
purposes;
(4) The total number of credits, i.e., quarters of coverage, you must
have for social security benefits;
(5) An estimate of the monthly old-age, disability, dependents', and
survivors' insurance benefits potentially payable on your record;
(6) A description of the benefits payable under the medicare program;
and
(7) A statement of your right to request a correction of your
earnings record.
(57 FR 54919, Nov. 23, 1992)
20 CFR 404.811 Correcting the Earnings Records
20 CFR 404.820 Filing a request for correction of the record of your
earnings.
(a) When to file a request for correction. You or your survivor must
file a request for correction of the record of your earnings within the
time limit for the year being questioned unless one of the exceptions in
404.822 applies.
(b) Contents of a request. (1) A request for correction of an
earnings record must be in writing and must state that the record is
incorrect.
(2) A request must be signed by you or your survivor or by a person
who may sign an application for benefits for you or for your survivor as
described in 404.612.
(3) A request should state the period being questioned.
(4) A request should describe, or have attached to it, any available
evidence which shows that the record of earnings is incorrect.
(c) Where to file a request. A request may be filed with an SSA
employee at one of our offices or with an SSA employee who is authorized
to receive a request at a place other than one of our offices. A
request may be filed with the Veterans Administration Regional Office in
the Philippines or with any U.S. Foreign Service Office.
(d) When a request is considered filed. A request is considered
filed on the day it is received by any of our offices, by an authorized
SSA employee, by the Veterans Administration Regional Office in the
Philippines, or by any U.S. Foreign Service Office. If using the date
we receive a mailed request disadvantages the requester, we will use the
date the request was mailed to us as shown by a U.S. postmark. If the
postmark is unreadable or there is no postmark, we will consider other
evidence of the date when the request was mailed.
(e) Withdrawal of a request for correction. A request for correction
of SSA records of your earnings may be withdrawn as described in
404.640.
(f) Cancellation of a request to withdraw. A request to withdraw a
request for correction of SSA records of your earnings may be cancelled
as described in 404.641.
(g) Determinations on requests. When we receive a request described
in this section, we will make a determination to grant or deny the
request. If we deny the request, this determination may be appealed
under the provisions of subpart J of this part.
20 CFR 404.821 Correction of the record of your earnings before the
time limit ends.
Before the time limit ends for any year, we will correct the record
of your earnings for that year for any reason if satisfactory evidence
shows SSA records are incorrect. We may correct the record as the
result of a request filed under 404.820 or we may correct it on our
own.
20 CFR 404.822 Correction of the record of your earnings after the time
limit ends.
(a) Generally. After the time limit for any year ends, we may
correct the record of your earnings for that year if satisfactory
evidence shows SSA records are incorrect and any of the circumstances in
paragraphs (b) through (e) of this section applies.
(b) Correcting SSA records to agree with tax returns. We will
correct SSA records to agree with a tax return of wages or
self-employment income to the extent that the amount of earnings shown
in the return is correct.
(1) Tax returns of wages. We may correct the earnings record to
agree with a tax return of wages or with a wage report of a State.
(2) Tax returns of self-employment income -- (i) Return filed before
the time limit ended. We may correct the earnings record to agree with
a tax return of self-employment income filed before the end of the time
limit.
(ii) Return filed after time limit ended. We may remove or reduce,
but not increase, the amount of self-employment income entered on the
earnings record to agree with a tax return of self-employment income
filed after the time limit ends.
(iii) Self-employment income entered in place of erroneously entered
wages. We may enter self-employment income for any year up to an amount
erroneously entered in SSA records as wages but which was later removed
from the records. However, we may enter self-employment income under
this paragraph only if --
(A) An amended tax return is filed before the time limit ends for the
year in which the erroneously entered wages were removed; or
(B) Net earnings from self-employment, which are not already entered
in the record of your earnings, were included in a tax return filed
before the end of the time limit for the year in which the erroneously
entered wages were removed.
(c) Written request for correction or application for benefits filed
before the time limit ends -- (1) Written request for correction. We
may correct an earnings record if you or your survivor files a request
for correction before the time limit for that year ends. The request
must state that the earnings record for that year is incorrect.
However, we may not correct the record under this paragraph after our
determination on the request becomes final.
(2) Application for benefits. We may correct an earnings record if
an application is filed for monthly benefits or for a lump-sum death
payment before the time limit for that year ends. However, we may not
correct the record under this paragraph after our determination on the
application becomes final.
(3) See subpart J for the rules on the finality of determinations.
(d) Transfer of wages to or from the Railroad Retirement Board -- (1)
Wages erroneously reported. We may transfer to or from the records of
the Railroad Retirement Board earnings which were erroneously reported
to us or to the Railroad Retirement Board.
(2) Earnings certified by Railroad Retirement Board. We may enter
earnings for railroad work under subpart O if the earnings are certified
by the Railroad Retirement Board.
(e) Other circumstances permitting correction -- (1) Investigation
started before time limit ends. We may correct an earnings record if
the correction is made as the result of an investigation started before,
but completed after the time limit ends. An investigation is started
when we take an affirmative step leading to a decision on a question
about the earnings record, for example, an investigation is started when
one SSA unit asks another unit to obtain additional information or
evidence. We will remove or reduce earnings on the record under this
paragraph only if we carried out the investigation as promptly as
circumstances permitted.
(2) Error apparent on face of records. We may correct an earnings
record to correct errors, such as mechanical or clerical errors, which
can be identified and corrected without going beyond any of the
pertinent SSA records.
(3) Fraud. We may change any entry which was entered on the earnings
record as the result of fraud.
(4) Entries for wrong person or period. We may correct errors in SSA
records resulting from earnings being entered for the wrong person or
period.
(5) Less than correct wages on SSA records. We may enter wages paid
to you by an employer for a period if no part of those wages or less
than the correct amount of those wages is entered on SSA records.
(6) Wage payments under a statute. We may enter and allocate wages
awarded to you for a period as the result of a determination or
agreement approved by a court or administrative agency that enforces
Federal or State statutes protecting your right to employment or wages.
(44 FR 38454, July 2, 1979, as amended at 57 FR 21600, May 21, 1992)
20 CFR 404.823 Correction of the record of your earnings for work in
the employ of the United States.
We may correct the record of your earnings to remove, reduce, or
enter earnings for work in the employ of the United States only if --
(a) Correction is permitted under 404.821 or 404.822; and
(b) Any necessary determinations concerning the amount of
remuneration paid for your work and the periods for which such
remuneration was paid have been made as shown by --
(1) A tax return filed under section 3122 of the Internal Revenue
Code (26 U.S.C. 3122); or
(2) A certification by the head of the Federal agency or
instrumentality of which you have been an employee or his or her agent.
A Federal instrumentality for these purposes includes a nonappropriated
fund activity of the armed forces or Coast Guard.
(44 FR 38454, July 2, 1979, as amended at 55 FR 24891, June 19, 1990)
20 CFR 404.823 Notice of Removal or Reduction of an Entry of Earnings
20 CFR 404.830 Notice of removal or reduction of your wages.
If we remove or reduce an amount of wages entered on the record of
your earnings, we will notify you of this correction if we previously
notified you of the amount of your wages for the period involved. We
will notify your survivor if we previously notified you or your survivor
of the amount of your earnings for the period involved.
20 CFR 404.831 Notice of removal or reduction of your self-employment
income.
If we remove or reduce an amount of self-employment income entered on
the record of your earnings, we will notify you of this correction. We
will notify your survivor if we previously notified you or your survivor
of the amount of your earnings for the period involved.
20 CFR 404.831 Subpart J -- Determinations, Administrative Review
Process, and Reopening of Determinations and Decisions
Authority: Secs. 201(j), 205(a), (b), (d)-(h), and (j), 221(d), and
1102 of the Social Security Act; 42 U.S.C. 401(j), 405(a), (b),
(d)-(h), and (j), 421(d), and 1302.
Source: 45 FR 52081, Aug. 5, 1980, unless otherwise noted.
20 CFR 404.831 Introduction, Definitions, and Initial Determinations
20 CFR 404.900 Introduction.
(a) Explanation of the administrative review process. This subpart
explains the procedures we follow in determining your rights under title
II of the Social Security Act. The regulations describe the process of
administrative review and explain your right to judicial review after
you have taken all the necessary administrative steps. These procedures
apply also to persons claiming certain benefits under title XVIII of the
Act (Medicare); see 42 CFR 405.701(c). The administrative review
process consists of several steps, which usually must be requested
within certain time periods and in the following order:
(1) Initial determination. This is a determination we make about
your entitlement or your continuing entitlement to benefits or about any
other matter, as discussed in 404.902, that gives you a right to
further review.
(2) Reconsideration. If you are dissatisfied with an initial
determination, you may ask us to reconsider it.
(3) Hearing before an administrative law judge. If you are
dissatisfied with the reconsideration determination, you may request a
hearing before an administrative law judge.
(4) Appeals Council review. If you are dissatisfied with the
decision of the administrative law judge, you may request that the
Appeals Council review the decision.
(5) Federal court review. When you have completed the steps of the
administrative review process listed in paragraphs (a)(1) through (a)(4)
of this section, we will have made our final decision. If you are
dissatisfied with our final decision, you may request judicial review by
filing an action in a Federal district court.
(6) Expedited appeals process. At some time after your initial
determination has been reviewed, if you have no dispute with our
findings of fact and our application and interpretation of the
controlling laws, but you believe that a part of the law is
unconstitutional, you may use the expedited appeals process. This
process permits you to go directly to a Federal district court so that
the constitutional issue may be resolved.
(b) Nature of the administrative review process. In making a
determination or decision in your case, we conduct the administrative
review process in an informal, nonadversary manner. In each step of the
review process, you may present any information you feel is helpful to
your case. Subject to the limitations on Appeals Council consideration
of additional evidence (see 404.970(b) and 404.976(b)), we will
consider at each step of the review process any information you present
as well as all the information in our records. You may present the
information yourself or have someone represent you, including an
attorney. If you are dissatisfied with our decision in the review
process, but do not take the next step within the stated time period,
you will lose your right to further administrative review and your right
to judicial review, unless you can show us that there was good cause for
your failure to make a timely request for review.
(45 FR 52081, Aug. 5, 1980, as amended at 51 FR 300, Jan 3, 1986; 51
FR 8808, Mar. 14, 1986; 52 FR 4004, Feb. 9, 1987)
20 CFR 404.901 Definitions.
As used in this subpart:
Date you receive notice means 5 days after the date on the notice,
unless you show us that you did not receive it within the 5-day period.
Decision means the decision made by an administrative law judge or
the Appeals Council.
Determination means the initial determination or the reconsidered
determination.
Remand means to return a case for further review.
Vacate means to set aside a previous action.
Waive means to give up a right knowingly and voluntarily.
We, us, or our refers to the Social Security Administration.
You or your refers to any person claiming a right under the old age,
disability, dependents' or survivors' benefits program.
20 CFR 404.902 Administrative actions that are initial determinations.
Initial determinations are the determinations we make that are
subject to administrative and judicial review. The initial
determination will state the important facts and give the reasons for
our conclusions. In the old age, survivors' and disability insurance
programs, initial determinations include, but are not limited to,
determinations about --
(a) Your entitlement or your continuing entitlement to benefits;
(b) Your reentitlement to benefits;
(c) The amount of your benefit;
(d) A recomputation of your benefit;
(e) A reduction in your disability benefits because you also receive
benefits under a workmen's compensation law;
(f) A deduction from your benefits on account of work;
(g) A deduction from your disability benefits because you refuse to
accept rehabilitation services;
(h) Termination of your benefits;
(i) Penalty deductions imposed because you failed to report certain
events;
(j) Any overpayment or underpayment of your benefits;
(k) Whether an overpayment of benefits must be repaid to us;
(l) How an underpayment of benefits due a deceased person will be
paid;
(m) The establishment or termination of a period of disability;
(n) A revision of your earnings record;
(o) Whether the payment of your benefits will be made, on your
behalf, to a representative payee, unless you are under age 18 or
legally incompetent;
(p) Who will act as your payee if we determine that representative
payment will be made;
(q) An offset of your benefits under 404.408b because you previously
received supplemental security income payments for the same period;
(r) Whether your completion of or continuation for a specified period
of time in an appropriate vocational rehabilitation program will
significantly increase the likelihood that you will not have to return
to the disability benefit rolls and thus, whether your benefits may be
continued even though you are not disabled;
(s) Nonpayment of your benefits under 404.468 because of your
confinement in a jail, prison, or other penal institution or
correctional facility for conviction of a felony;
(t) Whether or not you have a disabling impairment(s) as defined in
404.1511; and
(u) Nonpayment of your benefits under 404.469 because you have not
furnished us satisfactory proof of your Social Security number, or, if a
Social Security number has not been assigned to you, you have not filed
a proper application for one.
(45 FR 52081, Aug. 5, 1980, as amended at 47 FR 4988, Feb. 3, 1982;
47 FR 31543, July 21, 1982; 49 FR 22272, May 29, 1984; 50 FR 20902,
May 21, 1985; 56 FR 41790, Aug. 23, 1991)
20 CFR 404.903 Administrative actions that are not initial
determinations.
Administrative actions that are not initial determinations may be
reviewed by us, but they are not subject to the administrative review
process provided by this subpart, and they are not subject to judicial
review. These actions include, but are not limited to, an action --
(a) Suspending benefits pending an investigation and determination of
any factual issue relating to a deduction on account of work;
(b) Suspending benefits pending an investigation to determine if your
disability has ceased;
(c) Denying a request to be made a representative payee;
(d) Certifying two or more family members for joint payment of
benefits;
(e) Withholding less than the full amount of your monthly benefit to
recover an overpayment;
(f) Determining the fee that may be charged or received by a person
who has represented you in connection with a proceeding before us;
(g) Disqualifying or suspending a person from acting as your
representative in a proceeding before us (See 404.1745);
(h) Compromising, suspending or terminating collection of an
overpayment under the Federal Claims Collection Act;
(i) Extending or not extending the time to file a report of earnings;
(j) Denying your request to extend the time period for requesting
review of a determination or a decision;
(k) Denying your request to use the expedited appeals process;
(l) Denying your request to reopen a determination or a decision;
and
(m) Withholding temporarily benefits based on a wage earner's
estimate of earnings to avoid creating an overpayment.
(n) Determining whether (and the amount of) travel expenses incurred
are reimbursable in connection with proceedings before us.
(o) Denying your request to readjudicate your claim and apply an
Acquiescence Ruling.
(p) Findings on whether we can collect an overpayment by using the
Federal income tax refund offset procedure. (See 404.523).
(q) Determining whether an organization may collect a fee from you
for expenses it incurred in serving as your representative payee. (See
404.2040a).
(45 FR 52081, Aug. 5, 1980, as amended at 51 FR 8808, Mar. 14, 1986;
55 FR 1018, Jan. 11, 1990; 56 FR 52469, Oct. 21, 1991; 57 FR 23057,
June 1, 1992)
20 CFR 404.904 Notice of the initial determination.
We shall mail a written notice of the initial determination to you at
your last known address. The reasons for the initial determination and
the effect of the initial determination will be stated in the notice.
The notice also informs you of the right to a reconsideration. We will
not mail a notice if the beneficiary's entitlement to benefits has ended
because of his or her death.
(51 FR 300, Jan. 3, 1986)
20 CFR 404.905 Effect of an initial determination.
An initial determination is binding unless you request a
reconsideration within the stated time period, or we revise the initial
determination.
(51 FR 300, Jan. 3, 1986)
20 CFR 404.906 Opportunity for personal appearance interview before
initial disability denial or cessation determination -- demonstration
projects.
(a) Applicability and scope. Notwithstanding any other provision in
this part or part 422, we are establishing the procedures set out in
this section for demonstration projects involving certain initial
determinations about eligibility or continued eligibility for benefits
based on disability. There will be two types of demonstration projects:
projects involving individuals who have applied for benefits but have
not received an initial determination about their eligibility, and
projects involving individuals who have been receiving benefits but
whose condition is being reviewed to determine whether they are still
disabled. Each of the two types of projects will be conducted in at
least five States. Projects may be conducted on a Statewide basis or in
only part of the State. Participants will be selected randomly from
among individuals who will have their initial determinations about
disability made by a State agency (see 404.1503 and 404.1613),
excluding --
(1) Individuals who have been determined not disabled but whose cases
are being reexamined under the new disability standards in accordance
with Pub. L. 98-460;
(2) Beneficiaries whose condition was not expected to improve and
whose continuing disability reviews result in a determination that they
are still disabled without the need for any face-to-face contact with
SSA or the State agency;
(3) Claimants who, after being selected to participate in a project,
move to an area where the State agency is not participating in a project
for claimants;
(4) Beneficiaries who, after being selected to participate in a
project, move to an area where the State agency is not participating in
a project for beneficiaries; and
(5) Individuals the Social Security Administration finds it would be
impractical to include in the projects.
(b) Summary of procedure. The individuals selected to participate
will be given an opportunity, before any initial determination is made
that they are not disabled, for a personal appearance interview with the
State agency disability examiner who, along with a State agency medical
consultant, will make the disability determination. (The rest of this
section will call them the decisionmaking team.) In some locations, a
State agency medical consultant may participate in the interviews
together with the disability examiner, although the rest of this section
will refer to the interviewer(s) as the disability examiner. Medical
examinations will not be conducted as part of the interview process.
The reconsideration level of review will be eliminated for individuals
who are given the opportunity for an interview under the demonstration
projects. Thus, for individuals who are given the opportunity for an
interview, whether or not they take advantage of the opportunity, the
first level of appeal from the initial determination will be a hearing
before an administrative law judge. Determinations for individuals not
included in the projects will be made under current usual procedures.
The demonstration projects will begin as soon as practicable and will
end as soon as a large enough sample of cases is completed to permit
proper evaluation of the demonstration projects, but no later than
December 31, 1987.
(c) Authority and purpose. The demonstration projects are required
by section 6 of Pub. L. 98-460, the Social Security Disability Benefits
Reform Act of 1984. Their purpose is to test whether a face-to-face
interview with the State agency disability examiner at this stage of the
decisionmaking process will result in a better evaluation of the
person's condition, assure that all relevant information is obtained,
and simplify and expedite the decisionmaking process. The projects are
only tests of a different method of getting evidence of disability;
they do not involve changes in standards used for determining whether or
not a person is disabled.
(d) Procedures for cases included in the projects. If you are
selected to participate in the projects, the State agency disability
examiner will review all medical and vocational evidence in your file,
including any you provided and any the State agency obtained, just as
under the usual procedures. If the decisionmaking team then determines
that you are disabled, you will receive a written notice of that
determination as under usual procedures. But if the decisionmaking team
believes the evidence in your file requires a determination that you are
not disabled, they will mail a written notice to you at your last known
address telling you their preliminary conclusion and why they believe
that such a determination is required. The notice will also tell you
that before a formal determination about your disability is made, you
may have an interview with the State agency disability examiner if you
request it within 30 days after the date you receive the notice. The
disability examiner who interviews you may or may not be the same one
who participated in the preliminary conclusion that you are not
disabled. If you make a late request for an interview but show in
writing that you had good cause under the standards in 404.911 for
missing the deadline, the disability examiner will extend the deadline.
If you do not request an interview, or if you requested an interview and
notice of its time and place was mailed to you as provided in this
paragraph (or paragraph (e)(2) of this section) but you do not appear
for the interview, the decisionmaking team will make a determination as
to whether you are disabled based on the evidence in your case file. A
written notice of that determination will be mailed to you at your last
known address. The notice will state the reasons for the determination
and its effect, and will inform you of the right to a hearing before an
administrative law judge. If you do request an interview within the
30-day time period (or within the extended time period if you make a
late request and the disability examiner extends the time period under
the good cause provision as provided above), the disability examiner
will mail a notice to you at your last known address informing you of
the time and place of your interview. The notice will be mailed at
least 20 days before the date of the interview, unless you waive (in
writing) your right to the 20-day advance notice. You should not waive
this right if you need time to get ready for the interview. If you do
waive this right, an interview will be scheduled for you as soon as
possible and a notice of the time and place of your interview will be
mailed to you at your last known address. In this instance, the notice
will be mailed at least 10 days before the date of the interview, unless
arrangements for the interview are made by the telephone as explained in
paragraph (e) of this section. (Approved under OMB control number
0960-0415)
(e) Interviews scheduled by telephone. Notwithstanding paragraph (d)
of this section, occasionally, for the convenience of all parties
involved and as a means of processing your case sooner, arrangements for
the time and place of the interview may be made by telephone. If such
arrangements are made and the interview is scheduled for a date not less
than 5 days from the date of the telephone arrangements, a notice will
be mailed to you at your last known address, confirming the time and
place of the interview. If an interview is scheduled for a date less
than 5 days from the date of the telephone arrangements, a notice
confirming the interview will not be mailed to you. If an interview is
scheduled by telephone and you do not appear for the interview, one of
the following actions will be taken:
(1) If a notice of the time and place of the interview was not mailed
at least 20 days before the scheduled date of the interview and you did
not waive (in writing) your right to the 20-day advance notice explained
in paragraph (d) of this section, the disability examiner will
automatically schedule another interview for you. A notice informing
you of the time and place of the rescheduled interview will be mailed to
you at your last known address. The notice will be mailed at least 20
days before the date of the interview.
(2) If a notice of the time and place of the interview was mailed to
you, and you waived (in writing) your right to the 20-day advance notice
explained in paragraph (d) of this section, the decisionmaking team will
make a determination as to whether you are disabled based on the
evidence in your case. A written notice of that determination will be
mailed to you at your last known address.
(3) If a notice of the time and place of the interview was not mailed
to you, and you waived (in writing) your right to the 20-day advance
notice explained in paragraph (d) of this section, the disability
examiner will automatically schedule another interview for you. A
notice informing you of the time and place of the rescheduled interview
will be mailed to you at your last known address. The notice will be
mailed at least 10 days before the date of the interview.
(f) Change in time or place of interview. If you are unable to
travel or have some other reason why you cannot attend your interview at
the scheduled time or place, you should request at the earliest possible
date that the time or place be changed. The disability examiner will
change the time or place if there is good cause for doing so under the
standards in 404.936 (c) and (d).
(g) Your rights. In connection with your interview --
(1) You may request that we or the State agency assist you in
obtaining pertinent evidence about your disability;
(2) You may have a representative, appointed under subpart R of this
part, at your interview, or you may represent yourself;
(3) You or your representative may review the evidence in your case
file, either on the date of your interview or at an earlier time at your
request;
(4) You or your representative may present additional evidence and
bring witnesses to support your case at your interview; and
(5) You, your representative, and your witnesses may be eligible for
reimbursement under the State agency's rules for travel expenses
incurred in connection with your interview if the distance from the
person's residence or office (whichever he or she travels from) to the
interview site exceeds 75 miles.
(h) After your interview. At your request, the disability examiner
may allow up to 15 days after your interview for receipt of evidence
which was not available at the time of the interview. The disability
examiner may also obtain additional evidence, including a consultative
medical examination as described in 404.1517 or a report from your
treating physician, after the interview if he or she believes it is
necessary for a sound determination. The decisionmaking team will then
determine whether you are disabled. A written notice of the
determination made in your case will be mailed to you at your last known
address. The notice will state the reasons for the determination and
its effect, and will inform you of the right to a hearing before an
administrative law judge.
(i) Effect of the State agency's determination for project
participants. The State agency decisionmaking team's determination is
an initial determination that is binding unless --
(1) You request a hearing before an administrative law judge within
the time period described in paragraph (j) of this section, and a
decision is made; or
(2) The initial determination is revised as provided in 404.987.
(j) Appeal rights for project participants. If you were given the
opportunity for an interview (whether or not you requested or appeared
for the interview) and you are dissatisfied with the initial
determination, you may request a hearing before an administrative law
judge. You must file your request for this hearing within 60 days after
the date you receive notice of the initial determination (or within the
extended time period if we extend the time as provided in 404.933(c)).
Section 404.933 explains how to request a hearing before an
administrative law judge. (See 404.929-404.961 for the rules
concerning administrative law judge hearings.)
(Approved by the Office of Management and Budget under control number
0960-0415)
(51 FR 15471, Apr. 24, 1986)
20 CFR 404.906 Reconsideration
20 CFR 404.907 Reconsideration -- general.
Reconsideration is the first step in the administrative review
process that we provide if you are dissatisfied with the initial
determination. If you are dissatisfied with our reconsidered
determination, you may request a hearing before an administrative law
judge.
(51 FR 300, Jan. 3, 1986)
20 CFR 404.908 Parties to a reconsideration.
(a) Who may request a reconsideration. If you are dissatisfied with
the initial determination, you may request that we reconsider it. In
addition, a person who shows in writing that his or her rights may be
adversely affected by the initial determination may request a
reconsideration.
(b) Who are parties to a reconsideration. After a request for the
reconsideration, you and any person who shows in writing that his or her
rights are adversely affected by the initial determination will be
parties to the reconsideration.
20 CFR 404.909 How to request reconsideration.
(a) We shall reconsider an initial determination if you or any other
party to the reconsideration files a written request --
(1) Within 60 days after the date you receive notice of the initial
determination (or within the extended time period if we extend the time
as provided in paragraph (b) of this section);
(2) At one of our offices, the Veterans Administration Regional
Office in the Philippines, or an office of the Railroad Retirement Board
if you have 10 or more years of service in the railroad industry.
(b) Extension of time to request a reconsideration. If you want a
reconsideration of the initial determination but do not request one in
time, you may ask us for more time to request a reconsideration. Your
request for an extension of time must be in writing and must give the
reasons why the request for reconsideration was not filed within the
stated time period. If you show us that you had good cause for missing
the deadline, we will extend the time period. To determine whether good
cause exists, we use the standards explained in 404.911.
20 CFR 404.911 Good cause for missing the deadline to request review.
(a) In determining whether you have shown that you had good cause for
missing a deadline to request review we consider --
(1) What circumstances kept you from making the request on time;
(2) Whether our action misled you;
(3) Whether you did not understand the requirements of the Act
resulting from amendments to the Act, other legislation, or court
decisions.
(b) Examples of circumstances where good cause may exist include, but
are not limited to, the following situations:
(1) You were seriously ill and were prevented from contacting us in
person, in writing, or through a friend, relative, or other person.
(2) There was a death or serious illness in your immediate family.
(3) Important records were destroyed or damaged by fire or other
accidental cause.
(4) You were trying very hard to find necessary information to
support your claim but did not find the information within the stated
time periods.
(5) You asked us for additional information explaining our action
within the time limit, and within 60 days of receiving the explanation
you requested reconsideration or a hearing, or within 30 days of
receiving the explanation you requested Appeal Council review or filed a
civil suit.
(6) We gave you incorrect or incomplete information about when and
how to request administrative review or to file a civil suit.
(7) You did not receive notice of the determination or decision.
(8) You sent the request to another Government agency in good faith
within the time limit and the request did not reach us until after the
time period had expired.
(9) Unusual or unavoidable circumstances exist which show that you
could not have known of the need to file timely, or which prevented you
from filing timely.
20 CFR 404.913 Reconsideration procedures.
(a) Case review. With the exception of the type of case described in
paragraph (b) of this section, the reconsideration process consists of a
case review. Under a case review procedure, we will give you and the
other parties to the reconsideration an opportunity to present
additional evidence to us. The official who reviews your case will then
make a reconsidered determination based on all of this evidence.
(b) Disability hearing. If you have been receiving benefits based on
disability and you request reconsideration of an initial or revised
determination that, based on medical factors, you are not now disabled,
we will give you and the other parties to the reconsideration an
opportunity for a disability hearing. (See 404.914 through 404.918.)
(51 FR 300, Jan. 3, 1986)
20 CFR 404.914 Disability hearing -- general.
(a) Availability. We will provide you with an opportunity for a
disability hearing if:
(1) You have been receiving benefits based on a medical impairment
that renders you disabled;
(2) We have made an initial or revised determination based on medical
factors that you are not now disabled because your impairment:
(i) Has ceased;
(ii) Did not exist; or
(iii) Is no longer disabling; and
(3) You make a timely request for reconsideration of the initial or
revised determination.
(b) Scope. The disability hearing will address only the initial or
revised determination, based on medical factors, that you are not now
disabled. Any other issues which arise in connection with your request
for reconsideration will be reviewed in accordance with the
reconsideration procedures described in 404.913(a).
(c) Time and place -- (1) General. Either the State agency or the
Director of the Office of Disability Hearings or his or her delegate, as
appropriate, will set the time and place of your disability hearing. We
will send you a notice of the time and place of your disability hearing
at least 20 days before the date of the hearing. You may be expected to
travel to your disability hearing. (See 404.999a-404.999d regarding
reimbursement for travel expenses.)
(2) Change of time or place. If you are unable to travel or have
some other reason why you cannot attend your disability hearing at the
scheduled time or place, you should request at the earliest possible
date that the time or place of your hearing be changed. We will change
the time or place if there is good cause for doing so under the
standards in 404.936 (c) and (d).
(d) Combined issues. If a disability hearing is available to you
under paragraph (a) of this section, and you file a new application for
benefits while your request for reconsideration is still pending, we may
combine the issues on both claims for the purpose of the disability
hearing and issue a combined initial/reconsidered determination which is
binding with respect to the common issues on both claims.
(e) Definition. For purposes of the provisions regarding disability
hearings ( 404.914 through 404.918) we, us or our means the Social
Security Administration or the State agency.
(51 FR 300, Jan. 3, 1986, as amended at 51 FR 8808, Mar. 14, 1986)
20 CFR 404.915 Disability hearing -- disability hearing officers.
(a) General. Your disability hearing will be conducted by a
disability hearing officer who was not involved in making the
determination you are appealing. The disability hearing officer will be
an experienced disability examiner, regardless of whether he or she is
appointed by a State agency or by the Director of the Office of
Disability Hearings or his or her delegate, as described in paragraphs
(b) and (c) below.
(b) State agency hearing officers -- (1) Appointment of State agency
hearing officers. If a State agency made the initial or revised
determination that you are appealing, the disability hearing officer who
conducts your disability hearing may be appointed by a State agency. If
the disability hearing officer is appointed by a State agency, that
individual will be employed by an adjudicatory unit of the State agency
other than the adjudicatory unit which made the determination you are
appealing.
(2) State agency defined. For purposes of this subpart, State agency
means the adjudicatory component in the State which issues disability
determinations.
(c) Federal hearing officers. The disability hearing officer who
conducts your disability hearing will be appointed by the Director of
the Office of Disability Hearings or his or her delegate if:
(1) A component of our office other than a State agency made the
determination you are appealing; or
(2) The State agency does not appoint a disability hearing officer to
conduct your disability hearing under paragraph (b) of this section.
(51 FR 301, Jan. 3, 1986)
20 CFR 404.916 Disability hearing -- procedures.
(a) General. The disability hearing will enable you to introduce
evidence and present your views to a disability hearing officer if you
are dissatisfied with an initial or revised initial determination, based
on medical factors, that you are not now disabled as described in
404.914(a)(2).
(b) Your procedural rights. We will advise you that you have the
following procedural rights in connection with the disability hearing
process:
(1) You may request that we assist you in obtaining pertinent
evidence for your disability hearing and, if necessary, that we issue a
subpoena to compel the production of certain evidence or testimony. We
will follow subpoena procedures similar to those described in
404.950(d) for the administrative law judge hearing process;
(2) You may have a representative at the hearing appointed under
subpart R of this part, or you may represent yourself;
(3) You or your representative may review the evidence in your case
file, either on the date of your hearing or at an earlier time at your
request, and present additional evidence;
(4) You may present witnesses and question any witnesses at the
hearing;
(5) You may waive your right to appear at the hearing. If you do not
appear at the hearing, the disability hearing officer will prepare and
issue a written reconsidered determination based on the information in
your case file.
(c) Case preparation. After you request reconsideration, your case
file will be reviewed and prepared for the hearing. This review will be
conducted in the component of our office (including a State agency) that
made the initial or revised determination, by personnel who were not
involved in making the initial or revised determination. Any new
evidence you submit in connection with your request for reconsideration
will be included in this review. If necessary, further development of
the evidence, including arrrangements for medical examinations, will be
undertaken by this component. After the case file is prepared for the
hearing, it will be forwarded by this component to the disability
hearing officer for a hearing. If necessary, the case file may be sent
back to this component at any time prior to the issuance of the
reconsidered determination for additional development. Under paragraph
(d) of this section, this component has the authority to issue a
favorable reconsidered determination at any time in its development
process.
(d) Favorable reconsideration determination without a hearing. If
all the evidence in your case file supports a finding that you are now
disabled, either the component that prepares your case for hearing under
paragraph (c) or the disability hearing officer will issue a written
favorable reconsideration determination, even if a disability hearing
has not yet been held.
(e) Opportunity to submit additional evidence after the hearing. At
your request, the disability hearing officer may allow up to 15 days
after your disability hearing for receipt of evidence which is not
available at the hearing, if:
(1) The disability hearing officer determines that the evidence has a
direct bearing on the outcome of the hearing; and
(2) The evidence could not have been obtained before the hearing.
(f) Opportunity to review and comment on evidence obtained or
developed by us after the hearing. If, for any reason, additional
evidence is obtained or developed by us after your disability hearing,
and all evidence taken together can be used to support a reconsidered
determination that is unfavorable to you with regard to the medical
factors of eligibility, we will notify you, in writing, and give you an
opportunity to review and comment on the additional evidence. You will
be given 10 days from the date you receive our notice to submit your
comments (in writing or, in appropriate cases, by telephone), unless
there is good cause for granting you additional time, as illustrated by
the examples in 404.911(b). Your comments will be considered before a
reconsidered determination is issued. If you believe that it is
necessary to have further opportunity for a hearing with respect to the
additional evidence, a supplementary hearing may be scheduled at your
request. Otherwise, we will ask for your written comments on the
additional evidence, or, in appropriate cases, for your telephone
comments.
(51 FR 301, Jan. 3, 1986)
20 CFR 404.917 Disability hearing -- disability hearing officer's
reconsidered determination.
(a) General. The disability hearing officer who conducts your
disability hearing will prepare and will also issue a written
reconsidered determination, unless:
(1) The disability hearing officer sends the case back for additional
development by the component that prepared the case for the hearing, and
that component issues a favorable determination, as permitted by
404.916(c);
(2) It is determined that you are engaging in substantial gainful
activity and that you are therefore not disabled; or
(3) The reconsidered determination prepared by the disability hearing
officer is reviewed under 404.918.
(b) Content. The disability hearing officer's reconsidered
determination will give the findings of fact and the reasons for the
reconsidered determination. The reconsidered determination must be
based on evidence offered at the disability hearing or otherwise
included in the case file.
(c) Notice. We will mail you and the other parties a notice of
reconsidered determination in accordance with 404.922.
(d) Effect. The disability hearing officer's reconsidered
determination, or, if it is changed under 404.918, the reconsidered
determination that is issued by the Director of the Office of Disability
Hearings or his or her delegate, is binding in accordance with 404.921,
subject to the exceptions specified in that section.
(51 FR 302, Jan. 3, 1986)
20 CFR 404.918 Disability hearing -- review of the disability hearing
officer's reconsidered determination before it is issued.
(a) General. The Director of the Office of Disability Hearings or
his or her delegate may select a sample of disability hearing officers'
reconsidered determinations, before they are issued, and review any such
case to determine its correctness on any grounds he or she deems
appropriate. The Director or his or her delegate shall review any case
within the sample if:
(1) There appears to be an abuse of discretion by the hearing
officer;
(2) There is an error of law; or
(3) The action, findings or conclusions of the disability hearing
officer are not supported by substantial evidence.
If the review indicates that the reconsidered determination prepared
by the disability hearing officer is correct, it will be dated and
issued immediately upon completion of the review. If the reconsidered
determination prepared by the disability hearing officer is found by the
Director or his or her delegate to be deficient, it will be changed as
described in paragraph (b) of this section.
(b) Methods of correcting deficiencies in the disability hearing
officer's reconsidered determination. If the reconsidered determination
prepared by the disability hearing officer is found by the Director or
his or her delegate to be deficient, the Director of the Office of
Disability Hearings or his or her delegate will take appropriate action
to assure that the deficiency is corrected before a reconsidered
determination is issued. The action taken by the Director or his or her
delegate will take one of two forms:
(1) The Director or his or her delegate may return the case file
either to the component responsible for preparing the case for hearing
or to the disability hearing officer, for appropriate further action;
or
(2) The Director or his or her delegate may issue a written
reconsidered determination which corrects the deficiency.
(c) Further action on your case if it is sent back by the Director or
his or her delegate either to the component that prepared your case for
hearing or to the disability hearing officer. If the Director of the
Office of Disability Hearings or his or her delegate sends your case
back either to the component responsible for preparing the case for
hearing or to the disability hearing officer for appropriate further
action, as provided in paragraph (b)(1) of this section, any additional
proceedings in your case will be governed by the disability hearing
procedures described in 404.916(f) or if your case is returned to the
disability hearing officer and an unfavorable determination is
indicated, a supplementary hearing may be scheduled for you before a
reconsidered determination is reached in your case.
(d) Opportunity to comment before the Director or his or her delegate
issues a reconsidered determination that is unfavorable to you. If the
Director of the Office of Disability Hearings or his or her delegate
proposes to issue a reconsidered determination as described in paragraph
(b)(2) of this section, and that reconsidered determination is
unfavorable to you, he or she will send you a copy of the proposed
reconsidered determination with an explanation of the reasons for it,
and will give you an opportunity to submit written comments before it is
issued. At your request, you will also be given an opportunity to
inspect the pertinent materials in your case file, including the
reconsidered determination prepared by the disability hearing officer,
before submitting your comments. You will be given 10 days from the
date you receive the Director's notice of proposed action to submit your
written comments, unless additional time is necessary to provide access
to the pertinent file materials or there is good cause for providing
more time, as illustrated by the examples in 404.911(b). The Director
or his or her delegate will consider your comments before taking any
further action on your case.
(51 FR 302, Jan. 3, 1986)
20 CFR 404.919 Notice of another person's request for reconsideration.
If any other person files a request for reconsideration of the
initial determination in your case, we shall notify you at your last
known address before we reconsider the initial determination. We shall
also give you an opportunity to present any evidence you think helpful
to the reconsidered determination.
(45 FR 52081, Aug. 5, 1980. Redesignated at 51 FR 302, Jan. 3, 1986)
20 CFR 404.920 Reconsidered determination.
After you or another person requests a reconsideration, we shall
review the evidence considered in making the initial determination and
any other evidence we receive. We shall make our determination based on
this evidence.
(45 FR 52081, Aug. 5, 1980. Redesignated at 51 FR 302, Jan. 3, 1986)
20 CFR 404.921 Effect of a reconsidered determination.
The reconsidered determination is binding unless --
(a) You or any other party to the reconsideration requests a hearing
before an administrative law judge within the stated time period and a
decision is made;
(b) The expedited appeals process is used; or
(c) The reconsidered determination is revised.
(51 FR 302, Jan. 3, 1986)
20 CFR 404.922 Notice of a reconsidered determination.
We shall mail a written notice of the reconsidered determination to
the parties at their last known address. We shall state the specific
reasons for the determination and tell you and any other parties of the
right to a hearing. If it is appropriate, we will also tell you and any
other parties how to use the expedited appeals process.
(45 FR 52081, Aug. 5, 1980. Redesignated at 51 FR 302, Jan. 3, 1986)
20 CFR 404.922 Expedited Appeals Process
20 CFR 404.923 Expedited appeals process -- general.
By using the expedited appeals process you may go directly to a
Federal district court without first completing the administrative
review process that is generally required before the court will hear
your case.
20 CFR 404.924 When the expedited appeals process may be used.
You may use the expedited appeals process if all of the following
requirements are met:
(a) We have made an initial and a reconsidered determination; an
administrative law judge has made a hearing decision; or Appeals
Council review has been requested, but a final decision has not been
issued.
(b) You are a party to the reconsidered determination or the hearing
decision.
(c) You have submitted a written request for the expedited appeals
process.
(d) You have claimed, and we agree, that the only factor preventing a
favorable determination or decision is a provision in the law that you
believe is unconstitutional.
(e) If you are not the only party, all parties to the determination
or decision agree to request the expedited appeals process.
20 CFR 404.925 How to request expedited appeals process.
(a) Time of filing request. You may request the expedited appeals
process --
(1) Within 60 days after the date you receive notice of the
reconsidered determination (or within the extended time period if we
extend the time as provided in paragraph (c) of this section);
(2) At any time after you have filed a timely request for a hearing
but before you receive notice of the administrative law judge's
decision;
(3) Within 60 days after the date you receive a notice of the
administrative law judge's decision or dismissal (or within the extended
time period if we extend the time as provided in paragraph (c) of this
section); or
(4) At any time after you have filed a timely request for Appeals
Council review, but before you receive notice of the Appeals Council's
action.
(b) Place of filing request. You may file a written request for the
expedited appeals process at one of our offices, the Veterans
Administration Regional Office in the Philippines, or an office of the
Railroad Retirement Board if you have 10 or more years of service in the
railroad industry.
(c) Extension of time to request expedited appeals process. If you
want to use the expedited appeals process but do not request it within
the stated time period, you may ask for more time to submit your
request. Your request for an extension of time must be in writing and
must give the reasons why the request for the expedited appeals process
was not filed within the stated time period. If you show that you had
good cause for missing the deadline, the time period will be extended.
To determine whether good cause exists, we use the standards explained
in 404.911.
20 CFR 404.926 Agreement in expedited appeals process.
If you meet all the requirements necessary for the use of the
expedited appeals process, our authorized representative shall prepare
an agreement. The agreement must be signed by you, by every other party
to the determination or decision and by our authorized representative.
The agreement must provide that --
(a) The facts in your claim are not in dispute;
(b) The sole issue in dispute is whether a provision of the Act that
applies to your case is unconstitutional;
(c) Except for your belief that a provision of the Act is
unconstitutional, you agree with our interpretation of the law;
(d) If the provision of the Act that you believe is unconstitutional
were not applied to your case, your claim would be allowed; and
(e) Our determination or the decision is final for the purpose of
seeking judicial review.
20 CFR 404.927 Effect of expedited appeals process agreement.
After an expedited appeals process agreement is signed, you will not
need to complete the remaining steps of the administrative review
process. Instead, you may file an action in a Federal district court
within 60 days after the date you receive notice (a signed copy of the
agreement will be mailed to you and will constitute notice) that the
agreement has been signed by our authorized representative.
(45 FR 52081, Aug. 5, 1980, as amended at 49 FR 46369, Nov. 26, 1984)
20 CFR 404.928 Expedited appeals process request that does not result
in agreement.
If you do not meet all of the requirements necessary to use the
expedited appeals process, we shall tell you that your request to use
this process is denied and that your request will be considered as a
request for a hearing or Appeals Council review, whichever is
appropriate.
20 CFR 404.928 Hearing Before an Administrative Law Judge
20 CFR 404.929 Hearing before an administrative law judge -- general.
If you are dissatisfied with one of the determinations or decisions
listed in 404.930 you may request a hearing. The Associate
Commissioner for Hearings and Appeals, or his or her delegate, shall
appoint an administrative law judge to conduct the hearing. If
circumstances warrant, the Associate Commissioner, or his or her
delegate, may assign your case to another administrative law judge. At
the hearing you may appear in person, submit new evidence, examine the
evidence used in making the determination or decision under review, and
present and question witnesses. The administrative law judge who
conducts the hearing may ask you questions. He or she shall issue a
decision based on the hearing record. If you waive your right to appear
at the hearing, the administrative law judge will make a decision based
on the evidence that is in the file and any new evidence that may have
been submitted for consideration.
(45 FR 52081, Aug. 5, 1980, as amended at 51 FR 302, Jan. 3, 1986)
20 CFR 404.930 Availability of a hearing before an administrative law
judge.
(a) You or another party may request a hearing before an
administrative law judge if we have made --
(1) A reconsidered determination;
(2) A revised determination of an initial determination, unless the
revised determination concerns the issue of whether, based on medical
factors, you are disabled;
(3) A reconsideration of a revised initial determination concerning
the issue of whether, based on medical factors, you are disabled;
(4) A revised reconsidered determination; or
(5) A revised decision based on evidence not included in the record
on which the prior decision was based.
(b) We will hold a hearing only if you or another party to the
hearing file a written request for a hearing.
(45 FR 52081, Aug. 5, 1980, as amended at 51 FR 303, Jan. 3, 1986)
20 CFR 404.932 Parties to a hearing before an administrative law judge.
(a) Who may request a hearing. You may request a hearing if a
hearing is available under 404.930. In addition, a person who shows in
writing that his or her rights may be adversely affected by the decision
may request a hearing.
(b) Who are parties to a hearing. After a request for a hearing is
made, you, the other parties to the initial, reconsidered, or revised
determination, and any other person who shows in writing that his or her
rights may be adversely affected by the hearing, are parties to the
hearing. In addition, any other person may be made a party to the
hearing if his or her rights may be adversely affected by the decision,
and the administrative law judge notifies the person to appear at the
hearing or to present evidence supporting his or her interest.
(45 FR 52081, Aug. 5, 1980, as amended at 51 FR 303, Jan. 3, 1986)
20 CFR 404.933 How to request a hearing before an administrative law
judge.
(a) Written request. You may request a hearing by filing a written
request. You should include in your request --
(1) The name and social security number of the wage earner;
(2) The reasons you disagree with the previous determination or
decision;
(3) A statement of additional evidence to be submitted and the date
you will submit it; and
(4) The name and address of any designated representative.
(b) When and where to file. The request must be filed --
(1) Within 60 days after the date you receive notice of the previous
determination or decision (or within the extended time period if we
extend the time as provided in paragraph (c) of this section);
(2) At one of our offices, the Veterans Administration Regional
Office in the Philippines, or an office of the Railroad Retirement Board
for persons having 10 or more years of service in the railroad industry.
(c) Extension of time to request a hearing. If you have a right to a
hearing but do not request one in time, you may ask for more time to
make your request. The request for an extension of time must be in
writing and it must give the reasons why the request for a hearing was
not filed within the stated time period. You may file your request for
an extension of time at one of our offices. If you show that you had
good cause for missing the deadline, the time period will be extended.
To determine whether good cause exists, we use the standards explained
in 404.911.
(45 FR 52081, Aug. 5, 1980, as amended at 51 FR 303, Jan. 3, 1986)
20 CFR 404.935 Submitting evidence prior to a hearing before an
administrative law judge.
If possible, the evidence or a summary of evidence you wish to have
considered at the hearing should be submitted to the administrative law
judge with the request for hearing or within 10 days after filing the
request. Each party shall make every effort to be sure that all
material evidence is received by the administrative law judge or is
available at the time and place set for the hearing.
(45 FR 52081, Aug. 5, 1980, as amended at 51 FR 303, Jan. 3, 1986)
20 CFR 404.936 Time and place for a hearing before an administrative
law judge.
(a) The administrative law judge sets the time and place for the
hearing. He or she may change the time and place, if it is necessary.
After sending the parties reasonable notice of the proposed action, the
administrative law judge may adjourn or postpone the hearing or reopen
it to receive additional evidence any time before he or she notifies the
parties of a hearing decision. Hearings are held in the 50 States, the
District of Columbia, American Samoa, Guam, the Northern Mariana
Islands, the Commonwealth of Puerto Rico and the Virgin Islands.
(b) If you object to the time or place of the hearing, you must
notify the administrative law judge at the earliest possible opportunity
before the time set for the hearing. You must state the reason for your
objection and state the time and place you want the hearing to be held.
If at all possible, the request should be in writing. The
administrative law judge will change the time or place of the hearing if
you have good cause, as determined under paragraphs (c) and (d) of this
section. 404.938 provides procedures we will follow when you do not
respond to a notice of hearing.
(c) The administrative law judge will find good cause for changing
the time or place of your scheduled hearing, and will reschedule your
hearing if your reason is one of the following circumstances and is
supported by the evidence:
(1) You or your representative are unable to attend or to travel to
the scheduled hearing because of a serious physical or mental condition,
incapacitating injury, or death in the family; or
(2) Severe weather conditions make it impossible to travel to the
hearing.
(d) In determining whether good cause exists in circumstances other
than those set out in paragraph (c) of this section, the administrative
law judge will consider your reason for requesting the change, the facts
supporting it, and the impact of the proposed change on the efficient
administration of the hearing process. Factors affecting the impact of
the change include, but are not limited to, the effect on the processing
of other scheduled hearings, delays which might occur in rescheduling
your hearing, and whether any prior changes were granted to you.
Examples of such other circumstances, which you might give for
requesting a change in the time or place of the hearing, include, but
are not limited to, the following:
(1) You have attempted to obtain a representative but need additional
time;
(2) Your representative was appointed within 30 days of the scheduled
hearing and needs additional time to prepare for the hearing;
(3) Your representative has a prior commitment to be in court or at
another administrative hearing on the date scheduled for the hearing;
(4) A witness who will testify to facts material to your case would
be unavailable to attend the scheduled hearing and the evidence cannot
be otherwise obtained;
(5) Transportation is not readily available for you to travel to the
hearing;
(6) You live closer to another hearing site; or
(7) You are unrepresented and illiterate and, as a result, unable to
respond to the notice of hearing.
(45 FR 52081, Aug. 5, 1980, as amended at 50 FR 21438, May 24, 1985;
51 FR 303, Jan. 3, 1986)
20 CFR 404.938 Notice of a hearing before an administrative law judge.
After the administrative law judge sets the time and place of the
hearing, notice of the hearing will be mailed to the parties at their
last known addresses, or given by personal service, unless you have
indicated in writing that you do not wish to receive this notice. The
notice will be mailed or served at least 20 days before the hearing.
The notice of hearing will contain a statement of the specific issues to
be decided and tell you that you may designate a person to represent you
during the proceedings. The notice will also contain an explanation of
the procedures for requesting a change in the time or place of your
hearing, a reminder that if you fail to appear at your scheduled hearing
without good cause the ALJ may dismiss your hearing request, and other
information about the scheduling and conduct of your hearing. If you or
your representative do not acknowledge receipt of the notice of hearing,
we will attempt to contact you for an explanation. If you tell us that
you did not receive the notice of hearing, an amended notice will be
sent to you by certified mail. See 404.936 for the procedures we will
follow in deciding whether the time or place of your scheduled hearing
will be changed if you do not respond to the notice of hearing.
(50 FR 21438, May 24, 1985, as amended at 51 FR 303, Jan. 3, 1986)
20 CFR 404.939 Objections to the issues.
If you object to the issues to be decided upon at the hearing, you
must notify the administrative law judge in writing at the earliest
possible opportunity before the time set for the hearing. You must
state the reasons for your objections. The administrative law judge
shall make a decision on your objections either in writing or at the
hearing.
20 CFR 404.940 Disqualification of the administrative law judge.
An administrative law judge shall not conduct a hearing if he or she
is prejudiced or partial with respect to any party or has any interest
in the matter pending for decision. If you object to the administrative
law judge who will conduct the hearing, you must notify the
administrative law judge at your earliest opportunity. The
administrative law judge shall consider your objections and shall decide
whether to proceed with the hearing or withdraw. If he or she
withdraws, the Associate Commissioner for Hearings and Appeals, or his
or her delegate, will appoint another administrative law judge to
conduct the hearing. If the administrative law judge does not withdraw,
you may, after the hearing, present your objections to the Appeals
Council as reasons why the hearing decision should be revised or a new
hearing held before another administrative law judge.
20 CFR 404.941 Prehearing case review.
(a) General. After a hearing is requested but before it is held, we
may, for the purposes of a prehearing case review, forward the case to
the component of our office (including a State agency) that issued the
determination being reviewed. That component will decide whether the
determination may be revised. A revised determination may be wholly or
partially favorable to you. A prehearing case review will not delay the
scheduling of a hearing unless you agree to continue the review and
delay the hearing. If the prehearing case review is not completed
before the date of the hearing, the case will be sent to the
administrative law judge unless a favorable revised determination is in
process or you and the other parties to the hearing agree in writing to
delay the hearing until the review is completed.
(b) When a prehearing case review may be conducted. We may conduct a
prehearing case review if --
(1) Additional evidence is submitted;
(2) There is an indication that additional evidence is available;
(3) There is a change in the law or regulation; or
(4) There is an error in the file or some other indication that the
prior determination may be revised.
(c) Notice of a prehearing revised determination. If we revise the
determination in a prehearing case review, we shall mail written notice
of the revised determination to all parties at their last known address.
We shall state the basis for the revised determination and advise all
parties of their right to request a hearing on the revised determination
within 60 days after the date or receiving this notice.
(d) Revised determination wholly favorable. If the revised
determination is wholly favorable to you, we shall tell you in the
notice that the administrative law judge will dismiss the hearing
request unless a party requests that the hearing proceed. A request to
continue must be made in writing within 30 days after the date the
notice of the revised determination is mailed.
(e) Revised determination partially favorable. If the revised
determination is partially favorable to you, we shall tell you in the
notice what was not favorable. We shall also tell you that the hearing
you requested will be held unless you, the parties to the revised
determination and the parties to the hearing tell us that all parties
agree to dismiss the hearing request.
20 CFR 404.941 Administrative Law Judge Hearing Procedures
20 CFR 404.944 Administrative law judge hearing procedures -- general.
A hearing is open to the parties and to other persons the
administrative law judge considers necessary and proper. At the
hearing, the administrative law judge looks fully into the issues,
questions you and the other witnesses, and accepts as evidence any
documents that are material to the issues. The administrative law judge
may stop the hearing temporarily and continue it at a later date if he
or she believes that there is material evidence missing at the hearing.
The administrative law judge may also reopen the hearing at any time
before he or she mails a notice of the decision in order to receive new
and material evidence. The administrative law judge may decide when the
evidence will be presented and when the issues will be discussed.
(45 FR 52081, Aug. 5, 1980, as amended at 51 FR 303, Jan. 3, 1986)
20 CFR 404.946 Issues before an administrative law judge.
(a) General. The issues before the administrative law judge include
all the issues brought out in the initial, reconsidered or revised
determination that were not decided entirely in your favor. However, if
evidence presented before or during the hearing causes the
administrative law judge to question a fully favorable determination, he
or she will notify you and will consider it an issue at the hearing.
(b) New issues -- (1) General. The administrative law judge may
consider a new issue at the hearing if he or she notifies you and all
the parties about the new issue any time after receiving the hearing
request and before mailing notice of the hearing decision. The
administrative law judge or any party may raise a new issue; an issue
may be raised even though it arose after the request for a hearing and
even though it has not been considered in an initial or reconsidered
determination. However, it may not be raised if it involves a claim
that is within the jurisdiction of a State agency under a Federal-State
agreement concerning the determination of disability.
(2) Notice of a new issue. The administrative law judge shall notify
you and any other party if he or she will consider any new issue.
Notice of the time and place of the hearing on any new issues will be
given in the manner described in 404.938, unless you have indicated in
writing that you do not wish to receive the notice.
(45 FR 52081, Aug. 5, 1980, as amended at 51 FR 303, Jan. 3, 1986)
20 CFR 404.948 Deciding a case without an oral hearing before an
administrative law judge.
(a) Decision wholly favorable. If the evidence in the hearing record
supports a finding in favor of you and all the parties on every issue,
the administrative law judge may issue a hearing decision without
holding an oral hearing. However, the notice of the decision will
inform you that you have the right to an oral hearing and that you have
a right to examine the evidence on which the decision is based.
(b) Parties do not wish to appear. (1) The administrative law judge
may decide a case on the record and not conduct an oral hearing if --
(i) You and all the parties indicate in writing that you do not wish
to appear before the administrative law judge at an oral hearing; or
(ii) You live outside the United States and you do not inform us that
you want to appear and there are no other parties who wish to appear.
(2) When an oral hearing is not held, the administrative law judge
shall make a record of the material evidence. The record will include
the applications, written statements, certificates, reports, affidavits,
and other documents that were used in making the determination under
review and any additional evidence you or any other party to the hearing
present in writing. The decision of the administrative law judge must
be based on this record.
(c) Case remanded for a revised determination. (1) The
administrative law judge may remand a case to the appropriate component
of our office for a revised determination if there is reason to believe
that the revised determination would be fully favorable to you. This
could happen if the administrative law judge receives new and material
evidence or if there is a change in the law that permits the favorable
determination.
(2) Unless you request the remand, the administrative law judge shall
notify you that your case has been remanded and tell you that if you
object, you must notify him or her of your objections within 10 days of
the date the case is remanded or we will assume that you agree to the
remand. If you object to the remand, the administrative law judge will
consider the objection and rule on it in writing.
(45 FR 52081, Aug. 5, 1980, as amended at 51 FR 303, Jan. 3, 1986)
20 CFR 404.949 Presenting written statements and oral arguments.
You or a person you designate to act as your representative may
appear before the administrative law judge to state your case, to
present a written summary of your case, or to enter written statements
about the facts and law material to your case in the record. A copy of
your written statements should be filed for each party.
20 CFR 404.950 Presenting evidence at a hearing before an
administrative law judge.
(a) The right to appear and present evidence. Any party to a hearing
has the right to appear before the administrative law judge, either
personally or by means of a designated representative, to present
evidence and to state his or her position.
(b) Waiver of the right to appear. You may send the administrative
law judge a waiver or a written statement indicating that you do not
wish to appear at the hearing. You may withdraw this waiver any time
before a notice of the hearing decision is mailed to you. Even if all
of the parties waive their right to appear at a hearing, the
administrative law judge may notify them of a time and a place for an
oral hearing, if he or she believes that a personal appearance and
testimony by you or any other party is necessary to decide the case.
(c) What evidence is admissible at a hearing. The administrative law
judge may receive evidence at the hearing even though the evidence would
not be admissible in court under the rules of evidence used by the
court.
(d) Subpoenas. (1) When it is reasonably necessary for the full
presentation of a case, an administrative law judge or a member of the
Appeals Council may, on his or her own initiative or at the request of a
party, issue subpoenas for the appearance and testimony of witnesses and
for the production of books, records, correspondence, papers, or other
documents that are material to an issue at the hearing.
(2) Parties to a hearing who wish to subpoena documents or witnesses
must file a written request for the issuance of a subpoena with the
administrative law judge or at one of our offices at least 5 days before
the hearing date. The written request must give the names of the
witnesses or documents to be produced; describe the address or location
of the witnesses or documents with sufficient detail to find them;
state the important facts that the witness or document is expected to
prove; and indicate why these facts could not be proven without issuing
a subpoena.
(3) We will pay the cost of issuing the subpoena.
(4) We will pay subpoenaed witnesses the same fees and mileage they
would receive if they had been subpoenaed by a Federal district court.
(e) Witnesses at a hearing. Witnesses may appear at a hearing. They
shall testify under oath or affirmation, unless the administrative law
judge finds an important reason to excuse them from taking an oath or
affirmation. The administrative law judge may ask the witnesses any
questions material to the issues and shall allow the parties or their
designated representatives to do so.
(f) Collateral estoppel -- issues previously decided. An issue at
your hearing may be a fact that has already been decided in one of our
previous determinations or decisions in a claim involving the same
parties, but arising under a different title of the Act or under the
Federal Coal Mine Health and Safety Act. If this happens, the
administrative law judge will not consider the issue again, but will
accept the factual finding made in the previous determination or
decision unless there are reasons to believe that it was wrong.
(45 FR 52081, Aug. 5, 1980, as amended at 51 FR 303, Jan. 3, 1986)
20 CFR 404.951 When a record of a hearing before an administrative law
judge is made.
The administrative law judge shall make a complete record of the
hearing proceedings. The record will be prepared as a typed copy of the
proceedings if --
(a) The case is sent to the Appeals Council without a decision or
with a recommended decision by the administrative law judge;
(b) You seek judicial review of your case by filing an action in a
Federal district court within the stated time period, unless we request
the court to remand the case; or
(c) An administrative law judge or the Appeals Council asks for a
written record of the proceedings.
(45 FR 52081, Aug. 5, 1980, as amended at 51 FR 303, Jan. 3, 1986)
20 CFR 404.952 Consolidated hearing before an administrative law judge.
(a) General. (1) A consolidated hearing may be held if --
(i) You have requested a hearing to decide your benefit rights under
title II of the Act and you have also requested a hearing to decide your
rights under another law we administer; and
(ii) One or more of the issues to be considered at the hearing you
requested are the same issues that are involved in another claim you
have pending before us.
(2) If the administrative law judge decides to hold the hearing on
both claims, he or she decides both claims, even if we have not yet made
an initial or reconsidered determination on the other claim.
(b) Record, evidence, and decision. There will be a single record at
a consolidated hearing. This means that the evidence introduced in one
case becomes evidence in the other(s). The administrative law judge may
make either a separate or consolidated decision.
(45 FR 52081, Aug. 5, 1980, as amended at 51 FR 303, Jan. 3, 1986)
20 CFR 404.953 The decision of an administrative law judge.
(a) General. The administrative law judge shall issue a written
decision that gives the findings of fact and the reasons for the
decision. The decision must be based on evidence offered at the hearing
or otherwise included in the record. The administrative law judge shall
mail a copy of the decision to all the parties at their last known
address. The Appeals Council may also receive a copy of the decision.
(b) Recommended decision. Although an administrative law judge will
usually make a decision, he or she may send the case to the Appeals
Council with a recommended decision where appropriate. The
administrative law judge will mail a copy of the recommended decision to
the parties at their last known addresses and send the recommended
decision to the Appeals Council.
(45 FR 52081, Aug. 5, 1980, as amended at 51 FR 303, Jan. 3, 1986;
54 FR 37792, Sept. 13, 1989)
20 CFR 404.955 The effect of an administrative law judge's decision.
The decision of the administrative law judge is binding on all
parties to the hearing unless --
(a) You or another party request a review of the decision by the
Appeals Council within the stated time period, and the Appeals Council
reviews your case;
(b) You or another party requests a review of the decision by the
Appeals Council within the stated time period, the Appeals Council
denies your request for review, and you seek judicial review of your
case by filing an action in a Federal district court;
(c) The decision is revised by an administrative law judge or the
Appeals Council under the procedures explained in 404.987;
(d) The expedited appeals process is used;
(e) The decision is a recommended decision directed to the Appeals
Council; or
(f) In a case remanded by a Federal court, the Appeals Council
assumes jurisdiction under the procedures in 404.984.
(45 FR 52081, Aug. 5, 1980, as amended at 51 FR 303, Jan. 3, 1986;
54 FR 37792, Sept. 13, 1989)
20 CFR 404.956 Removal of a hearing request from an administrative law
judge to the Appeals Council.
If you have requested a hearing and the request is pending before an
administrative law judge, the Appeals Council may assume responsibility
for holding a hearing by requesting that the administrative law judge
send the hearing request to it. If the Appeals Council holds a hearing,
it shall conduct the hearing according to the rules for hearings before
an administrative law judge. Notice shall be mailed to all parties at
their last known address telling them that the Appeals Council has
assumed responsibility for the case.
(45 FR 52081, Aug. 5, 1980, as amended at 51 FR 303, Jan. 3, 1986)
20 CFR 404.957 Dismissal of a request for a hearing before an
administrative law judge.
An administrative law judge may dismiss a request for a hearing under
any of the following conditions:
(a) At any time before notice of the hearing decision is mailed, you
or the party or parties that requested the hearing ask to withdraw the
request. This request may be submitted in writing to the administrative
law judge or made orally at the hearing.
(b)(1) Neither you nor the person you designate to act as your
representative appears at the time and place set for the hearing and you
have been notified before the time set for the hearing that your request
for hearing may be dismissed without further notice if you did not
appear at the time and place of hearing, and good cause has not been
found by the administrative law judge for your failure to appear; or
(2) Neither you nor the person you designate to act as your
representative appears at the time and place set for the hearing and
within 10 days after the administrative law judge mails you a notice
asking why you did not appear, you do not give a good reason for the
failure to appear.
(c) The administrative law judge decides that there is cause to
dismiss a hearing request entirely or to refuse to consider any one or
more of the issues because --
(1) The doctrine of res judicata applies in that we have made a
previous determination or decision under this subpart about your rights
on the same facts and on the same issue or issues, and this previous
determination or decision has become final by either administrative or
judicial action;
(2) The person requesting a hearing has no right to it under
404.930;
(3) You did not request a hearing within the stated time period and
we have not extended the time for requesting a hearing under
404.933(c); or
(4) You die, there are no other parties, and we have no information
to show that another person may be adversely affected by the
determination that was to be reviewed at the hearing. However,
dismissal of the hearing request will be vacated if, within 60 days
after the date of the dismissal, another person submits a written
request for a hearing on the claim and shows that he or she may be
adversely affected by the determination that was to be reviewed at the
hearing.
(45 FR 52081, Aug. 5, 1980, as amended at 50 FR 21438, May 24, 1985;
51 FR 303, Jan. 3, 1986)
20 CFR 404.958 Notice of dismissal of a request for a hearing before an
administrative law judge.
We shall mail a written notice of the dismissal of the hearing
request to all parties at their last known address. The notice will
state that there is a right to request that the Appeals Council vacate
the dismissal action.
(45 FR 52081, Aug. 5, 1980, as amended at 51 FR 303, Jan. 3, 1986)
20 CFR 404.959 Effect of dismissal of a request for a hearing before an
administrative law judge.
The dismissal of a request for a hearing is binding, unless it is
vacated by an administrative law judge or the Appeals Council.
(45 FR 52081, Aug. 5, 1980, as amended at 51 FR 303, Jan. 3, 1986)
20 CFR 404.960 Vacating a dismissal of a request for a hearing before
an administrative law judge.
An administrative law judge or the Appeals Council may vacate any
dismissal of a hearing request if, within 60 days after the date you
receive the dismissal notice, you request that the dismissal be vacated
and show good cause why the hearing request should not have been
dismissed. The Appeals Council itself may decide within 60 days after
the notice of dismissal is mailed to vacate the dismissal. The Appeals
Council shall advise you in writing of any action it takes.
(45 FR 52081, Aug. 5, 1980, as amended at 51 FR 303, Jan. 3, 1986)
20 CFR 404.961 Prehearing and posthearing conferences.
The administrative law judge may decide on his or her own, or at the
request of any party to the hearing, to hold a prehearing or posthearing
conference to facilitate the hearing or the hearing decision. The
administrative law judge shall tell the parties of the time, place and
purpose of the conference at least seven days before the conference
date, unless the parties have indicated in writing that they do not wish
to receive a written notice of the conference. At the conference, the
administrative law judge may consider matters in addition to those
stated in the notice, if the parties consent in writing. A record of
the conference will be made. The administrative law judge shall issue
an order stating all agreements and actions resulting from the
conference. If the parties do not object, the agreements and actions
become part of the hearing record and are binding on all parties.
404.965 (Reserved)
20 CFR 404.961 Appeals Council Review
20 CFR 404.967 Appeals Council review -- general.
If you or any other party is dissatisfied with the hearing decision
or with the dismissal of a hearing request, you may request that the
Appeals Council review that action. The Appeals Council may deny or
dismiss the request for review, or it may grant the request and either
issue a decision or remand the case to an administrative law judge. The
Appeals Council shall notify the parties at their last known address of
the action it takes.
20 CFR 404.968 How to request Appeals Council review.
(a) Time and place to request Appeals Council review. You may
request Appeals Council review by filing a written request. Any
documents or other evidence you wish to have considered by the Appeals
Council should be submitted with your request for review. You may file
your request --
(1) Within 60 days after the date you receive notice of the hearing
decision or dismissal (or within the extended time period if we extend
the time as provided in paragraph (b) of this section);
(2) At one of our offices, the Veterans Administration Regional
Office in the Philippines, or an office of the Railroad Retirement Board
if you have 10 or more years of service in the railroad industry.
(b) Extension of time to request review. You or any party to a
hearing decision may ask that the time for filing a request for the
review be extended. The request for an extension of time must be in
writing. It must be filed with the Appeals Council, and it must give
the reasons why the request for review was not filed within the stated
time period. If you show that you had good cause for missing the
deadline, the time period will be extended. To determine whether good
cause exists, we use the standards explained in 404.911.
20 CFR 404.969 Appeals Council initiates review.
Anytime within 60 days after the date of a hearing decision or
dismissal, the Appeals Council itself may decide to review the action
that was taken. If the Appeals Council does review the hearing decision
or dismissal, notice of the action will be mailed to all parties at
their last known address.
20 CFR 404.970 Cases the Appeals Council will review.
(a) The Appeals Council will review a case if --
(1) There appears to be an abuse of discretion by the administrative
law judge;
(2) There is an error of law;
(3) The action, findings or conclusions of the administrative law
judge are not supported by substantial evidence; or
(4) There is a broad policy or procedural issue that may affect the
general public interest.
(b) If new and material evidence is submitted, the Appeals Council
shall consider the additional evidence only where it relates to the
period on or before the date of the administrative law judge hearing
decision. The Appeals Council shall evaluate the entire record
including the new and material evidence submitted if it relates to the
period on or before the date of the administrative law judge hearing
decision. It will then review the case if it finds that the
administrative law judge's action, findings, or conclusion is contrary
to the weight of the evidence currently of record.
(45 FR 52081, Aug. 5, 1980, as amended at 52 FR 4004, Feb. 9, 1987)
20 CFR 404.971 Dismissal by Appeals Council.
The Appeals Council will dismiss your request for review if you did
not file your request within the stated period of time and the time for
filing has not been extended. The Appeals Council may also dismiss any
proceedings before it if --
(a) You and any other party to the proceedings files a written
request for dismissal; or
(b) You or any other party to the proceedings dies and the record
clearly shows that dismissal will not adversely affect any other person
who wishes to continue the action.
20 CFR 404.972 Effect of dismissal of request for Appeals Council
review.
The dismissal of a request for Appeals Council review is binding and
not subject to further review.
20 CFR 404.973 Notice of Appeals Council review.
When the Appeals Council decides to review a case, it shall mail a
notice to all parties at their last known address stating the reasons
for the review and the issues to be considered.
20 CFR 404.974 Obtaining evidence from Appeals Council.
You may request and receive copies or a statement of the documents or
other written evidence upon which the hearing decision or dismissal was
based and a copy or summary of the transcript of oral evidence.
However, you will be asked to pay the costs of providing these copies
unless there is a good reason why you should not pay.
20 CFR 404.975 Filing briefs with the Appeals Council.
Upon request, the Appeals Council shall give you and all other
parties a reasonable opportunity to file briefs or other written
statements about the facts and law relevant to the case. A copy of each
brief or statement should be filed for each party.
20 CFR 404.976 Procedures before Appeals Council on review.
(a) Limitation of issues. The Appeals Council may limit the issues
it considers if it notifies you and the other parties of the issues it
will review.
(b) Evidence. (1) The Appeals Council will consider all the evidence
in the administrative law judge hearing record as well as any new and
material evidence submitted to it which relates to the period on or
before the date of the administrative law judge hearing decision. If
you submit evidence which does not relate to the period on or before the
date of the administrative law judge hearing decision, the Appeals
Council will return the additional evidence to you with an explanation
as to why it did not accept the additional evidence and will advise you
of your right to file a new application. The notice returning the
evidence to you will also advise you that if you file a new application
within 6 months after the date of the Appeals Council's notice, your
request for review will constitute a written statement indicating an
intent to claim benefits in accordance with 404.630. If a new
application is filed within 6 months of this notice, the date of the
request for review will be used as the filing date for your application.
(2) If additional evidence is needed, the Appeals Council may remand
the case to an administrative law judge to receive evidence and issue a
new decision. However, if the Appeals Council decides that it can
obtain the evidence more quickly, it may do so, unless it will adversely
affect your rights.
(c) Oral argument. You may request to appear before the Appeals
Council to present oral argument. The Appeals Council will grant your
request if it decides that your case raises an important question of law
or policy or that oral argument would help to reach a proper decision.
If your request to appear is granted, the Appeals Council will tell you
the time and place of the oral argument at least 10 days before the
scheduled date.
(45 FR 52081, Aug. 5, 1980, as amended at 52 FR 4004, Feb. 9, 1987)
20 CFR 404.977 Case remanded by Appeals Council.
(a) When the Appeals Council may remand a case. The Appeals Council
may remand a case to an administrative law judge so that he or she may
hold a hearing and issue a decision or a recommended decision. The
Appeals Council may also remand a case in which additional evidence is
needed or additional action by the administrative law judge is required.
(b) Action by administrative law judge on remand. The administrative
law judge shall take any action that is ordered by the Appeals Council
and may take any additional action that is not inconsistent with the
Appeals Council's remand order.
(c) Notice when case is returned with a recommended decision. When
the administrative law judge sends a case to the Appeals Council with a
recommended decision, a notice is mailed to the parties at their last
known address. The notice tells them that the case has been sent to the
Appeals Council, explains the rules for filing briefs or other written
statements with the Appeals Council, and includes a copy of the
recommended decision.
(d) Filing briefs with and obtaining evidence from the Appeals
Council. (1) You may file briefs or other written statements about the
facts and law relevant to your case with the Appeals Council within 20
days of the date that the recommended decision is mailed to you. Any
party may ask the Appeals Council for additional time to file briefs or
statements. The Appeals Council will extend this period, as
appropriate, if you show that you had good cause for missing the
deadline.
(2) All other rules for filing briefs with and obtaining evidence
from the Appeals Council follow the procedures explained in this
subpart.
(e) Procedures before the Appeals Council. (1) The Appeals Council,
after receiving a recommended decision, will conduct its proceedings and
issue its decision according to the procedures explain in this subpart.
(2) If the Appeals Council believes that more evidence is required,
it may again remand the case to an administrative law judge for further
inquiry into the issues, rehearing, receipt of evidence, and another
decision or recommended decision. However, if the Appeals Council
decides that it can get the additional evidence more quickly, it will
take appropriate action.
20 CFR 404.979 Decision of Appeals Council.
After it has reviewed all the evidence in the administrative law
judge hearing record and any additional evidence received, subject to
the limitations on Appeals Council consideration of additional evidence
in 404.970(b) and 404.976(b), the Appeals Council will make a decision
or remand the case to an administrative law judge. The Appeals Council
may affirm, modify or reverse the administrative law judge hearing
decision or it may adopt, modify or reject a recommended decision. A
copy of the Appeals Council's decision will be mailed to the parties at
their last known address.
(52 FR 4004, Feb. 9, 1987)
20 CFR 404.981 Effect of Appeals Council's decision or denial of
review.
The Appeals Council may deny a party's request for review or it may
decide to review a case and make a decision. The Appeals Council's
decision, or the decision of the administrative law judge if the request
for review is denied, is binding unless you or another party file an
action in Federal district court, or the decision is revised. You may
file an action in a Federal district court within 60 days after the date
you receive notice of the Appeals Council's action.
20 CFR 404.982 Extension of time to file action in Federal district
court.
Any party to the Appeals Council's decision or denial of review, or
to an expedited appeals process agreement, may request that the time for
filing an action in a Federal district court be extended. The request
must be in writing and it must give the reasons why the action was not
filed within the stated time period. The request must be filed with the
Appeals Council, or if it concerns an expedited appeals process
agreement, with one of our offices. If you show that you had good cause
for missing the deadline, the time period will be extended. To
determine whether good cause exists, we use the standards explained in
404.911.
20 CFR 404.982 Court Remand Cases
20 CFR 404.983 Case remanded by a Federal court.
When a Federal court remands a case to the Secretary for further
consideration, the Appeals Council, acting on behalf of the Secretary,
may make a decision, or it may remand the case to an administrative law
judge with instructions to take action and issue a decision or return
the case to the Appeals Council with a recommended decision. If the
case is remanded by the Appeals Council, the procedures explained in
404.977 will be followed. Any issues relating to your claim may be
considered by the administrative law judge whether or not they were
raised in the administrative proceedings leading to the final decision
in your case.
(54 FR 37792, Sept. 13, 1989)
20 CFR 404.984 Appeals Council review of administrative law judge
decision in a case remanded by a Federal court.
(a) General. In accordance with 404.983, when a case is remanded by
a Federal court for further consideration, the decision of the
administrative law judge will become the final decision of the Secretary
after remand on your case unless the Appeals Council assumes
jurisdiction of the case. The Appeals Council may assume jurisdiction
based on written exceptions to the decision of the administrative law
judge which you file with the Appeals Council or based on its authority
pursuant to paragraph (c) of this section. If the Appeals Council
assumes jurisdiction of your case, any issues relating to your claim may
be considered by the Appeals Council whether or not they were raised in
the administrative proceedings leading to the final decision in your
case or subsequently considered by the administrative law judge in the
administrative proceedings following the court's remand order. The
Appeals Council will either make a new, independent decision based on
the entire record that will be the final decision of the Secretary after
remand or remand the case to an administrative law judge for further
proceedings.
(b) You file exceptions disagreeing with the decision of the
administrative law judge. (1) If you disagree with the decision of the
administrative law judge, in whole or in part, you may file exceptions
to the decision with the Appeals Council. Exceptions may be filed by
submitting a written statement to the Appeals Council setting forth your
reasons for disagreeing with the decision of the administrative law
judge. The exceptions must be filed within 30 days of the date you
receive the decision of the administrative law judge or an extension of
time in which to submit exceptions must be requested in writing within
the 30-day period. A timely request for a 30-day extension will be
granted by the Appeals Council. A request for an extension of more than
30 days should include a statement of reasons as to why you need the
additional time.
(2) If written exceptions are timely filed, the Appeals Council will
consider your reasons for disagreeing with the decision of the
administrative law judge and all the issues presented by your case. If
the Appeals Council concludes that there is no reason to change the
decision of the administrative law judge, it will issue a notice to you
addressing your exceptions and explaining why no change in the decision
of the administrative law judge is warranted. In this instance, the
decision of the administrative law judge is the final decision of the
Secretary after remand.
(3) When you file written exceptions to the decision of the
administrative law judge, the Appeals Council may assume jurisdiction at
any time, even after the 60-day time period which applies when you do
not file exceptions. If the Appeals Council assumes jurisdiction, it
will make a new, independent decision based on its consideration of the
entire record affirming, modifying, or reversing the decision of the
administrative law judge or remand the case to an administrative law
judge for further proceedings, including a new decision. The new
decision of the Appeals Council is the final decision of the Secretary
after remand.
(c) Appeals Council assumes jurisdiction without exceptions being
filed. Any time within 60 days after the date of the decision of the
administrative law judge, the Appeals Council may decide to assume
jurisdiction of your case even though no written exceptions have been
filed. Notice of this action will be mailed to all parties at their
last known address. You will be provided with the opportunity to file
briefs or other written statements with the Appeals Council about the
facts and law relevant to your case. After the briefs or other written
statements have been received or the time allowed (usually 30 days) for
submitting them has expired, the Appeals Council will either issue a
final decision of the Secretary affirming, modifying, or reversing the
decision of the administrative law judge, or remand the case to an
administrative law judge for further proceedings, including a new
decision.
(d) Exceptions are not filed and the Appeals Council does not
otherwise assume jurisdiction. If no exceptions are filed and the
Appeals Council does not assume jurisdiction of your case, the decision
of the administrative law judge becomes the final decision of the
Secretary after remand.
(54 FR 37792, Sept. 13, 1989; 54 FR 40779, Oct. 3, 1989)
20 CFR 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) We will apply a holding in a United States Court of Appeals
decision which we determine conflicts with our interpretation of a
provision of the Social Security Act or regulations unless the
Government seeks further 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) 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 review or is
unsuccessful on further review, we will issue a Social Security
Acquiescence Ruling that describes the administrative case and the court
decision, identifies the issue(s) involved, and explains how we will
apply the holding, including, as necessary, how the holding relates to
other decisions within the applicable circuit. These 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. If we make a determination or decision between the
date of a circuit court decision and the date we publish an Acquiescence
Ruling, the claimant may request application of the published ruling to
the prior determination or decision. The claimant must first
demonstrate that application of the ruling could change the prior
determination or decision. A claimant may so demonstrate by submitting
a statement which cites the ruling and indicates what finding or
statement in the rationale of the prior determination or decision
conflicts with the ruling. If the claimant can so demonstrate, we will
readjudicate the claim at the level at which it was last adjudicated in
accordance with the ruling. Any readjudication will be limited to
consideration of the issue(s) covered by the 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 a claimant files a request for
readjudication within the sixty day appeal period and we deny that
request, we shall extend the time to file an appeal on the merits of the
claim to sixty days after the date that we deny the request for
readjudication.
(c) After we have published a Social Security 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 secton 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 a
Social Security Acquiescence Ruling.
(2) The General Counsel of the Department of Health and Human
Services, 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) 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) We will rescind as obsolete a Social Security 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 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.
(55 FR 1018, Jan. 11, 1990)
20 CFR 404.985 Reopening and Revising Determinations and Decisions
20 CFR 404.987 Reopening and revising determinations and decisions.
(a) General. Generally, if you are dissatisfied with a determination
or decision made in the administrative review process, but do not
request further review within the stated time period, you lose your
right to further review. However, a determination or a decision made in
your case may be reopened and revised. After we reopen your case, we
may revise the earlier determination or decision.
(b) Procedure for reopening and revision. You may ask that a
determination or a decision to which you were a party be revised. The
conditions under which we will reopen a previous determination or
decision are explained in 404.988.
20 CFR 404.988 Conditions for reopening.
A determination, revised determination, decision, or revised decision
may be reopened --
(a) Within 12 months of the date of the notice of the initial
determination, for any reason;
(b) Within four years of the date of the notice of the initial
determination if we find good cause, as defined in 404.989, to reopen
the case; or
(c) At any time if --
(1) It was obtained by fraud or similar fault;
(2) Another person files a claim on the same earnings record and
allowance of the claim adversely affects your claim;
(3) A person previously determined to be dead, and on whose earnings
record your entitlement is based, is later found to be alive;
(4) Your claim was denied because you did not prove that the insured
person died, 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 Railroad Retirement Board has awarded duplicate benefits on
the same earnings record;
(6) It either --
(i) Denies the person on whose earnings record your claim is based
gratuitous wage credits for military or naval service because another
Federal agency (other than the Veterans Administration) has erroneously
certified that it has awarded benefits based on the service; or
(ii) Credits the earnings record of the person on which your claim is
based with gratuitous wage credits and another Federal agency (other
than the Veterans Administration) certifies that it has awarded a
benefit based on the period of service for which the wage credits were
granted;
(7) It finds that the claimant did not have insured status, but
earnings were later credited to his or her earnings record to correct
errors apparent on the face of the earnings record (section 205(c)(5)(C)
of the Act), to enter items transferred by the Railroad Retirement
Board, which were credited under the Railroad Retirement Act when they
should have been credited to the claimant's Social Security earnings
record (section 205(c)(5)(D) of the Act), or to correct errors made in
the allocation of wages or self-employment income to individuals or
periods (section 205(c)(5)(G) of the Act), which would have given him or
her insured status at the time of the determination or decision if the
earnings had been credited to his or her earnings record at that time,
and the evidence of these earnings was in our possession or the
possession of the Railroad Retirement Board at the time of the
determination or decision;
(8) It 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;
(9) It finds that you are entitled to monthly benefits or to a lump
sum death payment based on the earnings of a deceased person, and it is
later established that:
(i) You were convicted of a felony or an act in the nature of a
felony for intentionally causing that person's death; or
(ii) If you were subject to the juvenile justice system, you were
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;
(10) It either --
(i) Denies the person on whose earnings record your claim is based
deemed wages for internment during World War II because of an erroneous
finding that a benefit based upon the internment has been determined by
an agency of the United States to be payable under another Federal law
or under a system established by that agency; or
(ii) Awards the person on whose earnings record your claim is based
deemed wages for internment during World War II and a benefit based upon
the internment is determined by an agency of the United States to be
payable under another Federal law or under a system established by that
agency; or
(11) It is incorrect because --
(i) You were convicted of a crime that affected your right to receive
benefits or your entitlement to a period of disability; or
(ii) Your conviction of a crime that affected your right to receive
benefits or your entitlement to a period of disability is overturned.
(45 FR 52081, Aug. 5, 1980, as amended at 49 FR 46369, Nov. 26, 1984;
51 FR 18313, May 19, 1986)
20 CFR 404.989 Good cause for reopening.
(a) We will find that there is good cause to reopen a determination
or decision if --
(1) New and material evidence is furnished;
(2) A clerical error in the computation or recomputation of benefits
was made; or
(3) The evidence that was considered in making the determination or
decision clearly shows on its face that an error was made.
(b) We will not find good cause to reopen your case if the only
reason for reopening is a change of legal interpretation or
adminstrative ruling upon which the determination or decision was made.
20 CFR 404.990 Finality of determinations and decisions on revision of
an earnings record.
A determination or a decision on a revision of an earnings record may
be reopened only within the time period and under the conditions
provided in section 205(c) (4) or (5) of the Act, or within 60 days
after the date you receive notice of the determination or decision,
whichever is later.
20 CFR 404.991 Finality of determinations and decisions to suspend
benefit payments for entire taxable year because of earnings.
A determination or decision to suspend benefit payments for an entire
taxable year because of earnings may be reopened only within the time
period and under the conditions provided in section 203(h)(1)(B) of the
Act.
20 CFR 404.991a Late completion of timely investigation.
We may revise a determination or decision after the applicable time
period in 404.988(a) or 404.988(b) expires if we begin an
investigation into whether to revise the determination or decision
before the applicable time period expires. We may begin the
investigation either based on a request by you or by an action on our
part. The investigation is a process of gathering facts after a
determination or decision has been reopened to determine if a revision
of the determination or decision is applicable.
(a) If we have diligently pursued the investigation to its
conclusion, we may revise the determination or decision. The revision
may be favorable or unfavorable to you. ''Diligently pursued'' means
that in light 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 we conclude the investigation and if necessary, revise the
determination or decision within 6 months from the date we began the
investigation.
(b) If we have not diligently pursued the investigation to its
conclusion, we will revise the determination or decision if a revision
is applicable and if it will be favorable to you. We will not revise
the determination or decision if it will be unfavorable to you.
(49 FR 46369, Nov. 26, 1984; 49 FR 48036, Dec. 10, 1984)
20 CFR 404.992 Notice of revised determination or decision.
(a) When a determination or decision is revised, notice of the
revision will be mailed to the parties at their last known address. The
notice will state the basis for the revised determination or decision
and the effect of the revision. The notice will also inform the parties
of the right to further review.
(b) If a reconsidered determination that you are disabled, based on
medical factors, is reopened for the purpose of being revised, you will
be notified, in writing, of the proposed revision and of your right to
request that a disability hearing be held before a revised reconsidered
determination is issued. If a revised reconsidered determination is
issued, you may request a hearing before an administrative law judge.
(c) If an administrative law judge or the Appeals Council proposes to
revise a decision, and the revision would be based on evidence not
included in the record on which the prior decision was based, you and
any other parties to the decision will be notified, in writing, of the
proposed action and of your right to request that a hearing be held
before any further action is taken. If a revised decision is issued by
an administrative law judge, you and any other party may request that it
be reviewed by the Appeals Council, or the Appeals Council may review
the decision on its own initiative.
(d) If an administrative law judge or the Appeals Council 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, you and
any other parties to the decision will be notified, in writing, of the
proposed action. If a revised decision is issued by an administrative
law judge, you and any other party may request that it be reviewed by
the Appeals Council, or the Appeals Council may review the decision on
its own initiative.
(51 FR 303, Jan. 3, 1986)
20 CFR 404.993 Effect of revised determination or decision.
A revised determination or decision is binding unless --
(a) You or another party to the revised determination file a written
request for reconsideration or a hearing before an administrative law
judge, as appropriate;
(b) You or another party to the revised decision file, as
appropriate, a request for review by the Appeals Council or a hearing
before an administrative law judge;
(c) The Appeals Council reviews the revised decision; or
(d) The revised determination or decision is further revised.
(51 FR 303, Jan. 3, 1986)
20 CFR 404.994 Time and place to request a hearing on revised
determination or decision.
You or another party to a revised determination or decision may
request, as approporiate, further review or a hearing on the revision by
filing a request in writing at one of our offices within 60 days after
the date you receive notice of the revision. Further review or a
hearing will be held on the revision according to the rules of this
subpart.
20 CFR 404.995 Finality of findings when later claim is filed on same
earnings record.
If two claims for benefits are filed on the same earnings records,
findings of fact made in a determination on 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 404.988.
20 CFR 404.996 Increase in future benefits where time period for
reopening expires.
If, after the time period for reopening under 404.988(b) has ended,
new evidence is furnished showing a different date of birth or
additional earnings for you (or for the person on whose earnings record
your claim was based) which would otherwise increase the amount of your
benefits, we will make the increase (subject to the limitations provided
in section 205(c)(4) and (5) of the Act) but only for benefits payable
after the time we received the new evidence. (If the new evidence we
receive would lead to a decrease in your benefits, we will take no
action if we cannot reopen under 404.988.)
(49 FR 46369, Nov. 26, 1984)
20 CFR 404.996 Payment of Certain Travel Expenses
20 CFR 404.999a Payment of certain travel expenses -- general.
When you file a claim for Social Security benefits, you may incur
certain travel expenses in pursuing your claim. Sections
404.999b-404.999d explain who may be reimbursed for travel expenses, the
types of travel expenses that are reimbursable, and when and how to
claim reimbursement. Generally, the agency that requests you to travel
will be the agency that reimburses you. No later than when it notifies
you of the examination or hearing described in 404.999b(a), that agency
will give you information about the right to travel reimbursement, the
right to advance payment and how to request it, the rules on means of
travel and unusual travel costs, and the need to submit receipts.
(51 FR 8808, Mar. 14, 1986)
20 CFR 404.999b Who may be reimbursed.
(a) The following individuals may be reimbursed for certain travel
expenses --
(1) You, when you attend medical examinations upon request in
connection with disability determinations; these are medical
examinations requested by the State agency or by us when additional
medical evidence is necessary to make a disability determination (also
referred to as consultative examinations, see 404.1517);
(2) You, your representative (see 404.1705 (a) and (b)), and all
unsubpoenaed witnesses we or the State agency determines to be
reasonably necessary who attend disability hearings; and
(3) You, your representative, and all unsubpoenaed witnesses we
determine to be reasonably necessary who attend hearings on any claim
for benefits before an administrative law judge.
(b) Sections 404.999a through 404.999d do not apply to subpoenaed
witnesses. They are reimbursed under 404.950(d) and 404.916(b)(1).
(51 FR 8808, Mar. 14, 1986)
20 CFR 404.999c What travel expenses are reimbursable.
Reimbursable travel expenses include the ordinary expenses of public
or private transportation as well as unusual costs due to special
circumstances.
(a) Reimbursement for ordinary travel expenses is limited --
(1) To the cost of travel by the most economical and expeditious
means of transportation available and appropriate to the individual's
condition of health as determined by the State agency or by us,
considering the available means in the following order --
(i) Common carrier (air, rail, or bus);
(ii) Privately owned vehicles;
(iii) Commercially rented vehicles and other special conveyances;
(2) If air travel is necessary, to the coach fare for air travel
between the specified travel points involved unless first-class air
travel is authorized in advance by the State agency or by the Secretary
in instances when --
(i) Space is not available in less-than-first-class accommodations on
any scheduled flights in time to accomplish the purpose of the travel;
(ii) First-class accommodations are necessary because you, your
representative, or reasonably necessary witness is so handicapped or
otherwise impaired that other accommodations are not practical and the
impairment is substantiated by competent medical authority;
(iii) Less-than-first-class accommodations on foreign carriers do not
provide adequate sanitation or health standards; or
(iv) The use of first-class accommodations would result in an overall
savings to the government based on economic considerations, such as the
avoidance of additional subsistence costs that would be incurred while
awaiting availability of less-than-first-class accommodations.
(b) Unusual travel costs may be reimbursed but must be authorized in
advance and in writing by us or the appropriate State official, as
applicable, unless they are unexpected or unavoidable; we or the State
agency must determine their reasonableness and necessity and must
approve them before payment can be made. Unusual expenses that may be
covered in connection with travel include, but are not limited to --
(1) Ambulance services;
(2) Attendant services;
(3) Meals;
(4) Lodging; and
(5) Taxicabs.
(c) If we reimburse you for travel, we apply the rules in 404.999b
through 404.999d and the same rates and conditions of payment that
govern travel expenses for Federal employees as authorized under 41 CFR
part 101-7. If a State agency reimburses you, the reimbursement rates
shall be determined by the rules in 404.999b through 404.999d and that
agency's rules and regulations and may differ from one agency to another
and also may differ from the Federal reimbursement rates.
(1) When public transportation is used, reimbursement will be made
for the actual costs incurred, subject to the restrictions in paragraph
(a)(2) of this section on reimbursement for first-class air travel.
(2) When travel is by a privately owned vehicle, reimbursement will
be made at the current Federal or State mileage rate specified for that
geographic location plus the actual costs of tolls and parking, if
travel by a privately owned vehicle is determined appropriate under
paragraph (a)(1) of this section. Otherwise, the amount of
reimbursement for travel by privately owned vehicle cannot exceed the
total cost of the most economical public transportation available for
travel between the same two points. Total cost includes the cost for
all the authorized travelers who travel in the same privately owned
vehicle. Advance approval of travel by privately owned vehicle is not
required (but could give you assurance of its approval).
(3) Sometimes your health condition dictates a mode of transportation
different from the most economical and expeditious. In order for your
health to require a mode of transportation other than common carrier or
passenger car, you must be so handicapped or otherwise impaired as to
require special transportation arrangements and the conditions must be
substantiated by competent medical authority.
(d) For travel to a hearing --
(1) Reimbursement is limited to travel within the U.S. For this
purpose, the U.S. includes the U.S. as defined in 404.2(c)(6) and the
Northern Mariana Islands.
(2) We or the State agency will reimburse you, your representative,
or an unsubpoenaed witness only if the distance from the person's
residence or office (whichever he or she travels from) to the hearing
site exceeds 75 miles.
(3) If a change in the location of the hearing is made at your
request from the location we or the State agency selected to one farther
from your residence or office, neither your additional travel expenses
nor the additional travel expenses of your representative and witnesses
will be reimbursed.
(51 FR 8808, Mar. 14, 1986)
20 CFR 404.999d When and how to claim reimbursement.
(a)(1) Generally, you will be reimbursed for your expenses after your
trip. However, travel advances may be authorized if you request
prepayment and show that the requested advance is reasonable and
necessary.
(2) You must submit to us or the State agency, as appropriate, an
itemized list of what you spent and supporting receipts to be
reimbursed.
(3) Arrangements for special means of transportation and related
unusual costs may be made only if we or the State agency authorizes the
costs in writing in advance of travel, unless the costs are unexpected
or unavoidable. If they are unexpected or unavoidable we or the State
agency must determine their reasonableness and necessity and must
approve them before payment may be made.
(4) If you receive prepayment, you must, within 20 days after your
trip, provide to us or the State agency, as appropriate, an itemized
list of your actual travel costs and submit supporting receipts. We or
the State agency will require you to pay back any balance of the
advanced amount that exceeds any approved travel expenses within 20 days
after you are notified of the amount of that balance. (State agencies
may have their own time limits in place of the 20-day periods in the
preceding two sentences.)
(b) You may claim reimbursable travel expenses incurred by your
representative for which you have been billed by your representative,
except that if your representative makes a claim for them to us or the
State, he or she will be reimbursed directly.
(Approved by the Office of Management and Budget under control number
0960-0434)
(51 FR 8809, Mar. 14, 1986, as amended at 51 FR 44983, Dec. 16, 1986)
20 CFR 404.999d Subpart K -- Employment, Wages, Self-Employment, and
Self-Employment Income
Authority: Secs. 205(a), 209, 210, 211, 226, 226A, 229(a), 230, 231,
and 1102 of the Social Security Act; 42 U.S.C. 405(a), 409, 410, 411,
426, 426-1, 429(a), 430, 431, and 1302; secs. 1151(d)(2)(C), 1704, and
1882 of Pub. L. 99-514, 100 Stat. 2505, 2779, and 2914; sec. 9003 of
Pub. L. 100-203, 101 Stat. 1330-287; secs. 1011B(a)(23)(B) and 8013
of Pub. L. 100-647, 102 Stat. 3486 and 3789.
Source: 45 FR 20075, Mar. 27, 1980, unless otherwise noted.
20 CFR 404.1001 Introduction
(a)(1) In general, your social security benefits are based on your
earnings that are on our records. (Subpart I of this part explains how
we keep earnings records.) Basically, you receive credit only for
earnings that are covered for social security purposes. The earnings
are covered only if your work is covered. If you are an employee, your
employer files a report of your covered earnings. If you are
self-employed, you file a report of your covered earnings. Some work is
covered by social security and some work is not. Also, some earnings
are covered by social security and some are not. It is important that
you are aware of what kinds of work and earnings are covered so that you
will know whether your earnings should be on our records.
(2) If you are an employee, your covered work is called employment.
This subpart explains our rules on the kinds of work that are covered as
employment and the kinds that are not. We also explain who is an
employee.
(3) If your work is employment, your covered earnings are called
wages. This subpart explains our rules on the kinds of earnings that
are covered as wages and the kinds that are not.
(4) If you work for yourself, you are self-employed. The subpart
explains our rules on the kinds of self-employment that are covered and
the kinds that are not.
(5) If you are self-employed, your covered earnings are called
self-employment income which is based on your net earnings from
self-employment during a taxable year. This subpart explains our rules
on the kinds of earnings that are covered as net earnings from
self-employment and the kinds that are not. We also explain how to
figure your net earnings from self-employment and determine your
self-employment income which is the amount that goes on our records.
(b) We include basically only the rules that apply to current work or
that the law requires us to publish as regulations. We generally do not
include rules that are seldom used or do not apply to current work
because of changes in the law.
(c) The Social Security Act and the Internal Revenue Code (Code) have
similar provisions on coverage of your earnings because the one law
specifies the earnings for which you will receive credit for benefit
purposes and the other the earnings on which you must pay social
security taxes. Because the Code (title 26 U.S.C.) has some provisions
that are not in the Act but which may affect you, you may need to refer
to the Code or the Internal Revenue Service regulations (title 26 of the
Code of Federal Regulations) to get complete information about your
social security coverage.
(d) The rules are organized in the following manner:
(1) Sections 404.1003 through 404.1010 include the rules on
employment. We discuss what we mean by employment, what work is covered
as employment for social security purposes, and describe the kinds of
workers who are considered employees.
(2) In 404.1012 through 404.1037 we discuss various types of work
that are not covered as employment for social security purposes.
(3) The rules on wages are found in 404.1041 through 404.1059. We
describe what is meant by the term wages, discuss the various types of
pay that count as wages, and state when the pay counts for Social
Security purposes. We include explanations of agriculture labor,
domestic services, service not in the course of the employer's business,
and home worker services under wages because special standards apply to
these services.
(4) Our rules on self-employment and self-employment income are found
in 404.1065 through 404.1096. We discuss what we mean by
self-employment, what we mean by a trade or business, what types of
activities are considered self-employment, how to determine
self-employment income, and how net earnings from self-employment are
figured.
(45 FR 20075, Mar. 27, 1980, as amended at 55 FR 7309, Mar. 1, 1990)
20 CFR 404.1002 Definitions.
(a) General definitions. As used in this subpart --
The Act means the Social Security Act, as amended.
The Code means the Internal Revenue Code of 1954, as amended.
We, our, or us means the Social Security Administration.
You or your means any person whose earnings from employment or
self-employment are included or excluded under social security.
(b) Other definitions. For ease of reference, we have placed other
definitions in the sections of this subpart in which they are used.
20 CFR 404.1002 Employment
20 CFR 404.1003 Employment.
Employment means, generally, any service covered by social security
performed by an employee for his or her employer. The rules on who is
an employee and who is an employer are contained in 404.1005 through
404.1010. Section 404.1004 states the general rule on the kinds of work
covered as employment. Exceptions to the general rule are contained in
404.1012 through 404.1037 which explain the kinds of work excluded from
employment. All of these rules apply to current work unless otherwise
indicated.
20 CFR 404.1004 What work is covered as employment.
(a) General requirements of employment. Unless otherwise excluded
from coverage under 404.1012 through 404.1037, the work you perform as
an employee for your employer is covered as employment under social
security if one of the following situations applies:
(1) You perform the work within the United States (whether or not you
or your employer are a citizen or resident of the United States).
(2) You perform the work outside the United States and you are a
citizen or resident of the United States working for --
(i) An American employer; or
(ii) A foreign affiliate of an American employer that has in effect
an agreement covering your work under section 3121(l) of the Code.
(3) You perform the work on or in connection with an American vessel
or American aircraft and the conditions in paragraphs (a)(3) (i) and
(ii) are met. Your citizenship or residence does not matter. The
citizenship or residence of your employer matters only if it affects
whether the vessel is an American vessel.
(i) You enter into the contract of employment within the United
States or the vessel or aircraft touches at a port or airport within the
United States during the performance of your contract of employment on
the vessel or aircraft.
(ii) You are employed on and in connection with the vessel or
aircraft when outside the United States.
(4) Your work is designated as employment or recognized as equivalent
to employment under a totalization agreement. (See 404.1913. An
agreement may exempt work from coverage as well as extend coverage to
work.)
(b) Explanation of terms used in this section. (1) American employer
means --
(i) The United States or any of its instrumentalities;
(ii) A State, a political subdivision of a State, or an
instrumentality of any one or more States or political subdivisions of a
State;
(iii) An individual who is a resident of the United States;
(iv) A partnership, if at least two-thirds of the partners are
residents of the United States;
(v) A trust, if all of the trustees are residents of the United
States; or
(vi) A corporation organized under the laws of the United States or
of any State.
(2) American aircraft means an aircraft registered under the laws of
the United States.
(3) American vessel means a vessel documented or numbered under the
laws of the United States. It also includes a vessel neither documented
nor numbered under the laws of the United States, nor documented under
the laws of any foreign country, if its crew is employed solely by one
or more citizens or residents of the United States, or corporations
organized under the laws of the United States or of any State.
(4) Citizen of the United States includes a citizen of the
Commonwealth of Puerto Rico, the Virgin Islands, Guam or American Samoa.
(5) Foreign affiliate refers to a foreign affiliate as defined in
section 3121(l)(6) of the Code.
(6) On and in connection with refers to the performance of work on a
vessel or aircraft which concerns the vessel or aircraft. Examples of
this kind of work are the services performed on a vessel by employees as
officers or crew members, or as employees of concessionaires, of the
vessel.
(7) On or in connection with refers to work performed on the vessel
or aircraft and to work which concerns the vessel or aircraft but not
actually performed on it. For example, shore services in connection
with repairing, loading, unloading, or provisioning a vessel performed
by employees as officers or crew members, or as employees of
concessionaires, of the vessel are included, since this work concerns
the vessel though not performed on it.
(8) State refers to the 50 States, the District of Columbia, the
Commonwealth of Puerto Rico, the Virgin Islands, Guam and American
Samoa.
(9) United States when used in a geographical sense means the 50
States, the District of Columbia, the Commonwealth of Puerto Rico, the
Virgin Islands, Guam and American Samoa.
(45 FR 20075, Mar. 27, 1980, as amended at 50 FR 36573, Sept. 9,
1985; 55 FR 51687, Dec. 17, 1990)
20 CFR 404.1005 Who is an employee.
You must be an employee for your work to be covered as employment for
social security purposes. You are an employee if you are --
(a) A corporation officer as described in 404.1006;
(b) A common-law employee as described in 404.1007 (unless you are,
after December 31, 1982, a qualified real estate agent or direct seller
as described in 404.1069); or
(c) An agent-driver or commission-driver, a full-time life insurance
salesman, a home worker, or a traveling or city salesman as described in
404.1008.
(45 FR 20075, Mar. 27, 1980, as amended at 48 FR 40515, Sept. 8,
1983)
20 CFR 404.1006 Corporation officer.
If you are an officer of a corporation, you are an employee of the
corporation if you are paid or you are entitled to be paid for holding
office or performing services. However, if you are a director of a
corporation, we consider you to be self-employed when you work as a
director.
20 CFR 404.1007 Common-law employee.
(a) General. The common-law rules on employer-employee status are
the basic test for determining whether you and the person or firm you
work for have the relationship of employee and employer. Even though
you are considered self-employed under the common-law rules, you may
still be an employee for social security purposes under 404.1006
(relating to corporation officers) or 404.1008 (relating to workers in
four specific jobs). In general, you are a common-law employee if the
person you work for may tell you what to do and how, when, and where to
do it. The person or firm you work for does not have to give these
orders, but needs only the right to do so. Whether or not you are a
common-law employee is not always clear. Several aspects of your job
arrangement are considered in determining whether you are an employee or
are self-employed under the common-law rules.
(b) Factors that show employee status. Some aspects of a job
arrangement that may show you are an employee are as follows:
(1) The person you work for may fire you.
(2) The person you work for furnishes you with tools or equipment and
a place to work.
(3) You receive training from the person you work for or are required
to follow that person's instructions.
(4) You must do the work yourself.
(5) You do not hire, supervise, or pay assistants (unless you are
employed as a foreman, manager, or supervisor).
(6) The person you work for sets your hours of work, requires you to
work full-time, or restricts you from doing work for others.
(7) The person you work for pays your business or traveling expenses.
(8) You are paid by the hour, week or month.
(c) Factors that show self-employed status. Some aspects of a job
arrangement or business venture that may show you are self-employed are
as follows:
(1) You make a profit or suffer a loss.
(2) You are hired to complete a certain job and if you quit before
the job is completed you may be liable for damages.
(3) You work for a number of persons or firms at the same time.
(4) You advertise to the general public that you are available to
perform services.
(5) You pay your own expenses and have your own equipment and work
place.
(d) Questions about your status. If there is a question about
whether you are working as an employee or are self-employed, we or the
Internal Revenue Service will make a determination after examining all
of the facts of your case.
20 CFR 404.1008 Agent-driver or commission-driver, full-time life
insurance salesman, home worker, or traveling or city salesman.
(a) General. In addition to common-law employees and corporation
officers, we consider workers in the four types of jobs described in
paragraphs (b) through (e) of this section to be employees if their
services are performed under the following conditions:
(1) Under the work arrangement the worker is expected to do
substantially all of the work personally.
(2) The worker must not have a substantial investment in the
facilities used to do the work. Facilities include such things as a
place to work, storage space, equipment, machinery and office furniture.
However, facilities do not include tools, equipment or clothing of the
kind usually provided by employees nor transportation such as a car or
truck.
(3) The work must be performed as part of a continuing work
relationship between the worker and the person for whom the work is
done. The work performed must not be a single transaction. Part-time
and regular seasonal work may be performed as part of a continuing work
relationship.
(b) Agent-driver or commission-driver. This is a driver hired by
another person to distribute meat products, vegetable products, fruit
products, bakery products, beverages (other than milk), or laundry or
dry-cleaning services. We consider you an agent-driver or
commission-driver if you are paid a commission based on your sales or
the difference between the price you charge your customers and the
amount you pay for the goods or services. It makes no difference
whether you drive your own truck or the company's truck or whether you
solicit the customers you serve.
(c) Full-time life insurance salesman. A full-time life insurance
salesman's main activity is selling life insurance or annuity contracts,
or both, mostly for one life insurance company. If you are a full-time
life insurance salesman, you are probably provided office space,
stenographic help, telephone, forms, rate books and advertising
materials by the company or general agent, without cost to you.
(d) Home worker. A home worker is a person who works away from the
place of business of the person he or she works for, usually at home.
If you are a home worker and you work according to the instructions of
the person you work for, on material or goods furnished by that person,
and are required to return the finished product to that person (or
another person whom he or she designates), you are an employee.
(e) Traveling or city salesman. The main activity of a traveling or
city salesman is taking orders for merchandise for another person or
firm. The salesman gets orders from wholesalers, retailers,
contractors, or operators of hotels, restaurants or other firms whose
main business is furnishing food or lodging or both. The salesman sells
merchandise to others for resale or for use in their own business. We
consider you a traveling or city salesman if most of your work is done
for a single person or firm even though you have incidental sideline
sales activities. However, you are not an employee under this paragraph
as to those sideline sales. If you take orders for a number of persons
or firms as a multiple line salesman, you are not a traveling or city
salesman.
20 CFR 404.1009 Who is an employer.
A person is an employer if he or she employs at least one employee.
Sometimes it is not clear who a worker's employer is, since the employer
does not always pay the worker's wages. When there is a question about
who the employer is, we use the common-law rules to identify the
employer (see 404.1007).
20 CFR 404.1010 Farm crew leader as employer.
A farm crew leader furnishes workers to do agricultural labor for
another person, usually a farm operator. If the crew leader pays the
workers (the money can be the crew leader's or the farm operator's), the
crew leader is deemed to be the employer of the workers and is
self-employed. However, the crew leader is not deemed the employer of
the workers if there is a written agreement between the crew leader and
the farm operator naming the crew leader as an employee. If the crew
leader does not have this agreement and does not pay the workers, we use
the common-law rules to determine the crew leader's status.
20 CFR 404.1010 Work Excluded From Employment
20 CFR 404.1012 Work excluded from employment.
Certain kinds of work performed by an employee are excluded from
employment. They are described in 404.1014 through 404.1037 and are
exceptions to the general rule in 404.1004 on the kinds of work that
are covered as employment. In general, if the work performed by an
employee is excluded from employment, the work is not covered under
social security. However, certain kinds of work performed by an
employee, even though excluded from employment, are covered as
self-employment for social security purposes. In addition, if part of
the work performed by an employee for the same employer is included as
employment and part is excluded from employment, all the work may be
included or all may be excluded as described in 404.1013.
20 CFR 404.1013 Included-excluded rule.
(a) If part of your work for an employer during a pay period is
covered as employment and part excluded, all of your work during that
period is considered covered if at least one-half of your time in the
pay period is in covered work. If you spend most of your time in a pay
period doing work that is excluded, all of your work in that period is
excluded.
(b) A pay period is the period for which your employer ordinarily
pays you. It cannot be more than 31 consecutive days. If the actual
period is not always the same, your usual pay period will be used for
applying the included-excluded rule.
(c) The included-excluded rule does not apply and your covered work
will be counted if --
(1) Part of your work is covered by the Railroad Retirement Tax Act
and part by the Social Security Act; or
(2) You have no usual pay period of 31 consecutive days or less, or
you have separate pay periods for covered and excluded work.
20 CFR 404.1014 Domestic service by a student for a local college club,
fraternity or sorority.
(a) General. If you are a student and do work of a household nature
in or about the club rooms or house of a local college club or local
chapter of a college fraternity or sorority, and are enrolled and
regularly attending classes at a school, college, or university, your
work is not covered as employment.
(b) Explanation of terms. (1) Work of a household nature means the
type of work done by cooks, waiters, butlers, maids, janitors,
laundresses, furnacemen, handymen, gardeners, housekeepers and
housemothers.
(2) A local college club or local chapter of a college fraternity or
sorority does not include an alumni club or chapter. Also, if the club
rooms or house are used mostly for supplying board or lodging to
students or nonstudents as a business, the work done is not excluded by
this section.
20 CFR 404.1015 Family services.
(a) General. If you work as an employee of a relative, the work is
excluded from employment if --
(1) You work while under age 18 in the employ of your parent;
(2) You do nonbusiness work (see 404.1058(a)(3) for an explanation
of nonbusiness work) or perform domestic service (as described in
404.1057(b)) as an employee of your parent while under age 21;
(3) You do nonbusiness work as an employee of your son, daughter, or
spouse; or
(4) You perform domestic service in the private home of your son,
daughter or spouse as an employee of that son, daughter or spouse unless
--
(i) The son or daughter has a child (either natural, adopted or
stepchild) living in the home who is under age 18 or, if older, has a
mental or physical condition that requires the personal care and
supervision of an adult for at least four continuous weeks in the
calendar quarter in which the work is done; and
(ii) The son or daughter is a widower or widow, or is divorced and
has not remarried, or has a spouse living in the home who, because of a
physical or mental condition, is incapable of taking care of the child
and the condition is present for at least four continuous weeks in the
calendar quarter in which the work is done.
(b) Family work for other than sole proprietor. Work for a
corporation is not excluded under this section, and work for a
partnership is not excluded unless the required family relationship
exists between the employee and each of the partners.
(45 FR 20075, Mar. 27, 1980, as amended at 57 FR 59913, Dec. 17,
1992)
20 CFR 404.1016 Foreign agricultural workers.
Farm work done by foreign workers lawfully admitted to the United
States on a temporary basis to do farm work is not covered as
employment. The excluded work includes any services connected with farm
operations.
20 CFR 404.1017 Sharefarmers.
(a) If you are a sharefarmer, your services are not covered as
employment, but as self-employment.
(b) You are a sharefarmer if you have an arrangement with the owner
or tenant of the land and the arrangement provides for all of the
following:
(1) You will produce agricultural or horticultural commodities on the
land.
(2) The commodities you produce or the income from their sale will be
divided between you and the person with whom you have the agreement.
(3) The amount of your share depends on the amount of commodities you
produce.
(c) If under your agreement you are to receive a specific rate of
pay, a fixed sum of money or a specific amount of the commodities not
based on your production, you are not a sharefarmer for social security
purposes.
20 CFR 404.1018 Work by civilians for the United States Government or
its instrumentalities -- wages paid after 1983.
(a) General. If you are a civilian employee of the United States
Government or an instrumentality of the United States, your employer
will determine the amount of remuneration paid for your work and the
periods in or for which such remuneration was paid. We will determine
whether your employment is covered under Social Security, the periods of
such covered employment, and whether remuneration paid for your work
constitutes wages for purposes of Social Security. To make these
determinations we will consider the date of your appointment to Federal
service, your previous Federal employing agencies and positions (if
any), whether you were covered under Social Security or a Federal
civilian retirement system, and whether you made a timely election to
join a retirement system established by the Federal Employees'
Retirement System Act of 1986 or the Foreign Service Pension System Act
of 1986. Using this information and the following rules, we will
determine that your service is covered unless --
(1) The service would have been excluded if the rules in effect in
January 1983 had remained in effect; and
(i) You have been continuously performing such service since December
31, 1983; or
(ii) You are receiving an annuity from the Civil Service Retirement
and Disability Fund or benefits for service as an employee under another
retirement system established by a law of the United States and in
effect on December 31, 1983, for employees of the Federal Government
other than a system for members of the uniformed services.
(2) The service is under the provisions of 28 U.S.C. 294, relating to
the assignment of retired Federal justices and judges to active duty.
(b) Covered services -- (1) Federal officials. Any service for which
you received remuneration after 1983 is covered if performed --
(i) As the President or the Vice President of the United States;
(ii) In a position placed in the Executive Schedule under 5 U.S.C.
5312 through 5317;
(iii) As a noncareer appointee in the Senior Executive Service or a
noncareer member of the Senior Foreign Service;
(iv) In a position to which you are appointed by the President, or
his designee, or the Vice President under 3 U.S.C. 105(a)(1), 106(a)(1),
or 197(a)(1) or (b)(1) if the maximum rate of basic pay for such
position is at or above the rate for level V of the Executive Schedule;
(v) As the Chief Justice of the United States, an Associate Justice
of the Supreme Court, a judge of a United States court of appeals, a
judge of a United States district court, including the district court of
a territory, a judge of the United States Claims Court, a judge of the
United States Court of International Trade, a judge of the United States
Tax Court, a United States magistrate, or a referee in bankruptcy or
United States bankruptcy judge; or
(vi) As a Member, Delegate, or Resident Commissioner of or to the
Congress.
(2) Legislative Branch Employees. Service you perform for the
legislative branch of the Federal Government for which you are paid
remuneration after 1983 is generally covered by Social Security if such
service is not covered by the Civil Service Retirement System or by
another retirement system established by a law of the United States and
in effect on December 31, 1983, for employees of the Federal Government
other than a system for members of the uniformed services.
(3) Election to become subject to the Federal Employees' Retirement
System or the Foreign Service Pension System. Your service is covered
if:
(i) You timely elect after June 30, 1987, under either the Federal
Employees' Retirement System Act or the Central Intelligence Agency
Retirement Act, to become subject to the Federal Employees Retirement
System provided in 5 U.S.C. 8401 through 8479; or
(ii) You timely elect after June 30, 1987, to become subject to the
Foreign Service Pension System provided in 22 U.S.C. 4071 through
4071(k).
(4) Subsequent Federal civilian service. If you perform Federal
civilian service on or after November 10, 1988, which is described in
paragraph (b)(1), (b)(2), or (b)(3) of this section you will continue to
be covered for any subsequent Federal Civilian Service not excluded
under paragraph (c) of this section.
(c) Excluded Service. Notwithstanding 404.1018a and this section,
your service is not covered if performed --
(1) In a penal institution of the United States as an inmate thereof;
(2) As an employee included under 5 U.S.C. 5351(2) relating to
certain interns, student nurses, and other student employees of
hospitals of the Federal Government, other than as a medical or dental
intern or a medical or dental resident in training;
(3) As an employee serving on a temporary basis in case of fire,
storm, earthquake, flood, or other similar emergency; or
(4) Under any other statutory provisions that would require exclusion
for reasons other than being in the employ of the Federal Government or
an instrumentality of such.
(d) Work as a Peace Corps Volunteer. Work performed as a volunteer
or volunteer leader within the meaning of the Peace Corps Act, 22 U.S.C.
2501 through 2523, is covered as employment.
(e) Work as Job Corps Enrollee. Work performed as an enrollee in the
Job Corps is considered to be performed in the employ of the United
States.
(f) Work by Volunteer in Service to America. Work performed and
training received as a Volunteer in Service to America is considered to
be performed in the employ of the United States if the volunteer is
enrolled for a period of service of at least 1 year. If the enrollment
is for less than 1 year, we use the common-law rules in 404.1007 to
determine the volunteer's status.
(g) Meaning of ''continuously performing'' -- (1) Absence of less
than 366 days. You are considered to be continuously performing service
described in paragraph (a)(1)(i) of this section if you return to the
performance of such service after being separated from such service for
a period of less than 366 consecutive days, regardless of whether the
period began before, on, or after December 31, 1983.
(2) Other absences. You are considered to be continuously performing
service described in paragraph (a)(1)(i) of this section regardless of
the length of separation or whether the period of separation began
before, on, or after December 31, 1983, if you --
(i) Return to the performance of such service after being detailed or
transferred from such service to an international organization as
described under 5 U.S.C. 3343 or under 5 U.S.C. 3581;
(ii) Are reemployed or reinstated after being separated from such
service for the purpose of accepting employment with the American
Institute of Taiwan as provided under 22 U.S.C. 3310;
(iii) Return to the performance of such service after performing
service as a member of a uniformed service including service in the
National Guard and temporary service in the Coast Guard Reserve and
after exercising restoration or reemployment rights as provided under 38
U.S.C. chapter 43; or
(iv) Return to the performance of such service after employment by a
tribal organization to which section 105(e)(2) of the Indian
Self-Determination Act applies.
(53 FR 38944, Oct. 4, 1988; 53 FR 44551, Nov. 3, 1988; as amended
at 55 FR 24891, June 19, 1990)
20 CFR 404.1018a Work by civilians for the United States Government or
its instrumentalities -- remuneration paid prior to 1984.
(a) General -- remuneration paid prior to 1984. If you worked as a
civilian employee of the United States Government or an instrumentality
of the United States, your work was excluded from employment if that
work was covered by a retirement system established by law. Your work
for an instrumentality that was exempt from Social Security tax was also
excluded. Certain other work for the United States or an
instrumentality of the United States was specifically excluded and is
described in this section.
(b) Work covered by a retirement system -- remuneration paid prior to
1984. Work you did as an employee of the United States or an
instrumentality of the United States was excluded from employment if the
work was covered by a retirement system established by a law of the
United States. If you had a choice as to whether your work was covered
by the retirement system, the work was not covered by that system until
you chose that coverage. In order for the exclusion to apply, the work
you did, rather than the position you held, must have been covered by
the retirement system.
(c) Work that was specifically excluded -- remuneration paid prior to
1984. Work performed by an employee of the United States or an
instrumentality of the United States was excluded if it was done --
(1) As the President or Vice President of the United States;
(2) As a Member of the United States Congress, a Delegate to
Congress, or a Resident Commissioner;
(3) In the legislative branch of the United States Government;
(4) By a student nurse, student dietitian, student physical therapist
or student occupational therapist who was assigned or attached to a
Federal hospital, clinic, or medical or dental laboratory;
(5) By a person designated as a student employee with the approval of
the Office of Personnel Management who was assigned or attached
primarily for training purposes to a Federal hospital, clinic, or
medical or dental laboratory, other than a medical or dental intern or
resident in training;
(6) By an employee who served on a temporary basis in case of fire,
storm, earthquake, flood, or other similar emergency;
(7) By a person to whom the Civil Service Retirement Act did not
apply because the person's services were subject to another retirement
system established by a law of the United States or by the
instrumentality of the United States for which the work was done, other
than the retirement system established by the Tennessee Valley Authority
under the plan approved by the Secretary of Health, Education, and
Welfare on December 28, 1956; or
(8) By an inmate of a penal institution of the United States, if the
work was done in the penal institution.
(d) Work for instrumentalities of the United States exempt from
employer tax -- remuneration paid prior to 1984.
(1) Work performed by an employee of an instrumentality of the United
States was excluded if --
(i) The instrumentality was exempt from the employer tax imposed by
section 3111 of the Code or by section 1410 of the Internal Revenue Code
of 1939; and
(ii) The exemption was authorized by another law specifically
referring to these sections.
(2) Work performed by an employee of an instrumentality of the United
States was excluded if the instrumentality was not on December 31, 1950,
subject to the employer tax imposed by section 1410 of the Internal
Revenue Code of 1939 and the work was covered by a retirement system
established by the instrumentality, unless --
(i) The work was for a corporation wholly owned by the United States;
(ii) The work was for a Federal land bank association, a production
credit association, a Federal Reserve Bank, a Federal Credit Union, a
Federal land bank, a Federal intermediate credit bank, a bank for
cooperatives, or a Federal Home Loan Bank;
(iii) The work was for a State, county, or community committee under
the Agriculture Marketing Service and the Commodity Stabilization
Service, formerly the Production and Marketing Administration; or
(iv) The work was by a civilian, who was not paid from funds
appropriated by the Congress, in activities conducted by an
instrumentality of the United States subject to the jurisdiction of the
Secretary of Defense or Secretary of Transportation at installations
intended for the comfort, pleasure, contentment, and mental and physical
improvement of personnel of the Defense Department or the Coast Guard,
such as --
(A) Army and Air Force Exchange Service;
(B) Army and Air Force Motion Picture Service;
(C) Coast Guard Exchanges;
(D) Navy Ship's Service Stores; and
(E) Marine Corps Post Exchanges.
(3) For purposes of paragraph (d) (2) of this section, if an employee
has a choice as to whether his or her work was covered by a retirement
system, the work was not covered by that system until he or she chose
that coverage. The work done, rather than the position held, must have
been covered by the retirement system.
(e) Work as a Peace Corps Volunteer -- remuneration paid prior to
1984. Work performed as a volunteer or volunteer leader within the
meaning of the Peace Corps Act, 22 U.S.C. 2501 through 2523, was covered
as employment.
(f) Work as Job Corps Enrollee -- remuneration paid prior to 1984.
Work performed as an enrollee in the Job Corps was considered to be
performed in the employ of the United States.
(g) Work by Volunteer in Service to America -- remuneration paid
prior to 1984. Work performed and training received as a Volunteer in
Service to America was considered to be performed in the employ of the
United States if the volunteer was enrolled for a period of service of
at least one year. If the enrollment was for less than one year, we
used the common-law rules in 404.1007 to determine the volunteer's
status.
(53 FR 38945, Oct. 4, 1988)
20 CFR 404.1018b Medicare qualified government employment.
(a) General. The work of a Federal, State, or local government
employee not otherwise subject to Social Security coverage may
constitute Medicare qualified government employment. Medicare qualified
government employment means any service which in all ways meets the
definition of ''employment'' for title II purposes of the Social
Security Act, except for the fact that the service was performed by a
Federal, State or local government employee. This employment is used
solely in determining eligibility for protection under part A of title
XVIII of the Social Security Act (Hospital Insurance) and for coverage
under the Medicare program for end-stage renal disease.
(b) Federal employment. If, beginning with remuneration paid after
1982, your service as a Federal employee is not otherwise covered
employment under the Social Security Act, it is Medicare qualified
government employment unless excluded under 404.1018(c).
(c) State and local government employment. If, beginning with
service performed after March 31, 1986, your service as an employee of a
State or political subdivision (as defined in 404.1202(b)), Guam,
American Samoa, the District of Columbia, or the Northern Mariana
Islands is excluded from covered employment solely because of section
210(a)(7) of the Social Security Act which pertains to employees of
State and local governments (note 404.1020 through 404.1022), it is
Medicare qualified government employment except as provided in
paragraphs (c) (1) and (2) of this section.
(1) An individual's service shall not be treated as employment if
performed --
(i) By an individual employed by a State or political subdivision for
the purpose of relieving that individual from unemployment;
(ii) In a hospital, home, or other institution by a patient or inmate
thereof as an employee of a State, political subdivision, or of the
District of Columbia;
(iii) By an individual, as an employee of a State, political
subdivision or the District of Columbia serving on a temporary basis in
case of fire, storm, snow, earthquake, flood, or other similar
emergency;
(iv) By an individual as an employee included under 5 U.S.C. 5351(2)
(relating to certain interns, student nurses, and other student
employees of hospitals of the District of Columbia government), other
than as a medical or dental intern or a medical or dental resident in
training; or
(v) By an election official or election worker paid less than $100 in
a calendar year for such service.
(2) An individual's service performed for an employer shall not be
treated as employment if --
(i) The service would be excluded from coverage under section
210(a)(7) of the Social Security Act which pertains to employees of
State and local governments;
(ii) The service is performed by an individual who --
(A) Was performing substantial and regular service for remuneration
for that employer before April 1, 1986;
(B) Was a bona fide employee of that employer on March 31, 1986; and
(C) Did not enter into the employment relationship with that employer
for purposes of meeting the requirements of paragraphs (c)(2)(ii) (A)
and (B) of this section; and
(iii) After March 31, 1986, but prior to the service being performed,
the employment relationship with that employer had not been terminated.
(57 FR 59913, Dec. 17, 1992)
20 CFR 404.1019 Work as a member of a uniformed service of the United
States.
(a) Your work as a member of a uniformed service of the United States
is covered under Social Security (unless creditable under the Railroad
Retirement Act), if --
(1) On or after January 1, 1957, the work is service on active duty
or active duty for training but not including service performed while on
leave without pay; or
(2) On or after January 1, 1988, the work is service on inactive duty
training.
(b) You are a member of a uniformed service if --
(1) You are appointed, enlisted, or inducted into (or a retired
member of) --
(i) One of the armed services (Army, Navy, Air Force, Marine Corps,
or Coast Guard); or
(ii) A component of one of the armed services, including any reserve
component as defined in Veterans' Benefits, 38 U.S.C. 101 (except the
Coast Guard Reserve as a temporary member);
(2) You are a commissioned officer (including a retired commissioned
officer) of the National Oceanic and Atmospheric Administration or the
Regular or Reserve Corps of the Public Health Service;
(3) You are a member of the Fleet Reserve or Fleet Marine Corps
Reserve;
(4) You are a cadet at the United States Military, Coast Guard, or
Air Force Academy, or a midshipman at the United States Naval Academy;
(5) You are a member of the Reserve Officers Training Corps, the
Naval Reserve Officers Training Corps, or the Air Force Reserve Officers
Training Corps, when ordered to annual training duty for 14 days or more
including periods of authorized travel to and from that duty; or
(6) You are selected for active military or naval training under the
Military Selective Service Act or are provisionally accepted for active
duty in the military or naval service and you are ordered or directed to
a place for final acceptance or entry upon active duty and are on the
way to or from, or at, that place.
(45 FR 20075, Mar. 27, 1980, as amended at 57 FR 59913, Dec. 17,
1992)
20 CFR 404.1020 Work for States and their political subdivisions and
instrumentalities.
(a) General. If you work as an employee of a State, a political
subdivision of a State, or any wholly owned instrumentality of one or
more of these, your work is excluded from employment unless --
(1) The work is covered under an agreement under section 218 of the
Act (see subpart M of this part); or
(2) The work is covered transportation service as defined in section
210(k) of the Act (see paragraph (c) of this section).
(3) You perform services after July 1, 1991, as an employee of a
State (other than the District of Columbia, Guam, or American Samoa), a
political subdivision of a State, or any wholly owned instrumentality of
one or more of the foregoing and you are not a member of a retirement
system of such State, political subdivision, or instrumentality.
Retirement system has the meaning given that term in section 218(b)(4)
of the Act, except as provided in regulations prescribed by the
Secretary of the Treasury. This paragraph does not apply to services
performed --
(i) As an employee employed to relieve you from unemployment;
(ii) In a hospital, home, or other institution where you are a
patient or inmate thereof;
(iii) As an employee serving on a temporary basis in case of fire,
storm, snow, earthquake, flood, or other similar emergency;
(iv) As an election official or election worker if the remuneration
paid in a calendar year for such service is less than $100; or
(v) As an employee in a position compensated solely on a fee basis
which is treated, pursuant to section 211(c)(2)(E) of the Act, as a
trade or business for purposes of inclusion of the fees in net earnings
from self-employment; or
(4) The work is covered under 404.1021 or 404.1022.
(b) Medicare qualified government employment. Notwithstanding the
provisions of paragraph (a) of this section, your work may be covered as
Medicare qualified government employment (see 404.1018b(c) of this
subpart).
(c) Covered transportation service -- (1) Work for a public
transportation system. If you work for a public transportation system
of a State or political subdivision of a State, your work may be covered
transportation service if all or part of the system was acquired from
private ownership. You must work as an employee of the State or
political subdivision in connection with its operation of a public
transportation system for your work to be covered transportation
service. This paragraph sets out additional conditions that must be met
for your work to be covered transportation service. If you work for a
public transportation system but your work is not covered transportation
service, your work may be covered for social security purposes under an
agreement under section 218 of the Act (see subpart M of this part).
(2) Transportation system acquired in whole or in part after 1936 and
before 1951. All work after 1950 for a public transportation system is
covered transportation service if --
(i) Any part of the transportation system was acquired from private
ownership after 1936 and before 1951; and
(ii) No general retirement system covering substantially all work in
connection with the operation of the transportation system and
guaranteed by the State constitution was in effect on December 31, 1950.
(3) Transportation system operated on December 31, 1950, no part of
which was acquired after 1936 and before 1951. If no part of a
transportation system operated by a State or political subdivision on
December 31, 1950, was acquired from private ownership after 1936 and
before 1951, work for that public transportation system is not covered
transportation service unless performed under conditions described in
paragraph (b)(4) of this section.
(4) Addition after 1950 to existing transportation system. Work for
a public transportation system part of which was acquired from private
ownership after 1950 as an addition to an existing transportation system
is covered transportation service beginning with the first day of the
third calendar quarter following the calendar quarter in which the
addition was acquired if --
(i) The work is performed by an employee who --
(A) Worked in employment in connection with the operation of the
addition before the addition was acquired by the State or political
subdivision; and
(B) Became an employee of the State or political subdivision in
connection with and at the time of its acquisition of the addition;
(ii) On that first day, work performed by that employee is --
(A) Not covered by a general retirement system; or
(B) Covered by a general retirement system which contains special
provisions that apply only to employees described in paragraph
(c)(4)(i)(B) of this section;
(iii) The existing transportation system was operated by the State or
political subdivision on December 31, 1950; and
(iv) Work for the existing transportation system was not covered
transportation service because --
(A) No part of the system was acquired from private ownership after
1936 and before 1951; or
(B) The general retirement system described in paragraph (c)(2)(ii)
of this section was in effect on December 31, 1950.
(5) Transportation system acquired after 1950. All work for a public
transportation system is covered transportation service if --
(i) The transportation system was not operated by the State or
political subdivision before 1951;
(ii) All or part of the transportation system was first acquired from
private ownership after 1950; and
(iii) At the time the State or political subdivision first acquired
any part of its transportation system from private ownership, it did not
have a general retirement system covering substantially all work
performed in connection with the operation of the transportation system.
(6) Definitions. (i) The term general retirement system means any
pension, annuity, retirement, or similar fund or system established by a
State or by a political subdivision of a State for employees of the
State, the political subdivision, or both. The term does not include a
fund or system which covers only work performed in positions connected
with the operation of the public transportation system.
(ii) A transportation system (or part of a system) is considered to
have been acquired from private ownership by a State or political
subdivision if --
(A) Before the acquisition, work performed by employees in connection
with the operation of the system (or an acquired part) constituted
employment under the Act; and
(B) Some of these employees became employees of the State or
political subdivision in connection with and at the time of the
acquisition.
(iii) The term political subdivision includes an instrumentality of a
State, of one or more political subdivisions of a State, or of a State
and one or more of its political subdivisions.
(45 FR 20075, Mar. 27, 1980, as amended at 57 FR 59910, 59914, Dec.
17, 1992)
20 CFR 404.1021 Work for the District of Columbia.
If you work as an employee of the District of Columbia or a wholly
owned instrumentality of the District of Columbia, your work is covered
as employment unless --
(a) Your work is covered by a retirement system established by a law
of the United States; or
(b) You are --
(1) A patient or inmate of a hospital or penal institution and your
work is for that hospital or institution;
(2) A student employee (a student nurse, dietitian, or physical or
occupational therapist, but not a medical or dental intern or resident
in training) of a District of Columbia hospital, clinic, or medical or
dental laboratory;
(3) An employee serving temporarily in case of fire, storm, snow,
earthquake, flood, or other similar emergency; or
(4) A member of a board, committee, or council of the District of
Columbia paid on a per diem, meeting, or other fee basis.
(c) Medicare qualified government employment. If your work is not
covered under Social Security, it may be covered as Medicare qualified
government employment (see 404.1018b(c) of this subpart).
(45 FR 20075, Mar. 27, 1980, as amended at 57 FR 59914, Dec. 17,
1992)
20 CFR 404.1022 American Samoa or Guam.
(a) Work in American Samoa or Guam. Work in American Samoa or Guam
for a private employer is covered as employment the same as in the 50
States. Work done by a resident of the Republic of the Philippines
working in Guam on a temporary basis as a nonimmigrant alien admitted to
Guam under section 101(a)(15)(H)(ii) of the Immigration and Nationality
Act is excluded from coverage regardless of the employer.
(b) Work for American Samoa or a political subdivision or wholly
owned instrumentality of American Samoa. Work as an officer or employee
(including a member of the legislature) of the government of American
Samoa, its political subdivisions, or any wholly owned instrumentality
of any one or more of these, is covered as employment (unless the work
is covered by a retirement system established by a law of the United
States). The officer or employee is not considered as an employee of
the United States, an agency of the United States, or an instrumentality
of the United States, for purposes of title II of the Act. We consider
any pay for this work to have been paid by the government of American
Samoa, or the political subdivision or the wholly owned instrumentality
of American Samoa.
(c) Work for Guam or a political subdivision or wholly owned
instrumentality of Guam. Work as an officer or employee (including a
member of the legislature) of the government of Guam, its political
subdivisions, or any wholly owned instrumentality of any one or more of
these, is excluded from coverage as employment. However, the exclusion
does not apply to employees classified as temporary or intermittent
unless the work is --
(1) Covered by a retirement system established by a law of Guam;
(2) Done by an elected official;
(3) Done by a member of the legislature; or
(4) Done in a hospital or penal institution by a patient or inmate of
the hospital or penal institution.
(d) Medicare qualified government employment. If your work is not
covered under Social Security, it may be covered as Medicare qualified
government employment (see 404.1018b(c) of this subpart).
(45 FR 20075, Mar. 27, 1980, as amended at 57 FR 59914, Dec. 17,
1992)
20 CFR 404.1023 Ministers of churches and members of religious orders.
(a) General. If you are a duly ordained, commissioned, or licensed
minister of a church, the work you do in the exercise of your ministry
is excluded from employment. However, it is treated as self-employment
for social security purposes. If you are a member of a religious order
who has not taken a vow of poverty, the same rule applies to the work
you do in the exercise of your duties required by that order. If you
are a member of a religious order who has taken a vow of poverty, the
work you do in the exercise of duties required by the order (the work
may be done for the order or for another employer) is covered as
employment only if the order or autonomous subdivision of the order to
which you belong has filed an effective election of coverage. The
election is made under section 3121(r) of the Code. For the rules on
self-employment coverage of ministers and members of religious orders
who have not taken vows of poverty, see 404.1071.
(b) What is an ordained, commissioned, or licensed minister. The
terms ordained, commissioned, or licensed describe the procedures
followed by recognized churches or church denominations to vest
ministerial status upon qualified individuals. If a church or church
denomination has an ordination procedure, the commissioning or licensing
of a person as a minister may not make him or her a commissioned or
licensed minister for purposes of this subpart. Where there is an
ordination procedure, the commissioning or licensing must be recognized
as having the same effect as ordination and the person must be fully
qualified to exercise all of the ecclesiastical duties of the church or
church denomination.
(c) When is work by a minister in the exercise of the ministry. (1)
A minister is working in the exercise of the ministry when he or she is
--
(i) Ministering sacerdotal functions or conducting religious worship
(other than as described in paragraph (d)(2) of this section); or
(ii) Working in the control, conduct, and maintenance of a religious
organization (including an integral agency of a religious organization)
under the authority of a religious body constituting a church or church
denomination.
(2) The following rules are used to decide whether a minister's work
is in the exercise of the ministry:
(i) Whether the work is the conduct of religious worship or the
ministration of sacerdotal functions depends on the tenets and practices
of the religious body which is his or her church or church denomination.
(ii) Work in the control, conduct, and maintenance relates to
directing, managing, or promoting the activities of the religious
organization. Any religious organization is considered to be under the
authority of a religious body constituting a church or church
denomination if it is organized and dedicated to carrying out the tenets
and principles of a faith according to either the requirements or
sanctions governing the creation of institutions of the faith.
The term religious organization has the same meaning and application
as is given to the term for income tax purposes under the Code.
(iii) If a minister is working in the conduct of religious worship or
the ministration of sacerdotal functions, the work is in the exercise of
the ministry whether or not it is performed for a religious
organization. (See paragraph (d)(2) of this section for an exception to
this rule.)
Example. M, a duly ordained minister, is engaged to work as chaplain
at a privately owned university. M spends his entire time working as
chaplain. This includes the conduct of religious worship, offering
spiritual counsel to the university students, and teaching a class in
religion. M is working in the exercise of the ministry.
(iv) If a minister is working for an organization which is operated
as an integral agency of a religious organization under the authority of
a religious body constituting a church or church denomination, all work
by the minister in the conduct of religious worship, in the ministration
of sacerdotal functions, or in the control, conduct, and maintenance of
the organization is in the exercise of the ministry.
Example. M, a duly ordained minister, is engaged by the N Religious
Board as director of one of its departments. M performs no other
service. The N Religious Board is an integral agency of O, a religious
organization operating under the authority of a religious body
constituting a church denomination. M is working in the exercise of the
ministry.
(v) If a minister, under an assignment or designation by a religious
body constituting a church, works for an organization which is neither a
religious organization nor operated as an integral agency of a religious
organization, all service performed by him or her, even though the
service may not involve the conduct of religious worship or the
ministration of sacerdotal functions, is in the exercise of the
ministry.
Example. M, a duly ordained minister, is assigned by X, the religious
body constituting M's church, to perform advisory service to Y company
in connection with the publication of a book dealing with the history of
M's church denomination. Y is neither a religious organization nor
operated as an integral agency of a religious organization. M performs
no other service for X or Y. M is working in the exercise of the
ministry.
(vi) If a minister is working for an organization which is neither a
religious organization nor operated as an integral agency of a religious
organization and the work is not performed under an assignment or
designation by ecclesiastical superiors, then only the work done by the
minister in the conduct of religious worship or the ministration of
sacerdotal functions is in the exercise of the ministry. (See paragraph
(d)(2) of this section for an exception to this rule.)
Example. M, a duly ordained minister, is engaged by N University to
teach history and mathematics. M does no other work for N although from
time to time M performs marriages and conducts funerals for relatives
and friends. N University is neither a religious organization nor
operated as an integral agency of a religious organization. M is not
working for N under an assignment by his ecclesiastical superiors. The
work performed by M for N University is not in the exercise of the
ministry. However, service performed by M in performing marriages and
conducting funerals is in the exercise of the ministry.
(d) When is work by a minister not in the exercise of the ministry.
(1) Work performed by a duly ordained, commissioned, or licensed
minister of a church which is not in the exercise of the ministry is not
excluded from employment.
(2) Work performed by a duly ordained, commissioned, or licensed
minister of a church as an employee of the United States, or a State,
territory, or possession of the United States, or the District of
Columbia, or a foreign government, or a political subdivision of any of
these, is not in the exercise of the ministry, even though the work may
involve the ministration of sacerdotal functions or the conduct of
religious worship. For example, we consider service performed as a
chaplain in the Armed Forces of the United States to be work performed
by a commissioned officer and not by a minister in the exercise of the
ministry. Also, service performed by an employee of a State as a
chaplain in a State prison is considered to be performed by a civil
servant of the State and not by a minister in the exercise of the
ministry.
(e) Work in the exercise of duties required by a religious order.
Work performed by a member of a religious order in the exercise of
duties required by the order includes all duties required of the member
of the order. The nature or extent of the work is immaterial so long as
it is service which the member is directed or required to perform by the
member's ecclesiastical superiors.
20 CFR 404.1024 Election of coverage by religious orders.
A religious order whose members are required to take a vow of
poverty, or any autonomous subdivision of that religious order, may
elect to have social security coverage extended to the work performed by
its members in the exercise of duties required by that order or
subdivision. The rules on the election of coverage by these religious
orders are described in 26 CFR 31.3121(r). The rules on determining the
wages of members of religious orders for which an election of coverage
has been made are described in 404.1046.
20 CFR 404.1025 Work for religious, charitable, educational, or certain
other organizations exempt from income tax.
(a) After 1983. Work done after 1983 by an employee in the employ of
a religious, charitable, educational, or other organization described in
section 501(c)(3) of the Code which is exempt from income tax under
section 501(a) of the Code is covered as employment unless the work is
for a church or church-controlled organization that has elected to have
services performed by its employees excluded (see 404.1026). (See
404.1059(b) for special wage rule.)
(b) Before 1984. Work described in paragraph (a) of this section
which was done before 1984 is excluded from employment. However, the
exclusion does not apply to work done during the period for which a form
SS-15, Certificate Waiving Exemption From Taxes Under the Federal
Insurance Contributions Act, was filed (or was deemed to have been
filed) with the Internal Revenue Service.
(50 FR 36573, Sept. 9, 1985)
20 CFR 404.1026 Work for a church or qualified church-controlled
organization.
(a) General. If you work for a church or qualified church-controlled
organization, as described in this section, your employer may elect to
have your services excluded from employment. You would then be
considered to be self-employed and special conditions would apply to
you. See 404.1068(f) for those special conditions. The employer's
election of the exclusion must be made with the Internal Revenue Service
in accordance with Internal Revenue Service procedures and must state
that the church or church-controlled organization is opposed for
religious reasons to the payment of Social Security employment taxes.
The exclusion applies to current and future employees. If you work in
an unrelated trade or business (within the meaning of section 513(a) of
the Code) of the church or church-controlled organization, the exclusion
does not apply to your services.
(b) What is a church. For purposes of this section the term church
means a church, a convention or association of churches, or an
elementary or secondary school which is controlled, operated, or
principally supported by a church or by a convention or association of
churches.
(c) What is a qualified church-controlled organization. For purposes
of this section the term qualified church-controlled organization means
any church-controlled organization exempt from income tax under section
501(c)(3) of the Code but does not include an organization which:
(1) Offers goods, services, or facilities for sale to the general
public, other than on an incidental basis, or for other than a nominal
charge which is substantially less than the cost of providing such
goods, services, or facilities; and
(2) Normally receives more than 25 percent of its support from either
governmental sources or receipts from admissions, sales of merchandise,
performance of services or furnishing of facilities other than in an
unrelated trade or business, or both.
(50 FR 36573, Sept. 9, 1985, as amended at 55 FR 7309, Mar. 1, 1990)
20 CFR 404.1027 Railroad work.
We exclude from employment any work you do as an employee or employee
representative as described in the Railroad Retirement Tax Act.
However, railroad compensation can be counted for social security
purposes under the conditions described in subpart O of this part.
20 CFR 404.1028 Student working for a school, college, or university.
(a) For purposes of this section, a school, college, or university
has its usual accepted meaning. It does not, however, include any
school, college, or university that is an instrumentality or integral
part of a State or a political subdivision of a State for which work can
only be covered by an agreement under section 218 of the Act. (See
subpart M of this part.)
(b) If you are a student, any work you do as an employee of a school,
college or university is excluded from employment, if you are enrolled
in and regularly attending classes at that school, college, or
university. The exclusion also applies to work you do for a private
nonprofit auxiliary organization of the school, college, or university
if it is organized and operated exclusively for the benefit of, to
perform functions of, or to carry out the purposes of the school,
college, or university. The organization must be operated, supervised,
or controlled by, or in connection with, the school, college, or
university.
(c) Whether you are a student for purposes of this section depends on
your relationship with your employer. If your main purpose is pursuing
a course of study rather than earning a livelihood, we consider you to
be a student and your work is not considered employment.
20 CFR 404.1029 Student nurses.
If you are a student nurse, your work for a hospital or nurses
training school is excluded from employment if you are enrolled and
regularly attending classes in a nurses training school which is
chartered or approved under State law.
20 CFR 404.1030 Delivery and distribution or sale of newspapers,
shopping news, and magazines.
(a) If you are under age 18. Work you do before you reach age 18
delivering or distributing newspapers or shopping news is excluded from
employment. This does not include delivery or distribution to some
point for further delivery or distribution by someone else. If you make
house-to-house delivery or sale of newspapers or shopping news
(including handbills and similar kinds of advertising material), your
work is not covered while you are under age 18. Related work such as
assembling newspapers is also excluded.
(b) If you are any age. No matter how old you are, work you do in
connection with and at the time of the sale of newspapers or magazines
to consumers is excluded from employment if there is an arrangement
under which --
(1) You are to sell the newspapers or magazines at a fixed price;
and
(2) Your pay is the difference between the fixed selling price and
the amount you are charged for the newspapers or magazines (whether or
not you are guaranteed a minimum amount of compensation or receive
credit for unsold newspapers or magazines).
(c) If you are age 18 or older. If you have attained age 18, you are
self-employed if you work under the arrangement described in paragraph
(b) of this section. See 404.1068(b).
20 CFR 404.1031 Fishing.
(a) If you work on a boat engaged in catching fish or other forms of
aquatic animal life, your work is not employment if you have an
arrangement with the owner or operator of the boat which provides for
all of the following:
(1) You do not receive any cash pay (other than as provided in
paragraph (a)(2) of this section).
(2) You receive a share of the catch or a share of the proceeds from
the sale of the catch.
(3) The amount of your share depends on the size of the catch.
(4) The operating crew of the boat (or each boat from which you
receive a share if the fishing operation involves more than one boat) is
normally made up of fewer than 10 individuals.
(b) Work excluded from employment under this section is considered to
be self-employment ( 404.1068(e)).
20 CFR 404.1032 Work for a foreign government.
If you work as an employee of a foreign government in any capacity,
your work is excluded from employment. If you are a citizen of the
United States and work in the United States as an employee of a foreign
government, you are considered to be self-employed ( 404.1068(d)).
20 CFR 404.1033 Work for a wholly owned instrumentality of a foreign
government.
(a) If you work as an employee of an instrumentality of a foreign
government, your work is excluded from employment if --
(1) The instrumentality is wholly owned by the foreign government;
(2) Your work is similar to work performed in foreign countries by
employees of the United States Government or its instrumentalities; and
(3) The Secretary of State certifies to the Secretary of the Treasury
that the foreign government grants an equivalent exemption for services
performed in the foreign country by employees of the United States
Government or its instrumentalities.
(b) Your work will not be excluded under this section if any of the
conditions in paragraph (a) of this section are not met.
(c) If you are a citizen of the United States and work in the United
States as an employee of an instrumentality of a foreign government and
the conditions in paragraph (a) of this section are met, you are
considered to be self-employed ( 404.1068(d)).
20 CFR 404.1034 Work for an international organization.
(a) If you work as an employee of an international organization
entitled to enjoy privileges, exemptions, and immunities as an
international organization under the International Organizations
Immunities Act (59 Stat. 669), your work is excluded from employment.
The organization must meet the following conditions:
(1) It must be a public international organization in which the
United States participates under a treaty or authority of an act of
Congress authorizing, or making an appropriation for, participation.
(2) It must be designated by executive order to be entitled to enjoy
the privileges, exemptions, and immunities provided in the International
Organizations Immunities Act.
(3) The designation must be in effect, and all conditions and
limitations in the designation must be met.
(b) Your work will not be excluded under this section if any of the
conditions in paragraph (a) of this section are not met.
(c) If you are a citizen of the United States and work in the United
States as an employee of an international organization that meets the
conditions in paragraph (a) of this section, you are considered to be
self-employed ( 404.1068(d)).
20 CFR 404.1035 Work for a communist organization.
If you work as an employee of an organization which is registered, or
which is required by a final order of the Subversive Activities Control
Board to register under the Internal Security Act of 1950 as a communist
action, communist-front, or communist-infiltrated organization, your
work is excluded from employment. The exclusion is effective with the
calendar year in which the organization is registered or the final order
is in effect.
20 CFR 404.1036 Certain nonresident aliens.
(a) Foreign students. Foreign students (nonimmigrant aliens) may be
temporarily in the United States under subparagraph (F) of section
101(a)(15) of the Immigration and Nationality Act to attend a school or
other recognized place of study approved by the Attorney General.
On-campus work or work under permission granted by the Immigration and
Naturalization Service which is done by these students is excluded from
employment. Other work done by these foreign students is not excluded
from employment under this section.
(b) Exchange visitors. Exchange visitors (nonimmigrant aliens) may
be temporarily in the United States under subparagraph (J) of section
101(a)(15) of the Immigration and Nationality Act to participate in
exchange visitor programs designated by the Secretary of State. Work
done by these exchange visitors to carry out the purpose for which they
were admitted and for which permission has been granted by the sponsor,
is excluded from employment. Other work done by these exchange visitors
is not excluded from employment under this section.
(c) Spouse and children. Work done by a foreign student's or
exchange visitor's alien spouse or minor child who is also temporarily
in the United States under subparagraph (F) or (J) of section 101(a)(15)
of the Immigration and Nationality Act is not excluded from employment
under this section unless that spouse or child and the work that is done
meets the conditions of paragraph (a) or (b) of this section.
20 CFR 404.1037 Work on or in connection with a non-American vessel or
aircraft.
If you work as an employee within the United States on or in
connection with (as explained in 404.1004(b)(8)) a vessel or aircraft
that is not an American vessel (as defined in 404.1004(b)(3)) or
American aircraft (as defined in 404.1004(b)(2)), your work is excluded
from employment if --
(a) You are not a citizen of the United States or your employer is
not an American employer (as defined in 404.1004(b)(1)); and
(b) You are employed on and in connection with (as explained in
404.1004(b)(7)) the vessel or aircraft when outside the United States.
20 CFR 404.1037 Wages
20 CFR 404.1041 Wages.
(a) The term wages means remuneration paid to you as an employee for
employment unless specifically excluded. Wages are counted in
determining your entitlement to retirement, survivors', and disability
insurance benefits.
(b) If you are paid wages, it is not important what they are called.
Salaries, fees, bonuses and commissions on sales or on insurance
premiums are wages if they are remuneration paid for employment.
(c) The way in which you are paid is unimportant. Wages may be paid
on the basis of piecework or a percentage of the profits. Wages may be
paid on an hourly, daily, weekly, monthly, or yearly basis. (See
404.1056 for special rules for agricultural labor.)
(d) Your wages can be in any form. You can be paid in cash or
something other than cash, for example, in goods or clothing. (See
paragraphs (e) and (f) of this section for kinds of employment where
cash payments alone are considered wages and 404.1043(b) concerning the
value of meals and lodging as wages.) If your employer pays you cash for
your meals and lodging on a regular basis as part of your employment,
these payments may be considered wages. Payments other than cash may be
counted as wages on the basis of the fair value of the items when paid.
(e) In certain kinds of employment, cash payments alone count as
wages. These types of employment are agricultural labor, domestic
services, and services not in the course of the employer's trade or
business.
(f) To count as wages, payments for services performed by home
workers who are employees as described in 404.1008(d) must be in cash
and must amount to $100 or more in a calendar year. Once this cash pay
test is met, all remuneration paid, whether in cash or kind, is also
wages.
(45 FR 20075, Mar. 27, 1980, as amended at 55 FR 7309, Mar. 1, 1990)
20 CFR 404.1042 Wages when paid and received.
(a) In general. Wages are received by an employee at the time they
are paid by the employer to the employee. Wages are paid by an employer
at the time that they are actually or constructively paid unless they
are deemed to be paid later (as described in paragraph (c)(3) of this
section).
(b) Constructive payment. Wages are constructively paid when they
are credited to the account of, or set aside for, an employee so that
they may be drawn upon by the employee at any time although not then
actually received. To be a payment --
(1) The wages must be credited to or set aside for the employee and
must be made available without restriction so that they may be drawn
upon at any time; or
(2) The employer must intend to pay or to set aside or credit, and
have the ability to pay wages when due to the employee, and failure of
the employer to credit or set aside the wages is due to clerical error
or mistake in the mechanics of payment, and because of the clerical
error or mistake the wages are not actually available at that time.
(c) Deemed payment. (1) The first $100 of cash paid, either actually
or constructively, by an employer to an employee in a calendar year is
considered paid at the time that the amount of the cash payment totals
$100 for the year in the case of pay for --
(i) Work not in the course of the employer's trade or business
(non-business work);
(ii) Work by certain home workers; and
(iii) Work for an organization exempt from income tax under section
501 of the Code.
(2) We also apply this rule to domestic work in a private home of the
employer, except that the test is $50 paid in a calendar quarter.
(3) Cash of less than $150 that an employer pays to an employee in a
calendar year, either actually or constructively, for agricultural labor
is considered paid at the earliest of --
(i) The time in the calendar year that the employee's pay totals
$150; or
(ii) The 20th day of the calendar year on which the employee works
for cash pay computed on a time basis.
(4) If an employer pays cash to an employee for two or more of the
kinds of work referred to in paragraph (c)(1) of this section, we apply
the provisions of this paragraph to the pay for each kind of work.
(d) Employee tax deductions. We consider employee tax deductions
under section 3101 of the Code to be part of the employee's wages and
consider them to be paid at the time of the deduction. We consider
other deductions from wages to be wages paid at the time of the
deduction. It is immaterial that the deductions are required or
permitted by an act of Congress or the law of any State.
(e) Tips. (1) Tips received by an employee in the course of
employment, that are considered to be wages, are deemed to be paid at
the time the employee reports the tips to the employer in a written
statement as provided under section 6053(a) of the Code. Tips that are
not reported are deemed to be paid to the employee at the time they are
received by the employee.
(2) We consider tips to be received in the course of employment
whether they are received by the employee from the employer or from
another person. Only tips employees receive and keep for themselves are
considered to be the employees' pay. If employees split tips, each
employee who receives part of the tip receives tips in the course of
employment.
(f) Payments under nonqualified deferred compensation plans. Amounts
that an employee is entitled to receive under nonqualified deferred
compensation plans (plans that do not qualify for special tax treatment
under the Code) are creditable as wages for Social Security purposes at
the later of the following times:
(1) When the services are performed; or
(2) When there is no longer a substantial risk of forfeiture (as
defined in section 83 of the Code) of the employee's rights to the
deferred compensation.
Any amounts taken into account as wages by this paragraph (and the
income attributable thereto) will not thereafter be treated as wages for
Social Security purposes.
(45 FR 20075, Mar. 27, 1980, as amended at 55 FR 7309, Mar. 1, 1990)
20 CFR 404.1043 Facilities or privileges -- meals and lodging.
(a) Excluding the value of employer provided facilities or privileges
from employee gross income prior to January 1, 1985. (1) Generally, the
facilities or privileges that an employer furnished an employee prior to
January 1, 1985 are not wages if the facilities or privileges --
(i) Were of relatively small value; and
(ii) Were offered or furnished by the employer merely as a means of
promoting the health, good will, contentment, or efficiency of the
employees.
(2) The term facilities or privileges for the period prior to January
1, 1985 is intended to include such items as entertainment, medical
services, and so-called courtesy discounts on purchases.
(b) Meals and lodging. The value of the meals and lodging furnished
to an employee by an employer for reasons of the employer's convenience
is not wages if --
(1) The meals are provided at the employer's place of business; and
(2) The employee, in the case of lodging, is required to accept
lodging on the employer's business premises as a condition of
employment.
(52 FR 29662, Aug. 11, 1987)
20 CFR 404.1044 Vacation pay.
We consider your salary while on vacation, or a vacation allowance
paid by your employer, to be wages.
20 CFR 404.1045 Employee expenses.
Amounts that your employer pays you specifically -- either as
advances or reimbursements -- for traveling or for other ordinary and
necessary expenses incurred, or reasonably expected to be incurred, in
your employer's business are not wages. The employer must identify
these travel and other expenses either by making a separate payment or
by specifically stating the separate amounts if both wages and expense
allowances are combined in a single payment.
20 CFR 404.1046 Pay for work by certain members of religious orders.
(a) If you are a member of a religious order who has taken a vow of
poverty ( 404.1023), and the order has elected Social Security coverage
under section 3121(r) of the Code, your wages are figured in a special
way. Your wages, for Social Security purposes, are the fair market
value of any board, lodging, clothing, and other items of value
furnished to you by the order, or furnished to the order on your behalf
by another organization or person under an agreement with the order.
See paragraph (b) of this section if you perform services for a third
party. The order must report at least $100 a month for each active
member. If the fair market value of items furnished to all members of a
religious order does not vary significantly, the order may consider all
members to have a uniform wage.
(b) If you perform services for a third party, the following rules
apply:
(1) If you perform services for another agency of the supervising
church or an associated institution, any amounts paid based on such
services, whether paid directly to you or to the order, do not count on
wages. Only wages figured under (a) above, are counted.
(2) If you perform services in a secular setting as an employee of a
third party not affiliated or associated with the supervising church or
an associated institution, any amounts paid based on such services,
whether paid directly to you or to the order, count as wages paid to you
by the third party. These wages are in addition to any wages counted
under paragraph (a) of this section.
(55 FR 7309, Mar. 1, 1990; 55 FR 17530, Apr. 25, 1990)
20 CFR 404.1047 Annual wage limitation.
Payments made by an employer to you as an employee in a calendar year
that are more than the annual wage limitation are not wages. The annual
wage limitation is:
(52 FR 8249, Mar. 17, 1987, as amended at 57 FR 44098, Sept 24, 1992)
20 CFR 404.1048 Contribution and benefit base after 1992.
(a) General. The contribution and benefit base after 1992 is figured
under the formula described in paragraph (b) of this section in any
calendar year in which there is an automatic cost-of-living increase in
old-age, survivors, and disability insurance benefits. For purposes of
this section, the calendar year in which the contribution and benefit
base is figured is called the determination year. The base figured in
the determination year applies to wages paid after (and taxable years
beginning after) the determination year.
(b) Formula for figuring the contribution and benefit base. For
wages paid after (and taxable years beginning after) the determination
year, the contribution and benefit base is the larger of --
(1) The contribution and benefit base in effect for the determination
year; or
(2) The amount determined by --
(i) Multiplying the contribution and benefit base in effect for the
determination year by the ratio of --
(A) The average of the total wages (as described in paragraph (c) of
this section) reported to the Secretary of the Treasury for the calendar
year before the determination year to;
(B) The average of the total wages reported to the Secretary of the
Treasury for the calendar year before the most recent calendar year in
which an increase in the contribution and benefit base was enacted or a
determination under this section resulting in an increase of the base
was made; and
(ii) Rounding the result of the multiplication, if not a multiple of
$300, to --
(A) The nearest multiple of $300; or
(B) The next higher multiple of $300 if the result is a multiple of
$150.
(c) Average of the total wages. The average of the total wages means
the amount equal to all remuneration reported as wages on Form W-2 to
the Internal Revenue Service for all employees for income tax purposes
plus contributions to certain deferred compensation plans described in
section 209(k) of the Social Security Act (also reported on Form W-2),
divided by the number of wage earners. If both distributions from and
contributions to any such deferred compensation plan are reported on
Form W-2, we will include only the contributions in the calculation of
the average of the total wages. The reported remuneration and deferred
compensation contributions include earnings from work not covered under
social security and earnings from work covered under social security
that are more than the annual wage limitation described in 404.1047.
(45 FR 20075, Mar. 27, 1980, as amended at 55 FR 7309, Mar. 1, 1990;
57 FR 1382, Jan. 14, 1992)
20 CFR 404.1049 Payments under an employer plan or system.
(a) Payments to, or on behalf of, you or any of your dependents under
your employer's plan or system are excluded from wages if made because
of your or your dependents' --
(1) Medical or hospitalization expenses connected with sickness or
accident disability; or
(2) Death, except that the exclusion does not apply to payments for
group-term life insurance to the extent that the payments are includible
in the gross income of the employee under the Internal Revenue Code of
1986, effective with respect to group-term life insurance coverage in
effect after 1987 for employees whose employment, for the employer (or
successor of that employer) providing the insurance coverage, does not
end prior to 1989. Such payments are wages, however, if they are for
coverage for an employee who was separated from employment prior to
January 1, 1989, if the payments are for any period for which the
employee is reemployed by the employer (or successor of that employer)
after the date of separation.
(b) Payments to you or your dependents under your employer's plan at
or after the termination of your employment relationship because of your
death or retirement for disability are excluded from wages.
(c) Payments made after 1983 to you or your dependents under your
employer's plan at or after the termination of your employment
relationship because of retirement after reaching an age specified in
the plan or in a pension plan of the employer are not excluded from
wages unless --
(1) The payments are to or from a trust or annuity plan of your
employer as described in 404.1052; or
(2) An agreement to retire was in effect on March 24, 1983, between
you and your employer and the payments made after 1983 under a
nonqualified deferred compensation plan (see 404.1042(f)) are based on
services performed for your employer before 1984.
(d) The plan or system established by the employer must provide for
the employees generally or for a class or classes of employees. The
plan or system may also provide for these employees' dependents.
Payments under a plan or system established only for your dependents are
not excluded from wages. The plan or system established by the employer
can provide for payments on account of one or more of the items in
paragraphs (a) and (b) of this section.
(e) For purposes of this section, your dependents include your
husband or wife, children, and any other members of your immediate
family.
(f) It does not make any difference that the benefit payments are
considered in arriving at the amount of your pay or are required by the
employment agreement.
(45 FR 20075, Mar. 27, 1980, as amended at 50 FR 1832, Jan. 14, 1985;
55 FR 7310, Mar. 1, 1990; 55 FR 17530, Apr. 25, 1990)
20 CFR 404.1050 Retirement payments.
Payments made after 1983 to you (including any amount paid by an
employer for insurance or annuities) on account of your retirement for
age are not excluded from wages unless --
(a) The payments are to or from a trust or annuity plan of your
employer as described in 404.1052; or
(b) The payments satisfy the requirements described in
404.1049(c)(2).
(55 FR 7310, Mar. 1, 1990)
20 CFR 404.1051 Payments on account of sickness or accident disability,
or related medical or hospitalization expenses.
(a) We do not include as wages any payment that an employer makes to
you, or on your behalf, on account of your sickness or accident
disability, or related medical or hospitalization expenses, if the
payment is made more than 6 consecutive calendar months following the
last calendar month in which you worked for that employer. Payments
made during the 6 consecutive months are included as wages.
(b) The exclusion in paragraph (a) of this section also applies to
any such payment made by a third party (such as an insurance company).
However, if you contributed to your employer's sick pay plan, that
portion of the third party payments attributable to your contribution is
not wages.
(c) Payments of medical or hospitalization expenses connected with
sickness or accident disability are excluded from wages beginning with
the first payment only if made under a plan or system of your employer
as explained in 404.1049(a)(1).
(d) Payments under a worker's compensation law are not wages.
(55 FR 7310, Mar. 1, 1990)
20 CFR 404.1052 Payments from or to certain tax exempt trusts or
payments under or into certain annuity plans.
(a) We do not include as wages any payment made --
(1) Into a tax-exempt trust or annuity plan by your employer on
behalf of you or your beneficiary; or
(2) From a tax-exempt trust or under an annuity plan to, or on behalf
of, you or your beneficiary.
(b) The trust must be exempt from tax under sections 401 and 501(a)
of the Code, and the annuity plan must be a plan described in section
403(a) of the Code when payment is made.
(c) The exclusion does not apply to payments to an employee of the
trust for work done as an employee of the trust.
(55 FR 7310, Mar. 1, 1990)
20 CFR 404.1053 ''Qualified benefits under a cafeteria plan.
We do not include as wages any qualified benefits under a cafeteria
plan as described in section 125 of the Code if such payment would not
be treated as wages without regard to such plan and it is reasonable to
believe that (if section 125 applied for purposes of this section)
section 125 would not treat any wages as constructively received. This
includes any qualified benefit made to you, or on your behalf, pursuant
to a salary reduction agreement between you and your employer. The
Internal Revenue Service decides whether any plan is a cafeteria plan
under section 125 of the Code and whether any benefit under the plan is
a qualified benefit.
(55 FR 7310, Mar. 1, 1990)
20 CFR 404.1054 Payments by an employer of employee's tax or employee's
contribution under State law.
(a) We exclude as wages any payment by an employer (described in
paragraph (b) of this section) that is not deducted from the employee's
salary (or for which reimbursement is not made by the employee) of
either --
(1) The tax imposed by section 3101 of the Code (employee's share of
Social Security tax); or
(2) Any payment required from an employee under a State unemployment
compensation law.
(b) The payments described in paragraph (a) of this section are not
included as wages only if they are made by an employer on behalf of an
employee employed in --
(1) Domestic service in the private home of the employer; or
(2) Agricultural labor.
(55 FR 7310, Mar. 1, 1990)
20 CFR 404.1055 Payments for agricultural labor.
(a) The $2,500 expenditures and $150 cash-pay tests. Your cash
payments in a calendar year after 1987 from an employer for agricultural
labor (see 404.1056) are wages if --
(1) Your employer's total expenditures for agricultural labor in that
year are $2,500 or more, regardless of how much you were paid, or
(2) Your employer's total expenditures for agricultural labor are
less than $2,500 in that year and your employer paid you $150.00 or more
in that year.
(b) Exceptions to the $2,500 expenditures and $150 cash-pay tests.
(1) Noncash payments for agricultural labor are not wages under either
the $2,500 expenditures or $150 cash-pay test.
(2) Your cash payments in a calendar year from an employer for
agricultural labor are not wages, irrespective of your employer's total
annual expenditures for agricultural labor, if you are a hand harvest
laborer (i.e., seasonal agricultural labor), and --
(i) Your employer paid you less than $150 in that year;
(ii) You are paid on a piece rate basis in an operation which has
been, and is customarily and generally recognized in the region of
employment as paying on a piece rate basis;
(iii) You commute daily from your permanent residence to the farm on
which you are so employed; and,
(iv) You were employed in agriculture less than 13 weeks during the
previous calendar year.
Example: In 1988, A (not a hand harvest laborer) performs
agricultural labor for X for cash pay of $144 in the year. X's total
agricultural labor expenditures for 1988 are $2,450. Neither the $150
cash-pay test nor the $2,500 expenditures test is met. Therefore, X's
payments to A are not wages.
(c) When cash-pay is creditable as wages. (1) If you receive cash
pay from an employer for services which are agricultural labor and for
services which are not agricultural labor, we count only the amounts
paid for agricultural labor in determining whether cash payments equal
or exceed $150. If the amounts paid are less than $150, we count only
those amounts paid for agricultural labor in determining the wages to
credit the individual if the $2,500 expenditures test is met (for
periods beginning on or after January 1, 1988) or the 20-day work test
described in paragraph (c) of this section (for periods of time prior to
1988).
Example: Employer X operates a store and also operates a farm.
Employee A, who regularly works in the store, works on X's farm when
additional help is required for the farm activities. In calendar year
1988, X pays A $140 cash for agricultural labor performed in that year,
and $2,260 for work in connection with the operation of the store.
Additionally, X's total expenditures for agricultural labor in 1988 were
$2,010. Since the cash payments by X to A in the calendar year 1988 for
agricultural labor are less than $150, and total agricultural labor
expenditures were under $2,500, the $140 paid by X to A for agricultural
labor is not wages. The $2,260 paid for work in the store is wages.
(2) The amount of cash pay for agricultural labor that is creditable
to an individual is based on cash paid in a calendar year rather than on
amounts earned during a calendar year.
(3) If you receive cash pay for agricultural labor in any one
calendar year from more than one employer, we apply the $150 cash-pay
test and $2,500 total expenditures test to each employer.
(d) Application of the $150 cash-pay and 20-day tests prior to 1988.
(1) For the time period prior to 1988, we apply either the $150 a year
cash-pay test or the 20-day test. Cash payments are wages if you
receive $150 or more from an employer for agricultural labor or under
the 20-day test if you perform agricultural labor for which cash pay is
computed on a time basis on 20 or more days during a calendar year. For
purposes of the 20-day test, the amount of the cash pay is immaterial,
and it is immaterial whether you also receive payments other than cash
or payments that are not computed on a time basis. If cash paid to you
for agricultural labor is computed on a time basis, the payments are not
wages unless they are paid in a calendar year in which either the 20-day
test or the $150 cash-pay test is met.
(57 FR 59914, Dec. 17, 1992)
20 CFR 404.1056 Explanation of agricultural labor.
(a) What is agricultural labor. (1) If you work on a farm as an
employee of any person, you are doing agricultural labor if your work
has to do with --
(i) Cultivating the soil;
(ii) Raising, shearing, feeding, caring for, training or managing
livestock, bees, poultry, fur-bearing animals or wildlife; or
(iii) Raising or harvesting any other agricultural or horticultural
commodity.
(2) If you work on a farm as an employee of any person in connection
with the production or harvesting of maple sap, the raising or
harvesting of mushrooms, or the hatching of poultry, you are doing
agricultural labor. If you work in the processing of maple sap into
maple syrup or maple sugar you are not doing agricultural labor even
though you work on a farm. Work in a mushroom cave or poultry hatchery
is agricultural labor only if the cave or hatchery is operated as part
of a farm.
(3) If you work as an employee of the owner, tenant, or other
operator of a farm, you are doing agricultural labor if most of your
work is done on a farm and is involved with --
(i) The operation, management, conservation, improvement, or
maintenance of the farm or its tools or equipment (this may include work
by carpenters, painters, mechanics, farm supervisors, irrigation
engineers, bookkeepers, and other skilled or semiskilled workers); or
(ii) Salvaging timber or clearing the land of brush and other debris
left by a hurricane.
(4) You are doing agricultural labor no matter for whom or where you
work, if your work involves --
(i) Cotton ginning;
(ii) Operating or maintaining ditches, canals, reservoirs, or
waterways, if they are used only for supplying and storing water for
farm purposes and are not owned or operated for profit; or
(iii) Producing or harvesting crude gum (oleoresin) from living trees
or processing the crude gum into gum spirits of turpentine and gum resin
(if the processing is done by the original producer).
(5) Your work as an employee in the handling, planting, drying,
packing, packaging, processing, freezing, grading, storing, or
delivering to storage, to a market or to a carrier for transportation to
market, of any agricultural or horticultural commodity is agricultural
labor if --
(i) You work for a farm operator or a group of farm operators (other
than a cooperative organization);
(ii) Your work involves the commodity in its raw or unmanufactured
state; and
(iii) The operator produced most of the commodity you work with
during the period for which you are paid, or if you work for a group of
operators, all of the commodity you work with during the pay period is
produced by that group.
(6) If you do nonbusiness work or domestic work in the private home
of your employer, it is agricultural labor if you do the work on a farm
operated for profit. A farm is not operated for profit if the employer
primarily uses it as a residence or for personal or family recreation or
pleasure. (See 404.1058 for an explanation of domestic work and
404.1059(a) for an explanation of nonbusiness work.)
(7) The term farm operator means an owner, tenant, or other person,
in possession of and operating a farm.
(8) Work is not agricultural labor if it is done in the employ of a
cooperative organization, which includes corporations, joint-stock
companies, and associations treated as corporations under the Code. Any
unincorporated group of operators is considered to be a cooperative
organization if more than 20 operators are in the group at any time
during the calendar year in which the work is done.
(9) Processing work which changes the commodity from its raw or
natural state is not agricultural labor. An example of this is the
extraction of juices from fruits or vegetables. However, work in the
cutting and drying of fruits or vegetables does not change the commodity
from its raw or natural state and can be agricultural labor.
(10) The term commodity means a single agricultural or horticultural
product. For example, all apples are a commodity, while apples and
oranges are two commodities.
(11) Work connected with the commerical canning or freezing of a
commodity is not agricultural labor nor is work done after the delivery
of the commodity to a terminal market for distribution for consumption.
(b) What is a farm. For purposes of social security coverage, farm
includes a stock, dairy, poultry, fruit, fur-bearing animal, or truck
farm, plantation, ranch, nursery, range or orchard. A farm also
includes a greenhouse or other similar structure used mostly for raising
agricultural or horticultural products. A greenhouse or other similar
structure used mostly for other purposes such as display, storage,
making wreaths and bouquets is not a farm.
(45 FR 20075, Mar. 27, 1980. Redesignated at 55 FR 7310, Mar. 1,
1990)
20 CFR 404.1057 Domestic service in the employer's home.
(a) Payments for domestic service -- (1) The $50 standard. We do not
include as wages cash payments that an employer makes to you in any
calendar quarter for domestic service in the employer's private home,
unless the cash pay in that calendar quarter is $50 or more. Non-cash
payments for domestic service are not counted as wages.
(2) How evaluation is made. We apply the $50 standard for a calendar
quarter based on when the payments are made to you rather than when the
pay is earned. To count toward the $50 amount, payment must be made to
you in cash (including checks or other forms of money). We apply the
$50 standard only to services performed as a domestic. If an employer
pays you for performing other work, the cash pay for the nondomestic
work does not count toward the $50 domestic service pay required for the
remuneration to count as wages.
(3) More than one domestic employer. The $50 standard applies to
each employer when you perform domestic services for more than one
employer in a calendar quarter. The wages paid by more than one
employer for domestic services may not be combined to decide whether you
have been paid $50 or more in a calendar quarter. The standard applies
to each employee when an employer has two or more domestic employees
during a calendar quarter.
(4) Rounding dollar amounts for reporting. For social security
purposes, an employer has an option in the way he or she reports cash
wages paid for domestic service in his or her private home. The
employer may report the actual wages paid or may round the wages to the
nearest dollar. For purposes of rounding to the nearest dollar the
cents are disregarded unless it amounts to one-half dollar or more, in
which case it will be raised to $1. If an employer uses this method to
report a cash payment to you for domestic service in his or her private
home in a calendar quarter, he or she must use the same method to report
payments to other employees in that quarter for similar services.
(b) What is domestic service. Domestic service is work of a
household nature done by you in or about a private home of the employer.
A private home is a fixed place of residence of a person or family. A
separate dwelling unit maintained by a person in an apartment house,
hotel, or other similar establishment may be a private home. If a house
is used primarily for supplying board or lodging to the public as a
business enterprise, it is not a private home. In general, services of
a household nature in or about a private home include services performed
by cooks, waiters, butlers, housekeepers, governessess, maids, valets,
baby sitters, janitors, laundresses, furnacemen, caretakers, handymen,
gardeners, footmen, grooms, and chauffeurs of automobiles for family
use. Pay for these services does not come under this provision unless
the services are performed in or about a private home of the employer.
Pay for services not of a household nature, such as services performed
as a private secretary, tutor, or librarian, even though performed in
the employer's home, does not come under this provision.
(45 FR 20075, Mar. 27, 1980; 45 FR 25060, Apr. 14, 1980.
Redesignated at 55 FR 7310, Mar. 1, 1990)
20 CFR 404.1058 Special situations.
(a) Payments for service not in course of employer's trade or
business (nonbusiness work) and payments to certain home workers -- (1)
The $100 standard. We do not include as wages cash pay of less than
$100 paid to you in a calendar year by an employer for services not in
the course of the employer's trade or business (nonbusiness work) and
for services as a home worker as described in 404.1008(d).
(2) How evaluation is made. (i) We apply the $100 standard for a
calendar year based on when the payments are made to you rather than
when the pay is earned. To count toward the $100 amount, payment must
be in cash (including checks or other forms of money). The $100
standard applies to each employer when you perform services not in the
course of the employer's trade or business or as a homeworker for two or
more employers.
(ii) If the employer has two or more employees, the standard applies
to each employee. In applying the $100 standard, we disregard cash
payments for any other type of services you perform for the employer.
(iii) The noncash payments an employer pays you for services not in
the course of the employer's trade or business are not wages even if the
employer has paid you cash wages of $100 or more in the calendar year
for services of that type.
(iv) Amounts paid to you as a home worker as described in
404.1008(d) are not wages unless you are paid $100 or more in cash in a
calendar year. If you meet this test, any noncash payments you receive
for your services also count as wages.
(v) Amounts paid to you as a home worker in a common-law employment
relationship (see 404.1007) count as wages regardless of amount or
whether paid in cash or kind.
(3) Definitions. The term services not in the course of the
employer's trade or business (also called nonbusiness work) means
services that do not promote or advance the trade or business of the
employer. Services performed for a corporation do not come within this
definition. A homeworker is described in 404.1008(c).
(b) Nonprofit, income-tax exempt organizations -- (1) The $100
standard. We do not include as wages payments of less than $100 in a
calendar year made by an employer that is an organization exempt from
income tax under section 501 of the Code.
(2) How evaluation is made. We apply the $100 standard for a
calendar year based on when the payments are made to you rather than
when the pay is earned. To figure the $100 amount, both cash and
noncash payments are counted. The $100 standard applies to each
employer where you render services for two or more nonprofit, income-tax
exempt organizations during a calendar year. The $100 standard also
applies to each of you where a nonprofit, income-tax exempt organization
has two or more employees. In applying the standard, the tax-exempt
status of the employer and not the nature or place of your services is
controlling.
(c) Payments to members of the uniformed services -- (1) The
standard. We include as the wages of a member of the uniformed services
--
(i) Basic pay, as explained in paragraph (c)(3) of this section, for
performing the services described in paragraph (a)(1) of 404.1019 of
this subpart; or
(ii) Compensation, as explained in paragraph (c)(4) of this section,
for performing the services described in paragraph (a)(2) of 404.1019
of this subpart.
(2) Wages deemed paid. These following provisions apply to members
of the uniformed services who perform services as described in paragraph
(a)(1) of 404.1019 of this subpart.
(i) After 1977, a member of the uniformed services is considered to
have been paid additional wages of $100 for each $300 of basic pay paid
to the individual in a calendar year. The amount of additional wages
deemed paid cannot be more than $1,200 for any calendar year. No wages
may be deemed paid for units of basic pay which are less than $300.
(ii) Before 1978, a member of the uniformed services is considered to
have been paid additional wages of $300 for each calendar quarter after
1956 in which the individual is paid any amount of basic pay.
(3) Basic pay. Basic pay means the monthly pay prescribed by 37
U.S.C. 203 (Pay and Allowances for the Uniformed Services) for a member
of the uniformed services on active duty or on active duty for training.
(4) Compensation. ''Compensation'' refers to the remuneration
received for services as a member of a uniformed service, based on
regulations issued by the Secretary concerned (as defined in 37 U.S.C.
101(5) under 37 U.S.C. 206(a), where such member is not entitled to the
basic pay (as defined by paragraph (3) of this section).
(d) Payments to volunteers and volunteer leaders in the Peace Corps.
If you are a volunteer or volunteer leader under the provisions of the
Peace Corps Act (22 U.S.C. 2501ff), payments for your services are wages
with the exception of amounts in excess of the amounts certified as
payable under section 5(c) or 6(1) of the Peace Corps Act. Amounts
certified under those sections are considered to have been paid to the
individual at the time the service is performed. See 404.1018(e) on
coverage of these services.
(e) Moving expenses. We do not include as wages amounts paid to, or
on behalf of, an employee for moving expenses if it is reasonable to
believe that a similar deduction is allowable under section 217 of the
Code.
(f) Payments by employer to survivor or estate of former employee.
We do not include as wages any payment by an employer to a survivor or
the estate of a former employee after the calendar year in which the
employee died.
(g) Payments to an employee who is entitled to disability insurance
benefits. We do not include as wages any payments made by an employer
to an employee if at the time such payment is made --
(1) The employee is entitled to disability insurance benefits under
the Act;
(2) The employee's entitlement to such benefits began before the
calendar year in which the employer's payment is made; and
(3) The employee performed no work for the employer in the period in
which the payments were paid by such employer (regardless of whether the
employee worked in the period the payments were earned).
(h) Tips. (1) We include as wages tips received by an employee if --
(i) The tips are paid in cash; and
(ii) The tips amount to $20 or more and are received in the course of
employment by an employee in a calendar month.
(2) Cash tips include checks and other forms of money. Tips received
in a form other than cash, such as passes, tickets, or other goods are
not wages. If an employee works for more than one employer in a
calendar month, we apply the $20 tip test to work done for each
employer.
(i) Payments by employer under group legal services plan. We do not
include as wages any contribution, payment, or service, provided by an
employer under a qualified group legal services plan which is excludable
from the gross income of an employee, or the employee's spouse or
dependents, under section 120 of the Code.
(45 FR 20075, Mar. 27, 1980, as amended at 52 FR 29662, Aug. 11,
1987. Redesignated and amended at 55 FR 7310, Mar. 1, 1990; 57 FR
59914, Dec. 17, 1992)
20 CFR 404.1059 Deemed wages for certain individuals interned during
World War II.
(a) In general. Persons who were interned during any period of time
from December 7, 1941, through December 31, 1946, by the United States
Government at a place operated by the Government within the United
States for the internment of United States citizens of Japanese ancestry
are deemed to have been paid wages (in addition to wages actually paid)
as provided in paragraph (c) of this section during any period after
attaining age 18 while interned. This provision is effective for
determining entitlement to, and the amount of, any monthly benefit for
months after December 1972, for determining entitlement to, and the
amount of, any lump-sum death payment in the case of a death after
December 1972, and for establishing a period of disability.
(b) Information needed to process deemed wages. Unless we have
already made a determination on deemed wages for a period of internment
of an individual, any person applying for a monthly benefit, a
recalculation of benefits by reason of this section, or a lump-sum death
payment, must submit certain information before the benefit or payment
may be computed on the basis of deemed wages. This information is --
(1) The place where the individual worked before internment;
(2) The highest hourly wage before internment;
(3) The place and date of internment;
(4) Date of birth (if not previously furnished);
(5) Whether or not another Federal benefit is being received based
wholly or in part upon the period of internment; and
(6) In the case of a woman, her maiden name.
(c) Amount of deemed wages. The amount of wages which may be deemed
is determined as follows:
(1) Employed prior to internment. If the individual was employed
before being interned, the deemed wages are the greater of --
(i) The highest actual hourly rate of pay received for any employment
before internment, multiplied by 40 for each full week during the period
of internment; or
(ii) The Federal minimum hourly rate in effect for the period of
internment, multiplied by 40 for each full week during that period.
(2) Self-employed or not employed prior to internment. If the
individual was self-employed or was not employed before the period of
internment, the deemed wages are the Federal minimum hourly rate in
effect for that period, multiplied by 40 for each full week during the
period.
(d) When wages are not deemed. Wages are not deemed under this
section --
(1) For any period before the quarter in which the individual
attained age 18; or
(2) If a larger benefit is payable without the deemed wages; or
(3) If a benefit based in whole or in part upon internment is
determined by any agency of the United States to be payable under any
other law of the United States or under a system set up by that agency.
However, this exception does not apply in cases where the failure to
receive deemed wages reduces the primary insurance amount by 50 cents or
less.
(e) Certification of internment. The certification concerning the
internment is made by the Archivist of the United States or his or her
representative. After the internment has been verified, wages are
deemed to have been paid to the internee.
(45 FR 20075, Mar. 27, 1980, as amended at 52 FR 29662, Aug. 11,
1987. Redesignated at 55 FR 7310, Mar. 1, 1990)
404.1060 (Reserved)
20 CFR 404.1059 Self-Employment
20 CFR 404.1065 Self-employment coverage.
For an individual to have self-employment coverage under social
security, the individual must be engaged in a trade or business and have
net earnings from self-employment that can be counted as self-employment
income for social security purposes. The rules explaining whether you
are engaged in a trade or business are in 404.1066 through 404.1077.
What are net earnings from self-employment is discussed in 404.1080
through 404.1095. Section 404.1096 describes the net earnings from
self-employment that are counted as self-employment income for social
security purposes. See 404.1913 for the effect of a totalization
agreement on self-employment coverage. An agreement may exempt an
activity from coverage as well as extend coverage to an activity.
(50 FR 36574, Sept. 9, 1985)
20 CFR 404.1066 Trade or business in general.
For you to be covered as a self-employed person for social security
purposes, you must be engaged in a trade or business. You can carry on
a trade or business as an individual or as a member of a partnership.
With some exceptions, the term trade or business has the same meaning as
it does when used in section 162 of the Code.
20 CFR 404.1068 Employees who are considered self-employed.
(a) General. Although we generally exclude services performed by
employees from the definition of trade or business, certain types of
services are considered a trade or business even though performed by
employees. If you perform any of the services described in paragraphs
(b) through (f) of this section, you are self-employed for social
security purposes. Certain other services described in 404.1071
(relating to ministers and members of religious orders) and 404.1073
(relating to certain public officers) may be considered a trade or
business even though performed by employees.
(b) Newspaper vendors. If you have attained age 18 and perform
services as a newspaper vendor that are described in 404.1030(b), you
are engaged in a trade or business.
(c) Sharefarmers. If you perform services as a sharefarmer that are
described in 404.1017, you are engaged in a trade or business.
(d) Employees of a foreign government, an instrumentality wholly
owned by a foreign government, or an international organization. If you
are a United States citizen and perform the services that are described
in 404.1032, 404.1033(a), or 404.1034(a), you are engaged in a trade
or business if the services are performed in the United States.
(e) Certain fishermen. If you perform services as a fisherman that
are described in 404.1031, you are engaged in a trade or business.
(f) Employees of a church or church-controlled organization that has
elected to exclude employees from coverage as employment. If you
perform services that are excluded from employment as described in
404.1026, you are engaged in a trade or business. Special rules apply
to your earnings, which are known as church employee income. If you are
paid $100 or more in a taxable year by an employer who has elected to
have its employees excluded, those earnings are self-employment income
(see 404.1096(c)(1)). In figuring your church employee income you may
not reduce that income by any deductions attributable to your work.
Your church employee income and deductions may not be taken into account
in determining the amount of other net earnings from self-employment.
Your church employee income is not exempt from self-employment tax under
the exemption otherwise available to members of certain religious groups
(see 404.1075).
(45 FR 20075, Mar. 27, 1980, as amended at 50 FR 36574, Sept. 9,
1985; 55 FR 7311, Mar. 1, 1990)
20 CFR 404.1069 Real estate agents and direct sellers.
(a) Trade or business. If you perform services after 1982 as a
qualified real estate agent or as a direct seller, as defined in section
3508 of the Code, you are considered to be engaging in a trade or
business.
(b) Who is a qualified real estate agent. You are a qualified real
estate agent as defined in section 3508 of the Code if you are a
salesperson and --
(1) You are a licensed real estate agent;
(2) Substantially all of the earnings (whether or not paid in cash)
for the services you perform as a real estate agent are directly related
to sales or other output (including the performance of services) rather
than to the number of hours worked; and
(3) Your services are performed under a written contract between
yourself and the person for whom the services are performed which
provides you will not be treated as an employee with respect to these
services for Federal tax purposes.
(c) Who is a direct seller. You are a direct seller as defined in
section 3508 of the Code if --
(1) You are engaged in the trade or business of selling (or
soliciting the sale of) consumer products --
(i) To any buyer on a buy-sell basis, a deposit-commission basis, or
any similar basis which the Secretary of the Treasury prescribes by
regulations, for resale (by the buyer or any other person) in the home
or in other than a permanent retail establishment; or
(ii) In the home or in other than a permanent retail establishment;
and
(2) Substantially all of your earnings (whether or not paid in cash)
for the performance of these services are directly related to sales or
other output (including the performance of services) rather than to the
number of hours worked; and
(3) Your services are performed under a written contract between
yourself and the person for whom the services are performed which
provides you will not be treated as an employee with respect to these
services for Federal tax purposes.
(48 FR 40515, Sept. 8, 1983)
20 CFR 404.1070 Christian Science practitioners.
If you are a Christian Science practitioner, the services you perform
in the exercise of your profession are a trade or business unless you
were granted an exemption from coverage under section 1402(e) of the
Code, and you did not revoke such exemption in accordance with section
1704(b) of the Tax Reform Act of 1986. An exemption cannot be granted
if you filed a valid waiver certificate under the provisions that apply
to taxable years ending before 1968.
(55 FR 7311, Mar. 1, 1990)
20 CFR 404.1071 Ministers and members of religious orders.
(a) If you are a duly ordained, commissioned, or licensed minister of
a church, or a member of a religious order who has not taken a vow of
poverty, the services you perform in the exercise of your ministry or in
the exercise of duties required by the order ( 404.1023(c) and (e)) are
a trade or business unless you filed for and were granted an exemption
from coverage under section 1402(e) of the Code, and you did not revoke
such exemption in accordance with section 1704(b) of the Tax Reform Act
of 1986. An exemption cannot be granted if you filed a valid waiver
certificate under the provisions that apply to taxable years ending
before 1968.
(b) If you are a member of a religious order and have taken a vow of
poverty, the services you perform in the exercise of your duties
required by the order may be covered as employment. (See 404.1023 (a)
and (e)).
(45 FR 20075, Mar. 27, 1980, as amended at 55 FR 7311, Mar. 1, 1990)
20 CFR 404.1073 Public office.
(a) General. The performance of the functions of a public office is
not a trade or business except under the circumstances explained in
paragraph (b) of this section. If you are an officer of a State or
political subdivision, you are considered as employee of the State or
political subdivision.
(b) State and local governmental employees paid by fees. (1)
Voluntary coverage under section 218 of the Act. The services of
employees of States and political subdivisions, including those in
positions paid solely on a fee-basis, may be covered as employment by a
Federal-State agreement under section 218 of the Act (see subpart M of
this part). States, when entering into these agreements, have the
option of excluding under the agreement coverage of services in
positions paid solely by fees. If you occupy a position paid solely on
a fee-basis and the State has not covered your services under section
218 of the Act, you are considered to be engaged in a trade or business.
(2) Mandatory old-age, survivors, disability, and hospital insurance
coverage. Beginning with services performed after July 1, 1991, Social
Security coverage (old-age, survivors, disability, and hospital
insurance) is mandatory, with certain exceptions, for services performed
by employees of a State, a political subdivision of a State, or of a
wholly owned instrumentality of one or more of the foregoing, if the
employees are not members of a retirement system of the State, political
subdivision, or instrumentality. Among the exclusions from such
mandatory coverage is service performed by an employee in a position
compensated solely on a fee-basis which is treated pursuant to section
211(c)(2)(E) of the Act as a trade or business for purposes of inclusion
of such fees in the net earnings from self-employment.
(3) If you are a notary public, you are not a public officer even
though you perform a public function. Your services as a notary public
are not covered for social security purposes.
(45 FR 20075, Mar. 27, 1980, as amended at 57 FR 59910, Dec. 17,
1992)
20 CFR 404.1074 Farm crew leader who is self-employed.
If you are a farm crew leader and are deemed the employer of the
workers as described in 404.1010, we consider you to be engaged in a
trade or business. This includes services performed in furnishing
workers to perform agricultural labor for others, as well as services
performed as a member of the crew.
20 CFR 404.1075 Members of certain religious groups opposed to
insurance.
(a) You may file an application with the Internal Revenue Service for
exemption from social security self-employment tax if --
(1) You are a member of a recognized religious sect or division of
the sect; and
(2) You adhere to the tenets or teachings of the sect or division of
the sect and for this reason are conscientiously opposed to receiving
benefits from any private or public insurance that --
(i) Makes payments in the event of death, disability, old age, or
retirement; or
(ii) Makes payments toward the cost of, or provides services for,
medical care (including the benefits of any insurance system established
by the Act).
(b) Your application must be filed under the rules described in 26
CFR 1.1402(h).
(c) Regardless of whether you meet all these conditions, your
application for exemption will not be approved unless we find that --
(1) The sect or division of the sect has established tenets or
teachings which cause you to be conscientiously opposed to the types of
insurance benefits described in paragraph (a)(2) of this section;
(2) For a substantial period of time it has been the practice for
members of the sect or division of the sect to make provision for their
dependent members which is reasonable in view of their general level of
living; and
(3) The sect or division of the sect has been in existence
continuously since December 31, 1950.
(d) In addition, your application for exemption will not be approved
if any benefit or other payment referred to in 404.305(a) became
payable to you or on your behalf at or before the time of the filing of
your application for exemption.
20 CFR 404.1077 Individuals under railroad retirement system.
If you are an employee or employee representative as defined in
section 3231(b) and (c) of the Code, your work is not a trade or
business. Your services are covered under the railroad retirement
system.
20 CFR 404.1077 Self-Employment Income
20 CFR 404.1080 Net earnings from self-employment.
(a) Definition of net earnings from self-employment. If you are
self-employed, you must first determine the amount of your net earnings
from self-employment before figuring the amount of your earnings that
count for social security purposes. Some of your earnings may not be
included as net earnings from self-employment even though they are
taxable for income tax purposes. If you are an employee but we consider
you to be self-employed for social security purposes, you must figure
your earnings as though you were actually self-employed unless you work
for a church or church-controlled organization that has exempted its
employees (see 404.1068(f)). Subject to the special rules in
404.1081 through 404.1095, the term net earnings from self-employment
means --
(1) Your gross income, as figured under subtitle A of the Code, from
any trade or business you carried on, less deductions attributed to your
trade or business that are allowed by that subtitle; plus
(2) Your distributive share of income (or loss) from a trade or
business carried on by a partnership of which you are a member, as
described in paragraph (b) of this section.
(b) Income or loss from a partnership. (1) Your distributive share
(whether or not actually distributed) of the income or loss from any
trade or business carried on by a partnership of which you are a member,
other than as a limited partner, is determined under section 704 of the
Code.
(2) If you are a limited partner, your distributive share is included
in your net earnings from self-employment if --
(i) The amount is payable to you for services you render to or on
behalf of the partnerships; and
(ii) It is a guaranteed payment described in section 707(c) of the
Code.
(3) You are a limited partner if your financial liability for the
obligations of the partnership is limited to the amount of your
financial investment in the partnership. Generally, you will not have
to perform services in the operation of, or participate in the control
of, the business carried on by the partnership for the taxable year
involved.
(c) Reporting methods. Your gross income from a trade or business
includes the gross income you received (under the cash method) or that
accrued to you (under the accrual method) from the trade or business in
the taxable year. It is immaterial that the income may be attributable
in whole or in part to services you rendered or other acts you performed
in a prior taxable year.
(d) What is a taxable year. (1) The term taxable year means --
(i) Your annual accounting period on which you regularly figure your
income in keeping your books; or
(ii) A short period resulting from your death before the end of your
annual accounting period or from a change of your annual accounting
period.
(2) The term annual accounting period means --
(i) A calendar year, consisting of 12 months ending on December 31;
or
(ii) A fiscal year, consisting of --
(A) 12 months ending on the last day of any month other than
December; or
(B) A period, if elected under section 441 of the Code, that varies
from 52 to 53 weeks and always ends on the same day of the week that
occurs last in a calendar month or nearest to the last day of the
calendar month.
(3) Your taxable year for figuring self-employment income is the same
as your taxable year for the purposes of subtitle A of the Code. Your
taxable year is a calendar year if --
(i) You keep no books;
(ii) You have no annual accounting period; or
(iii) You have an annual accounting period that differs from the
definition of fiscal year as described in paragraph (d)(2)(ii) of this
section.
(45 FR 20075, Mar. 27, 1980, as amended at 50 FR 36574, Sept. 9,
1985)
20 CFR 404.1081 General rules for figuring net earnings from
self-employment.
(a) Determining net earnings. (1) In determining your gross income
and the deductions attributable to your trade or business for the
purpose of determining your net earnings from self-employment, the
provisions that apply to the taxes imposed by sections 1 and 3 of the
Code are used.
(2) If you use the accrual method of accounting to figure your
taxable income from a trade or business, you must use the same method in
determining your net earnings from self-employment.
(3) If you are engaged in a trade or business of selling property on
the installment plan and elect, under the provisions of section 453 of
the Code, to use the installment method of accounting in figuring your
income, you must use the installment method in determining your net
earnings from self-employment.
(4) Any income which can be excluded from gross income under any
provision of subtitle A of the Code cannot be counted in determining
your net earnings from self-employment, unless --
(i) You are a resident of Puerto Rico (see 404.1089);
(ii) You are a minister or member of a religious order (see
404.1091);
(iii) You are a United States citizen or resident engaged in a trade
or business outside the United States (see 404.1092); or
(iv) You are a citizen of, or have income from sources within,
certain possessions of the United States (see 404.1093).
(b) Trade or business carried on. You must carry on the trade or
business either personally or through agents or employees. Income from
a trade or business carried on by an estate or trust is not included in
determining the net earnings from self-employment of the individual
beneficiaries of the estate or trust.
(c) Aggregate net earnings. If you are engaged in more than one
trade or business, your net earnings from self-employment consist of the
total of the net income and losses of all the trades or businesses you
carry on. A loss in one trade or business you carry on offsets the
income from another trade or business.
(d) Partnerships. When you have net earnings from self-employment
from a partnership as described in 404.1080 (a) and (b), those net
earnings are combined with your other net earnings from self-employment
in determining your total net earnings from self-employment for the
taxable year.
(e) Different taxable years. If you are a partner and your taxable
year is different from that of the partnership, you must include, in
figuring your net earnings from self-employment, your distributive share
of the income or loss of the partnership for its taxable year ending
with or within your taxable year. For the special rule in case of the
termination of a partner's taxable year as a result of death, see
404.1087.
(f) Meaning of partnerships. A partnership for social security
purposes is one that is recognized as a partnership for income tax
purposes. For income tax purposes, the term partnership includes not
only a partnership as known under common law, but also a syndicate,
group, pool, joint venture, or other unincorporated organization that
carries on any trade or business, financial operation, or venture, and
which is not a trust, estate, or a corporation.
(g) Proprietorship taxed as domestic corporation. If you are a
proprietor of an unincorporated business enterprise and have elected to
be taxed as a domestic corporation, you must figure your net earnings
from self-employment without regard to the election you have made.
(45 FR 20075, Mar. 27, 1980, as amended at 50 FR 36574, Sept. 9,
1985)
20 CFR 404.1082 Rentals from real estate; material participation.
(a) In general. Your rentals from real estate and from personal
property leased with the real estate (including rentals paid in crop
shares) and the deductions attributable to the rentals are excluded in
figuring your net earnings from self-employment, unless you receive the
rentals in the course of a trade or business as a real estate dealer.
If you are an owner or lessee of land, rentals paid in crop shares
include income you get under an agreement with another person if the
arrangement provides for the following:
(1) The other person will produce agricultural or horticultural
commodities on the land.
(2) The commodities produced, or the income from their sale, will be
divided between you and the other person.
(3) The amount of your share depends on the amount of the commodities
produced.
(b) Real estate dealers. (1) You are a real estate dealer if you are
engaged in the business of selling real estate to customers for profit.
(2) If you merely hold real estate for investment or speculation and
receive rental income from it, you are not considered a real estate
dealer.
(3) If you are a real estate dealer, but also hold real estate for
investment or speculation in addition to real estate you hold for sale
to customers, only the rental income from the real estate held for sale
to customers and the deductions attributable to it are included in
determining your net earnings from self-employment. The rental income
from real estate you hold for investment or speculation and the
deductions attributable to it are not counted in figuring your net
earnings from self-employment.
(c) Special rule for farm rental income -- (1) In general. If you
own or lease land, any income you derive from it is included in figuring
your net earnings from self-employment if --
(i) The income results from an arrangement between you and another
person which provides for the other person to produce agricultural or
horticultural commodities on the land that you own or lease and for you
to materially participate in the production or the management of the
production of the agricultural or horticultural commodities; and
(ii) You actually do materially participate.
(2) Nature of arrangement. (i) The arrangement between you and the
other person may be either oral or written. It must provide that the
other person will produce one or more agricultural or horticultural
commodities and that you will materially participate in the production
or the management of the production of the commodities.
(ii) The term production, refers to the physical work performed and
the expenses incurred in producing a commodity. It includes activities
like the actual work of planting, cultivating, and harvesting crops, and
the furnishing of machinery, implements, seed, and livestock.
(iii) The term management of the production, refers to services
performed in making managerial decisions about the production of the
crop, such as when to plant, cultivate, dust, spray, or harvest, and
includes advising and consulting, making inspections, and making
decisions on matters, such as rotation of crops, the type of crops to be
grown, the type of livestock to be raised, and the type of machinery and
implements to be furnished.
(3) Material participation. (i) If you show that you periodically
advise or consult with the other person, who under the rental
arrangement produces the agricultural or horticultural commodities, and
also show that you periodically inspect the production activities on the
land, you will have presented strong evidence that you are materially
participating.
(ii) If you also show that you furnish a large portion of the
machinery, tools, and livestock used in the production of the
commodities, or that you furnish or advance monies, or assume financial
responsibility, for a substantial part of the expense involved in the
production of the commodities, you will have established that you are
materially participating.
(4) Employees or agents. We consider any farm rental arrangement
entered into by your employee or agent and another person to be an
arrangement entered into by you. However, we do not consider the
services of an employee or agent as your services in determining the
extent to which you have participated in the production or management of
production of a commodity.
(5) Examples.
Example 1. After the death of her husband, Ms. A rents her farm,
together with its machinery and equipment, to B for one-half of the
proceeds from the commodities produced on the farm by B. It is agreed
that B will live in the tenant house on the farm and be responsible for
the overall operation of the farm, such as planting, cultivating, and
harvesting the field crops, caring for the orchard and harvesting the
fruit and caring for the livestock and poultry. It also is agreed that
Ms. A will continue to live in the farm residence and help B operate
the farm. Under the agreement it is expected that Ms. A will regularly
operate and clean the cream separator and feed the poultry flock and
collect the eggs. When possible she will assist B in such work as
spraying the fruit trees, penning livestock, culling the poultry, and
controlling weeds. She will also assist in preparing the meals when B
engages seasonal workers. The agreement between Ms. A and B clearly
provides that she will materially participate in the overall production
operations to be conducted on her farm by B. In actual practice, Ms. A
regularly performs those services. The regularly performed services are
material to the production of an agricultural commodity, and the
services performed are material to the production operations to which
they relate. The furnishing of a substantial portion of the farm
machinery and equipment also supports the conclusion that Ms. A has
materially participated. Accordingly, the rental income Ms. A receives
from her farm should be included in her net earnings from
self-employment.
Example 2. G owns a fully-equipped farm which he rents to H under an
arrangement which provides that G will materially participate in the
management of the production of crops raised on the farm under the
arrangement. G lives in town about 5 miles from the farm. About twice
a month he visits the farm and looks over the buildings and equipment.
G may occasionally, in an emergency, discuss with H some phase of a crop
production activity. In effect, H has complete charge of the management
of farming operations regardless of the understanding between him and G.
Although G pays one-half of the cost of the seed and fertilizer and is
charged for the cost of materials purchased by H to make all necessary
repairs, G's activities are not material in the crop production
activities. Accordingly, G's income from the crops is not included in
net earnings from self-employment.
(d) Rental income from living quarters -- (1) No services provided
for occupants. Payments you receive for renting living quarters in a
private residence, duplex, or multiple-housing unit are generally rental
income from real estate. Except in the case of real estate dealers,
these payments are excluded in determining net earnings from
self-employment, even if the payments are in part attributable to
personal property furnished under the lease.
(2) Services provided for occupants. (i) Payments you receive for
renting living quarters where services are also provided to the
occupant, as in hotels, boarding houses, or apartment houses furnishing
hotel services, or in tourist camps or tourist homes, are included in
determining your net earinings from self-employment. Any payments you
receive for the use of space in parking lots, warehouses, or storage
garages are also included in determining your net earnings from
self-employment.
(ii) Generally, we consider services to be provided to the occupant
if they are primarily for the occupant's convenience and are other than
those usually provided in connection with the rental of rooms or other
space for occupancy only. We consider the supplying of maid service to
be a service provided to the occupant. However, we do not consider the
furnishing of heat and light, the cleaning of public entrances, exits,
stairways, and lobbies and the collection of trash, as services provided
to the occupant.
Example. A owns a building containing four apartments. During the
taxable year, A received $1,400 from apartments numbered 1 and 2, which
are rented without services provided to the occupants, and $3,600 from
apartments numbered 3 and 4, which are rented with services provided.
A's fixed expenses for the four apartments are $1,200 during the taxable
year. In addition, A has $500 of expenses attributable to the services
provided to the occupants of apartments 3 and 4. In determining his net
earnings from self-employment, A includes the $3,600 received from
apartments 3 and 4, and the expenses of $1,100 ($500 plus one-half of
$1,200) attributable to them. The rentals and expenses attributable to
apartments 1 and 2 are excluded. Therefore, A has $2,500 of net
earnings from self-employment from the building for the taxable year.
(e) Treatment of business income which includes rentals from real
estate. If an individual or a partnership is engaged in a trade or
business other than real estate, and part of the income is rentals from
real estate, only that part of the income which is not rentals and the
expenses attributable to that portion are included in determining net
earnings from self-employment.
20 CFR 404.1083 Dividends and interest.
(a) The dividends you receive on shares of stock are excluded in
determining your net earnings from self-employment, unless you are a
dealer in stocks and securities and receive the dividends in the course
of your trade or business.
(b) The interest you receive on a bond, debenture, note, certificate,
or other evidence of indebtedness issued with interest coupons or in
registered form by any corporation (including one issued by a government
or political subdivision) is excluded in determining your net earnings
from self-employment, unless you are a dealer in stocks and securities
and receive the interest in the course of your trade or business.
(c) If you hold stocks or securities for investment or speculation
purposes, any dividends and interest you receive that are excludable
under paragraphs (a) and (b) of this section are excluded in determining
your net earnings from self-employment, whether or not you are a dealer
in stocks and securities.
(d) A dealer in stocks or securities is a merchant with an
established place of business who is regularly engaged in the business
of purchasing stocks or securities and reselling them to customers. The
dealer, as a merchant, buys stocks or securities and sells them to
customers with a view to making a profit. Persons who buy and sell or
hold stocks or securities for investment or speculation, regardless of
whether the buying or selling constitutes a trade or business, are not
dealers in stocks or securities.
(45 FR 20075, Mar. 25, 1980; 45 FR 25060, Apr. 14, 1980)
20 CFR 404.1084 Gain or loss from disposition of property; capital
assets; timber, coal, and iron ore; involuntary conversion.
(a) If you are engaged in a trade or business, you must, in
determining your net earnings from self-employment, exclude any gain or
loss --
(1) That is considered a gain or loss from the sale or exchange of a
capital asset;
(2) From the cutting of timber or from the disposal of timber or
coal, even if held primarily for sale to customers, if section 631 of
the Code applies to the gain or loss;
(3) From the disposal of iron ore mined in the United States, even if
held primarily for sale to customers, if section 631 of the Code applies
to the gain or loss; and
(4) From the sale, exchange, involuntary conversion, or other
disposition of property that is not --
(i) Stock in trade or other property of a kind which would properly
be included in inventory if on hand at the close of the taxable year;
or
(ii) Property held primarily for sale to customers in the ordinary
course of a trade or business;
(b) For purposes of paragraph (a)(4) of this section, it is
immaterial whether a gain or loss is treated as a capital gain or as an
ordinary gain or loss for purposes other than determining earnings from
self-employment.
(c) For purposes of paragraph (a)(4) of this section --
(1) The term involuntary conversion means a compulsory or unintended
change of property into other property or money as a result of such
things as destruction, theft or seizure; and
(2) The term other disposition includes destruction or loss by fire,
theft, storm, shipwreck, or other casualty, even though there is no
change of the property into other property or money.
Example. During the taxable year 1976, A, who owns a grocery store,
had a net profit of $1,500 from the sale of groceries and a gain of $350
from the sale of a refrigerator case. During the same year, he had a
loss of $2,000 as a result of damage by fire to the store building. In
figuring taxable income for income tax purposes, all of these items are
considered. In determining net earnings from self-employment, however,
only the $1,500 of profit derived from the sale of groceries is
included. The $350 gain and the $2,000 loss are excluded.
20 CFR 404.1085 Net operating loss deduction.
When determining your net earnings from self-employment, you
disregard the deduction provided by section 172 of the Code that relates
to net operating losses sustained in years other than the taxable year.
20 CFR 404.1086 Community income.
(a) In case of an individual. (1) If community property laws apply
to income that an individual derives from a trade or business (other
than a trade or business carried on by a partnership), all of the gross
income and the deductions attributable to the income are generally
treated as the gross income and deductions of the husband. However, if
the wife exercises substantially all of the management and control of
that trade or business, all of the gross income and deductions are
treated as the gross income and deductions of the wife.
(2) The term mananagement and control means management and control in
fact, not the management and control given to the husband under the
community property laws. For example, a wife who operates a beauty
parlor without any significant help from her husband will be considered
as having substantially all of the management and control of the
business, despite the provision of any community property law giving the
husband the right of management and control of community property. The
income and deductions from the operations of the beauty parlor are
considered the income and deductions of the wife.
(b) In case of a partnership. Even though only a portion of a
partner's distributive share of the income or loss from a trade or
business carried on by a partnership is community income or loss under
the community property laws applicable to the share, all of the
distributive share is included in figuring the net earnings from
self-employment of that partner. No part of the share is taken into
account in figuring the net earnings from self-employment of the spouse
of the partner. In any case in which both spouses are members of the
same partnership, the distributive share of the income or loss of each
spouse is included in figuring the net earnings from self-employment of
that spouse.
20 CFR 404.1087 Figuring partner's net earnings from self-employment
for taxable year which ends as a result of death.
(a) General. In the case of a deceased partner whose taxable year
ends because of death, the deceased partner's net earnings from
self-employment includes the amount of his or her distributive share of
partnership ordinary income or loss for the partnership's taxable year
that is attributable to an interest in the partnership through the month
of death.
(b) Computation. (1) The deceased partner's distributive share of
partnership ordinary income or loss for the partnership taxable year in
which death occurred is determined by applying the rules contained in
paragraphs (d) and (f) of 404.1081.
(2) The portion of the distributive share to be included in the
deceased partner's net earnings from self-employment for his or her last
taxable year is determined by treating the ordinary income or loss
constituting the distributive share as having been realized or sustained
ratably over the partnership taxable year during which the deceased
partner had an interest in the partnership and during which the deceased
partner's estate, or any other person succeeding by reason of the death
to rights to his partnership interest, held an interest in the
partnership.
(c) Deceased partner's distributive share. A deceased partner's
distributive share includes the distributive share of the estate or of
any other person succeeding to the interest of a deceased partner. It
does not include any share attributable to a partnership interest that
was not held by the deceased partner at the time of death. If a
deceased partner's estate should acquire an interest in a partnership in
addition to the interest to which it succeeded upon the death of the
deceased partner, the amount of the distributive share attributable to
the additional interest acquired by the estate is not included in
computing the deceased partner's distributive share of the partnership's
ordinary income or loss for the partnership taxable year.
(d) Options available to farmers. In determining the applicability
of the optional method of figuring net earnings from self-employment to
a member of a farm partnership it is necessary to determine the
partner's distributive share of partnership gross income or distributive
share of income described in section 702(a)(8) of the Code.
20 CFR 404.1088 Retirement payment to retired partners.
(a) In general. If you are a retired partner, in figuring your net
earnings from self-employment you must exclude payments made to you on a
periodic basis by a partnershp on account of your retirement and which
are to continue until your death. This exclusion applies only if the
payments are made under a written plan which meets the requirements set
out in 26 CFR 1.1402(a)-(17) and the conditions in paragraph (b) of this
section are met. The necessary requirements and conditions must be met
throughout the entire partnership's taxable year for the payments to be
excluded so that either all or none of the payments are excluded.
(b) Other conditions. You must have been paid your full share of the
partnership's capital before the close of the partnership's taxable year
in which retirement payments are made. Also, no member of the
partnership can have any financial obligations to you (in his or her
capacity as a partner) except to make the retirement payments. Lastly,
you cannot perform any services for the partnership in the partnership's
taxable year which falls wholly or partially in your taxable year in
which you receive the retirement payments.
Example. D, a partner in the DEF partnership, retired from the
partnership as of December 31, 1976. The taxable year of both D and the
partnership is the calendar year. During the partnership's taxable year
ending December 31, 1977, D rendered no service to any trade or business
carried on by the partnership. On or before December 31, 1977, all
obligations (other than retirement payments under the plan) from the
other partners to D were liquidated, and D's share of the capital of the
partnership was paid to him. Retirement payments received by D under
the partnership's plan in his taxable year ending December 31, 1977, are
excluded in determining net earnings from self-employment (if any) for
that taxable year.
20 CFR 404.1089 Figuring net earnings for residents and nonresidents of
Puerto Rico.
(a) Residents. If you are a resident of Puerto Rico, whether or not
you are an alien, a citizen of the United States, or a citizen of Puerto
Rico, you must figure your net earnings from self-employment in the same
manner as would a citizen of the United States residing in the United
States. In figuring your net earnings from self-employment you must
include your income from sources in Puerto Rico even though you are a
resident of Puerto Rico during the entire taxable year.
(b) Nonresidents. A citizen of Puerto Rico, who is also a citizen of
the United States and who is not a resident of Puerto Rico must figure
net earnings from self-employment in the same manner as other citizens
of the United States.
20 CFR 404.1090 Personal exemption deduction.
The deduction provided by section 151 of the Code, relating to
personal exemptions, is excluded in determining net earnings from
self-employment.
20 CFR 404.1091 Figuring net earnings for ministers and members of
religious orders.
(a) General. If you are a duly ordained, commissioned, or licensed
minister of a church or a member of a religious order who has not taken
a vow of poverty, we consider you to be engaged in a trade or business
under the conditions described in 404.1071 with regard to services
described in 404.1023 (c) and (e). In figuring your net earnings from
self-employment from performing these services, you must include certain
income (described in paragraphs (b) and (c) of this section) that may be
excluded from your gross income for income tax purposes.
(b) Housing and meals. You must include in figuring your net
earnings from self-employment the rental value of a home furnished to
you and any rental allowance paid to you as payment for services
performed in the exercise of your ministry or in the exercise of duties
required by your order even though the rental value or rental allowance
may be excluded from gross income by section 107 of the Code. Also, the
value of any meals or lodging furnished to you in connection with the
performance of these services is included in figuring your net earnings
from self-employment even though their value is excluded from gross
income by section 119 of the Code.
(c) Services outside the United States. If you one are a citizen or
resident of the United States performing services outside the United
States which are in the exercise of your ministry or in the exercise of
duties required by your order, your net earnings from self-employment
from the performance of these services are figured as described in
paragraph (b) of this section. However, they are figured without regard
to the exclusions from gross income provided in sections 911 and 931 of
the Code relating to earned income from services performed outside the
United States and from sources within possessions of the United States.
(45 FR.20075, Mar. 27, 1980, as amended at 50 FR 36574, Sept. 9,
1985)
20 CFR 404.1092 Figuring net earnings for U.S. citizens or residents
living outside the United States.
(a) Taxable years beginning after December 31, 1983. If you are a
citizen or resident of the United States and are engaged in a trade or
business outside the United States, your net earnings from
self-employment are figured without regard to the exclusion from gross
income provided by section 911 (a)(1) of the Code.
(b) Taxable years beginning after December 31, 1981, and before
January 1, 1984. If you are a citizen of the United States and were
engaged in a trade or business outside the United States, your net
earnings from self-employment are figured without regard to the
exclusion from gross income provided by section 911(a)(1) of the Code
unless you are a resident of a foreign country or countries for an
uninterrupted period which includes an entire taxable year.
(50 FR 36574, Sept. 9, 1985)
20 CFR 404.1093 Possession of the United States.
In using the exclusions from gross income provided under section 931
of the Code (relating to income from sources within possessions of the
United States) and section 932 of the Code (relating to citizens of
possessions of the United States) for purposes of figuring your net
earnings from self-employment, the term possession of the United States
shall be deemed not to include the Virgin Islands, Guam, or American
Samoa.
20 CFR 404.1094 Options available for figuring net earnings from
self-employment.
(a) General. If you have income from a trade or business in certain
situations, you have options for figuring your net earnings from
self-employment. The options available to you depend on whether you
have income from an agricultural trade or business or a non-agricultural
trade or business. For a definition of agricultural trade or business
see 404.1095.
(b) Agricultural trade or business. The net earnings from
self-employment you derive from an agricultural trade or business may,
at your option, be figured as follows:
(1) Gross income of $2,400 or less. If your gross income is $2,400
or less you may, at your option, report 66 2/3 percent of the gross
income as net earnings from self-employment instead of your actual net
earnings from your business.
(2) Gross income of more than $2,400. If your gross income is more
than $2,400 and your actual net earnings from your business are less
than $1,600 you may, at your option, report $1,600 as net earnings from
self-employment instead of your actual net earnings. If your actual net
earnings are $1,600 or more you cannot use the optional method.
(3) Two or more agricultural trades or businesses. If you carry on
more than one agricultural trade or business as a sole properietor or as
a partner, you must combine your gross income and net income from each
trade or business to find out whether you may use the optional method of
figuring net earnings.
(c) Non-agricultural trade or business. (1) The net earnings from
self-employment you derive from a non-agricultural trade or business may
be reported under an optional method if you are self-employed on a
regular basis (as defined in paragraph (c)(4) of this section). You
cannot use the optional method of reporting for more than 5 taxable
years, and you cannot report less than your actual net earnings from
self-employment.
(2) Computation. If your actual net earnings from self-employment
are less than $1,600 and less than 66 2/3 percent of your gross income,
you may, at your option, report 66 2/3 percent of your gross income (but
not more than $1,600) as your net earnings from self-employment.
Example. A operates a grocery store and files income tax returns on a
calendar year basis. A meets the self-employed on a regular basis
requirement because actual net earnings from self-employment were $400
or more in 1976 and in 1977. Gross income and net profit from operating
the grocery store in 1978 through 1980 are as follows:
For the year 1978, A may report as annual net earnings from
self-employment either --
(i) None. (Actual net earnings from self-employment are less than
$400); or
(ii) $1,600. (Non-agricultural option, 66 2/3 percent of $2,800, but
not to exceed the $1,600 maximum.)
For the year 1979, A may report as annual net earnings from
self-employment either --
(i) $400. (Actual net earnings from self-employment); or
(ii) $800. (Non-agricultural option, 66 2/3 percent of $1,200.)
For the year 1980, A must report $800, the actual net earnings from
self-employment. The non-agricultural option is not available because
A's actual net earnings are not less than 66 2/3 percent of the gross
income.
(3) Figuring net earnings from both non-agricultural and agricultural
self-employment. If you are self-employed on a regular basis, you may
use the non-agricultural optional method of reporting when you have both
non-agricultural and agricultural trades or businesses. However, in
order to use this method, your actual net earnings from non-agricultural
self-employment combined with your actual net earnings from agricultural
self-employment, or your optional net earnings from agricultural
self-employment, must be less than $1,600, and the net non-agricultural
earnings must be less than 66 2/3 percent of your gross non-agricultural
income. If you qualify for using both the non-agricultural and
agricultural option, you may report less than your actual total net
earnings, but not less than your actual net earnings from
non-agricultural self-employment alone. If you elect to use both
options in a given taxable year, the combined maximum reportable net
earnings from self-employment may not exceed $1,600.
Example. C was regularly self-employed. She derived actual net
earnings from self-employment of $400 or more in 1975 and in 1976. Her
gross income and net profit from operating both a grocery store and a
farm in 1978 are:
For the year 1978, C may report $1,200 (actual net earnings from
self-employment from both businesses), or $2,400 ($1,600 agricultural
option (66 2/3 percent of $2,600 farm gross income not to exceed $1,600)
and $800 grocery store profit). C cannot use the non-agricultural
option for 1978 because her actual grocery store net exceeds 66 2/3
percent of her grocery store gross income.
(4) Self-employed on a regular basis. For any taxable year beginning
after 1972, we consider you to be self-employed on a regular basis, or
to be a member of a partnership on a regular basis, if, in at least 2 of
the 3 taxable years immediately before that taxable year, you had actual
net earnings from self-employment of not less than $400 from
agricultural and non-agricultural trades or businesses (including your
distributive share of the net income or loss from any partnership of
which you are a member).
(d) Members of partnerships. If you are a member of a partnership
you may use the optional method of reporting. Your gross income is your
distributive share of the partnership's gross income (after all
guaranteed payments to which section 707(c) of the Code applies have
been deducted), plus your own guaranteed payment.
(e) Computing gross income. For purposes of this section gross
income means --
(1) Under the cash method of computing, the gross receipts from the
trade or business reduced by the cost or other basis of property that
was purchased and sold, minus any income that is excluded in computing
net earnings from self-employment; or
(2) Under the accrual method of computing, the gross income minus any
income that is excluded in figuring net earnings from self-employment.
(f) Exercise of option. For each taxable year for which you are
eligible to use the optional method and elect to use that method, you
must figure your net earnings from self-employment in that manner on
your tax return for that year. If you wish to change your method of
reporting after your tax return is filed, you may change it by filing an
amended tax return with the Internal Revenue Service or by filing with
us Form 2190, Change in Method of Computing Net Earnings from
Self-Employment.
20 CFR 404.1095 Agricultural trade or business.
(a) An agricultural trade or business is one in which, if the trade
or business were carried on entirely by employees, the major portion of
the services would be agricultural labor ( 404.1057).
(b)(1) If the services are partly agricultural and partly
non-agricultural, the time devoted to the performance of each type of
service is the test used to determine whether the major portion of the
services is agricultural labor.
(2) If more than half of the time spent in performing all the
services is spent in performing services that are agricultural labor,
the trade or business is agricultural.
(3) If half or less of the time spent in performing all the services
is spent in performing services that are agricultural labor, the trade
or business is not agricultural. The time spent in performing the
services is figured by adding the time spent in the trade or business
during the taxable year by every individual (including the individual
carrying on the trade or business and the members of that individual's
family).
(c) We do not apply the rules in this section if the non-agricultural
services are performed in connection with a trade or business separate
and distinct from the agricultural trade or business. A roadside
automobile service station on a farm is a trade or business separate and
distinct from the agricultural trade or business, and the gross income
from the service station, less the deductions attributable to it, is to
be considered in determining net earnings from self-employment.
(d) We consider a sharefarmer (see 404.1068(c)) or a materially
participating owner or tenant (see 404.1082(c)) to be engaged in an
agricultural trade or business. We use the rules in this section to
determine whether a farm crew leader who is self-employed (see
404.1074) is engaged in an agricultural trade or business.
20 CFR 404.1096 Self-employment income.
(a) General. Self-employment income is the amount of your net
earnings from self-employment that is subject to social security tax and
counted for social security benefit purposes. The term self-employment
income means the net earnings from self-employment you derive in a
taxable year, except as described in paragraphs (b), (c) and (d) of this
section.
(b) Maximum self-employment income. (1) The term self-employment
income does not include that part of your net earnings from
self-employment that exceeds (or that part of your net earnings from
self-employment which, when added to the wages you received in that
taxable year, exceeds) --
(2) For the purpose of this paragraph the term wages includes
remuneration paid to an employee for services covered by an agreement
entered into under section 218 of the Act, or an agreement entered into
under section 3121(l) of the Code, which would be wages under section
209 of Act if the services were considered employment under section
210(a) of the Act.
(c) Minimum net earnings from self employment. (1) Self-employment
income does not include your net earnings from self-employment when the
amount of those earnings for the taxable year is less than $400. If you
have only $300 of net earnings from self-employment for the taxable year
you would not have any self-employment income. (Special rules apply if
you are paid $100 or more and work for a church or church-controlled
organization that has exempted its employees (see 404.1068(f)).)
(2) If you have net earnings from self-employment of $400 or more for
the taxable year you may have less than $400 of creditable
self-employment income. This occurs where your net earnings from
self-employment is $400 or more for a taxable year and the amount of
your net earnings from self-employment plus the amount of the wages paid
to you during that taxable year exceed the maximum creditable earnings
for a year. For example, if you had net earnings from self-employment
of $1,000 for 1978, and were also paid wages of $17,500 during 1978,
your creditable self-employment income for 1978 would be $200.
(d) Nonresident aliens. A nonresident alien has self-employment
income only if coverage is provided under a totalization agreement (see
404.1913). We do not consider an individual who is a resident of the
Commonwealth of Puerto Rico, the Virgin Islands, Guam or American Samoa
to be a nonresident alien.
(45 FR 20075, Mar. 27, 1980, as amended at 50 FR 36575, Sept. 9,
1985; 52 FR 8250, Mar. 17, 1987; 57 FR 44098, Sept. 24, 1992)
20 CFR 404.1096 Subpart L -- (Reserved)
20 CFR 404.1096 Subpart M -- Coverage of Employees of State and Local
Governments
Authority: Secs. 205, 210, 218, and 1102 of the Social Security Act;
42 U.S.C. 405, 410, 418, and 1302; sec. 12110 of Pub. L. 99-272, 100
Stat. 287, sec. 9002 of Pub. L. 99-509, 100 Stat. 1970.
Source: 53 FR 32976, Aug. 29, 1988, unless otherwise noted.
20 CFR 404.1096 General
20 CFR 404.1200 General.
(a) Coverage under section 218 of the Act. Under section 218 of the
Social Security Act (the Act) a State may ask the Secretary of Health
and Human Services to enter into an agreement to extend Federal old-age,
survivors, disability and hospital insurance coverage to groups of
employees of the State and its political subdivisions. The Secretary
shall enter into such an agreement. State and local government
employees, after being covered under an agreement, have the same benefit
rights and responsibilities as other employees who are mandatorily
covered under the programs. For payments due on wages paid before 1987,
the State assumes full financial and reporting responsibility for all
groups covered under its agreement. The agreement may not be terminated
in its entirety or with respect to any coverage group under that
agreement. For payments due on wages paid in the year 1987 and years
later, section 9002 of Pub. L. 99-509 amends section 218 of the Act by
transferring responsibility for collecting contributions due and
receiving wage reports from the Social Security Administration (SSA) to
the Internal Revenue Service (IRS). Sections of the regulations wholly
or partly affected by this amendment to the Act are appended with the
phrase '' -- for wages paid prior to 1987.''
(b) Mandatory old-age, survivors, disability, and hospital insurance
coverage. Under section 210(a)(7)(F) of the Act, mandatory old-age,
survivors, disability, and hospital insurance coverage is extended to
certain services performed after July 1, 1991, by individuals who are
employees of a State (other than the District of Columbia, Guam, or
American Samoa), a political subdivision of the State, or any wholly
owned instrumentality of one or more of the foregoing, and who are not
members of the employer's retirement system. Certain services are
excluded from such mandatory coverage (see 404.1020(a)(3).
(53 FR 32976, Aug. 29, 1988, as amended at 57 FR 59911, Dec. 17,
1992)
20 CFR 404.1201 Scope of this subpart regarding coverage and wage
reports and adjustments.
This subpart contains the rules of SSA about:
(a) Coverage under section 218 of the Act --
(b) Contributions, wage reports, and adjustments -- for wages paid
prior to 1987 --
(1) How a State must identify covered employees and what records it
must keep on those employees;
(2) Periodic reviews of the source records kept on covered employees;
(3) How and when a State must report wages and pay contributions;
(4) What the State's liability for contributions is and how SSA
figures the amount of those contributions;
(5) What happens if a State fails to pay its contributions timely;
(6) How errors in reports and contribution payments are corrected;
(7) How overpayments of contributions are credited or refunded;
(8) How assessments are made if contributions are underpaid; and
(9) How a State can obtain administrative or judicial review of a
decision on a credit, refund, or assessment.
(53 FR 32976, Aug. 29, 1988, as amended at 57 FR 59911, Dec. 17,
1992)
20 CFR 404.1202 Definitions.
(a) Terms which have special meaning in this subpart are described in
this section. Where necessary, further explanation is included in the
section where the term is used.
(b) Coverage terms:
Agreement -- The agreement between the Secretary of Health and Human
Services and the State containing the conditions under which retirement,
survivors, disability and hospital insurance coverage is provided for
State and local government employees.
Coverage -- The extension of Social Security protection (retirement,
survivors, disability, and hospital insurance) by agreement between the
Secretary of Health and Human Services and a State to employees of the
State and its political subdivisions or by agreement between the
Secretary of Health and Human Services and an interstate instrumentality
to employees of the interstate instrumentality.
Coverage group -- The grouping by which employees are covered under
an agreement.
Employee -- An employee as defined in section 210(j) of the Act.
Usually, the common-law control test is used in determining whether an
employer-employee relationship exists. The term also includes an
officer of a State or political subdivision.
Governmental function -- The traditional functions of government:
legislative, executive, and judicial.
Interstate instrumentality -- An independent legal entity organized
by two or more States to carry out one or more functions. For Social
Security coverage purposes under section 218 of the Act, an interstate
instrumentality is treated, to the extent practicable, as a ''State.''
Modification -- A change to the agreement between the Secretary of
Health and Human Services and a State which provides coverage of the
services of employees not previously covered or which alters the
agreement in some other respect.
Political subdivision -- A separate legal entity of a State which
usually has specific governmental functions. The term ordinarily
includes a county, city, town, village, or school district, and in many
States, a sanitation, utility, reclamation, drainage, flood control, or
similar district. A political subdivision includes an instrumentality
of a State, one or more politicial subdivisions of a State, or a State
and one or more of its political subdivisions.
Proprietary function -- A business engaged in by a State or political
subdivision such as a public amusement park or public parking lot.
Retirement system -- A pension, annuity, retirement, or similar fund
or system established by a State or political subdivision.
Secretary -- The Secretary of Health and Human Services or authorized
delegate.
SSA -- The Social Security Administration.
State -- Includes the fifty States, Puerto Rico, and the Virgin
Islands. It does not include the District of Columbia, Guam or American
Samoa. ''State'' also refers to an interstate instrumentality where
applicable.
We -- The Social Security Administration.
(c) Contributions, wage reporting, and adjustment terms -- for wages
paid prior to 1987:
Allowance of a credit or refund -- The written notice to a State of
the determination by SSA of the amount owed to the State by SSA, the
period involved, and the basis for the determination.
Assessment -- The written notice to a State of the determination by
SSA of the amount (contributions or accrued interest) owed to SSA by the
State, the period involved, and the basis for the determination.
Contributions -- Payments made under an agreement which the State
deposits in a Federal Reserve bank. The amounts are based on the wages
paid to employees whose services are covered under an agreement. These
amounts are equal to the taxes imposed under the Internal Revenue Code
on emp1oyers and employees in private employment.
Contribution return -- Form used to identify and account for all
contributions actions.
Disallowance of a State's claim for credit or refund -- The written
notice to a State of the determination by SSA that the State's claim for
credit or refund is denied, the period involved, and the basis for the
determination.
Overpayment -- A payment of more than the correct amount of
contributions or interest.
Underpayment -- A payment of less than the correct amount of
contributions or interest.
Wage Reports -- Forms used to identify employees who were paid wages
for covered employment and the amounts of those wages paid. This
includes corrective reports.
20 CFR 404.1203 Evidence -- for wages paid prior to 1987.
(a) State's responsibility for submitting evidence. The State, under
the provisions of the agreement, is responsible for accurately reporting
the wages paid employees for services covered by the agreement and for
paying the correct amount of contributions due on those wages. This
responsibility includes submitting evidence to verify the accuracy of
the reports and payments.
(b) Failure to submit requested evidence. The State is required to
submit information timely to SSA. If we request additional evidence to
verify the accuracy of reports and payments, we specify when that
evidence must be submitted. If we do not receive the evidence timely,
and the State provides no satisfactory explanation for its failure to
submit the evidence timely, we may proceed, if appropriate, on the basis
of the information we have. Proceeding on the basis of the information
we have permits us to credit the wage records of employees properly,
where possible, while continuing to work with the State to resolve
remaining discrepancies.
Effective Date Note: At 53 FR 32976, Aug. 29, 1988, 404.1203 was
revised. This amendment contains reporting and recordkeeping
requirements and will become effective upon approval by the Office of
Management and Budget. A notice announcing the effective date will be
published in the Federal Register.
20 CFR 404.1204 Designating officials to act on behalf of the State.
(a) Each State which enters into an agreement shall designate the
official or officials authorized to act on the State's behalf in
administering the agreement. Each State shall inform SSA of the name,
title, and address of the designated official(s) and the extent of each
official's authority. For example, a State may indicate that the State
official is authorized:
(1) To enter into an agreement and execute modifications to the
agreement; and
(2) To carry out the ministerial duties necessary to administer the
agreement.
For wages paid prior to 1987:
(3) To enter into agreements to extend or re-extend the time limit
for assessment or credit;
(4) To make arrangements in connection with onsite reviews; and
(5) To request administrative review of an assessment, an allowance
of a credit or refund, or a disallowance of a credit or refund.
(b) Each State shall inform SSA timely of changes in designated
officials or changes in their authority.
Effective Date Note: At 53 FR 32976, Aug. 29, 1988, 404.1204 was
revised, effective Aug. 29, 1988 with the exception of paragraphs
(a)(5) and (b). Section 404.1204(a)(5) and (b) contain reporting and
recordkeeping requirements and will become effective upon approval by
the Office of Management and Budget. A notice announcing the effective
date will be published in the Federal Register.
20 CFR 404.1204 What Groups of Employees May Be Covered
20 CFR 404.1205 Absolute coverage groups.
(a) General. An absolute coverage group is a permanent grouping of
employees, e.g., all the employees of a city or town. It is a coverage
group for coverage and reporting purposes. When used for coverage
purposes, the term refers to groups of employees whose positions are not
under a retirement system. An absolute coverage group may include
positions which were formerly under a retirement system and, at the
State's option, employees who are in positions under a retirement system
but who are ineligible (see 404.1208) to become members of that system.
(b) What an absolute coverage group consists of. An absolute
coverage group consists of one of the following employee groups:
(1) State employees performing services in connection with the
State's governmental functions;
(2) State employees performing services in connection with a single
proprietary function of the State;
(3) Employees of a State's political subdivision performing services
in connection with that subdivision's governmental functions;
(4) Employees of a State's political subdivision performing services
in connection with a single proprietary function of the subdivision;
(5) Civilian employees of a State's National Guard units; and
(6) Individuals employed under an agreement between a State and the
U.S. Department of Agriculture as agricultural products inspectors.
(c) Designated coverage groups. A State may provide coverage for
designated (i.e., selected) absolute coverage groups of the State or a
political subdivision. When coverage is extended to these designated
groups, the State must specifically identify each group as a designated
absolute coverage group and furnish the effective date of coverage and
any optional exclusion(s) for each group. Where a State has provided
coverage to designated absolute coverage groups, the State may, by
modifying its agreement, extend that coverage to any absolute coverage
group in the State.
20 CFR 404.1206 Retirement system coverage groups.
(a) General. Section 218(d) of the Act authorizes coverage of
services of employees in positions under a retirement system. For
purposes of obtaining coverage, a system may be considered a separate
retirement system authorized by section 218(d)(6) (A) or (B) of the Act.
Under this section of the Act a State may designate the positions of
any one of the following groupings of employees as a separate retirement
system:
(1) The entire system;
(2) The employees of the State under the system;
(3) The employees of each political subdivision in the State under
the system;
(4) The employees of the State and the employees of any one or more
of the State's political subdivisions;
(5) The employees of any combination of the State's political
subdivisions;
(6) The employees of each institution of higher learning, including
junior colleges and teachers colleges; or
(7) The employees of a hospital which is an integral part of a
political subdivision.
If State law requires a State or political subdivision to have a
retirement system, it is considered established even though no action
has been taken to establish the system.
(b) Retirement system coverage groups. A retirement system coverage
group is a grouping of employees in positions under a retirement system.
Employees in positions under the system have voted for coverage for the
system by referendum and a State has provided coverage by agreement or
modification of its agreement. It is not a permanent grouping. It
exists only for referendum and coverage purposes and is not a separate
group for reporting purposes. Once coverage has been obtained, the
retirememt system coverage group becomes part of one of the absolute
coverage groups described in 404.1205(b).
(c) What a retirement system coverage group consists of. A
retirement system coverage group consists of:
(1) Current employees -- all employees whose services are not already
covered by the agreement, who are in positions covered by the same
retirement system on the date an agreement or modification of the
agreement is made applicable to the system;
(2) Future employees -- all employees in positions brought under the
system after an agreement or modification of the agreement is signed;
and
(3) Other employees -- all employees in positions which had been
under the retirement system but which were not under the retirement
system when the group was covered (including ineligibles who had been
optionally excluded from coverage under section 218(c)(3)(B) of the
Act).
(d) Referendum procedures. Prior to signing the agreement or
modification, the governor or an official of the State named by the
governor (for an interstate instrumentality, its chief executive
officer) must certify to the Secretary that:
(1) All eligible employees were given at least 90 days' notice of the
referendum;
(2) All eligible employees were given an opportunity to vote in the
referendum;
(3) Only eligible employees were permitted to vote in the referendum;
(4) Voting was by secret written ballot on the question of whether
service in positions covered by the retirement system should be included
under an agreement;
(5) The referendum was conducted under the supervision of the
governor or agency or individual named by him; and
(6) A majority of the retirement system's eligible employees voted
for coverage under an agreement.
The State has two years from the date of a favorable referendum to
enter into an agreement or modification extending coverage to the
retirement system coverage group. If the referendum is unfavorable,
another referendum cannot be held until at least one year after that
unfavorable referendum.
(e) Who is covered. If a majority of the eligible employees in a
retirement system vote for coverage, all employees in positions in that
retirement system become covered.
(f) Coverage of employees in positions under more than one retirement
system. (1) If an employee occupies two or more positions each of which
is under a different retirement system, the employee's coverage in each
position depends upon the coverage extended to each position under each
system.
(2) If an employee is in a single position which is under more than
one retirement system (because the employee's occupancy of that position
permits her or him to become a member of more than one retirement
system), the employee is covered when the retirement system coverage
group including her or his position is covered under an agreement unless
(A) he or she is not a member of the retirement system being covered and
(B) he or she is a member of a retirement system which has not been
covered. This rule also applies to the coverage of services in
policemen's and firemen's positions in interstate instrumentalities and
in those States named in 404.1212(c)(1).
20 CFR 404.1207 Divided retirement system coverage groups.
(a) General. Under section 218(d)(6)(C) of the Act certain States
and under section 218(g)(2) of the Act all interstate instrumentalities
may divide a retirement system based on whether the employees in
positions under that system want coverage. The States having this
authority are Alaska, California, Connecticut, Florida, Georgia, Hawaii,
Illinois, Massachusetts, Minnesota, Nevada, New Jersey, New Mexico, New
York, North Dakota, Pennsylvania, Rhode Island, Tennessee, Texas,
Vermont, Washington, and Wisconsin.
(b) Divided retirement system coverage group. A divided retirement
system coverage group is a grouping under a retirement system of
positions of members of the system who voted for coverage and positions
of individuals who become members of the system (the ''yes'' group), and
positions of members of the system who did not elect coverage (the
''no'' group) and ineligible employees (see 404.1208). For purposes of
this section for groups covered after 1959, the term ''member'' also
includes individuals who have an option to become members of the
retirement system but have not done so. The position of a member in the
''no'' group can be covered if, within two years after the agreement or
modification extending coverage to the ''yes'' group is executed, the
State provides an opportunity to transfer the position to the covered
''yes'' group and the individual occupying the position makes a written
request for the transfer. The members of the ''no'' group can also be
covered if, by referendum, a majority of them vote for coverage. If the
majority votes for coverage, all positions of the members of the ''no''
group become covered. There is no further subdivision of the ''no''
group into those who voted for and those who voted against coverage. If
the State requests, the ineligibles in the ''no'' group may become part
of the ''yes'' group and have their services covered.
(c) Referendum procedures. To divide a retirement system, the State
must conduct a referendum among the system's employees. If the system
is to be divided, the governor or an individual named by him must
certify to the Secretary that:
(1) The referendum was held by written ballot on the question of
whether members of a retirement system wish coverage under an agreement;
(2) All members of the retirement system at the time the vote was
held had the opportunity to vote;
(3) All members of the system on the date the notice of the
referendum was issued were given at least 90 days' notice regarding the
referendum;
(4) The referendum was conducted under the supervision of the
governor or agency or person designated by him; and
(5) The retirement system was divided into two parts, one composed of
positions of members of the system who voted for coverage and the other
composed of the remaining positions under the retirement system.
After the referendum the State may include those members who chose
coverage under its agreement as a retirement system coverage group. The
State has two years from the date of the referendum to enter into an
agreement or modification extending coverage to that group.
20 CFR 404.1208 Ineligible employees.
(a) Definition. An ineligible is an employee who, on first occupying
a position under a retirement system, is not eligible for membership in
that system because of a personal disqualification like age, physical
condition, or length of service.
(b) Coverage of ineligible employees. A State may, in its agreement
or any modification to the agreement, provide coverage for the services
of ineligible employees in one of three ways:
(1) As part of or as an addition to an absolute coverage group;
(2) As part of a retirement system coverage group covering all
positions under the retirement system; or
(3) As part of or as an addition to a retirement system coverage
group composed of those members in positions in a retirement system who
chose coverage.
20 CFR 404.1209 Mandatorily excluded services.
Some services are mandatorily excluded from coverage under a State's
agreement. They are:
(a) Services of employees who are hired to relieve them from
unemployment;
(b) Services performed in an institution by a patient or inmate of
the institution;
(c) Transportation service subject to the Federal Insurance
Contributions Act;
(d) Certain emergency services in case of fire, storm, snow, volcano,
earthquake, flood or other similar emergency; and
(e) Services other than agricultural labor or student services which
would be excluded from coverage if performed for a private employer.
(f) Services covered under section 210(a)(7)(F) of the Act. (See
404.1200(b).)
(53 FR 32976, Aug. 29, 1988, as amended at 57 FR 59911, Dec. 17,
1992)
20 CFR 404.1210 Optionally excluded services.
Certain services and positions may, if the State requests it, be
excluded from coverage. These exclusions may be applied on a statewide
basis or selectively by coverage groups. They are:
(a) Services in any class or classes of elective positions;
(b) Services in any class or classes of part-time positions;
(c) Services in any class or classes of positions where the pay is on
a fee basis;
(d) Any agricultural labor or student services which would also be
excluded if performed for a private employer; and
(e) Services performed by election officials or election workers if
the payments for those services:
(1) In a calendar quarter are less than $50; or
(2) For modifications executed after 1977, in a calendar year are
less than $100.
20 CFR 404.1211 Interstate instrumentalities.
For Social Security coverage purposes under section 218 of the Act,
interstate instrumentalities are treated, to the extent practicable, as
States, that is:
(a) They must be legally authorized to enter into an agreement with
the Secretary;
(b) They are subject to the same rules that are applied to the
States;
(c) They may divide retirement systems and cover only the positions
of members who want coverage; and
(d) They may provide coverage for firemen and policemen in positions
under a retirement system.
20 CFR 404.1212 Policemen and firemen.
(a) General. For Social Security coverage purposes under section 218
of the Act, a policeman's or fireman's position is any position so
classified under State statutes or court decisions. Generally, these
positions are in the organized police and fire departments of
incorporated cities, towns, and villages. In most States, a policeman
is a member of the ''police'' which is an organized civil force for
maintaining order, preventing and detecting crimes, and enforcing laws.
The terms ''policeman'' and ''fireman'' do not include services in
positions which, although connected with police and firefighting
functions, are not policeman or fireman positions.
(b) Providing coverage. A State may provide coverage of:
(1) Policemen's and firemen's positions not under a retirement system
as part of an absolute coverage group;
(2) Policemen's or firemen's positions, or both, as part of a
retirement system coverage group for the States specified in paragraph
(c)(1) of this section; or
(3) Firemen's positions only as a separate retirement system as set
forth in paragraph (c)(2) of this section.
(c) Policemen and firemen in positions under a retirement system.
(1) Some States and all interstate instrumentalities may provide
coverage for employees in policemen's or firemen's positions, or both,
which are under a retirement system by following the majority vote
referendum procedures in 404.1206(d). The States are Alabama,
California, Florida, Georgia, Hawaii, Idaho, Kansas, Maine, Maryland,
Mississippi, Montana, New York, North Carolina, North Dakota, Oregon,
Puerto Rico, South Carolina, South Dakota, Tennessee, Texas, Vermont,
Virginia, and Washington. Some States and all interstate
instrumentalities may use the desire for coverage procedures in
404.1207. The States are California, Florida, Georgia, Hawaii, New York,
North Dakota, Tennessee, Texas, Vermont, and Washington.
(2) All States not listed in paragraph (c)(1) of this section may
provide coverage for employees in firemen's positions which are under a
retirement system by:
(i) Following the referendum procedures in 404.1206(d); and
(ii) Submitting a certification by the governor, or an individual
named by her or him, to the Secretary that extending coverage to this
group of employees will improve their overall benefit protection.
20 CFR 404.1212 How Coverage Under Agreements Is Obtained and Continues
20 CFR 404.1214 Agreement for coverage.
(a) General. A State may enter into a written agreement with the
Secretary to provide for Social Security coverage for its employees or
the employees of one or more of its political subdivisions. An
interstate instrumentality may enter into a similar agreement for its
employees. These agreements cover employees in groups of positions or
by types of services rather than the individual employees.
(b) Procedures. A State or interstate instrumentality may request
coverage by submitting to SSA a proposed written agreement for the
desired coverage.
(c) Authority to enter into an agreement for coverage -- (1) Federal
law. Section 218(a) of the Act requires the Secretary to enter into an
agreement, at the request of the State, to extend Social Security
coverage to the State's employees or those of its political
subdivisions. Section 218(g) authorizes the Secretary to enter into an
agreement, at the request of an interstate instrumentality, to extend
Social Security coverage to the employees of the interstate
instrumentality.
(2) State law. State law must authorize a State or an interstate
instrumentality to enter into an agreement with the Secretary for Social
Security coverage.
(d) Provisions of the agreement. The agreement must include:
(1) A description of the specific services to be covered and
excluded;
(2) The State's promise to pay, to the Secretary of the Treasury,
contributions equal to the sum of the taxes which would be required
under the Federal Insurance Contributions Act from employers and
employees if the employment were in the private sector;
(3) The State's promise to comply with the regulations the Secretary
prescribes for carrying out the provisions of section 218 of the Act;
and
(4) Identification of the political subdivisions, coverage groups, or
services being covered and the services that are excluded.
The agreement must be signed by the authorized State or interstate
instrumentality official and the Secretary or his or her designee.
(e) Effective date. The agreement must specify an effective date of
coverage. However, the effective date cannot be earlier than the last
day of the sixth calendar year preceding the year in which the agreement
is mailed or delivered by other means to the Secretary. The agreement
is effective after the effective date.
(f) Applicability of agreement. The agreement establishes the
continuing relationship between the Secretary and the State or
interstate instrumentality except as it is modified (see
404.1215-404.1217).
Effective Date Note: At 53 FR 32976, Aug. 29, 1988, 404.1214 was
revised, effective Aug. 29, 1988 with the exception of paragraph (d).
Section 404.1214(d) contains reporting and recordkeeping requirements
and will become effective upon approval by the Office of Management and
Budget. A notice announcing the effective date will be published in the
Federal Register.
20 CFR 404.1215 Modification of agreement.
(a) General. A State or interstate instrumentality may modify in
writing its agreement, for example, to:
(1) Exclude, in limited situations, employee services or positions
previously covered;
(2) Include additional coverage groups; or
(3) Include as covered services:
(i) Services of covered employees for additional retroactive periods
of time; and
(ii) Services previously excluded from coverage.
(b) Controlling date for retroactive coverage. A State may specify
in the modification a date to make all individuals in the coverage group
who were in an employment relationship on that date eligible for
retroactive coverage. This date is known as the controlling date for
retroactive coverage. It can be no earlier than the date the
modification is mailed or otherwise delivered to the Secretary nor can
it be later than the date the modification is signed by the Secretary.
If the State does not designate a controlling date, the date the
modification is signed by the Secretary is the controlling date.
(c) Conditions for modification. The provisions of section 218 of
the Act which apply to the original agreement also apply to a
modification to the agreement.
(d) Effective date. Generally, a modification must specify an
effective date of coverage. However, the effective date cannot be
earlier than the last day of the sixth calendar year preceding the year
in which the modification is mailed or delivered by other means to the
Secretary. The modification is effective after the effective date.
20 CFR 404.1216 Modification of agreement to correct an error.
(a) General. If an agreement or modification contains an error, the
State may correct the error by a subsequent modification to the
agreement. For example, the agreement or modification incorrectly lists
a covered service as an optionally excluded service or shows an improper
effective date of coverage. In correcting this type of error, which
affects the extent of coverage, the State must submit a modification
along with evidence to establish that the error occurred. However, a
modification is not needed to correct minor typographical or clerical
errors. For example, an agreement or modification incorrectly lists
School District No. 12 as School District No. 13. This type of error
can be corrected based on a written request from the appropriate
official of the State or interstate instrumentality.
(b) Correction of errors involving erroneous reporting to the IRS --
for wages paid prior to 1987. Where a State or political subdivision
makes reports and payments to the Internal Revenue Service under the
provisions of the Federal Insurance Contributions Act which apply to
employees in private employment in the mistaken belief that this action
would provide coverage for its employees, the State may provide the
desired coverage for those same periods of time by a subsequent
modification to its agreement. If State law permits, the State may make
that coverage effective with the first day of the first period for which
the erroneous reports and payments were made. (In this instance, the
limitation on retroactive coverage described in 404.1215(d) is not
applicable.) Where the State does not want to provide such retroactive
coverage or is not permitted to do so by State law, the State may
provide the coverage for the affected coverage group as of a specified
date ( 404.1215(b)). The coverage would then apply to the services
performed by individuals as members of the coverage group
(1) Who were employees on that date, and
(2) Whose wages were erroneously reported to IRS, and
(3) For whom a refund of FICA taxes has not been obtained at the time
the Secretary executes the modification.
Effective Date Note: At 53 FR 32976, Aug. 29, 1988, 404.1216 was
revised, effective August 29, 1988 with the exception of paragraph (a).
Section 404.1216(a) contains reporting and recordkeeping requirements
and will become effective upon approval by the Office of Management and
Budget. A notice announcing the effective date will be published in the
Federal Register.
20 CFR 404.1217 Continuation of coverage.
The coverage of State and local government employees continues as
follows:
(a) Absolute coverage group. Generally, the services of an employee
covered as a part of an absolute coverage group (see 404.1205) continue
to be covered indefinitely. A position covered as a part of an absolute
coverage group continues to be covered even if the position later comes
under a retirement system. This includes policemen's and firemen's
positions which are covered with an absolute coverage group.
(b) Retirement system coverage group. Generally, the services of
employees in positions covered as a part of a retirement system coverage
group continue to be covered indefinitely. For a retirement system
coverage group made up of members who chose coverage, a position
continues to be covered until it is removed from the retirement system
and is no longer occupied by a member who chose coverage or by a new
member of the system. Coverage is not terminated because the positions
are later covered under additional retirement systems or removed from
coverage under a retirement system, or because the retirement system is
abolished with respect to the positions. However, if the retirement
system has been abolished, newly created or reclassified positions or
positions in a newly created political subdivision cannot be covered as
a part of the retirement system coverage group. If the retirement
system is not abolished, a newly created or reclassified position is a
part of the coverage group if the position would have been a part of the
group had it existed earlier. If the retirement system coverage group
is made up of members who chose coverage, the newly created or
reclassified position is a part of the coverage group if it is occupied
by a member who chose coverage or by a new member.
20 CFR 404.1218 Resumption of coverage.
Before April 20, 1983, an agreement could be terminated in its
entirety or with respect to one or more coverage groups designated by
the State. Coverage of any coverage group which has been previously
terminated may be resumed by a modification to the agreement.
20 CFR 404.1219 Dissolution of political subdivision.
If a political subdivision whose employees are covered under the
agreement is legally dissolved, the State shall give us satisfactory
evidence of its dissolution or nonexistence. The evidence must
establish that the entity is not merely inactive or dormant, but that it
no longer legally exists. We will notify the State whether the evidence
is satisfactory.
20 CFR 404.1219 How to Identify Covered Employees
20 CFR 404.1220 Identification numbers.
(a) State and local government. (1) When a State enters into an
agreement with the Secretary under section 218 of the Act, SSA assigns
one identification number to the State (if State employees are covered
under the agreement) and one identification number to each political
subdivision included under the agreement. Similarly, in the case of an
agreement with an interstate instrumentality, SSA assigns one
identification number to the instrumentality. SSA notifies the
appropriate official of the State or instrumentality of the number
assigned.
(2) If a State or political subdivision is paying wages for covered
transportation service (as determined under section 210(k) of the Act)
which are subject to the Federal Insurance Contributions Act, the
appropriate IRS Service Center assigns an identification number to the
State or political subdivision. The IRS Service Center procedures for
issuing identification numbers to States or political subdivisions may
be found in 26 CFR 31.6011(b)-1.
(b) Coverage group number for coverage groups. If a State's
agreement provides coverage for a State or a political subdivision based
on designated proprietary or governmental functions, the State shall
furnish a list of those groups. The list shall identify each designated
function and the title and business address of the official responsible
for filing each designated group's wage report. SSA assigns a coverage
group number to each designated group based on the information furnished
in the list.
(c) Unit numbers for payroll record units. SSA assigns, at a State's
request, unit numbers to payroll record units within a State or
political subdivision. When a State requests separate payroll record
unit numbers, it must furnish the following:
(1) The name of each payroll record unit for the coverage group; and
(2) The title and business address of the official responsible for
each payroll unit.
(d) Unit numbers where contribution amounts are limited -- for wages
paid prior to 1987. An agreement, or modification of an agreement, may
provide for the computation of contributions as prescribed in 404.1256
for some employees of a political subdivision. In this situation, SSA
assigns special unit numbers to the political subdivision to identify
those employees. SSA does not assign a special unit number to a
political subdivision in which the contributions for all employees are
computed as prescribed in 404.1256.
(e) Use. The employer shall show the appropriate SSA issued
identifying number, including any coverage group or payroll record unit
number, on records, reports, returns, and claims to report wages,
adjustments, and contributions.
Effective Date Note: At 53 FR 32976, Aug. 29, 1988, 404.1220 was
revised. This amendment contains reporting and recordkeeping
requirements and will become effective upon approval by the Office of
Management and Budget. A notice announcing the effective date will be
published in the Federal Register.
20 CFR 404.1220 What Records of Coverage Must Be Kept
20 CFR 404.1225 Records -- for wages paid prior to 1987.
(a) Who keeps the records. Every State which enters into an
agreement shall keep, or require the political subdivisions whose
employees are included under its agreement to keep, accurate records of
all remuneration (whether in cash or in a medium other than cash) paid
to employees performing services covered by that agreement. These
records shall show for each employee:
(1) The employee's name, address, and Social Security number;
(2) The total amount of remuneration (including any amount withheld
as contributions or for any other reason) and the date the remuneration
was paid and the period of services covered by the payment;
(3) The amount of remuneration which constitutes wages (see 404.1041
for wages and 404.1047-404.1059 for exclusions from wages); and
(4) The amount of the employee's contribution, if any, withheld or
collected, and if collected at a time other than the time such payment
was made, the date collected. If the total remuneration (paragraph
(a)(2) of this section) and the amount which is subject to contribution
(paragraph (a)(3) of this section) are not equal, the reason shall be
stated.
The State shall keep copies of all returns, reports, schedules, and
statements required by this subpart, copies of claims for refund or
credit, and copies of documents about each adjustment made under
404.1265 or 404.1271 as part of its records. These records may be
maintained by the State or, for employees of a political subdivision, by
the political subdivision. Each State shall use forms and systems of
accounting as will enable the Secretary to determine whether the
contributions for which the State is liable are correctly figured and
paid.
(b) Place and period of time for keeping records. All records
required by this section shall:
(1) Be kept at one or more convenient and safe locations accessible
to reviewing personnel (see 404.1232(a));
(2) Be available for inspection by reviewing personnel at any time;
and
(3) Be maintained for at least four years from the date of the event
recorded. (This four-year requirement applies regardless of whether, in
the meantime, the employing entity has been legally dissolved or, before
April 20, 1983, the agreement was terminated in its entirety or in
part.)
Effective Date Note: At 53 FR 32976, Aug. 29, 1988, 404.1225 was
revised. This amendment contains reporting and recordkeeping
requirements and will become effective upon approval by the Office of
Management and Budget. A notice announcing the effective date will be
published in the Federal Register.
20 CFR 404.1225 Review of Compliance By State With Its Agreement
20 CFR 404.1230 Onsite review program.
To ensure that the services of employees covered by a State's
agreement are reported and that those employees receive Social Security
credit for their covered earnings, we periodically review the source
records upon which a State's contribution returns and wage reports are
based. These reviews are designed:
(a) To measure the effectiveness of the State's systems for ensuring
that all wages for those employees covered by its agreement are reported
and Social Security contributions on those wages are paid;
(b) To detect any misunderstanding of coverage or reporting errors
and to advise the State of the corrective action it must take; and
(c) To find ways to improve a State's recordkeeping and reporting
operations for the mutual benefit of the State and SSA.
20 CFR 404.1231 Scope of review.
The onsite review focuses on four areas:
(a) State's controls and recordkeeping -- to assess a State's systems
for assuring timely receipt, correctness, and completeness of wage
reports and contribution returns;
(b) Instruction, education, and guidance a State provides local
reporting officials -- to assess a State's systems for assuring on a
continuing basis that all reporting officials and their staffs have the
necessary instructions, guidelines, and training to meet the State's
coverage, reporting and recordkeeping requirements;
(c) Compliance by reporting officials -- to assess a State's systems
for assuring that the reporting officials in the State have adequate
recordkeeping procedures, are properly applying the appropriate
provisions of the State's agreement, and are complying with reporting
requirements; and
(d) Quality control with prompt corrective action -- to assess a
State's systems for assuring that its reports and those of its political
subdivisions are correct, for identifying the causes and extent of any
deficiencies, and for promptly correcting these deficiencies.
20 CFR 404.1232 Conduct of review.
(a) Generally, SSA staff personnel conduct the onsite review.
Occasionally, members of the Office of the Inspector General, Department
of Health and Human Services (HHS), may conduct or participate in the
review.
(b) The review is done when considered necessary by SSA or HHS or, if
practicable, in response to a State's specific request for a review.
(c) All pertinent source records prepared by the State or its
political subdivisions are reviewed, on site, to verify the wage reports
and contribution returns. We may review with the appropriate employees
in a subdivision those source records and how the information is
gathered, processed, and maintained. We notify the State's Social
Security Administrator when we plan to make the review and request her
or him to make the necessary arrangements.
(d) The review is a cooperative effort between SSA and the States to
improve the methods for reporting and maintaining wage data to carry out
the provisions of the agreement.
20 CFR 404.1234 Reports of review's findings.
We provide the State Social Security Administrator with reports of
the review's findings. These reports may contain coverage questions
which need development and resolution and reporting errors or omissions
for the State to correct promptly. These reports may also recommend
actions the State can take to improve its information gathering,
recordkeeping, and wage reporting systems, and those of its political
subdivisions.
20 CFR 404.1234 How to Report Wages and Contributions -- for Wages Paid Prior to 1987
20 CFR 404.1237 Wage reports and contribution returns -- general -- for
wages paid prior to 1987.
(a) Wage reports. Each State shall report each year the wages paid
each covered employee during that year. With the wage report the State
shall also identify, as prescribed by SSA, each political subdivision by
its assigned identification number and, where appropriate, any coverage
group or payroll record unit number assigned.
(b) Wage reports of remuneration for agricultural labor. A State may
exclude from its agreement any services of employees the remuneration
for which is not wages under section 209(h)(2) of the Act. Section
209(h)(2) excludes as wages the cash remuneration an employer pays
employees for agricultural labor which is less than $150 in a calendar
year, or, if the employee performs the agricultural labor for the
employer on less than 20 days during a calendar year, the cash
remuneration computed on a time basis. If a State does exclude the
services and the individual meets the cash-pay or 20-day test described
in 404.1056, the State shall identify on the wage report and on any
adjustment report each individual performing agricultural labor and the
amount paid to her or him.
(c) Contribution returns. The State shall forward the contribution
return as set out in 404.1249(b). It shall make contribution payments
under 404.1262.
Effective Date Note: At 53 FR 32976, Aug. 29, 1988, 404.1237 was
revised. This amendment contains reporting and recordkeeping
requirements and will become effective upon approval by the Office of
Management and Budget. A notice announcing the effective date will be
published in the Federal Register.
20 CFR 404.1239 Wage reports for employees performing services in more
than one coverage group -- for wages paid prior to 1987.
(a) Employee of State in more than one coverage group. If a State
employee is in more than one coverage group, the State shall report the
employee's total wages, up to the annual wage limitations in 404.1047,
as though the wages were paid by only one of the coverage groups.
(b) Employee of political subdivision in more than one coverage
group. If an employee of a political subdivision is in more than one
coverage group, the State shall report the employee's total wages, up to
the annual wage limitations in 404.1047, as though the wages were paid
by only one of the coverage groups.
(c) Employee of State and one or more political subdivisions. If an
individual performs covered services as an employee of the State and an
employee of one or more political subdivisions and the State agreement
does not provide for limiting contributions under section 218(e)(2) of
the Act as it read prior to the enactment of Pub. L. 99-509, the State
and each political subdivision shall report the amount of covered wages
it paid the employee up to the annual wage limitations in 404.1047.
(d) Employee of more than one political subdivision. If an
individual performs covered services as an employee of more than one
political subdivision and the State agreement does not provide for
limiting contributions under section 218(e)(2) of the Act as it read
prior to the enactment of Pub. L. 99-509, each political subdivision
shall report the covered wages it paid the employee up to the annual
wage limitations in 404.1047.
(e) Employee performing covered services for more than one political
entity where section 218(e)(2) of the Act is applicable. If an
agreement provides for limiting contributions under section 218(e)(2) of
the Act as it read prior to the enactment of Pub. L. 99-509, the
reporting officials compute the total amount of wages paid the employee
by two or more political subdivisions of a State, or a State and one or
more of its political subdivisions, which were subject to section
218(e)(2) of the Act. The State reports the amount of wages paid up to
the annual wage limitations in 404.1047. The employee is treated as
having only one employer. If the employee also had wages not subject to
section 218(e)(2) of the Act, the State shall report those wages
separately.
Effective Date Note: At 53 FR 32976, Aug. 29, 1988, 404.1239 was
revised. This amendment contains reporting and recordkeeping
requirements and will become effective upon approval by the Office of
Management and Budget. A notice announcing the effective date will be
published in the Federal Register.
20 CFR 404.1242 Back pay.
(a) Back pay defined. Back pay is pay received in one period of time
which would have been paid in a prior period of time except for a
wrongful or improper action taken by an employer. It includes pay made
under Federal or State laws intended to create an employment
relationship (including situations where there is unlawful refusal to
hire) or to protect an employee's right to wages.
(b) Back pay under a statute. Back pay under a statute is a payment
by an employer following an award, determination or agreement approved
or sanctioned by a court or administrative agency responsible for
enforcing a Federal or State statute protecting an employee's right to
employment or wages. Examples of these statutes are:
(1) National Labor Relations Act or a State labor relations act;
(2) Federal or State laws providing reemployment rights to veterans;
(3) State minimum wage laws; and
(4) Civil Rights Act of 1964.
Payments based on legislation comparable to and having a similar
effect as those listed in this paragraph may also qualify as having been
made under a statute. Back pay under a statute, excluding penalties, is
wages if paid for covered employment. It is allocated to the periods of
time in which it should have been paid if the employer had not violated
the statute. For backpay awards affecting periods prior to 1987, a
State must fill a wage report and pay the contributions due for all
periods involved in the back pay award under the rules applicable to
those periods.
(c) Back pay not under a statute. Where the employer and the
employee agree on the amount payable without any award, determination or
agreement approved or sanctioned by a court or administrative agency,
the payment is not made under a statute. This back pay cannot be
allocated to prior periods of time but must be reported by the employer
for the period in which it is paid.
Effective Date Note: At 53 FR 32976, Aug. 29, 1988, 404.1242 was
revised. This amendment contains reporting and recordkeeping
requirements and will become effective upon approval by the Office of
Management and Budget. A notice announcing the effective date will be
published in the Federal Register.
20 CFR 404.1243 Use of reporting forms -- for wages paid prior to 1987.
(a) Submitting wage reports. In the form and manner required by SSA,
a State shall submit an annual report of the covered wages the State and
its political subdivisions paid their employees. Any supplemental,
adjustment, or correctional wage report filed is considered a part of
the State's wage report.
(b) Correction of errors. If a State fails to report or incorrectly
reports an employee's wages on its wage report, the State shall submit a
corrective report as required by SSA.
(c) Reporting on magnetic tape or other media. After approval by
SSA, a State may substitute magnetic tape or other media for any form
required for submitting a report or reporting information.
Effective Date Note: At 53 FR 32976, Aug. 29, 1988, 404.1243 was
revised. This amendment contains reporting and recordkeeping
requirements and will become effective upon approval by the Office of
Management and Budget. A notice announcing the effective date will be
published in the Federal Register.
20 CFR 404.1247 When to report wages -- for wages paid prior to 1987.
A State shall report wages for the calendar year in which they were
actually paid. If the wages were constructively paid in a prior
calendar year, the wages shall be reported for the prior year (see
404.1042(b) regarding constructive payment of wages).
Effective Date Note: At 53 FR 32976, Aug. 29, 1988, 404.1247 was
revised. This amendment contains reporting and recordkeeping
requirements and will become effective upon approval by the Office of
Management and Budget. A notice announcing the effective date will be
published in the Federal Register.
20 CFR 404.1249 When and where to make deposits of contributions and to
file contribution returns and wage reports -- for wages paid prior to
1987.
(a) Deposits of contributions. The State shall pay contributions in
the manner required in 404.1262. (For failure to make deposits when due
see 404.1265.) The contribution payment is considered made when
received by the appropriate Federal Reserve bank or branch (see
404.1262). Except as provided in paragraphs (b) (2) and (3) and
paragraph (c) of this section, contributions are due and payable as
follows:
(1) For wages paid before July 1, 1980. Contribution payments for
wages paid in a calendar quarter are due on the 15th day of the second
month following the end of the calendar quarter during which the wages
were paid.
(2) For wages paid beginning July 1, 1980, and before January 1984.
Contribution payments for wages paid in a calendar month are due within
the thirty day period following the last day of that month.
(3) For wages paid after December 1983 and prior to 1987.
Contribution payments for wages paid in the first half of a calendar
month are due on the last day of that month. Contribution payments for
wages paid in the second half of that calendar month are due on the
fifteenth day of the next month. (For purposes of this section, the
first half of a calendar month is the first 15 days of that month and
the second half is the remainder of that month.)
(b) Contribution returns and wage reports -- (1) Where to be filed.
The State shall file the original copies of all contribution returns,
wage reports, and adjustment reports with the SSA.
(2) When to be filed -- (i) For years prior to execution of agreement
or modification. If an agreement or modification provides for the
coverage of employees for periods prior to 1987, the State shall pay
contributions due and shall file wage reports with SSA for these periods
within 90 days after the date of the notice that the Secretary has
signed the agreement or modification.
(ii) For year of execution of agreement or modification. If the
agreement or modification provides for the coverage of employees for the
year of execution of the agreement or modification, the State may,
within 90 days after the date of the notice that the Secretary has
signed the agreement or modification, submit a single contribution
return and pay all contributions due for the following periods:
(A) The month in which the agreement or modification was signed;
(B) Any prior months in that year; and
(C) Any subsequent months before January 1984 (half-months after
December 1983) whose contribution return and payment due date is within
this 90 day period. The State shall file wage reports for that year by
February 28 of the year following the date of execution or within 90
days of the date of the notice, whichever is later.
(iii) For years after execution of agreement or modification. Except
as described in paragraph (b)(2)(ii) of this section, when the State
pays its contributions under paragraph (a) of this section, it shall
also file a contribution return. The State shall file the wage report
for any calendar year after the year of execution of the agreement or
modification by February 28 of the following calendar year.
(iv) For good cause shown, and upon written request by a State, the
Secretary may allow additional time for filing the reports and paying
the related contributions described in paragraphs (b)(2)(i) and
(b)(2)(ii) of this section.
(3) Due date is on a weekend, legal holiday or Federal nonworkday.
If the last day for filing the wage report falls on a weekend, legal
holiday or Federal nonworkday, the State may file the wage report on the
next Federal workday. If the due date for paying contributions for the
wages paid in a period (as specified in paragraph (a) of this section)
falls on a weekend, legal holiday or Federal nonworkday, the State shall
pay the contributions and shall file the contribution return no later
than --
(i) The preceding Federal workday for wages paid in July 1980 through
December 1983;
(ii) The next Federal workday for wages paid before July 1980 or
after December 1983.
(4) Submitting reports and payments. When submitting the
contribution returns or wage reports the State shall release them in
time to reach SSA by the due date. When submitting contribution
payments as described in 404.1262, the State shall release the payments
in time to reach the appropriate Federal Reserve bank or branch by the
due date. In determining when to release any returns, reports, or
payments the State shall provide sufficient time for them to timely
reach their destination under the method of submission used, e.g., mail
or electronic transfer of funds.
(c) Payments by third party on account of sickness or accident
disability. Where a third party makes a payment to an employee on
account of sickness or accident disability which constitutes wages for
services covered under a State agreement, the wages will be considered,
for purposes of the deposits required under this section, to have been
paid to the employee on the date on which the employer receives notice
from the third party of the amount of the payment. No interest will be
assessed for failure to make a timely deposit of contributions due on
such wages for which a deposit was made after December 1981 and before
July 1982, to the extent that the failure to make the deposit timely is
due to reasonable cause and not willful neglect.
Effective Date Note: At 53 FR 32976, Aug. 29, 1988, 404.1249 was
revised. This amendment contains reporting and recordkeeping
requirements and will become effective upon approval by the Office of
Management and Budget. A notice announcing the effective date will be
published in the Federal Register.
20 CFR 404.1251 Final reports -- for wages paid prior to 1987.
If a political subdivision is legally dissolved, the State shall file
a final report on that entity. The report shall include each coverage
group whose existence ceases with that of the entity. It shall:
(a) Be marked ''final report'';
(b) Cover the period during which final payment of wages subject to
the agreement is made; and
(c) Indicate the last date wages were paid.
With the final report, the State shall submit a statement showing the
title and business address of the State official responsible for keeping
the State's records and of each State and local official responsible for
keeping the records for each coverage group whose existence is ended.
The State shall also identify, as prescribed by SSA, each political
subdivision by its assigned number and, where applicable, any coverage
group or payroll record unit number assigned.
Effective Date Note: At 53 FR 32976, Aug. 29, 1988, 404.1251 was
revised. This amendment contains reporting and recordkeeping
requirements and will become effective upon approval by the Office of
Management and Budget. A notice announcing the effective date will be
published in the Federal Register.
20 CFR 404.1251 What Is a State's Liability for Contributions -- for Wages Paid Prior to 1987
20 CFR 404.1255 State's liability for contributions -- for wages paid
prior to 1987.
A State's liability for contributions equals the sum of the taxes
which would be imposed by sections 3101 and 3111 of the Internal Revenue
Code of 1954, if the services of the employees covered by the State's
agreement were employment as defined in section 3121 of the Code. The
State's liability begins when those covered services are performed, for
which wages are actually or constructively paid to those individuals,
including wages paid in a form other than cash (see 404.1041(d)). If an
agreement is effective retroactively, the State's liability for
contributions on wages paid during the retroactive period begins with
the date of execution of the agreement or applicable modification.
Where coverage of a coverage group has been terminated, the State is
liable for contributions on wages paid for covered services even if the
wages are paid after the effective date of termination of coverage.
20 CFR 404.1256 Limitation on State's liability for contributions for
multiple employment situations -- for wages paid prior to 1987.
(a) Limitation due to multiple employment. Where an individual in
any calendar year performs covered services as an employee of a State
and as an employee of one or more political subdivisions of the State,
or as an employee of more than one political subdivision; and the State
provides all the funds for payment of the amounts which are equivalent
to the taxes imposed on the employer under FICA on that individual's
remuneration for those services; and no political subdivision
reimburses the State for paying those amounts; the State's agreement or
modification of an agreement may provide that the State's liability for
the contributions on that individual's remuneration shall be computed as
though the individual had performed services in employment for only one
political subdivision. The State may then total the individual's
covered wages from all these governmental employers and compute the
contributions based on that total subject to the wage limitations in
404.1047.
(b) Identification of employees in multiple employment. An agreement
or modification of an agreement providing for the computation of
contributions as described in paragraph (a) of this section shall
identify the class or classes of employees to whose wages this method of
computing contributions applies. For example, the State may provide
that such computation shall apply to the wages paid to all individuals
for services performed in positions covered by a particular retirement
system, or to the wages paid to all individuals who are members of any
two or more coverage groups designated in an agreement or modification.
The State shall promptly notify SSA if the conditions in paragraph (a)
of this section are no longer met by any class or classes of employees
identified in an agreement or modification. In its notification, the
State shall identify each class of employees and the date on which the
conditions ceased to be met.
(c) Effective date. In the agreement or modification, the State
shall provide that the computation of contributions shall apply to wages
paid after the effective date stated in the agreement or modification.
That date may be the last day of any calendar year; however, it may be
no earlier than January 1 of the year in which the agreement or
modification is submitted to SSA.
20 CFR 404.1256 Figuring the Amount of the State's Contributions -- for Wages Paid Prior to 1987
20 CFR 404.1260 Amount of contributions -- for wages paid prior to
1987.
The State's contributions are equal to the product of the applicable
contribution rate (which is equivalent to both the tax rates imposed
under sections 3101 and 3111 of the Internal Revenue Code) times the
amount of wages actually or constructively paid for covered services
each year (subject to the wage limitations in 404.1047) to the
employee.
20 CFR 404.1262 Manner of payment of contributions by State -- for
wages paid prior to 1987.
When paying its contributions, the State shall deposit its payment at
the specific Federal Reserve bank or branch designated by SSA.
20 CFR 404.1263 When fractional part of a cent may be disregarded --
for wages paid prior to 1987.
In paying contributions to a Federal Reserve bank or branch, a State
may disregard a fractional part of a cent unless it amounts to one-half
cent or more, in which case it shall be increased to one cent.
Fractional parts of a cent shall be used in computing the total of
contributions.
20 CFR 404.1263 If a State Fails To Make Timely Payments -- for Wages Paid Prior to 1987
20 CFR 404.1265 Addition of interest to contributions -- for wages paid
prior to 1987.
(a) Contributions not paid timely. If a State fails to pay its
contributions to the appropriate Federal Reserve bank or branch (see
404.1262), when due under 404.1249(a), we add interest on the unpaid
amount of the contributions beginning with the date the payment was due,
except as described in paragraphs (b) and (c) of this section.
Interest, if charged, begins with the due date even if it is a weekend,
legal holiday or Federal nonwork day. Interest is added at the rate
prescribed in section 218(j) of the Act as it read prior to the
enactment of Pub. L. 99-509.
(b) Method of making adjustment. (1) If a State shall file a
contribution return and shall accompany such return with payment of
contributions due and payable as reported on such return in accordance
with 404.1249 but the amount of the contributions reported and paid is
less than the correct amount of contributions due and payable and the
underpayment of contributions is attributable to an error in computing
the contributions (other than an error in applying the rate of
contributions in effect at the time the wages were paid), the State
shall adjust the underpayment by reporting the additional amount due by
reason of such underpayment either as an adjustment of total
contributions due with the first wage report filed after notification of
the underpayment by the Social Security Administration, or as a single
adjustment of total contributions due with any contribution return filed
prior to the filing of such wage report.
(2) If an underpayment of contributions is due to an underreporting
of or a failure to report one or more employees:
(i) Where the underreporting or failure to report has been
ascertained by the State, the State may cause an adjustment by filing a
report within 30 days after ascertainment of the error by the State;
(ii) Where the underreporting or failure to report has been
ascertained by the Social Security Administration, a notification of
underpayment shall be forwarded to the State, and the State may cause an
adjustment of the underpayment by returning to the Social Security
Administration, within 30 days from the date of the notification, a copy
of the notification of underpayment and the State's corrected report.
The report shall show the amount of wages, if any, erroneously reported
for the reporting period and the correct amount of wages that should
have been reported and the identification number of the State or the
political subdivision for each employee who was omitted or erroneously
reported. The filing to correct an underreporting of or a failure to
report one or more employees' wages shall not constitute an adjustment
under this section unless the wages were erroneously omitted or
erroneously reported.
(c) Payment. The amount of each underpayment adjusted in accordance
with this section shall be paid to the Federal Reserve Bank, or branch
thereof, serving the district in which the State is located, without
interest, at the time of reporting the adjustment; except that where
any amounts due with respect to such an adjustment had been paid in
error to IRS and a refund thereof timely requested from, or instituted
by, IRS, the amount of underpayment adjusted in accordance with this
section, plus any interest paid by IRS on the amount of such
underpayment, shall be paid to the Federal Reserve Bank, or branch
thereof, serving the district in which the State is located, at the time
of reporting the adjustment or within 30 days after the date of issuance
by IRS of the refund of the erroneous payments, whichever is later.
Except as provided in the preceding sentence of this paragraph, if an
adjustment is reported pursuant to paragraph (b) of this section, but
the amount thereof is not paid when due, interest thereafter accrues.
(d) Verifying contributions paid against reported wages. We check
the computation of contributions to verify that a State has paid the
correct amount of contributions on the wages it reports for a calendar
year (see 404.1249(b)(2)). If we determine that a State paid less than
the amount of contributions due for that year, we add interest to the
amount of the underpayment. We would add interest beginning with the
date the unpaid contributions were initially due to the date those
contributions are paid. However, if the total amount of the
underpayment is 5 percent or less than 5 percent of the contributions
due for a calendar year based upon the State's wage report and the State
deposits the underpaid amount within 30 days after the date of our
notification to the State of the amount due, the State may request that
the interest on the underpaid amount be waived for good cause. This
request must be made within 30 days of our notification to the State of
the amount due. Such requests will be evaluated on an individual basis.
The evaluation will include, but not be limited to, consideration of
such factors as the circumstances causing the late payment, the State's
past record of late payments and the amount involved.
(1) The records of a political subdivision for the month of June are
destroyed by fire. The State makes an estimated deposit of
contributions for the month of June for that political subdivision and
deposits contributions for the month of June for all other political
subdivisions based on actual records. At the time SSA verifies
contributions paid against reported wages, we discover that the State
has paid only 97 percent of its total liability for the year. Within 30
days after we notify it of the amount due, the State asks that we waive
the interest on the unpaid amount and the State deposits the unpaid
amount. In this situation, we would waive the interest on the unpaid
contributions.
(2) We would waive interest if:
(i) Some of the political subdivisions made small arithmetical errors
in preparing their reports of wages,
(ii) After verification of the contributions paid against reported
wages, SSA discovers that minimal additional contributions are due,
(iii) Within 30 days of our notice to the State regarding this
underpayment the State, which usually makes its deposits timely, pays
the amount due, and
(iv) Within that same 30 day period the State requests that we waive
the interest due.
(3) We would not waive interest where a State frequently has problems
depositing its contributions timely. Reasons given for the delays are,
e.g., the computer was down, the 5 p.m. mail pickup was missed, one of
the school district reports was misplaced. If requested we would not
waive interest on this State's late payment of contributions based upon
its past record of late payments and because of the circumstances cited.
(e) Due date is on a weekend, legal holiday or Federal nonworkday.
If the last day of the 30-day periods specified in paragraphs (b) and
(d) of this section is on a weekend, legal holiday or Federal
nonworkday, the State shall make the required deposit or request for
waiver of payment of interest on the next Federal workday.
Effective Date Note: At 53 FR 32976, Aug. 29, 1988, 404.1265 was
revised. This amendment contains reporting and recordkeeping
requirements and will become effective upon approval by the Office of
Management and Budget. A notice announcing the effective date will be
published in the Federal Register.
20 CFR 404.1267 Failure to make timely payments -- for wages paid prior
to 1987.
If a State does not pay its contributions when due, the Secretary has
the authority under section 218(j) of the Act as it read prior to the
enactment of Pub. L. 99-509 to deduct the amounts of the unpaid
contributions plus interest at the rate prescribed from any amounts
certified by her or him to the Secretary of the Treasury for payments to
the State under any other provision of the Social Security Act. The
Secretary notifies the Secretary of the Treasury of the amounts deducted
and requests that the amount be credited to the Trust Funds. Amounts
deducted are considered paid to the State under the other provision of
the Social Security Act.
20 CFR 404.1267 How Errors in Reports and Contributions Are Adjusted -- for Wages Paid Prior to 1987
20 CFR 404.1270 Adjustments in general -- for wages paid prior to 1987.
States have the opportunity to adjust errors in the payment of
contributions. A State but not its political subdivisions is authorized
to adjust errors in the underpayment of contributions. Similarly, the
State shall file all claims for credits or refunds and SSA makes the
credits and refunds only to the State. Generally, we do not refund
contributions in cash to a State unless the State is not expected to
have future liability for contributions under section 218 of the Act.
20 CFR 404.1271 Adjustment of overpayment of contributions -- for wages
paid prior to 1987.
(a) General. If a State pays more than the correct amount of
contributions, the State shall adjust the overpayment with the next
contribution return filed on which the amount owed equals or exceeds the
amount of the overpayment.
(b) Overpayment due to overreporting of wages -- (1) Report to file.
If the overpayment is due to the State's reporting more than the correct
amount of wages paid to one or more employees during a reporting period
and the overpayment is not adjusted under paragraph (a) of this section,
the State shall file a report on the appropriate form showing:
(i) The corrected wage data as prescribed by SSA; and
(ii) The reason why the original reporting was incorrect.
(2) Refund or credit of overpayment where section 218(e)(2) of the
Act not applicable. If:
(i) The State collected contributions from employees in excess of the
amount of taxes that would have been required under section 3101 of the
Internal Revenue Code; and
(ii) The State paid to the Secretary of the Treasury those
contributions plus a matching amount in excess of the taxes which would
have been required from an employer under section 3111 of the Code; and
(iii) The services of the employees in question would have
constituted employment under section 3121(b) of the Code; and
(iv) Section 218(e)(2) of the Act as it read prior to the enactment
of Pub. L. 99-509 does not apply (see 404.1256(a)), then the State
shall adjust the overpaid contributions under paragraph (b)(1) of this
section. With its adjustment the State, where appropriate, shall
include on the prescribed form a statement that the employees from whom
the excess contributions were collected have not received nor expect to
receive a refund of excess contributions under section 6413(c) of the
Internal Revenue Code of 1954 (see 404.1275(b)). Generally, if the
State does not include this statement with its adjustment request, we
only refund or credit the State for up to one-half of the overpaid
amount.
(c) Refund or credit of overpayment where section 218(e)(2) of the
Act applicable. (1) General. If --
(i) The overreporting of the amount of wages paid to one or more
employees during a reporting period(s) is due to a computation of
contributions under 404.1256 for a year or years prior to the year in
which the agreement or modification providing for the computation is
entered into, or
(ii) The overreporting is due to a failure to compute 404.1256,
the State shall adjust the overpayment under paragraph (b)(1) of this
section. An overpayment due to overreported wages which does not result
from the computation of contributions or a failure to compute
contributions under 404.1256 shall also be adjusted by the State under
paragraph (b)(1) of this section. If the adjustment of the overpayment
results in an underreporting of wages for any employee by the State or
any political subdivision, the State shall include with the report
adjusting the overpayment a report adjusting each underreporting. If
the adjustment of the overpayment does not result in an underreporting
of wages for any employee by the State or any political subdivision, the
State shall include with the report adjusting the overpayment a
statement that the adjustment of the overpayment does not result in any
underreporting.
(2) Amount of refund or credit. If the State collects excess
contributions from employees, the State's claim for refund or credit is
limited to the overpaid amounts. (See 404.1275 relating to adjustment
of employee contributions.) If --
(i) The State collected the correct amount of contributions from
employees based on the amount of wages reported and the Forms W-2 issued
to the employees show only the amount of contributions actually
collected, but the amount of wages reported is being adjusted downward,
or
(ii) The State collects excess contributions from employees but Forms
W-2 have not been issued for an amount of wages which is being adjusted
downward, the State may claim a refund or credit for the overpaid
amounts. Where the State's claim for refund or credit is for the total
overpaid amount, the adjustment report shall include a statement that
excess contributions have not been collected from employees, or, where
excess contributions have been collected, that Forms W-2 have not been
issued and that, when issued, they will show the correct amount of
employee contributions.
Effective Date Note: At 53 FR 32976, Aug. 29, 1988, 404.1271 was
revised. This amendment contains reporting and recordkeeping
requirements and will become effective upon approval by the Office of
Management and Budget. A notice announcing the effective date will be
published in the Federal Register.
20 CFR 404.1272 Refund or recomputation of overpayments which are not
adjustable -- for wages paid prior to 1987.
(a) General. If a State pays more than the correct amount of
contributions or interest to the appropriate Federal Reserve bank or
branch (see 404.1262), and no adjustment in the amount of reported
wages is necessary, that State may file a claim for refund or
recomputation of the overpayment.
(b) Form of claim. No special form is required to make a claim for a
refund or recomputation. If a credit is taken under 404.1271, a claim
is not required.
(c) Proof of representative capacity. If a report or return is made
by an authorized official of the State who ceases to act in an official
capacity and a claim for a refund is made by a successor official, the
successor official must submit with the claim written evidence showing
that he or she has the authority to make a claim for and receive a
refund of any contributions paid by the former official. The written
evidence is not necessary if the successor official has previously filed
one or more reports or returns which contain her or his signature and
official title.
Effective Date Note: At 53 FR 32976, Aug. 29, 1988, 404.1272 was
revised. This amendment contains reporting and recordkeeping
requirements and will become effective upon approval by the Office of
Management and Budget. A notice announcing the effective date will be
published in the Federal Register.
20 CFR 404.1275 Adjustment of employee contributions -- for wages paid
prior to 1987.
The amount of contributions a State deducts from an employee's
remuneration for covered services, or any correction of that amount, is
a matter between the employee and the State or political subdivision.
The State shall show any correction of an employee's contribution on
statements it furnishes the employee under 404.1226. Where the State
issues an employee a Form W-2 and then submits an overpayment adjustment
but claims less than the total overpaid amount as a refund or credit,
the State shall not correct the previously issued Form W-2 to reflect
that adjustment.
20 CFR 404.1276 Reports and payments erroneously made to Internal
Revenue Service-transfer of funds -- for wages paid prior to 1987.
(a) General. In some instances, State or local governmental entities
not covered under an agreement make reports and pay contributions to IRS
under the Federal Insurance Contributions Act (FICA) procedures
applicable to private employers in the mistaken belief that this
provides Social Security coverage under section 218 of the Act for their
employees. In other instances, entities which are covered under an
agreement erroneously report to IRS, or a State or local government
employee reports other employees to IRS or reports to IRS as a
self-employed individual. Where these reports and payments are
erroneously made to IRS, the State may correct the error and obtain
coverage under its agreement as described in paragraphs (b) through (f)
of this section.
(b) Political subdivision not included in the State agreement. We
notify the State that if it desires coverage, it may be provided by
either a regular modification or an error modification, depending on the
circumstances ( 404.1215 and 404.1216). In most cases, the State may
obtain coverage by a regular modification. If a regular modification
cannot be used (e.g., State law does not permit the retroactive
effective date which would be desired), the State may use an error
modification. The effective date of either modification depends on the
facts of the situation being corrected.
(c) Political subdivision included in the agreement. If a political
subdivision included in the agreement erroneously makes reports and
payments under FICA procedures, the State must correct the reportings
for periods not barred by the statute of limitations. If the covered
entity reported both under the agreement and under FICA procedures, we
notify IRS and make necessary corrections in the earnings records. We
also advise the State that the entity which reported under FICA
procedures should request a refund of payments erroneously made to IRS.
(d) State and local government employees erroneously reported as
employees of individual or as self-employed -- (1) Covered entity. If
employees of a covered entity are erroneously reported as employees of
an individual or as self-employed, we advise the State that the
individual who made the reports should request a refund from IRS for
periods not barred by the statute of limitations. We require the State
to file correctional reports and returns for any periods open under the
State and local statute of limitations.
(2) Noncovered entity. We advise the State that the individual who
made the reports should request a refund from IRS for the periods not
barred by the statute of limitations. If the State wishes to provide
coverage, it must submit a modification as discussed in paragraph (b) of
this section. If the State does not wish to provide coverage, we void
the reports. Amounts reported for periods barred by the statute of
limitations remain on the earnings records.
(e) Filing wage reports and paying contributions. Generally, the
entity or individual that makes the erroneous reports and payments
requests the refund from IRS for periods not barred by the statute of
limitations. The State files the necessary reports with SSA and pays
any contributions due. The reports shall conform to the coverage
provided by the agreement to the extent permitted by the statute of
limitations. The due date for these reports depends on whether original
reports or adjustment reports are involved. Reports and contribution
returns for the entire retroactive period of coverage provided by a
regular or error modification are due 90 days after the date of
execution of the modification. The time limitations for issuing
assessments and credits or refunds extend from this due date. Thus, SSA
may issue assessments or credits or refunds for periods barred to refund
by IRS. The State may request that reports and payments for the IRS
barred periods be considered made under the agreement as described in
paragraph (f) of this section.
(f) Use of transfer procedure. In limited situations, the State may
request that reports and payments the State or a political subdivision
(but not an individual) erroneously made under FICA procedures and which
have been posted to the employee's earnings record be considered made
under the State's agreement. We use a transfer procedure to do this.
The transfer procedure may be used only where
(1) The periods are open to assessment under the State and local
statute of limitations;
(2) The erroneous reports to be transferred are posted to SSA's
records;
(3) The periods are barred to refund under the IRS statute of
limitations; and
(4) A refund is not obtained from IRS by the reporting entity.
20 CFR 404.1276 How Overpayments of Contributions Are Credited or Refunded -- for Wages Paid Prior to 1987
20 CFR 404.1280 Allowance of credits or refunds -- for wages paid prior
to 1987.
If a State pays more than the amount of contributions due under an
agreement, SSA may allow the State, subject to the time limitations in
404.1282 and the exceptions to the time limitations in 404.1283, a
credit or refund of the overpayment.
20 CFR 404.1281 Credits or refunds for periods of time during which no
liability exists -- for wages paid prior to 1987.
If a State pays contributions for any period of time for which
contributions are not due, but the State is liable for contributions for
another period, we credit the amount paid against the amount of
contributions for which the State is liable. We refund any balance to
the State.
20 CFR 404.1282 Time limitations on credits or refunds -- for wages
paid prior to 1987.
(a) General. To get a credit or refund, a State must file a claim
for a credit or refund of the overpaid amount with the Secretary before
the applicable time limitation expires. The State's claim for credit or
refund is considered filed with the Secretary when it is delivered or
mailed to the Secretary. Where the time limitation ends on a weekend,
legal holiday or Federal nonworkday, we consider a claim timely filed if
it is filed on the next Federal workday.
(b) Time limitation. Subject to the exceptions in 404.1283, a State
must file a claim for credit or refund of an overpayment before the end
of the latest of the following time periods:
(1) 3 years, 3 months, and 15 days after the year in which the wages
in question were paid or alleged to have been paid; or
(2) 3 years after the due date of the payment which included the
overpayment; or
(3) 2 years after the overpayment was made to the Secretary of the
Treasury.
20 CFR 404.1283 Exceptions to the time limitations on credits or
refunds for wages paid prior to 1987.
(a) (1) Extension by agreement. The applicable time period described
in 404.1282 for filing a claim for credit for, or refund of, an
overpayment may, before the expiration of such period, be extended for
no more than 6 months by written agreement between the State and the
Secretary. The agreement must involve and identify a known issue or
reporting error. It must also identify the periods involved, the time
limitation which is being extended and the date to which it is being
extended, and the coverage group(s) and position(s) or individual(s) to
which the agreement applies. The extension of the period of limitation
shall not become effective until the agreement is signed by the
appropriate State official and the Secretary. (See 404.3(c) for the
applicable rule where periods of limitation expire on nonwork days.) A
claim for credit or refund filed by the State before the extended time
limit ends shall be considered to have been filed within the time period
limitation specified in section 218(r)(1) of the Act as it read prior to
the enactment of Pub. L. 99-509. (See 404.1282.)
(2) Reextension. An extension agreement provided for in paragraph
(a)(1) of this section may be reextended by written agreement between
the State and the Secretary for no more than 6 months at a time beyond
the expiration of the prior extension or reextension agreement, and only
if one of the following conditions is met:
(i) Litigation (including intrastate litigation) or a review under
404.1290 or 404.1297 involving wage reports or corrections on the same
issue is pending; or
(ii) The State is actively pursuing corrections of a known error
which require additional time to complete; or
(iii) The Social Security Administration is developing a coverage or
wage issue which was being considered before the statute of limitations
expired and additional time is needed to make a determination; or
(iv) The Social Security Administration has not issued to the State a
final audit statement on the State's wage or correction reports; or
(v) There is pending Federal legislation which may substantially
affect the issue in question, or the issue has national implications.
(b) Deletion of wage entry on employee's earnings record. If the
Secretary, under section 205(c)(5) (A), (B), or (E) of the Act, deletes
a wage entry on an individual's earnings record, a claim for credit or
refund of the overpayment resulting from the deletion is considered
filed within the applicable time limitations in 404.1282 if
(1) The State files the claim before the Secretary's decision
regarding the deletion of the wage entry from the individual's earnings
record becomes final or
(2) The State files a claim regarding the deletion of the wage entry
from the individual's earnings record which entry is erroneous because
of fraud.
20 CFR 404.1284 Offsetting underpayments against overpayments -- for
wages paid prior to 1987.
(a) State fails to make adjustment for allowance of credit. If SSA
notifies a State that a credit is due the State, and the State does not
make the adjustment for the allowance of the credit, SSA offsets the
credit against any contributions or interest due. Before making the
offset, SSA will give the State an opportunity to make the adjustment.
(b) State fails to make adjustment for underpayment of contributions
or interest due. If SSA notifies a State that contributions or interest
are due, and the State does not pay the contributions or interest, SSA
offsets the contributions or interest due against any credit due the
State. Before making the offset, SSA will give the State an opportunity
to pay the underpayment or interest due.
20 CFR 404.1284 How Assessments for Underpayments of Contributions Are Made -- for Wages Paid Prior to 1987
20 CFR 404.1285 Assessments of amounts due -- for wages paid prior to
1987.
(a) A State is liable for any amount due (which includes
contributions or interest) under an agreement until the Secretary is
satisfied that the amount has been paid to the Secretary of the
Treasury. If the Secretary is not satisfied that a State has paid the
amount due, the Secretary issues an assessment for the amount due
subject to the time limitations in 404.1286 and the exceptions to the
time limitations in 404.1287 and 404.1289. If detailed wage
information is not available, the assessment is issued based on the
following:
(1) The largest number of individuals whose services are known to be
covered under the agreement is used for computation purposes;
(2) The individuals are assumed to have maximum creditable earnings
each year;
(3) The earnings are considered wages for covered services; and
(4) The amount computed is increased by twenty percent to insure that
all covered wages are included in the assessment.
(b) If the State pays the amount assessed and the assessed amount is
later determined to be more than the amount actually due, we issue a
refund or credit to that State for the excess amount. When the
assessment is issued within the applicable time limitation, there is no
time limit on collecting the amount due. An assessment is issued on the
date that it is mailed or otherwise delivered to the State.
20 CFR 404.1286 Time limitations on assessments -- for wages paid prior
to 1987.
(a) Subject to the exceptions to the time limitations in 404.1287
and 404.1289, a State is not liable for an amount due under an agreement
unless the Secretary makes an assessment for that amount before the
later of the following periods ends:
(1) Three years, 3 months, and 15 days after the year in which the
wages, upon which the amount is due, were paid; or
(2) Three years after the date the amount became due.
(b) Where the time limitation ends on a weekend, legal holiday or
Federal nonworkday, an assessment is considered timely if the Secretary
makes the assessment on the next Federal workday.
20 CFR 404.1287 Exceptions to the time limitations on assessments --
for wages paid prior to 1987.
(a)(1) Extension by agreement. The applicable time period described
in 404.1286 for assessment of an amount due may, before the expiration
of such period, be extended for no more than 6 months by written
agreement between the State and the Secretary. The agreement must
involve and identify a known issue or reporting error. It must also
identify the periods involved, the time limitation which is being
extended and the date to which it is being extended, and the coverage
group(s) and position(s) or individual(s) to which the agreement
applies. The extension of the period of limitation shall not become
effective until the agreement is signed by the appropriate State
official and the Secretary. (See 404.3(c) for the applicable rule
where periods of limitation expire on nonwork days.) An assessment made
by the Secretary before the extended time limit ends shall be considered
to have been made within the time period limitation specified in section
218(q)(2) of the Act as it read prior to the enactment of Pub. L.
99-509. (See 404.1286.)
(2) Reextension. An extension agreement provided for in paragraph
(a)(1) of this section may be reextended by written agreement between
the State and the Secretary for no more than 6 months at a time beyond
the expiration of the prior extension or reextension agreement, and only
if one of the following conditions is met:
(i) Litigation (including intrastate litigation) or a review under
404.1290 or 404.1297 involving wage reports or corrections on the same
issue is pending; or
(ii) The State is actively pursuing corrections of a known error
which require additional time to complete; or
(iii) The Social Security Administration is developing a coverage or
wage issue which was being considered before the statute of limitations
expired and additional time is needed to make a determination; or
(iv) The Social Security Administration has not issued to the State a
final audit statement on the State's wage or correction reports; or
(v) There is pending Federal legislation which may substantially
affect the issue in question, or the issue has national implications.
(b) The 365-day period. If a State files a report before the
applicable time limitation in 404.1286 (or any extension under
paragraph (a) of this section) ends and makes no payment or pays less
than the correct amount due, the Secretary may assess the State for the
amount due after the applicable time limitation has ended. However, the
Secretary must make the assessment no later than the 365th day after the
day the State makes payment to the Secretary of the Treasury. The
Secretary can only make this assessment on the wages paid to the
reported individuals for the reported periods. The Secretary, in making
this assessment, credits the amount paid by the State on these
individuals' wages for those reported periods.
(c) Revision of employee's earnings record. If, under section
205(c)(5) (A) or (B) of the Act, the Secretary credits wages to an
individual's earnings record, the Secretary may make an assessment for
any amount due on those wages before the Secretary's decision on
revising the individual's earnings record becomes final. (Sections
404.822(c) (1) and (2) describe the time limits for revising an earnings
record where an individual has applied for monthly benefits or a
lump-sum death payment or requested that we correct his earnings
record.)
(d) Overpayment of contributions on wages of employee having other
wages in a period barred to assessment. If the Secretary allows a State
a credit or refund of an overpayment for wages paid or alleged to have
been paid an individual in a calendar year but the facts upon which the
allowance is based establish that contributions are due on other wages
paid that individual in that year which are barred to assessment, we may
make an assessment notwithstanding the periods of limitation in
404.1286. The assessment, however, must be made before or at the time we
notify the State of the allowance of the credit or refund. In this
situation, the Secretary reduces the amount of the State's credit or
refund by the assessed amount and notifies the State accordingly. For
purposes of this paragraph, the assessment shall only include
contributions and not interest as provided for in section 218(j) of the
Act as it read prior to the enactment of Pub. L. 99-509.
Example: The State files an adjustment report timely to correct an
error in the amount reported as wages for an employee. The correction
reduces the employee's wages for the year to less than the maximum
amount creditable. The employee has other earnings in the same year
which were not reported because of the previously reported maximum
amounts. The applicable time limitation for assessing contributions on
wages for the year has expired before the credit was allowed. The
Secretary may assess for the underpaid contributions but no later than
thd date of the notice to the State that its claim for a credit had been
allowed.
(e) Evasion of payment. The Secretary may make an assessment of an
amount due at any time where the State's failure to pay the amount due
results from the fraudulent attempt of an officer or employee of the
State or political subdivision to defeat or evade payment of that
amount.
20 CFR 404.1289 Payment after expiration of time limitation for
assessment -- for wages paid prior to 1987.
The Secretary accepts wage reports filed by a State even though the
applicable time limitation described in 404.1286 (or as the time
limitation is extended under 404.1287) has expired, provided:
(a) The State pays to the Secretary of the Treasury the amount due on
the wages paid to employees performing services in the coverage group in
the calendar years for which the wage reports are being made; and
(b) The State agrees in writing with the Secretary to extend the time
limitation for all employees in the coverage group in the calendar years
for which the wage reports are being made.
In this situation, the time period for assessment is extended until
the Secretary notifies the State that the wage reports are accepted.
Where the State pays the amount due within the time period as extended
under this section, the amount shall not include interest as provided
for in section 218(j) of the Act as it read prior to the enactment of
Pub. L. 99-509.
20 CFR 404.1289 Secretary's Review of Decisions on Credits, Refunds, or Assessments -- for Wages Paid Prior to 1987
20 CFR 404.1290 Review of decisions by the Secretary -- for wages paid
prior to 1987.
(a) Delegation of authority. The Secretary, who has the authority
under section 218(s) of the Act as it read prior to the enactment of
Pub. L. 99-509 to review decisions on credits, refunds or assessments,
has delegated this authority to the Commissioner of Social Security.
(b) What decisions will be reviewed. A State, under section 218(s)
of the Act as it read prior to the enactment of Pub. L. 99-509, may
request review of an assessment of an amount due from the State, an
allowance to the State of a credit or refund of an overpayment, or a
disallowance of the State's claim for credit or refund of an
overpayment. The Commissioner may review regardless of whether the
amount assessed has been paid or whether the credit or refund has been
accepted by the State. Prior to the Commissioner's review, however, an
assessment, allowance or disallowance may be reconsidered under
404.1291 through 404.1293.
20 CFR 404.1291 Reconsideration -- for wages paid prior to 1987.
After the State requests review of the assessment or allowance or
disallowance of a credit or refund, and prior to the Commissioner's
review, that decision may be reconsidered, and affirmed, modified, or
reversed. We notify the State of the reconsidered determination and the
basis for it. The State may request the Commissioner to review this
reconsidered determination under 404.1294(b). In limited situations,
SSA and the State may agree that the reconsideration process should be
waived, e.g., where major policy is at issue.
20 CFR 404.1292 How to request review -- for wages paid prior to 1987.
(a) Form of request. No particular form of request is required.
However, a written request for review must:
(1) Identify the assessment, allowance or disallowance being
questioned;
(2) Describe the specific issue on which the review is requested;
(3) Contain any additional information or argument relevant to that
issue; and
(4) Be signed by an official authorized to request the review on
behalf of the State.
(b) Submitting additional material. A State has 90 days from the
date it requests review to submit additional evidence it wishes
considered during the review process. The time limit for submitting
additional evidence may be extended upon written request of the State
and for good cause shown.
20 CFR 404.1293 Time for filing request for review -- for wages paid
prior to 1987.
(a) Time for filing. The State must file its request for review
within 90 days after the date of the notice of assessment, allowance, or
disallowance. Usually, the date of the request for review is considered
the filing date. Where the 90-day period ends on a weekend, legal
holiday or Federal nonworkday, a request filed on the next Federal
workday is considered as timely filed.
(b) Extension of time. For good cause shown, and upon written
application by a State filed prior to the expiration of the time for
filing a request for review, additional time for filing the request may
be allowed.
20 CFR 404.1294 Notification to State after reconsideration -- for
wages paid prior to 1987.
(a) The State will be notified in writing of the reconsidered
determination on the assessment, allowance, or disallowance, and the
basis for the determination.
(b) If the State does not agree with the reconsidered determination,
it has 90 days from the date of notice of the reconsidered determination
to request the Commissioner to review that determination. The rules on
what the request should contain and the time for filing the request are
the same as in 404.1292 and 404.1293.
20 CFR 404.1295 Commissioner's review -- for wages paid prior to 1987.
Upon request by the State, the Commissioner will review the
reconsidered determination (or the assessment, allowance or disallowance
as initially issued if reconsideration is waived under 404.1291). If
necessary, the Commissioner may request the State to furnish additional
evidence. Based upon the evidence considered in connection with the
assessment, allowance or disallowance and any additional evidence
submitted by the State or otherwise obtained by the Commissioner, the
Commissioner affirms, modifies, or reverses the assessment, allowance or
disallowance.
20 CFR 404.1296 Commissioner's notification to the State -- for wages
paid prior to 1987.
The Commissioner notifies the State in writing of the decision on the
assessment, allowance, or disallowance, and the basis for the decision.
20 CFR 404.1296 How a State May Seek Court Review of Secretary's Decision -- for Wages Paid Prior to 1987
20 CFR 404.1297 Review by court -- for wages paid prior to 1987.
(a) Who can file civil action in court. A State may file a civil
action under section 218(t) of the Act as it read prior to the enactment
of Pub. L. 99-509 requesting a district court of the United States to
review any decision the Commissioner makes for the Secretary under
section 218(s) of the Act as it read prior to the enactment of Pub. L.
99-509 concerning the assessment of an amount due, the allowance of a
credit or refund, or the disallowance of a claim for credit or refund.
(b) Where the civil action must be filed. A State must file the
civil action in the district court of the United States for the judicial
district in which the State's capital is located. If the civil action
is brought by an interstate instrumentality, it must file the civil
action in the district court of the United States for the judicial
district in which the instrumentality's principal office is located.
The district court's judgment is final except that it is subject to
review in the same manner as judgments of the court in other civil
actions.
(c) No interest on credit or refund of overpayment. SSA has no
authority to pay interest to a State after final judgment of a court
involving a credit or refund of an overpayment made under section 218 of
the Act.
20 CFR 404.1298 Time for filing civil action -- for wages paid prior to
1987.
(a) Time for filing. The State must file the civil action for a
redetermination of the correctness of the assessment, allowance or
disallowance within 2 years from the date the Commissioner mails to the
State the notice of the decision under 404.1296. Where the 2-year
period ends on a Saturday, Sunday, legal holiday or Federal nonwork day,
an action filed on the next Federal workday is considered timely filed.
(b) Extension of time for filing. The Commissioner, for good cause
shown, may upon written application by a State filed prior to the end of
the two-year period, extend the time for filing the civil action.
20 CFR 404.1299 Final judgments -- for wages paid prior to 1987.
(a) Overpayments. Payment of amounts due to a State required as the
result of a final judgment of the court shall be adjusted under
404.1271 and 404.1272.
(b) Underpayments. Wage reports and contribution returns required as
the result of a final judgment of the court shall be filed under
404.1237-404.1251. We will assess interest under 404.1265 where, based
upon a final judgment of the court, contributions are due from a State
because the amount of contributions assessed was not paid by the State
or the State had used an allowance of a credit or refund of an
overpayment.
20 CFR 404.1299 Subpart N -- Wage Credits for Veterans and Members of
the Uniformed Services
Authority: Secs. 205 (a) and (p), 210 (l) and (m), 215(h), 217, 229,
and 1102 of the Social Security Act; 42 U.S.C. 405 (a) and (p), 410 (l)
and (m), 415(h), 417, 429, and 1302.
Source: 45 FR 16464, Mar. 14, 1980, unless otherwise noted.
20 CFR 404.1299 General
20 CFR 404.1301 Introduction.
(a) The Social Security Act (Act), under section 217, provides for
noncontributory wage credits to veterans who served in the active
military or naval service of the United States from September 16, 1940,
through December 31, 1956. These individuals are considered World War
II or post-World War II veterans. The Act also provides for
noncontributory wage credits to certain individuals who served in the
active military or naval service of an allied country during World War
II. These individuals are considered World War II veterans. In
addition, certain individuals get wage credits, under section 229 of the
Act, for service as members of the uniformed services on active duty or
active duty for training beginning in 1957 when that service was first
covered for social security purposes on a contributory basis. These
individuals are considered members of the uniformed services.
(b) World War II or post-World War II veterans receive wage credits
based on the length of active military or naval service, type of
separation from service and, in some cases, whether the veteran is
receiving another Federal benefit. However, a member of a uniformed
service receives wage credits regardless of length of service, type of
separation, or receipt of another Federal benefit.
(c) The Social Security Administration (SSA) uses these wage credits,
along with any covered wages or self-employment income of the veteran or
member of a uniformed service, to determine entitlement to, and the
amount of, benefits and the lump-sum death payment that may be paid to
them, their dependents or survivors under the old-age, survivors', and
disability insurance programs. These wage credits can also be used by
the veteran or member of the uniformed service to meet the insured
status and quarters of coverage requirements for a period of disability.
(d) This subpart tells how veterans or members of the uniformed
services obtain wage credits, what evidence of service SSA requires, how
SSA uses the wage credits, and how the wage credits are affected by
payment of other benefits.
(e) This subpart explains that certain World War II veterans who die
are considered (deemed) fully insured. This gives those veterans'
survivors the same benefit rights as if the veterans were actually fully
insured when they died.
(f) The rules are organized in the following manner:
(1) Sections 404.1310 through 404.1313 contain the rules on World War
II veterans. We discuss who may qualify as a World War II veteran, how
we determine whether the 90-day active service requirement for a World
War II veteran is met, what we consider to be World War II active
military or naval service, and what we do not consider to be World War
II active military or naval service.
(2) Sections 404.1320 through 404.1323 contain the rules on
post-World War II veterans. We discuss who may qualify as a post-World
War II veteran, how we determine whether the 90-day active service
requirement for a post-World War II veteran is met, what we consider to
be post-World War II active military or naval service, and what we do
not consider to be post-World War II active military or naval service.
(3) In 404.1325 we discuss what is a separation under conditions
other than dishonorable. The law requires that a World War II or
post-World War II veteran's separation from active military or naval
service be other than dishonorable for the veteran to get wage credits.
(4) Section 404.1330 contains the rules on members of the uniformed
services. We discuss who may qualify as a member of a uniformed
service.
(5) In 404.1340 through 404.1343, we discuss the amount of wage
credits for veterans and members of the uniformed services, situations
which may limit the use of wage credits for World War II and post-World
War II veterans, and situations in which the limits do not apply.
(6) Sections 404.1350 through 404.1352 contain the rules on deemed
insured status for World War II veterans. We discuss when deemed
insured status applies, the amount of wage credits used for deemed
insured World War II veterans, how the wage credits affect survivors'
social security benefits, and when deemed insured status does not apply.
(7) Sections 404.1360 through 404.1363 contain the rules on the
effect of other benefits on the payment of social security benefits and
lump-sum death payments based on wage credits for veterans. We discuss
what happens when we learn of a determination that a Veterans
Administration pension or compensation is payable or that a Federal
benefit is payable before or after we determine entitlement to a montly
benefit or lump-sum death payment based on the death of the veteran.
(8) Sections 404.1370 and 404.1371 contain the rules on what we
accept as evidence of a World War II and post-World War II veteran's
active military or naval service, including date and type of separation,
and what we accept as evidence of entitlement to wage credits for
membership in a uniformed service during the years 1957 through 1967.
20 CFR 404.1302 Definitions.
As used in this subpart --
Act means the Social Security Act, as amended.
Active duty means periods of time an individual is on full-time duty
in the active military or naval service after 1956 and includes active
duty for training after 1956.
Active service means periods of time prior to 1957 an individual was
on full-time duty in the active military or naval service. It does not
include totaling periods of active duty for training purposes before
1957 which are less than 90 days.
Allied country means a country at war on September 16, 1940, with a
country with which the United States was at war during the World War II
period. Each of the following countries is considered an allied
country: Australia, Belgium, Canada, Czechoslovakia, Denmark, France,
India, Luxembourg, the Netherlands, New Zealand, Norway, Poland, Union
of South Africa, and the United Kingdom.
Domiciled in the United States means an individual has a true, fixed,
and permanent home in the United States to which the individual intends
to return whenever he or she is absent.
Federal benefit means a benefit which is payable by another Federal
agency (other than the Veterans Administration) or an instrumentality
owned entirely by the United States under any law of the United States
or under a program or pension system set up by the agency or
instrumentality.
Post-World War II period means the time period July 25, 1947, through
December 31, 1956.
Reserve component means Army Reserve, Naval Reserve, Marine Corps
Reserve, Air Force Reserve, Coast Guard Reserve, National Guard of the
United States or Air National Guard of the United States.
Resided in the United States means an individual had a place where he
or she lived, whether permanently or temporarily, in the United States
and was bodily present in that place.
Survivor means you are a parent, widow, divorced wife, widower, or
child of a deceased veteran or member of a uniformed service.
United States means the 50 States, the District of Columbia, the
Commonwealth of Puerto Rico, the Virgin Islands, Guam, and American
Samoa.
Veteran means an individual who served in the active military or
naval service of the United States and was discharged or released from
that service under conditions other than dishonorable. For a more
detailed definition of the World War II veteran and a post-World War II
veteran, see 404.1310 and 404.1320.
Wage credit means a dollar amount we add to the earnings record of a
veteran of the World War II or the post-World War II period. It is also
a dollar amount we add to the earnings record of a member of a uniformed
service who was on active duty after 1956. The amount is set out in the
Act and is added for each month, calendar quarter, or calendar year of
service as required by law.
We, us, or our means the Social Security Administration.
World War II period means the time period September 16, 1940, through
July 24, 1947.
You or your means a veteran, a veteran's survivor or a member of a
uniformed service applying for or entitled to a social security benefit
or a lump-sum death payment.
20 CFR 404.1302 World War II Veterans
20 CFR 404.1310 Who is a World War II veteran.
You are a World War II veteran if you were in the active service of
the United States during the World War II period and, if no longer in
active service, you were separated from that service under conditions
other than dishonorable after at least 90 days of active service. The
90-day active service requirement is discussed in 404.1311.
20 CFR 404.1311 Ninety-day active service requirement for World War II
veterans.
(a) The 90 days of active service required for World War II veterans
do not have to be consecutive if the 90 days were in the World War II
period. The 90-day requirement cannot be met by totaling the periods of
active duty for training purposes which were less than 90 days.
(b) If, however, all of the 90 days of active service required for
World War II veterans were not in the World War II period, the 90 days
must (only in those circumstances) be consecutive if the 90 days began
before September 16, 1940, and ended on or after that date, or began
before July 25, 1947, and ended on or after that date.
(c) The 90 days of active service is not required if the World War II
veteran died in service or was separated from service under conditions
other than dishonorable because of a disability or injury which began or
worsened while performing service duties.
20 CFR 404.1312 World War II service included.
Your service was in the active service of the United States during
the World War II period if you were in the --
(a) Army, Navy, Marine Corps, or Coast Guard, or any part of them;
(b) Commissioned corps of the United States Public Health Service and
were --
(1) On active commissioned service during the period beginning
September 16, 1940, through July 28, 1945, and the active service was
done while on detail to the Army, Navy, Marine Corps, or Coast Guard;
or
(2) On active commissioned service during the period beginning July
29, 1945, through July 24, 1947, regardless of whether on detail to the
Army, Navy, Marine Corps, or Coast Guard;
(c) Commissioned corps of the United States Coast and Geodetic Survey
and were --
(1) During the World War II period --
(i) Transferred to active service with the Army, Navy, Marine Corps,
or Coast Guard; or
(ii) Assigned to active service on military projects in areas
determined by the Secretary of Defense to be areas of immediate military
hazard; or
(2) On active service in the Philippine Islands on December 7, 1941;
or
(3) On active service during the period beginning July 29, 1945,
through July 24, 1947;
(d) Philippine Scouts and performed active service during the World
War II period under the direct supervision of recognized military
authority;
(e) Active service of an allied country during the World War II
period and --
(1) Had entered into that active service before December 9, 1941;
(2) Were a citizen of the United States throughout that period of
active service or lost your United States citizenship solely because of
your entrance into that service;
(3) Had resided in the United States for a total of four years during
the five-year period ending on the day you entered that active service;
and
(4) Were domiciled in the United States on that day; or
(f) Women's Army Auxiliary Corps, during the period May 14, 1942,
through September 29, 1943, and performed active service with the Army,
Navy, Marine Corps, or Coast Guard after September 29, 1943.
20 CFR 404.1313 World War II service excluded.
Your service was not in the active service of the United States
during the World War II period if, for example, you were in the --
(a) Women's Army Auxiliary Corps, except as described in
404.1312(f);
(b) Coast Guard Auxiliary;
(c) Coast Guard Reserve (Temporary) unless you served on active
full-time service with military pay and allowances;
(d) Civil Air Patrol; or
(e) Civilian Auxiliary to the Military Police.
20 CFR 404.1313 Post-World War II Veterans
20 CFR 404.1320 Who is a post-World War II veteran.
You are a post-World War II veteran if you were in the active service
of the United States during the post-World War II period and, if no
longer in active service, you were separated from the service under
conditions other than dishonorable after at least 90 days of active
service. The 90-day active service requirement is discussed in
404.1321.
20 CFR 404.1321 Ninety-day active service requirement for post-World
War II veterans.
(a) The 90 days of active service required for post-World War II
veterans do not have to be consecutive if the 90 days were in the
post-World War II period. The 90-day requirement cannot be met by
totaling the periods of active duty for training purposes before 1957
which were less than 90 days.
(b) If, however, all of the 90 days of active service required for
post-World War II veterans were not in the post-World War II period, the
90 days must (only in those circumstances) be consecutive if the 90 days
began before July 25, 1947, and ended on or after that date, or began
before January 1, 1957, and ended on or after that date.
(c) The 90 days of active service is not required if the post-World
War II veteran died in service or was separated from service under
conditions other than dishonorable because of a disability or injury
which began or worsened while performing service duties.
20 CFR 404.1322 Post-World War II service included.
Your service was in the active service of the United States during
the post-World War II period if you were in the --
(a) Air Force, Army, Navy, Marine Corps, Coast Guard, or any part of
them;
(b) Commissioned corps of the United States Public Health Service and
were on active service during that period;
(c) Commissioned corps of the United States Coast and Geodetic Survey
and were on active service during that period; or
(d) Philippine Scouts and performed active service during the
post-World War II period under the direct supervision of recognized
military authority.
20 CFR 404.1323 Post-World War II service excluded.
Your service was not in the active service of the United States
during the post-World War II period if, for example, you were in the --
(a) Coast Guard Auxiliary;
(b) Coast Guard Reserve (Temporary) unless you served on active
full-time service with military pay and allowances;
(c) Civil Air Patrol; or
(d) Civilian Auxiliary to the Military Police.
20 CFR 404.1323 Separation from Active Service
20 CFR 404.1325 Separation from active service under conditions other
than dishonorable.
Separation from active service under conditions other than
dishonorable means any discharge or release from the active service
except --
(a) A discharge or release for desertion, absence without leave, or
fraudulent entry;
(b) A dishonorable or bad conduct discharge issued by a general court
martial of the Army, Navy, Air Force, Marine Corps, or Coast Guard of
the United States, or by the active service of an allied country during
the World War II period;
(c) A dishonorable discharge issued by the United States Public
Health Service or the United States Coast and Geodetic Survey;
(d) A resignation by an officer for the good of the service;
(e) A discharge or release because the individual was a conscientious
objector; or
(f) A discharge or release because the individual was convicted by a
civil court for treason, sabotage, espionage, murder, rape, arson,
burglary, robbery, kidnapping, assault with intent to kill, assault with
a deadly weapon, or because of an attempt to commit any of these crimes.
(45 FR 16464, Mar. 14, 1980; 45 FR 22023, Apr. 3, 1980)
20 CFR 404.1325 Members of the Uniformed Services
20 CFR 404.1330 Who is a member of a uniformed service.
A member of a uniformed service is an individual who served on active
duty after 1956. You are a member of a uniformed service if you --
(a) Are appointed, enlisted, or inducted into --
(1) The Air Force, Army, Navy, Coast Guard, or Marine Corps; or
(2) A reserve component of the uniformed services in paragraph (a)(1)
of this section (except the Coast Guard Reserve as a temporary member);
(b) Served in the Army or Air Force under call or conscription;
(c) Are a commissioned officer of the National Oceanic and
Atmospheric Administration or its predecessors, the Environmental
Science Services Administration and the Coast and Geodetic Survey;
(d) Are a commissioned officer of the Regular or Reserve Corps of the
Public Health Service;
(e) Are a retired member of any of the above services;
(f) Are a member of the Fleet Reserve or Fleet Marine Corps Reserve;
(g) Are a cadet at the United States Military Academy, Air Force
Academy, or Coast Guard Academy, or a midshipman at the United States
Naval Academy; or
(h) Are a member of the Reserve Officers Training Corps of the Army,
Navy or Air Force, when ordered to annual training duty for at least 14
days and while performing official travel to and from that duty.
20 CFR 404.1330 Amounts of Wage Credits and Limits on Their Use
20 CFR 404.1340 Wage credits for World War II and post-World War II
veterans.
In determining your entitlement to, and the amount of, your monthly
benefit or lump-sum death payment based on your active service during
the World War II period or the post-World War II period, and for
establishing a period of disability as discussed in 404.132 and
404.133, we add the (deemed) amount of $160 for each month during a part
of which you were in the active service as described in 404.1312 or
404.1322. For example, if you were in active service from October 11,
1942, through August 10, 1943, we add the (deemed) amount of $160 for
October 1942 and August 1943 as well as November 1942 through July 1943.
The amount of wage credits that are added in a calendar year cannot
cause the total amount credited to your earnings record to exceed the
annual earnings limitation explained in 404.1047 and 404.1096(b).
20 CFR 404.1341 Wage credits for a member of a uniformed service.
(a) General. In determining your entitlement to, and the amount of
your monthly benefit (or lump sum death payment) based on your wages
while on active duty as a member of the uniformed service after 1956,
and for establishing a period of disability as discussed in 404.132, we
add wage credits to the wages paid you as a member of that service. The
amount of the wage credits, the applicable time periods, the wage credit
amount limits, and the requirement of a minimum period of active duty
service for granting these wage credits, are discussed in paragraphs
(b), (c), and (d) of this section.
(b) Amount of wage credits. The amount of wage credits added is --
(1) $100 for each $300 in wages paid to you for your service in each
calender year after 1977; and
(2) $300 for each calendar quarter in 1957 through 1977, regardless
of the amount of wages actually paid you during that quarter for your
service.
(c) Limits on wage credits. The amount of these wage credits cannot
exceed --
(1) $1200 for any calendar year, or
(2) An amount which when added to other earnings causes the total
earnings for the year to exceed the annual earnings limitation explained
in 404.1047 and 404.1096(b).
(d) Minimum active-duty service requirement. (1) If you enlisted for
the first time in a regular component of the Armed Forces on or after
September 8, 1980, you must complete the shorter of 24 months of
continuous active duty or the full period that you were called to active
duty to receive these wage credits, unless:
(i) You are discharged or released from active duty for the
convenience of the government in accordance with section 1171 of title
10 U.S.C. or because of hardship as specified in section 1173 of title
10 U.S.C.;
(ii) You are discharged or released from active duty for a disability
incurred or aggravated in line of duty;
(iii) You are entitled to compensation for service-connected
disability or death under chapter 11 of title 38 U.S.C.;
(iv) You die during your period of enlistment; or
(v) You were discharged prior to October 14, 1982, and your discharge
was --
(A) Under chapter 61 of title 10 U.S.C.; or
(B) Because of a disability which resulted from an injury or disease
incurred in or aggravated during your enlistment which was not the
result of your intentional misconduct and did not occur during a period
of unauthorized absence.
(2) If you entered on active duty as a member of the uniformed
services as defined in 404.1330 on or after October 14, 1982, having
neither previously completed a period of 24 months' active duty nor been
discharged or released from this period of active duty under section
1171, title 10 U.S.C. (i.e., convenience of the government), you must
complete the shorter of 24 months of continuous active duty or the full
period you were called or ordered to active duty to receive these wage
credits, unless:
(i) You are discharged or released from active duty for the
convenience of the government in accordance with section 1171 of title
10 U.S.C. or because of hardship as specified in section 1173 of title
10 U.S.C.;
(ii) You are discharged or released from active duty for a disability
incurred or aggravated in line of duty;
(iii) You are entitled to compensation for service-connected
disability or death under chapter 11 of title 38 U.S.C.; or
(iv) You die during your period of active service.
(45 FR 16464, Mar. 14, 1980, as amended at 52 FR 29663, Aug. 11,
1987)
20 CFR 404.1342 Limits on granting World War II and post-World War II
wage credits.
(a) You get wage credits for World War II or post-World War II active
service only if the use of the wage credits results in entitlement to a
monthly benefit, a higher monthly benefit, or a lump-sum death payment.
(b) You may get wage credits for active service in July 1947 for
either the World War II period or the post-World War II period but not
for both. If your active service is before and on or after July 25,
1947, we add the $160 wage credit to the period which is most
advantageous to you.
(c) You do not get wage credits for the World War II period if
another Federal benefit (other than one payable by the Veterans
Administration) is determined by a Federal agency or an instrumentality
owned entirely by the United States to be payable to you, even though
the Federal benefit is not actually paid or is paid and then terminated,
based in part on your active service during the World War II period
except as explained in 404.1343.
(d) You do not get wage credits for the post-World War II period if
another Federal benefit (other than one payable by the Veterans
Administration) is determined by a Federal agency or an instrumentality
owned entirely by the United States to be payable to you, even though
the Federal benefit is not actually paid or is paid and then terminated,
based in part on your active service during the post-World War II period
except as explained in 404.1343.
20 CFR 404.1343 When the limits on granting World War II and post-World
War II wage credits do not apply.
The limits on granting wage credits described in 404.1342 (c) and
(d) do not apply --
(a) If the wage credits are used solely to meet the insured status
and quarters of coverage requirements for a period of disability as
described in 404.132 and 404.133;
(b) If you are the surviving spouse or child of a veteran of the
World War II period or post-World War II period and you are entitled
under the Civil Service Retirement Act of 1930 to a survivor's annuity
based on the veteran's active service and --
(1) You give up your right to receive the survivor's annuity;
(2) A benefit under the Civil Service Retirement Act of 1930 based on
the veteran's active service was not payable to the veteran; and
(3) Another Federal benefit is not payable to the veteran or his or
her survivors except as described in paragraph (c) of this section; or
(c) For the years 1951 through 1956, if another Federal benefit is
payable by the Army, Navy, Air Force, Marine Corps, Coast Guard, Coast
and Geodetic Survey, or the Public Health Service based on post-World
War II active service but only if the veteran was also paid wages as a
member of a uniformed service after 1956.
(45 FR 16464, Mar. 14, 1980, as amended at 49 FR 24118, June 12,
1984)
20 CFR 404.1343 Deemed Insured Status for World II Veterans
20 CFR 404.1350 Deemed insured status.
(a) When deemed insured status applies. If you are the survivor of a
World War II veteran, we consider the veteran to have died fully insured
as discussed in 404.111 and we include wage credits in determining your
monthly benefit or lump-sum death payment if --
(1) The veteran was separated from active service of the United
States before July 27, 1951; and
(2) The veteran died within 3 years after separation from active
service and before July 27, 1954.
(b) Amount of credit given for deemed insured World War II veterans.
(1) When we compute a survivor's benefit or lump-sum death payment, we
give credit for --
(i) $200 (for increment year purposes) for each calendar year in
which the veteran had at least 30 days of active service beginning
September 16, 1940, through 1950; and
(ii) An average monthly wage of $160.
(2) If the World War II veteran was fully or currently insured
without the wage credits, we add increment years (years after 1936 and
prior to 1951 in which the veteran had at least $200 in creditable
earnings) to the increment years based on the veteran's wages.
20 CFR 404.1351 When deemed insured status does not apply.
As a survivor of a World War II veteran, you cannot get a monthly
benefit or lump-sum death payment based on the veteran's deemed insured
status as explained in 404.1350 if --
(a) Your monthly benefit or lump-sum death payment is larger without
using the wage credits;
(b) The Veterans Administration has determined that a pension or
compensation is payable to you based on the veteran's death;
(c) The veteran died while in the active service of the United
States;
(d) The veteran was first separated from active service after July
26, 1951;
(e) The veteran died after July 26, 1954; or
(f) The veteran's only service during the World War II period was by
enlistment in the Philippine Scouts as authorized by the Armed Forces
Voluntary Recruitment Act of 1945 (Pub. L. 190 of the 79th Congress).
20 CFR 404.1352 Benefits and payments based on deemed insured status.
(a) Our determination. We determine your monthly benefit or lump-sum
death payment under the deemed insured status provisions in 404.1350
and 404.1351 regardless of whether the Veterans Administration has
determined that any pension or compensation is payable to you.
(b) Certification for payment. If we determine that you can be paid
a monthly benefit or lump-sum death payment, we certify these benefits
for payment. However, the amount of your monthly benefit or lump-sum
death payment may be changed if we are informed by the Veterans
Administration that a pension or compensation is payable because of the
veteran's death as explained in 404.1360.
(c) Payments not considered as pension or compensation. We do not
consider as pension or compensation --
(1) National Service Life Insurance payments;
(2) United States Government Life Insurance payments; or
(3) Burial allowance payments made by the Veterans Administration.
20 CFR 404.1352 Effect of Other Benefits on Payment of Social Security Benefits and Payments
20 CFR 404.1360 Veterans Administration pension or compensation
payable.
(a) Before we determine and certify payment. If we are informed by
the Veterans Administration that a pension or compensation is payable to
you before we determine and certify payment of benefits based on deemed
insured status, we compute your monthly benefit or lump-sum death
payment based on the death of the World War II veteran without using the
wage credits discussed in 404.1350.
(b) After we determine and certify payment. If we are informed by
the Veterans Administration that a pension or compensation is payable to
you after we determine and certify payment of benefits based on deemed
insured status, we --
(1) Stop payment of your benefits or recompute the amount of any
further benefits that can be paid to you; and
(2) Determine whether you were erroneously paid and the amount of any
erroneous payment.
20 CFR 404.1361 Federal benefit payable other than by Veterans
Administration.
(a) Before we determine and certify payment. If we are informed by
another Federal agency or instrumentality of the United States (other
than the Veterans Administration) that a Federal benefit is payable to
you by that agency or instrumentality based on the veteran's World War
II or post-World War II active service before we determine and certify
your monthly benefit or lump-sum death payment, we compute your monthly
benefit or lump-sum death payment without using the wage credits
discussed in 404.1340.
(b) After we determine and certify payment. If we are informed by
another Federal agency or instrumentality of the United States (other
than the Veterans Administration) that a Federal benefit is payable to
you by that agency or instrumentality based on the veteran's World War
II or post-World War II active service after we determine and certify
payment, we --
(1) Stop payment of your benefits or recompute the amount of any
further benefits that can be paid to you; and
(2) Determine whether you were erroneously paid and the amount of any
erroneous payment.
20 CFR 404.1362 Treatment of social security benefits or payments where
Veterans Administration pension or compensation payable.
(a) Before we receive notice from the Veterans Administration. If we
certify your monthly benefit or a lump-sum death payment as determined
under the deemed insured status provisions in 404.1350 before we
receive notice from the Veterans Administration that a pension or
compensation is payable to you, our payments to you are erroneous only
to the extent that they exceed the amount of the accrued pension of
compensation payable.
(b) After we receive notice from the Veterans Administration. If we
certify your monthly benefit or lump-sum death payment as determined
under the deemed insured status provisions in 404.1350 after we receive
notice from the Veterans Administration that a pension or compensation
is payable to you, our payments to you are erroneous whether or not they
exceed the amount of the accrued pension or compensation payable.
20 CFR 404.1363 Treatment of social security benefits or payments where
Federal benefit payable other than by Veterans Administration.
If we certify your monthly benefit or lump-sum death payment based on
World War II or post-World War II wage credits after we receive notice
from another Federal agency or instrumentality of the United States
(other than the Veterans Administration) that a Federal benefit is
payable to you by that agency or instrumentality based on the veteran's
World War II or post-World War II active service, our payments to you
are erroneous to the extent the payments are based on the World War II
or post-World War II wage credits. The payments are erroneous beginning
with the first month you are eligible for the Federal benefit.
20 CFR 404.1363 Evidence of Active Service and Membership in a Uniformed Service
20 CFR 404.1370 Evidence of active service and separation from active
service.
(a) General. When you file an application for a monthly benefit or
lump-sum death payment based on the active service of a World War II or
post-World War II veteran, you must submit evidence of --
(1) Your entitlement as required by subpart H of this part or other
evidence that may be expressly required;
(2) The veteran's period in active service of the United States; and
(3) The veteran's type of separation from active service of the
United States.
(b) Evidence we accept. We accept as proof of a veteran's active
service and separation from active service --
(1) An original certificate of discharge, or an original certificate
of service, from the appropriate military service, from the United
States Public Health Service, or from the United States Coast and
Geodetic Survey;
(2) A certified copy of the original certificate of discharge or
service made by the State, county, city agency or department in which
the original certificate is recorded;
(3) A certification from the appropriate military service, United
States Public Health Service, or United States Coast and Geodetic Survey
showing the veteran's period of active service and type of separation;
(4) A certification from a local selective service board showing the
veteran's period of active service and type of separation; or
(5) Other evidence that proves the veteran's period of active service
and type of separation.
20 CFR 404.1371 Evidence of membership in a uniformed service during
the years 1957 through 1967.
(a) General. When you file an application for a monthly benefit or
lump-sum death payment based on the services of a member of a uniformed
service during the years 1957 through 1967, you should submit evidence
identifying the member's uniformed service and showing the period(s) he
or she was on active duty during those years.
(b) Evidence we accept. The evidence we will accept includes any
official correspondence showing the member's status as an active service
member during the appropriate period, a certification of service by the
uniformed service, official earnings statements, copies of the member's
Form W-2, and military orders, for the appropriate period.
20 CFR 404.1371 Subpart O -- Interrelationship of Old-Age, Survivors
and Disability Insurance Program With the Railroad Retirement Program
Authority: Secs. 202 (l), 205 (a), (c)(5)(D), (i), and (o), 210
(a)(9) and (l)(4), 211(c)(3), and 1102 of the Social Security Act; 42
U.S.C. 402 (l), 405 (a), (c)(5)(D), (i), and (o), 410 (a)(9) and (l)(4),
411(c)(3), and 1302.
Cross Reference: For regulations under the Railroad Retirement Act,
see chapter II of this title.
20 CFR 404.1401 General relationship of Railroad Retirement Act with
the old-age, survivors and disability insurance program of the Social
Security Act.
The Railroad Retirement Act sets up a system of benefits for railroad
employees, their dependents and survivors, and has been integrated with
the Social Security Act to provide a coordinated system of retirement,
survivor, dependent and disability benefits payable on the basis of an
individual's work in the railroad industry and in employment and
self-employment covered by the Social Security Act. With respect to the
coordination between the two programs, the Railroad Retirement Act
distinguishes between ''career'' railroad workers and those individuals
who may be considered ''casual'' railroad workers. The line of
demarcation is generally 10 years of service in the railroad industry,
including service prior to 1937. The Railroad Retirement Act transfers
to the old-age, survivors and disability insurance system the
compensation records of individuals who at the time of retirement, onset
of disability or death have less than 10 years of service in the
railroad industry and meet certain other requirements. Any compensation
paid to such individuals for such service after 1936 becomes wages under
the Social Security Act (to the extent they do not exceed the annual
wage limitations described in 404.1027(a)). Whatever benefits are
payable to them, their dependents, and their survivors are computed on
the basis of the combined compensation and social security covered
earnings creditable to the individuals' records. The compensation paid
to individuals with 10 or more years of railroad service remain under
the Railroad Retirement Act, but in certain circumstances, the
compensation of such workers who die may be transferred to the old-age,
survivors, and disability insurance program (see 404.1402(b) and
404.1407). Under certain circumstances (see 404.1413), certification of
benefits payable under the provisions of the Social Security Act will be
made to the Railroad Retirement Board. The Railroad Board will certify
such benefits to the Secretary of the Treasury.
(42 FR 18272, Apr. 6. 1977)
20 CFR 404.1402 When services in the railroad industry are covered.
Services performed by an individual in the railroad industry which
would, but for the provisions of this section, be excepted from
''employment'' by reason of 404.1017 shall be considered to be included
under ''employment'' as defined in section 210 of the Act in the
following situations:
(a) For the purpose of determining entitlement to, or the amount of,
any monthly benefits or lump-sum death payment on the basis of the wages
and self-employment income of an individual where the years of service
in the railroad industry are less than 10;
(b) For the purpose of determining entitlement to, or the amount of,
any survivor monthly benefit or any lump-sum death payment on the basis
of the wages and self-employment income of an individual whose years of
service in the railroad industry were 10 or more but a ''current
connection'', as defined in section 1(o) of the Railroad Retirement Act
of 1974 (45 U.S.C. 228a), with the railroad industry did not exist at
the time of death; (in such cases, survivor benefits are not payable
under the Railroad Retirement Act);
(c) For the purpose of determining entitlement to a period of
disability (see subpart B of this part) on the basis of the wages and
self-employment income of an individual; or
(d) For the purpose of applying the provisions of section 203 of the
Act concerning deductions from benefits under the retirement test (see
subpart E of this part).
(42 FR 18273, Apr. 6, 1977)
20 CFR 404.1403 Definition of ''years of service''.
The term ''years of service'' as used in this subpart has the same
meaning as assigned to it by section 1(f) of the Railroad Retirement
Act.
(18 FR 8694, Dec. 24, 1953; 25 FR 5182, June 10, 1960)
20 CFR 404.1404 Effective date of coverage of railroad services under
the act.
Coverage under the act of services performed after 1936 by an
individual in the railroad industry is effective as follows:
(a) The provisions of paragraphs (a) and (b) of 404.1402 insofar as
they relate to survivor monthly benefits are effective for months after
December 1946 and insofar as they relate to lump-sum death payments are
effective with respect to deaths after 1946;
(b) The provisions of paragraph (a) of 404.1402 insofar as they
relate to old-age insurance benefits or monthly benefits of dependents
of old-age insurance beneficiaries are effective November 1, 1951;
insofar as they relate to disability insurance benefits are effective
for months after June 1957; and insofar as they relate to monthly
benefits for dependents of disability insurance beneficiaries are
effective for months after August 1958;
(c) The provisions of paragraph (c) of 404.1402 are effective for
benefits for months after June 1955; and
(d) The provisions of paragraph (d) of 404.1402 are effective
November 1, 1951.
(25 FR 5182, June 10, 1960)
20 CFR 404.1405 When the provisions of 404.1402 do not apply.
(a) Awards by the Railroad Retirement Board prior to October 30,
1951. The provisions of 404.1402(a) shall not apply with respect to
the wages and self-employment income of an individual if, prior to
October 30, 1951, the Railroad Retirement Board has awarded under the
Railroad Retirement Act a retirement annuity to such individual or a
survivor annuity with respect to the death of such individual and such
retirement or survivor annuity, as the case may be, was payable at the
time an application for benefits is filed under the Social Security Act
on the basis of the wages and self-employment income of such individual.
A pension payable under section 6 of the Railroad Retirement Act of
1937 as in effect prior to the Railroad Retirement Act of 1974, or an
annuity paid in a lump sum equal to its commuted value under section
3(i) of the Railroad Retirement Act in effect prior to the Social
Security Act of October 30, 1951, is not a ''retirement or survivor
annuity'' for the purpose of this paragraph.
(b) Individual continues to work in railroad industry after
establishing entitlement to benefits under section 202(a). An
individual's service in the railroad industry used, pursuant to the
provisions of 404.1402, to establish entitlement to or to determine the
amount of, his old-age insurance benefits under section 202(a) shall not
be deemed to be in ''employment'' as defined in section 210 of the Act,
if he renders service in the railroad industry after the effective date
of such benefits and his years of service attributable thereto when
added to his years of service prior to such effective date are 10 or
more. Such benefits and any benefits payable to the spouse or child of
such individual under section 202(b), (c), or (d) of the Act on the
basis of his wages and self-employment income shall be terminated with
the month preceding the month in which such individual acquires his
tenth year of service. If, however, an insured status (see subpart B of
this part) exists without the use of compensation, such benefits shall,
in lieu of termination, be recalculated without using such compensation
and the recalculated benefits shall be payable with the month in which
the tenth year of service was acquired. Any monthly benefits paid prior
to such month shall not be deemed erroneous by reason of the use of such
compensation.
(18 FR 8694, Dec. 24, 1953; 25 FR 5182, June 10, 1960, as amended at
42 FR 18273, Apr. 6, 1977)
20 CFR 404.1406 Eligibility to railroad retirement benefits as a bar to
payment of social security benefits.
Notwithstanding the fact that, pursuant to the preceding provisions
of this subpart, services rendered by an individual in the railroad
industry are in employment, no lump-sum death payment or survivor
monthly benefits shall be paid (except as provided in 404.1407) under
the regulations in this part on the basis of such individual's wages and
self-employment income if any person, upon filing application therefor,
would be entitled to an annuity under section 2 of the Railroad
Retirement Act of 1974 or a lump-sum payment under section 6(b) of such
Act with respect to the death of that individual; or for periods prior
to 1975, would have been entitled to an annuity under section 5 or a
lump-sum payment under section 5(f)(1) of the Railroad Retirement Act of
1937 with respect to the death of that individual.
(42 FR 18273, Apr. 6, 1977)
20 CFR 404.1407 When railroad retirement benefits do not bar payment of
social security benefits.
The provisions of 404.1406 shall not operate if:
(a) The survivor is, or upon filing application would be, entitled to
a monthly benefit with respect to the death of an insured individual for
a month prior to January 1947, if such monthly benefit is greater in
amount than the survivor annuity payable to such survivor after 1946
under the Railroad Retirement Act; or
(b) The residual lump-sum payment provided by section 6(c) of the
Railroad Retirement Act of 1974 (or section 5(f)(2) of the Railroad
Retirement Act of 1937 prior to the 1974 Act) with respect to the death
of an insured individual is paid by the Railroad Retirement Board
pursuant to an irrevocable election filed with the Board by the widow,
widower, or parent of such individual to waive all future annuities or
benefits based on the combined record of earnings and compensation to
which such widow, widower or parent might become entitled, but only to
the extent that widow's, widower's or parent's benefits may be payable
under the regulations of this part to such widow, widower or parent, as
the case may be, solely on the basis of the wages and self-employment
income of such deceased individual and without regard to any
compensation which may be treated as wages pursuant to 404.1408.
(42 FR 18273, Apr. 6, 1977)
20 CFR 404.1408 Compensation to be treated as wages.
Where, pursuant to the preceding provisions of this subpart, services
rendered by an individual in the railroad industry are considered to be
in employment as defined in section 210 of the Social Security Act (see
subpart K of this part) any compensation (as defined in section 1(h) of
the Railroad Retirement Act of 1974 or prior to the 1974 Act, section
1(h) of the Railroad Retirement Act of 1937) received by such individual
for such services shall constitute wages provided that the provisions of
404.1406 do not operate to bar the payment of benefits under title II
of the Social Security Act; except that any compensation attributable
as having been paid during any month on account of military service
creditable under section 1 of the Railroad Retirement Act of 1974 (or
section 4 of the Railroad Retirement Act of 1937 prior to the 1974 Act)
shall not constitute wages for purposes of title II of the Social
Security Act if, based on such military service, wages are deemed to
have been paid to such individual during such month under the provisions
described in 404.1308 or 404.1309.
(42 FR 18273, Apr. 6, 1977)
20 CFR 404.1409 Purposes of using compensation.
Compensation which is treated as wages under 404.1408 shall be used,
together with wages (see subpart K of this part) and self-employment
income (see subpart K of this part), for purposes of:
(a) Determining an individual's insured status for monthly benefits
or the lump-sum death payment (see subpart B of this part);
(b) Computing such individual's primary insurance amount (see subpart
C of this part);
(c) Determining an individual's entitlement to the establishment of a
period of disability (see subpart B of this part for disability insured
status requirements); and
(d) Applying the deduction provisions of section 203 of the act (see
subpart E of this part).
(25 FR 5183, June 10, 1960)
20 CFR 404.1410 Presumption on basis of certified compensation record.
(a) Years prior to 1975. Where the Railroad Retirement Board
certifies to the Social Security Administration a report of record of
compensation, which is treated as wages under 404.1408, and periods of
service which do not identify the months or quarters in which such
compensation was paid, the sum of the compensation quarters of coverage
(see 404.1412) will be presumed, in the absence of evidence to the
contrary, to represent an equivalent number of quarters of coverage (see
404.103 and 404.104). No more than four quarters of coverage shall be
credited to an individual in a single calendar year.
(b) Years after 1974. Compensation paid in a calendar year will, in
the absence of evidence to the contrary, be presumed to have been paid
in equal proportions with respect to all months in the year in which the
employee will have been in railroad service. (For years prior to 1975,
see 404.1412.)
(c) Allocation of compensation to months of service. If by means of
the presumptions in this section an individual does not have an insured
status (see subpart B of this part) on the basis of quarters of coverage
with which he is credited, or a deceased individual's primary insurance
amount (see 404.201) may be affected because he attained age 22 after
1936, the Administration may request the Railroad Retirement Board to
furnish a report of the months in which such individual rendered service
for compensation which is treated as wages under 404.1408 if it appears
the identification of such months may result in an insured status or if
it will affect such primary insurance amount.
(d) Effect of self-employment income and maximum earnings. However,
if such individual also had self-employment income for a taxable year
and the sum of such income and wages (including compensation wich is
treated as wages under 404.1408) paid to or received by him during such
taxable year equals the following amounts, each calendar quarter any
part of which falls in such taxable year, shall be a quarter of
coverage:
(1) After 1950 and prior to 1955, equals $3,600 of remuneration;
(2) After 1954 and prior to 1959, equals $4,200 of remuneration;
(3) After 1958 and prior to 1966, equals $4,800 of remuneration;
(4) After 1965 and prior to 1968, equals $6,600 of remuneration;
(5) After 1967 and beginning prior to 1972, equals $7,800 of
remuneration (including a fiscal year which began in 1971 and ended in
1972);
(6) Beginning after 1971 and prior to 1973, equals $9,000 of
remuneration;
(7) Beginning after 1972 and prior to 1974, equals $10,800 of
remuneration;
(8) Beginning after 1973 and prior to 1975, equals $13,200 of
remuneration;
(9) Beginning after 1974 and prior to 1976, equals $14,100 of
remuneration;
(10) Beginning after 1975 and prior to 1977, equals $15,300 of
remuneration; or
(11) Beginning after 1976, and amount equal to the contribution and
benefit base as determined under section 230 of the Social Security Act
which is effective for such calendar year.
This subsection is a exception to the rule in paragraph (a) of this
section concerning a presumption applicable to conversion of railroad
compensation into quarters of coverage for years prior to 1975.
(42 FR 18273, Apr. 6, 1977)
20 CFR 404.1412 Compensation quarters of coverage.
As used in this subpart, a compensation quarter of coverage is any
quarter of coverage computed with respect to compensation paid to an
individual for railroad employment after 1936 and prior to 1975 in
accordance with the provisions for determining such quarters of coverage
as contained in section 5(l)(4) of the Railroad Retirement Act of 1937.
(For years beginning 1975, see 404.1410(b)).
(42 FR 18274, Apr. 6, 1977)
20 CFR 404.1413 Certification of payment to Railroad Retirement Board.
Certification of benefits shall be made to the Railroad Retirement
Board upon final decision of the Secretary of Health, Education, and
Welfare that any person is entitled to any payment or payments under
title II and that certification shall include the name and address of
the person so entitled to receive such payment or payments, the amount
of such payment or payments, and the time at which such payment or
payments should be made which shall provide for payment on behalf of the
Managing Trustee if:
(a) The claimant will have completed 10 years of service under the
Railroad Retirement Act of 1937, the Railroad Retirement Act of 1974, or
any combination of service under such Acts; or
(b) The claimant is the wife or husband of an individual who has
completed 10 years of service under the Railroad Retirement Act of 1937,
the Railroad Retirement Act of 1974, or any combination of service under
such Acts; or
(c) The claimant is the survivor of an individual who had completed
10 years of service under the Railroad Retirement Act of 1937, the
Railroad Retirement Act of 1974, or any combination of service under
such Acts, if such survivor is entitled, or could upon application be
entitled to an annuity under section 2 of the Railroad Retirement Act of
1974; or
(d) The claimant is entitled to benefits under section 202 of the
Social Security Act on the basis of the wages and self-employment income
of an individual who has 10 years of railroad service (except a survivor
of such individual if such individual did not have a current connection,
as defined in section 1(o) of the Railroad Retirement Act of 1974 (45
U.S.C. 228a) with the railroad industry at the time of his death).
The applicability limitations identified in paragraphs (a) through
(d) of this section affects any claimant who first becomes entitled to
benefits under title II of the Social Security Act after 1974. (See
also 404.968.)
(42 FR 18274, Apr. 6, 1977)
20 CFR 404.1413 Subpart P -- Determining Disability and Blindness
Authority: Secs. 202, 205 (a), (b), and (d) through (h), 216(i), 221
(a) and (i), 222(c), 223, 225, and 1102 of the Social Security Act; 42
U.S.C. 402, 405 (a), (b), and (d) through (h), 416(i), 421 (a) and (i),
422(c), 423, 425, and 1302; sec. 505(a) of Public Law 96-265, 94 Stat.
473, secs. 2(d) (2), (5), (6) and (15) of Public Law 98-460, 98 Stat.
1797, 1801, 1802, and 1808.
Source: 45 FR 55584, Aug. 20, 1980, unless otherwise noted.
20 CFR 404.1413 General
20 CFR 404.1501 Scope of subpart.
In order for you to become entitled to any benefits based upon
disability or blindness or to have a period of disability established,
you must be disabled or blind as defined in title II of the Social
Security Act. This subpart explains how we determine whether you are
disabled or blind. We discuss a period of disability in subpart D of
this part. We have organized the rules in the following way.
(a) We define general terms, then discuss who makes our disability
determinations and state that disability determinations made under other
programs are not binding on our determinations.
(b) We explain the term disability and note some of the major factors
that are considered in determining whether you are disabled in
404.1505 through 404.1510.
(c) Sections 404.1512 through 404.1518 contain our rules on evidence.
We explain your responsibilities for submitting evidence of your
impairment, state what we consider to be acceptable sources of medical
evidence, and describe what information should be included in medical
reports.
(d) Our general rules on evaluating disability if you are filing a
new application are stated in 404.1520 through 404.1523. We describe
the steps that we go through and the order in which they are considered.
(e) Our rules on medical considerations are found in 404.1525
through 404.1530. We explain in these rules --
(1) The purpose of the Listing of Impairments found in appendix 1 of
this subpart and how to use it;
(2) What we mean by the term medical equivalence and how we determine
medical equivalence;
(3) The effect of a conclusion by your physician that you are
disabled;
(4) What we mean by symptoms, signs, and laboratory findings;
(5) How we evaluate pain and other symptoms; and
(6) The effect on your benefits if you fail to follow treatment that
is expected to restore your ability to work, and how we apply the rule.
(f) In 404.1545 through 404.1546 we explain what we mean by the
term residual functional capacity, state when an assessment of residual
functional capacity is required, and who may make it.
(g) Our rules on vocational considerations are found in 404.1560
through 404.1569a. We explain when vocational factors must be considered
along with the medical evidence, discuss the role of residual functional
capacity in evaluating your ability to work, discuss the vocational
factors of age, education, and work experience, describe what we mean by
work which exists in the national economy, discuss the amount of
exertion and the type of skill required for work, describe and tell how
to use the Medical-Vocational Guidelines in appendix 2 of this subpart,
and explain when, for purposes of applying the guidelines in appendix 2,
we consider the limitations or restrictions imposed by your
impairment(s) and related symptoms to be exertional, nonexertional, or a
combination of both.
(h) Our rules on substantial gainful activity are found in 404.1571
through 404.1574. These explain what we mean by substantial gainful
activity and how we evaluate your work activity.
(i) In 404.1577, 404.1578, and 404.1579, we explain the special
rules covering disability for widows, widowers, and surviving divorced
spouses for monthly benefits payable for months prior to January 1991,
and in 404.1581 through 404.1587 we discuss disability due to
blindness.
(j) Our rules on when disability continues and stops are contained in
404.1579 and 404.1588 through 404.1598. We explain what your
responsibilities are in telling us of any events that may cause a change
in your disability status, when you may have a trial work period, and
when we will review to see if you are still disabled. We also explain
how we consider the issue of medical improvement (and the exceptions to
medical improvement) in deciding whether you are still disabled.
(45 FR 55584, Aug. 20, 1980, as amended at 50 FR 50126, Dec. 6, 1985;
56 FR 57941, Nov. 14, 1991; 57 FR 30120, July 8, 1992)
20 CFR 404.1502 General definitions and terms for this subpart.
As used in the subpart --
Medical sources refers to treating sources, sources of record, and
consultative examiners for us. See 404.1513.
Secretary means the Secretary of Health and Human Services.
Source of record means a hospital, clinic or other source that has
provided you with medical treatment or evaluation, as well as a
physician or psychologist who has treated or evaluated you but does not
have or did not have an ongoing treatment relationship with you.
State agency means that agency of a State which has been designated
by the State to carry out the disability or blindness determination
function.
Treating source means your own physician or psychologist who has
provided you with medical treatment or evaluation and who has or has had
an ongoing treatment relationship with you. Generally, we will consider
that you have an ongoing treatment relationship with a physician or
psychologist when the medical evidence establishes that you see or have
seen the physician or psychologist with a frequency consistent with
accepted medical practice for the type of treatment and evaluation
required for your medical condition(s). We may consider a physician or
psychologist who has treated you only a few times or only after long
intervals (e.g., twice a year) to be your treating source if the nature
and frequency of the treatment is typical for your condition(s). We
will not consider a physician or psychologist to be your treating
physician if your relationship with the physician or psychologist is not
based on your need for treatment, but solely on your need to obtain a
report in support of your claim for disability. In such a case, we will
consider the physician or psychologist to be a consulting physician or
psychologist.
We or us refers to either the Social Security Administration or the
State agency making the disability or blindness determination.
You refers to the person who has applied for benefits or for a period
of disability or is receiving benefits based on disability or blindness.
(56 FR 36954, Aug. 1, 1991)
20 CFR 404.1502 Determinations
20 CFR 404.1503 Who makes disability and blindness determinations.
(a) State agencies. State agencies make disability and blindness
determinations for the Secretary for most persons living in the State.
State agencies make these disability and blindness determinations under
regulations containing performance standards and other administrative
requirements relating to the disability and blindness determination
function. States have the option of turning the function over to the
Federal Government if they no longer want to make disability
determinations. Also, the Secretary may take the function away from any
State which has substantially failed to make disability and blindness
determinations in accordance with these regulations. Subpart Q of this
part contains the rules the States must follow in making disability and
blindness determinations.
(b) Social Security Administration. The Social Security
Administration will make disability and blindness determinations for the
Secretary for --
(1) Any person living in a State which is not making for the
Secretary any disability and blindness determinations or which is not
making those determinations for the class of claimants to which that
person belongs; and
(2) Any person living outside the United States.
(c) What determinations are authorized. The Secretary has authorized
the State agencies and the Social Security Administration to make
determinations about --
(1) Whether you are disabled or blind;
(2) The date your disability or blindness began; and
(3) The date your disability or blindness stopped.
(d) Review of State Agency determinations. On review of a State
agency determination or redetermination of disability or blindness we
may find that --
(1) You are, or are not, disabled or blind, regardless of what the
State agency found;
(2) Your disability or blindness began earlier or later than the date
found by the State agency; and
(3) Your disability or blindness stopped earlier or later than the
date found by the State agency.
(e) Initial determinations for mental impairments. An initial
determination by a State agency or the Social Security Administration
that you are not disabled (or a Social Security Administration review of
a State agency's initial determination), in any case where there is
evidence which indicates the existence of a mental impairment, will be
made only after every reasonable effort has been made to ensure that a
qualified psychiatrist or psychologist has completed the medical portion
of the case review and any applicable residual functional capacity
assessment. (See 404.1616 for the qualifications we consider necessary
for a psychologist to be a psychological consultant and 404.1617 for
what we consider reasonable effort.) If the services of qualified
psychiatrists or psychologists cannot be obtained because of impediments
at the State level, the Secretary may contract directly for the
services. In a case where there is evidence of mental and nonmental
impairments and a qualified psychologist serves as a psychological
consultant, the psychologist will evaluate only the mental impairment,
and a physician will evaluate the nonmental impairment. The overall
determination of impairment severity in combined mental and nonmental
impairment cases will be made by a medical consultant and not a
psychological consultant unless the mental impairment alone would
justify a finding of disability.
(46 FR 29204, May 29, 1981, as amended at 52 FR 33926, Sept. 9, 1987)
20 CFR 404.1503a Program integrity.
We will not use in our program any individual or entity, except to
provide existing medical evidence, who is currently excluded, suspended,
or otherwise barred from participation in the Medicare or Medicaid
programs, or any other Federal or Federally-assisted program; whose
license to provide health care services is currently revoked or
suspended by any State licensing authority pursuant to adequate due
process procedures for reasons bearing on professional competence,
professional conduct, or financial integrity; or who, until a final
determination is made, has surrendered such a license while formal
disciplinary proceedings involving professional conduct are pending. By
individual or entity we mean a medical or psychological consultant,
consultative examination provider, or diagnostic test facility. Also
see 404.1519 and 404.1519g(b).
(56 FR 36954, Aug. 1, 1991)
20 CFR 404.1504 Determinations by other organizations and agencies.
A decision by any nongovernmental agency or any other governmental
agency about whether you are disabled or blind is based on its rules and
is not our decision about whether you are disabled or blind. We must
make a disability or blindness determination based on social security
law. Therefore, a determination made by another agency that you are
disabled or blind is not binding on us.
20 CFR 404.1504 Definition of Disability
20 CFR 404.1505 Basic definition of disability.
(a) The law defines disability as the inability to do any substantial
gainful activity by reason of any medically determinable physical or
mental impairment which can be expected to result in death or which has
lasted or can be expected to last for a continuous period of not less
than 12 months. To meet this definition, you must have a severe
impairment, which makes you unable to do your previous work or any other
substantial gainful activity which exists in the national economy. To
determine whether you are able to do any other work, we consider your
residual functional capacity and your age, education, and work
experience. We will use this definition of disability if you are
applying for a period of disability, or disability insurance benefits as
a disabled worker, or child's insurance benefits based on disability
before age 22 or, with respect to disability benefits payable for months
after December 1990, as a widow, widower, or surviving divorced spouse.
(b) There are different rules for determining disability for
individuals who are statutorily blind. We discuss these in 404.1581
through 404.1587. There are also different rules for determining
disability for widows, widowers, and surviving divorced spouses for
monthly benefits for months prior to January 1991. We discuss these
rules in 404.1577, 404.1578, and 404.1579.
(45 FR 55584, Aug. 20, 1980, as amended at 51 FR 10616, Mar. 28,
1986; 57 FR 30120, July 8, 1992)
20 CFR 404.1506 When we will not consider your impairment.
(a) Permanent exclusion of felony-related impairment. In determining
whether you are under a disability, we will not consider any physical or
mental impairment, or any increase in severity (aggravation) of a
preexisting impairment, which arises in connection with your commission
of a felony after October 19, 1980, if you are subsequently convicted of
this crime.Your subsequent conviction will invalidate any prior
determination establishing disability if that determination was based
upon any impairment, or aggravation, which we must exclude under this
rule.
(b) Limited use of impairment arising in prison. In determining
whether you are under a disability for purposes of benefit payments, we
will not consider any physical or mental impairment, or any increase in
severity (aggravation) of a preexisting impairment, which arises in
connection with your confinement in a jail, prison, or other penal
institution or correctional facility for conviction of a felony
committed after October 19, 1980. The exclusion of the impairment, or
aggravation, applies in determining disability for benefits payable for
any month during which you are confined. This rule does not preclude
the establishment of a period of disability based upon the impairment or
aggravation. You may become entitled to benefits upon release from
prison provided that you apply and are under a disability at the time.
(c) Felonious offenses. We will consider an offense a felony if --
(1) It is a felony under applicable law; or
(2) In a jurisdiction which does not classify any crime as a felony,
it is an offense punishable by death or imprisonment for a term
exceeding one year.
(d) Confinement. In general, a jail, prison, or other penal
institution or correctional facility is a facility which is under the
control and jurisdiction of the agency in charge of the penal system or
in which convicted criminals can be incarcerated. Confinement in such a
facility continues as long as you are under a sentence of confinement
and have not been released due to parole or pardon. You are considered
confined even though you are temporarily or intermittently outside of
the facility (e.g., on work release, attending school, or hospitalized).
(48 FR 5714, Feb. 8, 1983)
20 CFR 404.1508 What is needed to show an impairment.
If you are not doing substantial gainful activity, we always look
first at your physical or mental impairment(s) to determine whether you
are disabled or blind. Your impairment must result from anatomical,
physiological, or psychological abnormalities which can be shown by
medically acceptable clinical and laboratory diagnostic techniques. A
physical or mental impairment must be established by medical evidence
consisting of signs, symptoms, and laboratory findings, not only by your
statement of symptoms (see 404.1527). (See 404.1528 for further
information about what we mean by symptoms, signs, and laboratory
findings.)
(45 FR 55584, Aug. 20, 1980, as amended at 56 FR 36954, Aug. 1, 1991)
20 CFR 404.1509 How long the impairment must last.
Unless your impairment is expected to result in death, it must have
lasted or must be expected to last for a continuous period of at least
12 months. We call this the duration requirement.
20 CFR 404.1510 Meaning of substantial gainful activity.
Substantial gainful activity means work that --
(a) Involves doing significant and productive physical or mental
duties; and
(b) Is done (or intended) for pay or profit.
(See 404.1572 for further details about what we mean by substantial
gainful activity.)
20 CFR 404.1511 Definition of a disabling impairment.
(a) Disabled workers, persons disabled since childhood and, for
months after December 1990, disabled widows, widowers, and surviving
divorced spouses. If you are entitled to disability cash benefits as a
disabled worker, or to child's insurance benefits, or, for monthly
benefits payable after December 1990, to widow's, widower's, or
surviving divorced spouse's monthly benefits, a disabling impairment is
an impairment (or combination of impairments) which, of itself, is so
severe that it meets or equals a set of criteria in the Listing of
Impairments in appendix 1 of this subpart or which, when considered with
your age, education, and work experience, would result in a finding that
you are disabled under 404.1594. In determining whether you have a
disabling impairment, earnings are not considered.
(b) Disabled widows, widowers, and surviving divorced spouses, for
monthly benefits for months prior to January 1991. If you have been
entitled to disability benefits as a disabled widow, widower, or
surviving divorced spouse and we must decide whether you had a disabling
impairment for any time prior to January 1991, a disabling impairment is
an impairment (or combination of impairments) which, of itself, was so
severe that it met or equaled a set of criteria in the Listing of
Impairments in appendix 1 of this subpart, or results in a finding that
you were disabled under 404.1579. In determining whether you had a
disabling impairment, earnings are not considered.
(57 FR 30120, July 8, 1992)
20 CFR 404.1511 Evidence
20 CFR 404.1512 Evidence of your impairment.
(a) General. In general, you have to prove to us that you are blind
or disabled. Therefore, you must bring to our attention everything that
shows that you are blind or disabled. This means that you must furnish
medical and other evidence that we can use to reach conclusions about
your medical impairment(s) and, if material to the determination of
whether you are blind or disabled, its effect on your ability to work on
a sustained basis. We will consider only impairment(s) you say you have
or about which we receive evidence.
(b) What we mean by ''evidence.'' Evidence is anything you or anyone
else submits to us or that we obtain that relates to your claim. This
includes, but is not limited to:
(1) Objective medical evidence, that is, medical signs and laboratory
findings as defined in 404.1528 (b) and (c);
(2) Other evidence from medical sources, such as medical history,
opinions, and statements about treatment you have received;
(3) Statements you or others make about your impairment(s), your
restrictions, your daily activities, your efforts to work, or any other
relevant statements you make to medical sources during the course of
examination or treatment, or to us during interviews, on applications,
in letters, and in testimony in our administrative proceedings;
(4) Information from other sources, as described in 404.1513(e);
(5) Decisions by any governmental or nongovernmental agency about
whether you are disabled or blind; and
(6) At the administrative law judge and Appeals Council levels,
certain findings, other than the ultimate determination about whether
you are disabled, made by State agency medical or psychological
consultants and other program physicians or psychologists, and opinions
expressed by medical advisors based on their review of the evidence in
your case record. See 404.1527(f) (2) and (3).
(c) Your responsibility. You must provide medical evidence showing
that you have an impairment(s) and how severe it is during the time you
say that you are disabled. If we ask you, you must also provide
evidence about:
(1) Your age;
(2) Your education and training;
(3) Your work experience;
(4) Your daily activities both before and after the date you say that
you became disabled;
(5) Your efforts to work; and
(6) Any other factors showing how your impairment(s) affects your
ability to work. In 404.1560 through 404.1569, we discuss in more
detail the evidence we need when we consider vocational factors.
(d) Our responsibility. Before we make a determination that you are
not disabled, we will develop your complete medical history for at least
the 12 months preceding the month in which you file your application
unless there is a reason to believe that development of an earlier
period is necessary or unless you say that your disability began less
than 12 months before you filed your application. We will make every
reasonable effort to help you get medical reports from your own medical
sources when you give us permission to request the reports.
(1) ''Every reasonable effort'' means that we will make an initial
request for evidence from your medical source and, at any time between
10 and 20 calendar days after the initial request, if the evidence has
not been received, we will make one followup request to obtain the
medical evidence necessary to make a determination. The medical source
will have a minimum of 10 calendar days from the date of our followup
request to reply, unless our experience with that source indicates that
a longer period is advisable in a particular case.
(2) By ''complete medical history,'' we mean the records of your
medical source(s) covering at least the 12 months preceding the month in
which you file your application. If you say that your disability began
less than 12 months before you filed your application, we will develop
your complete medical history beginning with the month you say your
disability began unless we have reason to believe your disability began
earlier. If applicable, we will develop your complete medical history
for the 12-month period prior to (1) the month you were last insured for
disability insurance benefits (see 404.130), (2) the month ending the
7-year period you may have to establish your disability and you are
applying for widow's or widower's benefits based on disability (see
404.335(c)(1)), or (3) the month you attain age 22 and you are applying
for child's benefits based on disability (see 404.350(e)).
(e) Recontacting medical sources. When the evidence we receive from
your treating physician or psychologist or other medical source is
inadequate for us to determine whether you are disabled, we will need
additional information to reach a determination or a decision. To
obtain the information, we will take the following actions.
(1) We will first recontact your treating physician or psychologist
or other medical source to determine whether the additional information
we need is readily available. We will seek additional evidence or
clarification from your medical source when the report from your medical
source contains a conflict or ambiguity that must be resolved, the
report does not contain all the necessary information, or does not
appear to be based on medically acceptable clinical and laboratory
diagnostic techniques. We may do this by requesting copies of your
medical source's records, a new report, or a more detailed report from
your medical source, including your treating source, or by telephoning
your medical source. In every instance where medical evidence is
obtained over the telephone, the telephone report will be sent to the
source for review, signature and return.
(2) We may not seek additional evidence or clarification from a
medical source when we know from past experience that the source either
cannot or will not provide the necessary findings.
(f) Need for consultative examination. If the information we need is
not readily available from the records of your medical treatment source,
or we are unable to seek clarification from your medical source, we will
ask you to attend one or more consultative examinations at our expense.
See 404.1517 through 404.1519t for the rules governing the
consultative examination process. Generally, we will not request a
consultative examination until we have made every reasonable effort to
obtain evidence from your own medical sources. However, in some
instances, such as when a source is known to be unable to provide
certain tests or procedures or is known to be nonproductive or
uncooperative, we may order a consultative examination while awaiting
receipt of medical source evidence. We will not evaluate this evidence
until we have made every reasonable effort to obtain evidence from your
medical sources.
(56 FR 36954, Aug. 1, 1991)
20 CFR 404.1513 Medical evidence of your impairment.
(a) Acceptable sources. We need reports about your impairments from
acceptable medical sources. Acceptable medical sources are --
(1) Licensed physicians;
(2) Licensed osteopaths;
(3) Licensed or certified psychologists;
(4) Licensed optometrists for the measurement of visual acuity and
visual fields (we may need a report from a physician to determine other
aspects of eye diseases); and
(5) Persons authorized to send us a copy or summary of the medical
records of a hospital, clinic, sanitorium, medical institution, or
health care facility. Generally, the copy or summary should be
certified as accurate by the custodian or by any authorized employee of
the Social Security Administration, Veterans' Administration, or State
agency. However, we will not return an uncertified copy or summary for
certification unless there is some question about the document.
(b) Medical reports. Medical reports should include --
(1) Medical history;
(2) Clinical findings (such as the results of physical or mental
status examinations);
(3) Laboratory findings (such as blood pressure, x-rays);
(4) Diagnosis (statement of disease or injury based on its signs and
symptoms);
(5) Treatment prescribed with response, and prognosis; and
(6) A statement about what you can still do despite your
impairment(s) based on the medical source's findings on the factors
under paragraphs (b)(1) through (b)(5) of this section (except in
statutory blindness claims). Although we will request a medical source
statement about what you can still do despite your impairment(s), the
lack of the medical source statement will not make the report
incomplete. See 404.1527.
(c) Statements about what you can still do. Statements about what
you can still do (based on the medical source's findings on the factors
under paragraphs (b)(1) through (b)(5) of this section) should describe,
but are not limited to, the kinds of physical and mental capabilities
listed below. See 404.1527 and 404.1545(c).
(1) The medical source's opinion about your ability, despite your
impairment(s), to do work-related activities such as sitting, standing,
walking, lifting, carrying, handling objects, hearing, speaking, and
traveling; and
(2) In cases of mental impairment(s), the medical source's opinion
about your ability to understand, to carry out and remember
instructions, and to respond appropriately to supervision, coworkers,
and work pressures in a work setting.
(d) Completeness. The medical evidence, including the clinical and
laboratory findings, must be complete and detailed enough to allow us to
make a determination about whether you are disabled or blind. It must
allow us to determine --
(1) The nature and limiting effects of your impairment(s) for any
period in question;
(2) The probable duration of your impairment; and
(3) Your residual functional capacity to do work-related physical and
mental activities.
(e) Information from other sources. Information from other sources
may also help us to understand how your impairment affects your ability
to work. Other sources include --
(1) Public and private social welfare agencies;
(2) Observations by non-medical sources; and
(3) Other practitioners (for example, naturopaths, chiropractors,
audiologists, etc.).
(45 FR 55584, Aug. 20, 1980, as amended at 56 FR 36955, Aug. 1, 1991)
20 CFR 404.1514 When we will purchase existing evidence.
We need specific medical evidence to determine whether you are
disabled or blind. You are responsible for providing that evidence.
However, we will pay physicians not employed by the Federal government
and other non-Federal providers of medical services for the reasonable
cost of providing us with existing medical evidence that we need and ask
for after November 30, 1980.
(46 FR 45757, Sept. 15, 1981)
20 CFR 404.1515 Where and how to submit evidence.
You may give us evidence about your impairment at any of our offices
or at the office of any State agency authorized to make disability
determinations. You may also give evidence to one of our employees
authorized to accept evidence at another place. For more information
about this, see subpart H of this part.
20 CFR 404.1516 If you fail to submit medical and other evidence.
If you do not give us the medical and other evidence that we need and
request, we will have to make a decision based on information available
in your case. We will not excuse you from giving us evidence because
you have religious or personal reasons against medical examinations,
tests, or treatment.
20 CFR 404.1517 Consultative examination at our expense.
If your medical sources cannot or will not give us sufficient medical
evidence about your impairment for us to determine whether you are
disabled or blind, we may ask you to have one or more physical or mental
examinations or tests. We will pay for these examinations. However, we
will not pay for any medical examination arranged by you or your
representative without our advance approval. If we arrange for the
examination or test, we will give you reasonable notice of the date,
time, and place the examination or test will be given, and the name of
the person or facility who will do it. We will also give the examiner
any necessary background information about your condition.
(56 FR 36956, Aug. 1, 1991)
20 CFR 404.1518 If you do not appear at a consultative examination.
(a) General. If you are applying for benefits and do not have a good
reason for failing or refusing to take part in a consultative
examination or test which we arrange for you to get information we need
to determine your disability or blindness, we may find that you are not
disabled or blind. If you are already receiving benefits and do not
have a good reason for failing or refusing to take part in a
consultative examination or test which we arranged for you, we may
determine that your disability or blindness has stopped because of your
failure or refusal. Therefore, if you have any reason why you cannot go
for the scheduled appointment, you should tell us about this as soon as
possible before the examination date. If you have a good reason, we
will schedule another examination.
(b) Examples of good reasons for failure to appear. Some examples of
what we consider good reasons for not going to a scheduled examination
include --
(1) Illness on the date of the scheduled examination or test;
(2) Not receiving timely notice of the scheduled examination or test,
or receiving no notice at all;
(3) Being furnished incorrect or incomplete information, or being
given incorrect information about the physician involved or the time or
place of the examination or test, or;
(4) Having had death or serious illness occur in your immediate
family.
(c) Objections by your physician. If any of your treating physicians
tell you that you should not take the examination or test, you should
tell us at once. In many cases, we may be able to get the information
we need in another way. Your physician may agree to another type of
examination for the same purpose.
20 CFR 404.1518 Standards To Be Used in Determining When a Consultative Examination Will Be Obtained in Connection With Disability Determinations
20 CFR 404.1519 The consultative examination.
A consultative examination is a physical or mental examination or
test purchased for you at our request and expense from a treating
physician or psychologist, another source of record, or an independent
source, including a pediatrician when appropriate. The decision to
purchase a consultative examination will be made on an individual case
basis in accordance with the provisions of 404.1519a through
404.1519f. Selection of the source for the examination will be
consistent with the provisions of 404.1503a and 404.1519g through
404.1519j. The rules and procedures for requesting consultative
examinations set forth in 404.1519a and 404.1519b are applicable at
the reconsideration and hearing levels of review, as well as the initial
level of determination.
(56 FR 36956, Aug. 1, 1991)
20 CFR 404.1519a When we will purchase a consultative examination and
how we will use it.
(a) (1) General. The decision to purchase a consultative examination
for you will be made after we have given full consideration to whether
the additional information needed (e.g., clinical findings, laboratory
tests, diagnosis, and prognosis) is readily available from the records
of your medical sources. See 404.1512 for the procedures we will
follow to obtain evidence from your medical sources. Before purchasing
a consultative examination, we will consider not only existing medical
reports, but also the disability interview form containing your
allegations as well as other pertinent evidence in your file.
(2) When we purchase a consultative examination, we will use the
report from the consultative examination to try to resolve a conflict or
ambiguity if one exists. We will also use a consultative examination to
secure needed medical evidence the file does not contain such as
clinical findings, laboratory tests, a diagnosis or prognosis necessary
for decision.
(b) Situations requiring a consultative examination. A consultative
examination may be purchased when the evidence as a whole, both medical
and nonmedical, is not sufficient to support a decision on your claim.
Other situations, including but not limited to the situations listed
below, will normally require a consultative examination:
(1) The additional evidence needed is not contained in the records of
your medical sources;
(2) The evidence that may have been available from your treating or
other medical sources cannot be obtained for reasons beyond your
control, such as death or noncooperation of a medical source;
(3) Highly technical or specialized medical evidence that we need is
not available from your treating or other medical sources;
(4) A conflict, inconsistency, ambiguity or insufficiency in the
evidence must be resolved, and we are unable to do so by recontacting
your medical source; or
(5) There is an indication of a change in your condition that is
likely to affect your ability to work, but the current severity of your
impairment is not established.
(56 FR 36956, Aug. 1, 1991)
20 CFR 404.1519b When we will not purchase a consultative examination.
We will not purchase a consultative examination in situations
including, but not limited to, the following situations:
(a) In period of disability and disability insurance benefit claims,
when you do not meet the insured status requirement in the calendar
quarter you allege you became disabled or later and there is no
possibility of establishing an earlier onset;
(b) In claims for widow's or widower's benefits based on disability,
when your alleged month of disability is after the end of the 7-year
period specified in 404.335(c)(1) and there is no possibility of
establishing an earlier onset date, or when the 7-year period expired in
the past and there is no possibility of establishing an onset date prior
to the date the 7-year period expired;
(c) In disability insurance benefit claims, when your insured status
expired in the past and there is no possibility of establishing an onset
date prior to the date your insured status expired;
(d) When any issues about your actual performance of substantial
gainful activity or gainful activity have not been resolved;
(e) In claims for child's benefits based on disability, when it is
determined that your alleged disability did not begin before the month
you attained age 22, and there is no possibility of establishing an
onset date earlier than the month in which you attained age 22;
(f) In claims for child's benefits based on disability that are filed
concurrently with the insured individual's claim and entitlement cannot
be established for the insured individual;
(g) In claims for child's benefits based on disability where
entitlement is precluded based on other nondisability factors.
(56 FR 36956, Aug. 1, 1991)
20 CFR 404.1519b Standards for the Type of Referral and for Report Content
20 CFR 404.1519f Type of purchased examinations.
We will purchase only the specific examinations and tests we need to
make a determination in your claim. For example, we will not authorize
a comprehensive medical examination when the only evidence we need is a
special test, such as an X-ray, blood studies, or an electrocardiogram.
(56 FR 36956, Aug. 1, 1991)
20 CFR 404.1519g Who we will select to perform a consultative
examination.
(a) We will purchase a consultative examination only from a qualified
medical source. The medical source may be your own physician or
psychologist, or another source. If you are a child, the medical source
we choose may be a pediatrician. For a more complete list of medical
sources, see 404.1513(a).
(b) By ''qualified,'' we mean that the medical source must be
currently licensed in the State and have the training and experience to
perform the type of examination or test we will request; the medical
source must not be barred from participation in our programs under the
provisions of 404.1503a. The medical source must also have the
equipment required to provide an adequate assessment and record of the
existence and level of severity of your alleged impairments.
(c) The physician or psychologist we choose may use support staff to
help perform the consultative examination. Any such support staff
(e.g., X-ray technician, nurse) must meet appropriate licensing or
certification requirements of the State. See 404.1503a.
(56 FR 36957, Aug. 1, 1991)
20 CFR 404.1519h Your treating physician or psychologist.
When in our judgment your treating physician or psychologist is
qualified, equipped, and willing to perform the additional examination
or tests for the fee schedule payment, and generally furnishes complete
and timely reports, your treating physician or psychologist will be the
preferred source to do the purchased examination. Even if only a
supplemental test is required, your treating physician or psychologist
is ordinarily the preferred source.
(56 FR 36957, Aug. 1, 1991)
20 CFR 404.1519i Other sources for consultative examinations.
We will use a source other than your treating physician or
psychologist for a purchased examination or test in situations
including, but not limited to, the following situations:
(a) Your treating physician or psychologist prefers not to perform
such an examination or does not have the equipment to provide the
specific data needed;
(b) There are conflicts or inconsistencies in your file that cannot
be resolved by going back to your treating physician or psychologist;
(c) You prefer a source other than your treating physician or
psychologist and have a good reason for your preference;
(d) We know from prior experience that your treating physician or
psychologist may not be a productive source, e.g., he or she has
consistently failed to provide complete or timely reports.
(56 FR 36957, Aug. 1, 1991)
20 CFR 404.1519j Obiections to the designated physician or
psychologist.
You or your representative may object to your being examined by a
designated physician or psychologist. If there is a good reason for the
objection, we will schedule the examination with another physician or
psychologist. A good reason may be that the consultative examination
physician or psychologist had previously represented an interest adverse
to you. For example, the physician or psychologist may have represented
your employer in a workers' compensation case or may have been involved
in an insurance claim or legal action adverse to you. Other things we
will consider include: the presence of a language barrier, the
physician's or psychologist's office location (e.g., 2nd floor, no
elevator), travel restrictions, and whether the physician or
psychologist had examined you in connection with a previous disability
determination or decision that was unfavorable to you. If your
objection is because a physician or psychologist allegedly ''lacks
objectivity'' in general, but not in relation to you personally, we will
review the allegations. See 404.1519s. To avoid a delay in processing
your claim, the consultative examination in your case will be changed to
another physician or psychologist while a review is being conducted. We
will handle any objection to use of the substitute physician or
psychologist in the same manner. However, if we had previously
conducted such a review and found that the reports of the consultative
physician or psychologist in question conformed to our guidelines, we
will not change your examination.
(56 FR 36957, Aug. 1, 1991)
20 CFR 404.1519k Purchase of medical examinations, laboratory tests,
and other services.
We may purchase medical examinations, including psychiatric and
psychological examinations, X-rays and laboratory tests (including
specialized tests such as pulmonary function studies,
electrocardiograms, stress tests, etc.) from a licensed physician or
psychologist, hospital or clinic.
(a) The rate of payment to be used for purchasing medical or other
services necessary to make determinations of disability may not exceed
the highest rate paid by Federal or public agencies in the State for the
same or similar types of service. See 404.1624 and 404.1626.
(b) If a physician's bill or a request for payment for a physician's
services includes a charge for a laboratory test for which payment may
be made under this part, the amount payable with respect to the test
shall be determined as follows:
(1) If the bill or request for payment indicates that the test was
personally performed or supervised by the physician who submitted the
bill (or for whose services the request for payment was made) or by
another physician with whom that physician shares his or her practice,
the payment will be based on the physician's usual and customary charge
for the test or the rates of payment which the State uses for purchasing
such services, whichever is the lesser amount.
(2) If the bill or request for payment indicates that the test was
performed by an independent laboratory, the amount of reimbursement will
not exceed the billed cost of the independent laboratory or the rate of
payment which the State uses for purchasing such services, whichever is
the lesser amount. A nominal payment may be made to the physician for
collecting, handling and shipping a specimen to the laboratory if the
physician bills for such a service. The total reimbursement may not
exceed the rate of payment which the State uses for purchasing such
services.
(c) The State will assure that it can support the rate of payment it
uses. The State shall also be responsible for monitoring and overseeing
the rate of payment it uses to ensure compliance with paragraphs (a) and
(b) of this section.
(56 FR 36957, Aug. 1, 1991)
20 CFR 404.1519m Diagnostic tests or procedures.
We will request the results of any diagnostic tests or procedures
that have been performed as part of a workup by your treating physician
or psychologist or other medical source and will use the results to help
us evaluate impairment severity or prognosis. However, we will not
order diagnostic tests or procedures that involve significant risk to
you, such as myelograms, arteriograms, or cardiac catheterizations for
the evaluation of disability under the Social Security program. Also, a
State agency medical consultant must approve the ordering of any
diagnostic test or procedure when there is a chance it may involve
significant risk. The responsibility for deciding whether to perform
the examination rests with the consultative examining physician or
psychologist.
(56 FR 36957, Aug. 1, 1991)
20 CFR 404.1519n Informing the examining physician or psychologist of
examination scheduling, report content, and signature requirements.
The physicians or psychologists who perform consultative examinations
will have a good understanding of our disability programs and their
evidentiary requirements. They will be made fully aware of their
responsibilities and obligations regarding confidentiality as described
in 401.105(e). We will fully inform consulting physicians or
psychologists at the time we first contact them, and at subsequent
appropriate intervals, of the following obligations:
(a) In scheduling full consultative examinations, sufficient time
should be allowed to permit the examining physician or psychologist to
take a case history and perform the examination, including any needed
tests. The following minimum scheduling intervals (i.e., time set aside
for the individual, not the actual duration of the consultative
examination) should be used.
(1) Comprehensive general medical examination -- at least 30 minutes;
(2) Comprehensive musculoskeletal or neurological examination -- at
least 20 minutes;
(3) Comprehensive psychiatric examination -- at least 40 minutes;
(4) Psychological examination -- at least 60 minutes (Additional time
may be required depending on types of psychological tests administered);
and
(5) All others -- at least 30 minutes, or in accordance with accepted
medical practices.
We recognize that actual practice will dictate that some examinations
may require longer scheduling intervals depending on the circumstances
in a particular situation. We also recognize that these minimum
intervals may have to be adjusted to allow for those claimants who do
not attend their scheduled examination. The purpose of these minimum
scheduling timeframes is to ensure that such examinations are complete
and that sufficient time is made available to obtain the information
needed to make an accurate determination in your case. State agencies
will monitor the scheduling of examinations (through their normal
consultative examination oversight activities) to ensure that any
overscheduling is avoided, as overscheduling may lead to examinations
that are not thorough.
(b) Report content. The reported results of your medical history,
examination, requested laboratory findings, discussions and conclusions
must conform to accepted professional standards and practices in the
medical field for a complete and competent examination. The facts in a
particular case and the information and findings already reported in the
medical and other evidence of record will dictate the extent of detail
needed in the consultative examination report for that case. Thus, the
detail and format for reporting the results of a purchased examination
will vary depending upon the type of examination or testing requested.
The reporting of information will differ from one type of examination to
another when the requested examination relates to the performance of
tests such as ventilatory function tests, treadmill exercise tests, or
audiological tests. The medical report must be complete enough to help
us determine the nature, severity, and duration of the impairment, and
residual functional capacity. The report should reflect your statements
of your symptoms, not simply the physician's or psychologist's
statements or conclusions. The examining physician's or psychologist's
report of the consultative examination should include the objective
medical facts as well as observations and opinions.
(c) Elements of a complete consultative examination. A complete
consultative examination is one which involves all the elements of a
standard examination in the applicable medical specialty. When the
report of a complete consultative examination is involved, the report
should include the following elements:
(1) Your major or chief complaint(s);
(2) A detailed description, within the area of specialty of the
examination, of the history of your major complaint(s);
(3) A description, and disposition, of pertinent ''positive'' and
''negative'' detailed findings based on the history, examination and
laboratory tests related to the major complaint(s), and any other
abnormalities or lack thereof reported or found during examination or
laboratory testing;
(4) The results of laboratory and other tests (e.g., X-rays)
performed according to the requirements stated in the Listing of
Impairments (see appendix 1 of this subpart P);
(5) The diagnosis and prognosis for your impairment(s);
(6) A statement about what you can still do despite your
impairment(s), unless the claim is based on statutory blindness. This
statement should describe the opinion of the consultative physician or
psychologist about your ability, despite your impairment(s), to do
work-related activities such as sitting, standing, walking, lifting,
carrying, handling objects, hearing, speaking, and traveling; and, in
cases of mental impairment(s), the opinion of the consultative physician
or psychologist about your ability to understand, to carry out and
remember instructions, and to respond appropriately to supervision,
coworkers and work pressures in a work setting; and
(7) In addition, the consultative physician or psychologist will
consider, and provide some explanation or comment on, your major
complaint(s) and any other abnormalities found during the history and
examination or reported from the laboratory tests. The history,
examination, evaluation of laboratory test results, and the conclusions
will represent the information provided by the physician or psychologist
who signs the report.
(d) When a complete consultative examination is not required. When
the evidence we need does not require a complete consultative
examination (for example, we need only a specific laboratory test result
to complete the record), we may not require a report containing all of
the elements in paragraph (c).
(e) Signature requirements. All consultative examination reports
will be personally reviewed and signed by the physician or psychologist
who actually performed the examination. This attests to the fact that
the physician or psychologist doing the examination or testing is solely
responsible for the report contents and for the conclusions,
explanations or comments provided with respect to the history,
examination and evaluation of laboratory test results. The signature of
the examining physician or psychologist on a report annotated ''not
proofed'' or ''dictated but not read'' is not acceptable. A rubber
stamp signature of a physician or psychologist or the physician's or
psychologist's signature entered by any other person is not acceptable.
(56 FR 36958, Aug. 1, 1991)
20 CFR 404.1519o When a properly signed consultative examination report
has not been received.
If a consultative examination report is received unsigned or
improperly signed we will take the following action.
(a) When we will make determinations and decisions without a properly
signed report. We will make a determination or decision in the
circumstances specified in paragraphs (a)(1) and (a)(2) of this section
without waiting for a properly signed consultative examination report.
After we have made the determination or decision, we will obtain a
properly signed report and include it in the file unless the physician
or psychologist who performed the original consultative examination has
died.
(1) Continuous period of disability allowance with an onset date as
alleged or earlier than alleged; or
(2) Continuance of disability.
(b) When we will not make determinations and decisions without a
properly signed report. We will not use an unsigned or improperly
signed consultative examination report to make the determinations or
decisions specified in paragraphs (b)(1), (b)(2), (b)(3), and (b)(4) of
this section. When we need a properly signed consultative examination
report to make these determinations or decisions, we must obtain such a
report. If the signature of the physician or psychologist who performed
the original examination cannot be obtained because the physician or
psychologist is out of the country for an extended period of time, on an
extended vacation, seriously ill, deceased, or for any other reason, the
consultative examination will be rescheduled with another physician or
psychologist.
(1) Denial; or
(2) Cessation; or
(3) Allowance of a period of disability which has ended; or
(4) Allowance with an onset date later than alleged.
(56 FR 36958, Aug. 1, 1991)
20 CFR 404.1519p Reviewing reports of consultative examinations.
(a) We will review the report of the consultative examination to
determine whether the specific information requested has been furnished.
We will consider the following factors in reviewing the report:
(1) Whether the report provides evidence which serves as an adequate
basis for decisionmaking in terms of the impairment it assesses;
(2) Whether the report is internally consistent; Whether all the
diseases, impairments and complaints described in the history are
adequately assessed and reported in the clinical findings; Whether the
conclusions correlate the findings from your medical history, clinical
examination and laboratory tests and explain all abnormalities;
(3) Whether the report is consistent with the other information
available to us within the specialty of the examination requested;
Whether the report fails to mention an important or relevant complaint
within that specialty that is noted in other evidence in the file (e.g.,
your blindness in one eye, amputations, pain, alcoholism, depression);
(4) Whether this is an adequate report of examination as compared to
standards set out in the course of a medical education; and
(5) Whether the report is properly signed.
(b) If the report is inadequate or incomplete, we will contact the
examining consultative physician or psychologist, give an explanation of
our evidentiary needs, and ask that the physician or psychologist
furnish the missing information or prepare a revised report.
(c) With your permission, or where the examination discloses new
diagnostic information or test results that reveal potentially
life-threatening situations, we will refer the consultative examination
report to your treating physician or psychologist. When we refer the
consultative examination report to your treating physician or
psychologist without your permission, we will notify you that we have
done so.
(d) We will perform ongoing special management studies on the quality
of consultative examinations purchased from major medical sources and
the appropriateness of the examinations authorized.
(e) We will take steps to ensure that consultative examinations are
scheduled only with medical sources who have access to the equipment
required to provide an adequate assessment and record of the existence
and level of severity of your alleged impairments.
(56 FR 36959, Aug. 1, 1991)
20 CFR 404.1519q Conflict of interest.
All implications of possible conflict of interest between medical or
psychological consultants and their medical or psychological practices
will be avoided. Such consultants are not only those physicians and
psychologists who work for us directly but are also those who do review
and adjudication work in the State agencies. Physicians and
psychologists who work for us directly as employees or under contract
will not work concurrently for a State agency. Physicians and
psychologists who do review work for us will not perform consultative
examinations for us without our prior approval. In such situations, the
physician or psychologist will disassociate himself or herself from
further involvement in the case and will not participate in the
evaluation, decision, or appeal actions. In addition, neither they, nor
any member of their families, will acquire or maintain, either directly
or indirectly, any financial interest in a medical partnership,
corporation, or similar relationship in which consultative examinations
are provided. Sometimes physicians and psychologists who do review work
for us will have prior knowledge of a case; for example, when the
claimant was a patient. Where this is so, the physician or psychologist
will not participate in the review or determination of the case. This
does not preclude the physician or psychologist from submitting medical
evidence based on treatment or examination of the claimant.
(56 FR 36959, Aug. 1, 1991)
20 CFR 404.1519q Authorizing and Monitoring the Referral Process
20 CFR 404.1519s Authorizing and monitoring the consultative
examination.
(a) Day-to-day responsibility for the consultative examination
process rests with the State agencies that make disability
determinations for us.
(b) The State agency will maintain a good working relationship with
the medical community in order to recruit sufficient numbers of
physicians and other providers of medical services to ensure ready
availability of consultative examination providers.
(c) Consistent with Federal and State laws, the State agency
administrator will work to achieve appropriate rates of payment for
purchased medical services.
(d) Each State agency will be responsible for comprehensive oversight
management of its consultative examination program, with special
emphasis on key providers.
(e) A key consultative examination provider is a provider that meets
at least one of the following conditions:
(1) Any consultative examination provider with an estimated annual
billing to the Social Security disability programs of at least $100,000;
or
(2) Any consultative examination provider with a practice of
medicine, osteopathy, or psychology directed primarily towards
evaluation examinations rather than the treatment of patients; or
(3) Any consultative examination provider that does not meet the
above criteria, but is one of the top five consultative examination
providers in the State by dollar volume, as evidenced by prior year
data.
(f) State agencies have flexibility in managing their consultative
examination programs, but at a minimum will provide:
(1) An ongoing active recruitment program for consultative
examination providers;
(2) A process for orientation, training, and review of new
consultative examination providers, with respect to SSA's program
requirements involving consultative examination report content and not
with respect to medical techniques;
(3) Procedures for control of scheduling consultative examinations;
(4) Procedures to ensure that close attention is given to specific
evaluation issues involved in each case;
(5) Procedures to ensure that only required examinations and tests
are authorized in accordance with the standards set forth in this
subpart;
(6) Procedures for providing medical or supervisory approval for the
authorization or purchase of consultative examinations and for
additional tests or studies requested by consulting physicians and
psychologists. This includes physician approval for the ordering of any
diagnostic test or procedure where the question of significant risk to
the claimant/beneficiary might be raised. See 404.1519m.
(7) Procedures for the ongoing review of consultative examination
results to ensure compliance with written guidelines;
(8) Procedures to encourage active participation by physicians in the
consultative examination oversight program;
(9) Procedures for handling complaints;
(10) Procedures for evaluating claimant reactions to key providers;
and
(11) A program of systematic, onsite reviews of key providers that
will include annual onsite reviews of such providers when claimants are
present for examinations. This provision does not contemplate that such
reviews will involve participation in the actual examinations but,
rather, offer an opportunity to talk with claimants at the provider's
site before and after the examination and to review the provider's
overall operation.
(g) The State agencies will cooperate with us when we conduct
monitoring activities in connection with their oversight management of
their consultative examination programs.
(56 FR 36959, Aug. 1, 1991)
20 CFR 404.1519s Procedures To Monitor the Consultative Examination
20 CFR 404.1519t Consultative examination oversight.
(a) We will ensure that referrals for consultative examinations and
purchases of consultative examinations are made in accordance with our
policies. We will also monitor both the referral processes and the
product of the consultative examinations obtained. This monitoring may
include reviews by independent medical specialists under direct contract
with SSA.
(b) Through our regional offices, we will undertake periodic
comprehensive reviews of each State agency to evaluate each State's
management of the consultative examination process. The review will
involve visits to key providers, with State staff participating,
including a program physician when the visit will deal with medical
techniques or judgment, or factors that go to the core of medical
professionalism.
(c) We will also perform ongoing special management studies of the
quality of consultative examinations purchased from key providers and
other sources and the appropriateness of the examinations authorized.
(56 FR 36960, Aug. 1, 1991)
20 CFR 404.1519t Evaluation of Disability
20 CFR 404.1520 Evaluation of disability in general.
(a) Steps in evaluating disability. We consider all evidence in your
case record when we make a determination or decision whether you are
disabled. When you file a claim for a period of disability and/or
disability insurance benefits or for child's benefits based on
disability, we use the following evaluation process. If you are doing
substantial gainful activity, we will determine that you are not
disabled. If you are not doing substantial gainful activity, we will
first consider the effect of your physical or mental impairment; if you
have more than one impairment, we will also consider the combined effect
of your impairments. Your impairment(s) must be severe and meet the
duration requirement before we can find you to be disabled. We follow a
set order to determine whether you are disabled. We review any current
work activity, the severity of your impairment(s), your residual
functional capacity, your past work, and your age, education, and work
experience. If we can find that you are disabled or not disabled at any
point in the review, we do not review your claim further. Once you have
been found entitled to disability benefits, we follow a somewhat
different order of evaluation to determine whether your entitlement
continues, as explained in 404.1594(f)(6).
(b) If you are working. If you are working and the work you are
doing is substantial gainful activity, we will find that you are not
disabled regardless of your medical condition or your age, education,
and work experience.
(c) You must have a severe impairment. If you do not have any
impairment or combination of impairments which significantly limits your
physical or mental ability to do basic work activities, we will find
that you do not have a severe impairment and are, therefore, not
disabled. We will not consider your age, education, and work
experience. However, it is possible for you to have a period of
disability for a time in the past even though you do not now have a
severe impairment.
(d) When your impairment(s) meets or equals a listed impairment in
appendix 1. If you have an impairment(s) which meets the duration
requirement and is listed in appendix 1 or is equal to a listed
impairment(s), we will find you disabled without considering your age,
education, and work experience.
(e) Your impairments(s) must prevent you from doing past relevant
work. If we cannot make a decision based on your current work activity
or on medical facts alone, and you have a severe impairment(s), we then
review your residual functional capacity and the physical and mental
demands of the work you have done in the past. If you can still do this
kind of work, we will find that you are not disabled.
(f) Your impairment(s) must prevent you from doing any other work.
(1) If you cannot do any work you have done in the past because you have
a severe impairment(s), we will consider your residual functional
capacity and your age, education, and past work experience to see if you
can do other work. If you cannot, we will find you disabled.
(2) If you have only a marginal education, and long work experience
(i.e., 35 years or more) where you only did arduous unskilled physical
labor, and you can no longer do this kind of work, we use a different
rule (see 404.1562).
(50 FR 8727, Mar. 5, 1985; 50 FR 19164, May 7, 1985, as amended at
56 FR 36960, Aug. 1, 1991)
20 CFR 404.1520a Evaluation of mental impairments.
(a) General. The steps outlined in 404.1520 apply to the evaluation
of physical and mental impairments. In addition, in evaluating the
severity of mental impairments for adults (persons age 18 and over) and
in persons under age 18 when Part A of the Listing of Impairments is
used, a special procedure must be followed by us at each level of
adminstrative review. Following this procedure will assist us in:
(1) Identifying additional evidence necessary for the determination
of impairment severity;
(2) Considering and evaluating aspects of the mental disorder(s)
relevant to your ability to work; and
(3) Organizing and presenting the findings in a clear, concise, and
consistent manner.
(b) Use of the procedure to record pertinent findings and rate the
degree of functional loss. (1) This procedure requires us to record the
pertinent signs, symptoms, findings, functional limitations, and effects
of treatment contained in your case record. This will assist us in
determining if a mental impairment(s) exists. Whether or not a mental
impairment(s) exists is decided in the same way the question of a
physical impairment is decided, i.e., the evidence must be carefully
reviewed and conclusions supported by it. The mental status examination
and psychiatric history will ordinarily provide the needed information.
(See 404.1508 for further information about what is needed to show an
impairment.)
(2) If we determine that a mental impairment(s) exists, this
procedure then requires us to indicate whether certain medical findings
which have been found especially relevant to the ability to work are
present or absent.
(3) The procedure then requires us to rate the degree of functional
loss resulting from the impairment(s). Four areas of function
considered by us as essential to work have been identified, and the
degree of functional loss in those areas must be rated on a scale that
ranges from no limitation to a level of severity which is incompatible
with the ability to perform those work-related functions. For the first
two areas (activities of daily living and social functioning), the
rating of limitation must be done based upon the following five point
scale: none, slight, moderate, marked, and extreme. For the third area
(concentration, persistence, or pace) the following five point scale
must be used: never, seldom, often, frequent, and constant. For the
fourth area (deterioration or decompensation in work or work-like
settings), the following four point scale must be used: never, once or
twice, repeated (three or more), and continual. The last two points for
each of these scales represent a degree of limitation which is
incompatible with the ability to perform the work-related function.
(c) Use of the procedure to evaluate mental impairments. Following
the rating of the degree of functional loss resulting from the
impairment, we must then determine the severity of the mental
impairment(s).
(1) If the four areas considered by us as essential to work have been
rated to indicate a degree of limitation as none or slight in the first
and second areas, never or seldom in the third area, and never in the
fourth area, we can generally conclude that the impairment is not
severe, unless the evidence otherwise indicates there is significant
limitation of your mental ability to do basic work activities (see
404.1521).
(2) If your mental impairment(s) is severe, we must then determine if
it meets or equals a listed mental disorder. This is done by comparing
our prior conclusions based on this procedure (i.e., the presence of
certain medical findings considered by us as especially relevant to your
ability to work and our rating of functional loss resulting from the
mental impairment(s)) against the paragraph A and B criteria of the
appropriate listed mental disorder(s). If we determine that paragraph C
criteria will be used in lieu of paragraph B criteria (see listings
12.03 and 12.06), we will, by following this procedure, indicate on the
document whether the evidence is sufficient to establish the presence or
absence of the criteria. (See paragraph (d) of this section).
(3) If you have a severe impairment(s), but the impairment(s) neither
meets nor equals the listings, we must then do a residual functional
capacity assessment.
(4) At all adjudicative levels we must, in each case, incorporate the
pertinent findings and conclusions based on this procedure in our
decision rationale. Our rationale must show the significant history,
including examination, laboratory findings, and functional limitations
that we considered in reaching conclusions about the severity of the
mental impairment(s).
(d) Preparation of the document. A standard document outlining the
steps of this procedure must be completed by us in each case at the
initial, reconsideration, administrative law judge hearing, and Appeals
Council levels (when the Appeals Council issues a decision).
(1) At the initial and reconsideration levels the standard document
must be completed and signed by our medical consultant. At the
administrative law judge hearing level, several options are available:
(i) The administrative law judge may complete the document without
the assistance of a medical advisor;
(ii) The administrative law judge may call a medical advisor for
assistance in preparing the document; or
(iii) Where new evidence is received that is not merely cumulative of
evidence already in your case file or where the issue of a mental
impairment arises for the first time at the administrative law judge
hearing level, the administrative law judge may decide to remand the
case to the State agency for completion of the document and a new
determination. Remand may also be made in situations where the services
of a medical advisor are determined necessary but unavailable to the
administrative law judge. In such circumstances, however, a remand may
ordinarily be made only once.
(2) For all cases involving mental disorders at the administrative
law judge hearing or Appeals Council levels, the standard document will
be appended to the decision.
(Approved by the Office of Management and Budget under control number
0960-0413)
(50 FR 35065, Aug. 28, 1985, as amended at 55 FR 51229, Dec. 12,
1990; 57 FR 30120, July 8, 1992)