ods (each of which periods shall constitute a registration period). *

(2) For purposes of subdivision (1) of this paragraph, a "period of high employment" shall begin with the twentieth day after whichever of the following first occurs: (i) There is a national "on" indicator as defined in section 203(d) of Pub. L. 91-373, as amended, or (ii) a period of three consecutive calendar months in which, for each month included in such period, the rate of | railroad unemployment (seasonally adjusted) equalled or exceeded the lowest applicable unemployment rate specified for the national "on" indicator in section 203(d) of Pub. L. 91-373, as amended, and shall end with the twentieth day after both of the following occur: (A) there is a national "off" indicator as defined in section 203(d) of Pub. L. 91-373, as amended, and (B) a period of three consecutive calendar months, in which, for each month included in such period, the rate of railroad unemployment (seasonally adjusted) was less than the lowest applicable unemployment rate specified for the national "off" indicator in section 203(d) of Pub. L. 91-373, as amended.

(3) For purposes of subdivision (2) of this paragraph, the term "rate of railroad unemployment" for a month means the percentage arrived at by dividing (i) the average weekly number of individuals who filed bona fide claims for benefits for days of unemployment in such month, excluding from such number those individuals whose unemployment was due to a stoppage of work because of a strike, lockout, or other labor dispute, by (ii) the average midmonth count of employees of class I railroads and class I switching and terminal companies, as reported to the Interstate Commerce Commission, adjusted, as determined by the Board, to include all employees covered by this Act for the twelve months ending with the second calendar quarter preceding such month.

(4) Determinations under this subsection shall be made by the Board in accordance with regulations prescribed by it. When a determination has been made that a "period of high unemployment" is beginning or ending, the Board shall cause notice of such determination to be published in the FEDERAL REGISTER. The Board shall also cause to be published in the FEDERAL REGISTER the formula which it uses to adjust the midmonth count of employees of class I railroads and class I switching and terminal companies to include all employees covered by this Act, and the formula it uses to make seasonal adjustments in the rate of railroad unemployment.

§ 337.2 Rate of railroad unemployment.

For purposes of making the monthly determinations required by section

2(h) of the Act, the "rate of railroad unemployment" for a particular calendar month will be the ratio of:

(a) The seasonally adjusted weekly average of unemployment beneficiaries for all weeks containing 4 or more days in such month, excluding those beneficiaries whose unemployment was due to a stoppage of work because of a strike, lockout, or other labor dispute, to:

(b) The average midmonth count of employees covered by the Act in the 12 months ending with the second calendar quarter preceding such month (interpreted as the first 4 of the last 6 calendar quarters preceding such month). The "rate of railroad unemployment" for any month, seasonally adjusted, will be computed to four decimal places and not otherwise rounded.

b=Total employment of other than class I railroads/Total employment of class I railroads.

A Midmonth count of employees of class I railroads. Factor a and factor b shall be derived from the latest available annual figures. Continuity rates are defined as the yearly average of the ratios derived by dividing (a) the number of employees working in a given month who also worked in the next succeeding month by (b) the total number who worked in the first of the 2 months. A, is available on a current basis from the Interstate Commerce Commission.

§ 337.4 Seasonal adjustments in the rate of railroad unemployment.

The seasonal adjustment factor for a given month is the latest applicable factor prepared by the Bureau of Research, United States Railroad Retirement Board, using the X-11 variant of the Census Method II Seasonal Adjustment Program developed by the Department of Commerce, Bureau of the Census, and described in their Technical Paper No. 15 dated February 1967. Counts of all beneficiaries will be seasonally adjusted with the temporary exception of beneficiaries with less than 10 years of service receiving extended benefits; counts of such beneficiaries will not be seasonally adjusted until more data is available.

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 Recovery by deduction in computation of death benefit under Railroad Retirement Act of 1937.

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. 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.

AUTHORITY: Sec. 12, 52 Stat. 1107, as ammended; 45 U.S.C. 362.

SOURCE: Board Order 27-22, 32 FR 3341, Feb. 28, 1967, unless otherwise noted.

§ 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

ason of such benefits but the remuneranon 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(0) 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 sim

ilar 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 pres

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entation 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).

§ 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(a1)(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.

§ 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.

§ 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.

§ 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 should installment payments 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.

§ 340.6 Recovery by setoff.

An amount recoverable may be recovered by setoff against any subsequent whom the amount is recoverable is entitled under the Railroad Unemployment Insurance Act or the Railroad Retirement Act, or, in the case of that individual's death, from any payments due under those Acts to his 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.

§ 340.7 Recovery by deduction in computation of death benefit under Railroad Retirement Act of 1937.

In computing the benefit under section 5(f)(2) of the Railroad Retirement Act of 1937 with respect to the death of an individual, the Board shall include in the benefits deducted from the applicable percentages of the aggregate compensation mentioned in that section all amounts recoverable, not otherwise recovered, that were paid to the individual or paid to others as benefits accrued to him but not paid at his death.

$340.8 Recovery by adjustment in connection with subsequent payments under the Railroad Retirement Act.

Adjustment with respect to an amount recoverable from an individual may be made by substracting the amount recoverable from the actuarial value, as determined by the Board, of any annuity payments due and becoming due under the Railroad Retirement Act to any individual on the basis of the same compensation and recertifying such annuity on the basis of the reduced actuarial value. The adjustment described in this section may not be made unless all the following conditions are shown to exist:

(a) That the person or persons whose annuities are being adjusted are alive on the date that the annuity is recertified and on the due date of the first annuity payment affected by the adjustment;

(b) That, on the dates mentioned in paragraph (a) of this section, there are annuities accruing to one of such persons;

(c) That the Board has waived in accordance with § 340.11 any right to recover by the methods described in §§ 340.5 and 340.6 but has not waived recovery in accordance with § 340.10.

§ 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.

§ 340.10 Waiver of recovery.

Recovery of an amount recoverable may be waived in whole or in part if, in the judgment of the Board, the individual who received the amount recoverable is without fault and if, in the judgment of the Board, such recovery by any of the methods described in §§ 340.5, 340.6, 340.7, and 340.8 would be against equity and good conscience.

§ 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.

§ 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.

§ 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.

§ 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.

§ 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