The Railroad Retirement Board has called a second part of its rulebook facially unlawful, and this one decides whether the Board or Social Security pays a railroad worker

The rulebook said Social Security pays them.

For a railroad employee with fewer than ten years of service, and for the divorced spouse of a railroad worker, 20 CFR part 221 directed that jurisdiction over monthly benefits leaves the Railroad Retirement Board and passes to the Social Security Administration. Congress changed that in 2001. The divorced spouse half is older still, resting on an amendment signed on 13 August 1981, which puts forty five years between what the statute allows and what the regulation said. A final rule the Board filed on Friday morning rewrites the part and takes effect on 9 September.

It is the second time in one batch that the Board has used the phrase facially unlawful about its own text. The first, published earlier today, was the disability earnings limit that had been stuck at $400 a month since 2007. This one is a different part of the code and a different question, and it is the larger of the two, because it decides which government agency a person deals with at all.

The five year route the regulation never learned

Section 103 of the Railroad Retirement and Survivors' Improvement Act of 2001 opened a second door into a railroad annuity. Before it, an employee needed ten years, or 120 months, of creditable railroad service. After it, five years was enough, provided every month of it accrued after 31 December 1995.

The Board says it applied that in policy and practice from the start and kept jurisdiction over the people it covers. Part 221 was never opened and changed to match. So the regulation carried on describing a transfer to Social Security that the statute no longer supported, for a group of workers who are among the shortest tenured in the industry.

The divorced spouse provision is a longer gap and a thinner account. Section 1122 of the Omnibus Budget Reconciliation Act of 1981 authorised the Board to keep jurisdiction over Title II benefits for divorced spouses of railroad workers who met the service test. On that one the rule says only that the regulations do not properly reflect the authority. It does not say what the Board has been doing in the meantime, and this brief does not fill that in.

What the new text says

Revised section 221.2 gives the Board jurisdiction in life cases over an employee with ten years of service or with five years accrued entirely after 1995, and over that employee's eligible spouse or divorced spouse. Death cases sit in the same section and add the current connection test.

Section 221.3 now sends a record to Social Security only where an employee has both fewer than ten years and fewer than five years after 1995, or where a deceased employee met the service test but had no current connection with the industry.

Two smaller changes are worth reading. The Board keeps the power to pay a residual benefit even after jurisdiction has transferred, which is written into the death cases paragraph rather than left to practice. And the revised opening section states that the agency with jurisdiction over the benefit also has jurisdiction over the applicant's Medicare coverage, which is the sentence that turns a filing question into something a person notices.

Nobody is being asked

The Board says it found the part during the regulatory review directed by Executive Order 14219, and repealed it under the Presidential memorandum of 9 April 2025 on unlawful regulations. Notice and comment are described as unnecessary and contrary to the public interest, on the ground that the statutory criteria control. No comments are being requested.

One line in the boilerplate reads oddly and is quoted here as printed. Under the Regulatory Flexibility Act, the Board certifies that the rule would have no significant economic impact on a substantial number of small entities "because it affects only individuals."

As with its sibling, the ACTION line calls this a final rule while two later paragraphs call the same instrument a direct final rule.

Status

The rule is effective 9 September 2026.