§ 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]

§ 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]

§ 260.1 Initial decisions by the Bureau of Retirement Claims.

(a) Claims will be adjudicated and initial decisions made by the Bureau of Retirement Claims upon the basis of the application, the evidence submitted by the applicant, and evidence otherwise available. Adjudication and initial decision will be in accordance with instructions issued by the Director of the Bureau.

(b) Notice of an initial decision shall be communicated by the Bureau of Retirement Claims to the applicant in writing within 30 days after such decision is made.

[Board Order 47-33, 12 F.R. 1389, Feb. 27. 1947, as amended at 35 F.R. 14544, Sept. 17, 1970]

§ 260.2

Appeal from an initial decision of the Bureau of Retirement Claims. (a) Every applicant shall have a right to appeal to the Office of Hearings and Appeals from any initial decision of the Bureau of Retirement Claims by which he claims to be aggrieved.

(b) Appeal from an initial decision of the Bureau of Retirement Claims shall be made by the execution and filing of the appeal form prescribed by the Board. Such appeal must be filed with the Office of Hearings and Appeals within 1 year from the date upon which notice of the initial decision is mailed to the applicant at the address furnished by him.

(c) The right to further review of an initial decision of the Bureau of Retirement Claims shall be forfeited unless formal appeal is filed in the manner and within the time prescribed in this part.

(d) Within a reasonable time after the applicant has filed a properly executed appeal, the Director of the Office of Hearings and Appeals shall appoint a referee to act in the appeal. Such referee shall not have any interest in the parties or in the outcome of the proceedings, shall not have directly participated in the initial 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) The appellant, or his 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 in support of the appeal. If, in the judgment of the referee, evidence not offered by the ap

pellant is available and relevant and is material to the merits of the claim, the referee shall obtain such evidence upon his own initiative. The referee shall protect the record against scandal, impertinence and irrelevancies, but the technical rules of evidence shall not apply.

(f) In the development of appeals, the referee shall have power to hold hearings, require and compel the attendance of witnesses, administer oaths, take testimony, and make all necessary investigations.

(g) All oral evidence presented at any hearings shall be reduced to writing. All evidence presented by the appellant and all evidence developed by the referee 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 for decision of the appeal. After an appeal form 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 the appellant or his representative.

(h) Upon completion of the record, the referee shall render a decision thereon as soon as practicable, and within 30 days after the making thereof, such decision shall be communicated to the appellant in writing.

(i) The Board may, on its own motion, review a decision of the referee 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.

[35 F.R. 14544, Sept. 17, 1970] § 260.3

Final appeal from a decision of the referee.

(a) Every appellant shall have a right to a final appeal to the Railroad Retirement Board from any decision of the referee by which he claims to be aggrieved.

(b) Final appeal from a decision of the referee 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 4

months from the date upon which notice of the decision by the referee is mailed to the appellant at the address furnished by him. As used in this part, a month shall be considered to have elapsed between any date and the date corresponding thereto in the next succeeding month.

(c) The right to further review of a decision of the referee shall be forfeited unless formal final appeal is filed in the manner and within the time prescribed in this part.

(d) Upon final appeal to the Board, the appellant shali 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: And 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 referee, 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 referree, the claim may be referred back to the referee. Thereupon the referee shall receive such new evidence as may be offered, develop new or better evidence if available, affording the appellant appropriate opportunity to submit rebuttal evidence and argument, include a transcript of all evidence in the record, and transmit the entire record to the Board together with his recommendation to the Board for final decision.

(e) 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 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 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. [35 F.R. 14544, Sept. 17, 1970]

§ 260.4 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 filling a duly executed appeal form prescribed by the Board shall be the date of 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, Ill., to any field agent specifically authorized by a regional director to receive custody thereof in the district where delivery is made, whichever date is earlier.

[Board Order 47-83, 12 F.R. 1390, Feb. 27, 1947]

Any officer or agent of an employer, as the word "employer" is hereinbefore defined, or any employee acting in his own behalf, or any individual whether or not of the character hereinbefore defined, who shall willfully fall or refuse to make any report or furnish any information required, in accordance with the provisions of section 10(b) 4, by the Board in the administration of this Act or the Railroad Retirement Act of 1935, or who shall knowingly make or cause to be made any false or fraudulent statement or report when a statement or report is required to be made for the purpose of such Acts, or who shall knowingly make or aid in making any false or fraudulent statement or claim for the

purpose of causing an award or payment under such Acts, shall be punished by a fine of not more than $10,000 or by imprisonment not exceeding one year, or both. (Section 13(a) of the act) [Board Order 60-30, 25 F.R. 2055, Mar. 10 1960]

§ 262.2 Posting notices to employees.

Regional directors of the Board shall arrange for the posting by employers of such notices to their employees as the Board may provide in order to inform such employees of their rights under the Railroad Retirement Acts and the Railroad Unemployment Insurance Act. Such notices shall be so posted in such numbers and in such places as may be necessary to insure that they will be seen by the greatest number of employees. [Board Order 39-787, 4 FR. 4795, Dec. 8, 1939]

§ 262.5 Exemption.

Notwithstanding any other law of the United States, or of any State, Territory, or the District of Columbia, no annuity or pension payment shall be assignable or be subject to any tax or to garnishment, or attachment, or other legal process under any circumstances whatsoever, nor shall the payment thereof be anticipated. (Section 12 of the act) [Board Order 60-80, 25 F.R. 2055, Mar. 10, 1960]

§ 262.6 Waiver; statutory provisions.

Any person awarded an annuity or pension under this Act may decline to accept all or any part of such annuity or pension by a waiver signed and filed with the Board. Such waiver may be revoked in writing at any time, but no payment of the annuity or pension waived shall be inade covering the period during which such waiver was in effect. Such waiver shall have no effect on the amount of the spouse's annuity, or of a lump sum under section 5(f) (2), which would otherwise be due, and it shall have no effect for purposes of the last sentence of section 5(g)(1). (Section 20(a) of the act)

[Board Order 60-30, 25 FR. 2055, Mar. 10, 1960]

the act shall have the right to waive such annuity or pension in whole or in part by filing with the Board either a statement to that effect signed by him or a duly executed waiver form prescribed by the Board.

(b) Such a waiver shall be effective as of the date specified therein, but not before September 1, 1954: Provided, however, That if an annuity or pension has been awarded, a waiver shall not be effective before the first day of the month in which the waiver form is received at an office of the Board.

(c) Covering the period during which a waiver is in effect, no payment of the amount of the annuity or pension waived can ever be made to any person. Such waiver in such period shall not, however, have any effect on the amount of a spouse's annuity otherwise payable or on a lump sum under section 5 (f) (2) of the act otherwise due, nor shall it serve to make such individual eligible for a lump-sum death benefit or any insurance benefits 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 such time as of which, but not earlier than the month in which, the annuitant or pensioner requests in a writing signed by him and filed with the Board that it be terminated.

[Board Order 55-89, 20 F. R. 3726, May 27, 1955]

§ 262.10 Free transportation.

It shall not be unlawful for carriers by railroad subject to this Act to furnish free transportation to individuals receiving annuities or pensions under this Act or the Railroad Retirement Act of 1935 in the same manner as such transportation is furnished to employees in their service.

(Sec. 18, 50 Stat. 318; 45 U.S.C. 228r) [4 F.R. 1503, Apr. 7, 1939]

him and naming such other person as the person authorized to represent the claimant with respect to matters in connection with his claim: Provided, however, That without requiring such power of attorney the Board may recognize as the duly authorized representative of the claimant a member of Congress or a person designated by the claimant's railway labor organization to act in behalf of members of that organization on such matters when it appears that such recognition is in the interest of the claimant.

(b) Payment of claim. The Board will not certify payment of any awarded claim to or through any person other than the claimant for the reason that a power of attorney for such person to represent such claimant has been filed. [Board Order 55-89, 20 F. R. 3726, May 27, 1955]

§ 262.15 Offices of the Board.

as

The Board hereby establishes offices of the Board its main office in Chicago, Ill., all regional offices, all district offices, and all other offices maintained by the Board as necessary for the proper discharge of its functions under the Railroad Retirement Acts and the Railroad Unemployment Insurance Act. [Board Order 63-103, 28 F.R. 6266, June 19, 1963]

§ 262.16 Records and other papers of the Board; disclosure; service of process.

(a) No document, or any information acquired therefrom or otherwise officially acquired, which is in the possession of the Board or any member, officer, agent or employee of the Board, shall be produced, disclosed, or delivered by any such member, officer, agent, or employee to any person or tribunal outside the Board, whether in response to a subpena or otherwise, except as authorized by this section or with the consent of the Board. The consent of the Board to such production, disclosure, or delivery of any such document or information will not be granted, and no such document will be open to inspection by any person other than a member, officer, agent, or employee of the Board in the performance of his official duties, unless the Board finds that such production, disclosure, delivery, or opening to inspection will not be detrimental to the interest of the

person to whom the document pertains, or to the estate of such person. Except as otherwise ordered by the Board or authorized by this section, any request or demand made by any person or tribunal, or otherwise, for any such document or information shall be refused upon the authority of this section.

(b) When any member, officer, agent or employee of the Board is served with a subpena to produce, disclose or deliver any document described in paragraph (a) of this section, or to furnish any information acquired therefrom or otherwise officially acquired, he shall immediately notify the Board of the fact of the service of such subpena. Unless otherwise ordered by the Board or authorized by this section, he shall appear in response to the subpena and respectfully decline to produce, disclose, or deliver the document, or to furnish the information, basing his refusal upon the authority of this section.

(c) When any document described in paragraph (a) of this section is called for by a subpena duces tecum or other judicial order upon the Board for production, inspection, or disclosure thereof, issued by a court of competent jurisdiction in a proceeding in which such document is relevant, a copy of such document, certified by the Secretary of the Board as a true copy, will be produced, disclosed, or delivered if such production is in the interest of the employee to whom the document pertains, or is in the interest of the estate of such employee, and such document does not consist of or include a report of medical information.

(d) When pursuant to paragraph (c) of this section the production, disclosure, or delivery of any document described in paragraph (a) of this section is not permitted, no member, officer, agent, or employee of the Board shall make any disclosure or testify with respect to such document.

(e) In the event the production, disclosure, or delivery of any document described in paragraph (a) of this section is called for on behalf of the United States or the Board, such document shall be produced, disclosed, or delivered only upon and pursuant to the advice of the General Counsel of the Board.

(f) No officer, agent, or employee of the Board is authorized to accept or receive service of subpenas, summons, or other judicial process addressed to the Board except as the Board may from

time to time delegate such authority by power of attorney. The Board has issued such power of attorney to the General Counsel and to no one else.

ex

(g) Subject to the limitation pressed in paragraph (j) of this section, disclosure of documents and information is hereby authorized, in such manner as the Board may by instructions prescribe, in the following cases:

(1) To any employer, employee, applicant or prospective applicant for an annuity, pension, or death benefit under the 1937 act or the 1935 act, or his duly authorized representative, as to matters directly concerning such employer, employee, applicant or prospective applicant in the administration of such acts.

(2) To any employer, employee, applicant or prospective applicant for benefits under the Railroad Unemployment Insurance Act, or his duly authorized representative, as to matters directly concerning such employer, employee, applicant or prospective applicant in the administration of such act.

(3) To any officer or employee of the United States lawfully charged with the administration of the Railroad Retirement Tax Act, the Social Security Act, or acts or executive orders administered by the Veterans Administration, and for the purpose of such administration only.

(4) To any applicant or prospective applicant for death benefits or accrued annuities under the railroad retirement acts, or to his duly authorized representative, as to the amount payable as such death benefits or accrued annuities, and the name of the person or persons determined by the Board to be the beneficiary, or beneficiaries, thereof, if such applicant or prospective applicant purports to have a valid reason for believing himself to be, in whole or in part, the beneficiary thereof.

(5) To any officer or employee of any State of the United States lawfully charged with the administration of any law of such state concerning taxes imposed by such state with respect to amounts payable at death, as to the amount of death benefits or accrued annuities payable under the railroad retirement acts and the name of the person or persons to whom such amount was payable.

(6) To any officer or employee of any state of the United States lawfully charged with the administration of any law of such state concerning unemployment compensation, as to the amounts