payable to payees or beneficiaries under the Railroad Retirement Acts and the Railroad Unemployment Insurance Act. (7) To any court of competent jurisdiction in which proceedings are pending which relate to the care of the person or estate of an incompetent individual, as to amounts payable under the Railroad Retirement Acts to such incompetent individual but only for the purpose of such proceedings.

(8) To any employer, as to the monthly amount of any retirement annuity under the Railroad Retirement Acts to which a former employee is entitled.

welfare

(9) To any governmental agency, information about the receipt of benefits and eligibility for benefits.

(h) No document, and no information acquired solely by reason of any agreement, arrangement, contract, or request by or on behalf of the Board, relating to the gathering, preparation, receipt or transmittal of documents or information to, from or for the Board which is, by virtue of such agreement, arrangement, contract or request, in the possession of any person other than an employee of the Board, shall be produced, reproduced, or duplicated, disclosed or delivered by any person to any other person or tribunal (other than the Board or an employee thereof, or the person to whom the document or information pertains), whether in response to a subpena or otherwise, except with the consent of the Board. Any person, upon receipt of any request, subpena, or order calling for the production, disclosure, or delivery of such document or information shall notify the Board of the request, subpena or order and shall take no further action except upon advice of the Board. Unless consent of the Board is given, the person shall respectfully decline to comply with the request, subpena or order, basing his refusal upon the authority of this section.

(i) As used in this section, the word "document" includes correspondence, applications, claims, reports, records, memoranda and any other papers used, prepared, received or transmitted to, from, or for the Board in connection with the administration of any act of Congress administered by the Board.

(j) Notwithstanding any other provision of this section, no disclosure of information may be made by the Board or any member, officer, agent, or em

ployee of the Board, if the disclosure of such information is prohibited by law. (Sec. 12 (d) and (n), 52 Stat. 1107, as amended, 45 U.S.C. 362 (d) and (n) [4 F.R. 1503, Apr. 7, 1939, as amended by Board Order 41-463, 6 F.R. 5748, Nov. 13, 1941: Board Order 41-508, 6 FR. 6329, Dec. 10, 1941; Board Order 45-176, 10 F.R. 5715, May 19, 1945; Board Order 55-89, 20 F.R. 3726, May 27, 1955; Board Order 63-17, 28 F.R. 1868, Feb. 28, 1963; Board Order 65-135, 30 F.R. 14595, Nov. 24, 1965; Board Order 6784, 32 FR. 9652, July 4, 1967]

§ 262.17 Actuarial Advisory Committee; statutory provisions.

The Board is hereby authorized and directed to select two actuaries, one from recommendations made by representatives of employees and the other from recommendations made by representatives of carriers. These actuaries, along with a third who shall be designated by the Secretary of the Treasury, shall be known as the Actuarial Advisory Committee with respect to the Railroad Retirement Account. The committee shall examine the actuarial reports and estimates made by the Railroad Retirement Board and shall have authority to recommend to the Board such changes in actuarial methods as they may deem necessary. The compensation of the members of the committee of actuaries, exclusive of the member designated by the Secretary, shall be fixed by the Board on a per diem basis. (Sec. 15(c), 50 Stat. 317; 45 U.S.C. 2280)

[4 F.R. 1504, Apr. 7, 1939]

§ 262.18 Actuaries to be recommended by employees and carriers.

(a) One member of the Actuarial Advisory Committee shall be selected by recommendations made by "carrier representatives." "Carrier representatives," as used in this section, shall mean any organization formed jointly by the express companies, sleeping-car companies and carriers by railroad subject to Part I of the Interstate Commerce Act which own or control more than 50 percent of the total railroad mileage within the United States.

(b) The other member of the Actuarial Advisory Committee to be selected by the Board shall be recommended by "representatives of employees."

(c) "Representatives of employees," as used in this section, shall mean any organization or body formed jointly by

266.6

266.5 Recognition by the Board of a person to act in behalf of another. Cases in which the Board shall recognize a person to act in behalf of another under section 19 (a) of the act.

AUTHORITY: The provisions of this Part 266 issued under sec, 10, 50 Stat. 314, as amended, sec. 19, 56 Stat. 207; 45 U.S.C. 228], 228s.

SOURCE: The provisions of this Part 266 contained in Board Order 45-204, 10 F.R. 7159, June 15, 1945, unless otherwise noted.

§ 266.1 Statutory provisions.

(a) Subsection (a) of section 19 of the Railroad Retirement Act of 1937 provides as follows:

Every individual receiving or claiming benefits, or to whom any right or privilege is extended, under this or any other act of Congress now or hereafter administered 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 the Board may, in its discretion, validly, recognize actions by, and conduct transactions with, others acting, prior to receipt of, or in the absence of, such written notice, in behalf of an individual found by the Board to be an incompetent or a minor, if the Board finds such actions or transactions to be in the best interests of such individual.

(b) Subsection (b) of section 19 of the Railroad Retirement Act of 1937 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 or any

other Act of Congress now or hereafter administered by the Board shall have power everywhere, in the manner and to the extent prescribed by the Board, 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 by the Board. Any payment made pursuant to the provisions of this or the preceding subsection shall be a complete settlement and satisfaction of any claim, right, or interest in and to such payment.

(c) Subsection (c) of section 19 of the Railroad Retirement Act of 1937 provides as follows:

This section shall be effective as of August. 29, 1935.

§ 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. § 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.

§ 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.

§ 266.5 Recognition by the Board of a person to act in behalf of another.

(a) In the absence of or prior to 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 incompetent or minor, if the Board finds such actions or transactions to be in the best interest of such individual. An individual may be deemed incompetent if his condition is such that he is unable to handle his affairs.

(b) 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 spouse; (2) a child who has gained majority; (3) the head of the institution where the incompetent is receiving treatment.

(c) 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

§ 300.1

following, who are listed in order of preference: (1) A parent (including an adopting parent), or stepparent with whom the minor beneficiary is living; (2) any relative, individual, or agency caring for the minor beneficiary.

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

§ 266.6 Cases in which the Board shall recognize a person to act in behalf of another under section 19(a) of the act.

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 in behalf of the incompetent or minor under the following circumstances: (a) When the individual has been adjudged mentally incompetent by a court having jurisdiction; (b) when the individual has been committed to a mental institution by a court having jurisdiction; (c) when the individual is an inmate of a mental institution; (d) when the minor is less than 16 years of age; (e) when the minor is between 16 and 18 years of age and is in the care of any person and does not have capacity to act on his own behalf.

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

PART 300-DEFINITIONS

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.

(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) [Board Order 40-388 and Board Order 40-885, 5 F.R. 2717, Aug. 1, 1940, as amended by Board Order 68-72, 33 F.R. 11114, Aug. 6, 1968]

PART 301-EMPLOYERS UNDER THE ACT

Sec. 301.1

Statutory provisions.

301.4 Who are employers.

§ 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 steamrailroad system of transportation, but shall not exclude any part of the general steamrailroad 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

The provisions of § 201.1(k) and the provisions of §§ 202.2-202.15 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. (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) [Board Order 40-368, 5 F.R. 2718, Aug. 1, 1940]

PART 319-PROCEDURE FOR DETERMINING LIABILITY FOR CONTRIBUTIONS OR REPAYMENTS OF BENEFITS

Sec. 319.1 319.2

Statutory provisions.

Procedure for determining entitlement to benefits awarded where employer status is denied, and for determining liability for contributions.

AUTHORITY: The provisions of this Part 319 issued under sec. 12, 52 Stat. 1107, as amended; 45 U.S.C. 362.

SOURCE: The provisions of this Part 819 contained in Board Order 58-142, 23 F.R. 9089, Nov. 22, 1958, unless otherwise noted. § 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.)

§ 319.2

Such

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 Unemployement 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. 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