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.

§ 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.

§ 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.

§ 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.

§ 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.

§ 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.

§ 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.

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 determina

tions with respect to employee or employer status.

259.4 Authority of General Counsel to conduct investigations.

259.5 Appeals to the Board from determinations made by the General Counsel on reconsideration.

259.6 Appeals from decisions of the Board.

Sec.

259.7 Finality of determinations issued under this part.

AUTHORITY: Sec. 10, 50 Stat. 314, as amended; 45 U.S.C. 228j, unless otherwise noted.

SOURCE: 43 FR 56889, Dec. 5, 1978, unless otherwise noted.

§ 259.1 Initial determinations with respect to employer and employee status. (a) The General Counsel of the Railroad Retirement Board shall make initial determinations 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.

(b) The authority conferred by paragraph (a)(2) of this section shall not apply with respect to determinations of employee status where such issue arises in connection with an application for benefits filed by the employ

ee.

(c) The General Counsel shall, upon the rendition of a determination under this section, promptly notify the party or parties thereto of the determination.

$259.2 Parties to determinations with re

spect 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.

§ 259.3 Reconsideration of initial determinations with respect to employee or employer status.

A party to an initial decision issued under § 259.1 shall have the right to request that the General Counsel reconsider the initial determination. A request for reconsideration shall be in writing and must be filed with the General Counsel within one year following the date on which the General Counsel issued the initial determination. Where a request for reconsideration has been timely filed with the General Counsel, the General Counsel 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 shall promptly notify all parties of the determination issued upon reconsider

ation.

§ 259.4 Authority of General Counsel to conduct investigations.

In rendering a determination under § 259.1 or § 259.3, the General Counsel shall have the authority and the power to conduct any investigations he deems necessary. In addition, the General Counsel 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.

§ 259.5 Appeals to the Board from determinations made by the General Counsel on reconsideration.

(a) A party to a decision under § 259.3 shall have the right to appeal that determination to the Board. An appeal to the Board shall be in writing and must be filed with the Secretary of the Board within one year following the date of the General Counsel's decision on reconsideration.

(b) On appeal from a determination of the General Counsel with respect to employer or employee status, the Board shall have the authority to conduct any investigations it deems necessary, including the authority to conduct a hearing with respect to the matter before it, either itself or through a member or duly designated examiner, in accordance with the procedure set out in Part 258 of this chapter.

(c) Within 30 days following the date on which it issues a decision on appeal under this part, the Board shall notify the party or parties to the proceeding of its decision.

§ 259.6 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.

§ 259.7 Finality of determinations issued under this part.

Any determination rendered by the General Counsel at the initial and reconsideration stages, and any determination rendered by the Board at the appeal stage shall be considered a final determination and shall be binding with respect to all parties thereto unless a timely request has been made

for reconsideration by the General Counsel, an appeal has been filed with the Board, or an appeal has been filed with the appropriate United States court of appeals, respectively. A final determination may be challenged at the request of a party who was or could have been a party to the final determination where 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 Board's General Counsel, who shall consider such request as a request for an initial determination under § 259.1.

PART 260-APPEALS WITHIN THE BOARD FROM DECISIONS ISSUED BY THE BUREAU OF RETIREMENT CLAIMS AND THE BUREAU OF DATA PROCESSING AND ACCOUNTS

Sec.

260.1 Initial decisions by the Bureau of Retirement Claims.

260.2 Request for waiver of recovery of an erroneous paymnent and/or for reconsideration of the erroneous payment decision.

260.3 Initial decisions by the Bureau of Data Processing and Accounts. 260.4 Appeal from an initial decision of the Bureau of Retirement Claims or the Bureau of Data Processing and Accounts.

260.5 Pre-hearing case review. 260.6 Final appeal from a decision of the referee.

260.7 Determination of date of filing of appeal.

AUTHORITY: Sec. 10, 50 Stat. 314, as amended; 45 U.S.C. 228j, unless otherwise noted.

SOURCE: 43 FR 56890, Dec. 5, 1978, unless otherwise noted.

§ 260.1 Initial decisions by the Bureau of Retirement Claims.

(a) Claims shall be adjudicated and initial decisions made by the Bureau of Retirement Claims 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. Adjudication of a claim and the issuance of an initial decision shall be in accordance with instructions issued by the Director of the Bureau and shall be made upon the basis of evidence submitted by the claimant and evidence otherwise available.

(b) 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 was sent to the beneficiary.

(c)(1) In all cases except those described in paragraphs (c)(2), (3), and (4) of this section, written notice of an initial decision shall be mailed by the Bureau of Retirement Claims 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 appeal such initial decision.

(2) No notice of an initial decision by the Bureau of Retirement Claims 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 annuity has ended because

the annuitant has recovered from such annuitant's disability, written notice of that 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 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 recovery from disability is found to have occurred; (iv) that payment of the disability annuity will cease effective on the last day of the second month following the month in which recovery from disability is found to have occurred or on the thirtieth calendar day after the day 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; and (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.

(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

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