shall be made after the Board has considered any information in writing which may be submitted to the Board within the period provided in paragraph (c)(4)(ii) of this section; and (iv) if no information in writing is received within 30 calendar days from the date of the notice, payment of the annuity will cease at the end of that 30-day period.

(5) Whenever the Board receives any significant information in writing from an annuitant or payee of an annuity as a result of mailing the notice described in paragraph (c)(4) of this section, the Board shall forward a copy of such information to each of the individuals who have filed a competing claim for such annuity, informing them that: (i) The annuity will either be terminated at the specified time or a decision to continue payment of the annuity will be made by the Board; and (ii) they may respond to such information and their response will be considered by the Board provided that it is received by the Board within a reasonable time. When the Board decision in such cases is to continue payment of the annuity, the Board shall send notice of such initial decision to each of the competing claimants in accordance with paragraph (c)(1) of this section.

(6) The written notice of an initial decision provided by paragraph (c)(3) of this section and the written notice of the proposed decision provided by paragraph (c)(4) of this section shall also contain notification of the appeal rights provided in § 260.4 of this Part.

(d) Where an initial decision that an erroneous payment has been made to a beneficiary has been made under paragraph (a)(7) of this section, the notice of decision shall include a statement notifying the beneficiary of the possibility of waiver of recovery of the erroneous payment, of the conditions which must be met before waiver of recovery could be granted, and of the possibility of an oral hearing with respect to the issues of waiver of recovery and reconsideration of the erroneous payment decision. The notice shall state that the beneficiary may, within 30 calendar days from the date of the issuance of the notice, file with the Board a request for waiver of recovery

of the erroneous payment and/or for reconsideration of the erroneous payment decision.

[43 FR 56890, Dec. 5, 1978, as amended at 44 FR 63096, Nov. 2, 1979; 45 FR 3260, Jan. 17, 1980; 45 FR 5685, Jan. 24, 1980]

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

(a) A beneficiary who has been determined to have received an erroneous payment under paragraph (a)(7) of § 260.1 shall have the right, upon the filing of a timely request in accordance with the requirements of this section and § 260.1, to request waiver of recovery of the erroneous payment and/or reconsideration of the erroneous payment decision. The beneficiary shall have the right to an informal oral hearing on the issues of waiver of recovery and/or reconsideration of the erroneous payment decision, before an employee of the Board designated to conduct such a hearing, prior to commencement of recovery by suspension or reduction of a monthly benefit.

(b) A request for waiver of recovery and/or reconsideration of an erroneous payment decision and for an oral hearing under this section shall be in writing, and addressed to the district office of the Board set forth in the initial decision letter or to the Director of Retirement Claims. The request must be received by either the appropriate district office or the Director of Retirement Claims within 30 calendar days from the date on which notice of the erroneous payment decision was sent to the beneficiary. The beneficiary shall state in the request whether he or she elects to have an oral hearing. If the beneficiary does not elect to have an oral hearing with respect to his or her request for waiver or recovery or for reconsideration of the erroneous payment decision, he or she may, along with the request, submit any evidence and argument which he or she would like to present in support of his or her case.

(c) Where a timely request for waiver or reconsideration is filed as provided in this section, the Director of Retirement Claims shall not com

mence recovery of the erroneous payment by suspension or reduction of a monthly benefit payable by the Board until a decision with respect to such request for waiver or reconsideration has been made and notice thereof mailed to the claimant..

(d) Upon receipt of a timely request for an oral hearing under this section, the Director of Retirement Claims or his or her delegee shall promptly arrange for the selection of a Board employee to conduct a hearing in the case. The employee designated to conduct a hearing under this section shall not have had any prior involvement with the initial erroneous payment decision and shall conduct the hearing in a fair and impartial manner. The employee designated to conduct a hearing under this section shall promptly schedule a time and place for the hearing and promptly notify the beneficiary of such.

(e) The beneficiary shall upon request have the opportunity to review, prior to the hearing, his or her claim folder and all documents pertinent to the issues raised. A hearing conducted under this section shall be informal. At the hearing the beneficiary shall be afforded the following rights:

(1) To present his or case orally and to submit evidence, whether through witnesses or documents;

(2) To cross-examine adverse witnesses who appear at the hearing; and (3) To be represented by counsel or other person.

(f) Upon completion of the hearing, the employee who conducted the hearing shall prepare a summary of the case including a statement of the facts, the employee's findings of fact and law, and a recommended decision. The summary of the case shall then be submitted to the Director of Retirement Claims.

(g) The Director of Retirement Claims shall render a decision with respect to the beneficiary's request for reconsideration of the initial erroneous payment determination and/or waiver of recovery, and shall promptly notify the claimant of that decision. If the Director of Retirement Claims renders a decision adverse to the beneficiary, he or she shall further notify the beneficiary of the basis for such

determination and that the beneficiary may appeal the decision to the Bureau of Hearings and Appeals, as provided in § 260.4.

(h) The fact that a beneficiary may have notified the Board with respect to the method by which he or she would choose to have the recovery made, or the fact that such beneficiary may have actually tendered to the Board a portion or all of the amount of the erroneous payment, shall in no way operate to prejudice his or her right to request reconsideration of the initial erroneous payment determination or to request waiver of recovery.

[43 FR 56890, Dec. 5, 1978, as amended at 44 FR 63096, Nov. 2, 1979]

§ 260.3 Initial decisions by the Bureau of Data Processing and Accounts.

In response to a timely request by an employee for an amendment with respect to the amount of compensation credited to the employee by the Board under the Railroad Retirement Act and the Railroad Unemployment InIsurance Act, the Director of Data Processing and Accounts shall promptly make a determination with respect to such matter. Notice of such decision shall be communicated by the Director of Data Processing and Accounts to the employee in writing within 30 days after such decision is made. For purposes of this section, a timely request to amend an employee's record of compensation maintained under the Railroad Retirement Act shall be filed within four years after the date on which the return of compensation was required to be made to the Board by the employee's employer. For purposes of this section, a timely request to amend an employee's record of compensation maintained under the Railroad Unemployment Insurance Act shall be filed within 18 months after the date on which the last return of compensation was required to be made covering any portion of the calendar year which includes the period during which the challenged payment was made.

§ 260.4 Appeal from an initial decision of the Bureau of Retirement Claims or the Bureau of Data Processing and Accounts.

(a) Every claimant shall have a right to appeal to the Bureau of Hearings and Appeals from any initial decision of the Bureau of Retirement Claims or the Bureau of Data Processing and Accounts by which he or she claims to be aggrieved: Provided, however, That (1) an individual under age 18 shall not have the right to appeal a finding of incapacity to manage his or her annuity payments, but shall have the right to contest the finding that he or she is, in fact, under age 18; (2) an individual who has been adjudged legally incompetent shall not have the right to appeal a finding of incapacity to manage his or her annuity payments, but shall have the right to contest the fact of his or her having been adjudged legally incompetent; and (3) an individual shall not have the right to appeal a denial of his or her application to serve as representative payee on behalf of an annuitant.

(b) Appeal from an initial decision of the Bureau of Retirement Claims or the Bureau of Data Processing and Accounts shall be made by filing the form prescribed by the Board for such purpose. Such appeals must be filed with the Bureau of Hearings and Appeals within one year from the date upon which notice of the initial decision is mailed to the claimant.

(c) The right to further review of an initial decision of the Bureau of Retirement Claims or the Bureau of Data Processing and Accounts shall be forfeited unless formal appeals is filed in the manner and within the time prescribed in this Part.

(d) Within a reasonable time after the claimant has filed a proper appeal, the Director of Hearings and Appeals shall appoint a referee to act on the appeal. The Director of Hearings and Appeals may, if the Bureau of Hearings and Appeals' caseload dictates, appoint a qualified Board employee, other than a referee assigned to the Bureau of Hearings and Appeals, to act as referee with respect to a case. Such referee shall not have any interest in the parties or in the outcome of the proceedings, shall not have direct

ly participated in the initial decision from which the appeal is made, and shall not have any other interest in the manner which might prevent a fair and impartial decision.

(e) In the development of appeals, the referee shall have the power to hold hearings, require and compel the attendance of witnesses by subpoena or otherwise in accordance with the procedures set forth in Part 258 of this chapter, administer oaths, rule on motions, take testimony, and make all necessary investigations.

(f) The appellant, or his or her representative, shall be afforded full opportunity to present 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 appellant is available and is relevant and material to the merits of the claim, the referee may obtain such evidence upon his or her own initiative. If new evidence is obtained by the referee subsequent to an oral hearing, the referee shall notify the appellant or his or her representative that such evidence was obtained and shall describe the nature of the evidence in question. In such event, the appellant shall have the right to submit rebuttal evidence or argument or to an oral hearing to confront and challenge such new evidence. The referee shall protect the record against scandal, impertinence and irrelevancies, but the technical rules of evidence shall not apply.

(g) Where the referee finds that no factual issues are presented by an appeal, and the only issues raised by the appellant are issues concerning the application or interpretation of law, the appellant or his or her representative shall be afforded full opportunity to submit written argument in support of the claim but no oral hearing shall be held.

(h)(1) In any case in which an oral hearing is to be held pursuant to the provisions of this section, the referee shall schedule a time and a place for the conduct of the hearing and shall promptly notify the party or parties to the proceeding by mail as to said time

and place for the hearing. The notice shall also include a statement of the specific issues involved in the case.

(2) A party to the proceeding may object to the time and place of the hearing or as to the stated issues to be resolved by filing a written notice of objection with the referee. The notice of objection shall clearly set forth the matter objected to and the reasons for such objection, and, if the matter objected to is the time and place of the hearing, said notice shall further state that party's choice as to the time and place for the hearing. Said notice of objection shall be filed at the earliest practicable time, but in no event shall said notice be filed later than five business days prior to the date of the hearing.

(3) The referee shall rule on any objection timely filed by a party under this subsection and shall notify the party of his or her ruling thereon. The referee may for good cause shown, or upon his or her own motion, reschedule the time and/or place of the hearing. The referee also may limit or expand the issues to be resolved at the hearing.

(4) If neither a party nor his or her representative appears at the time and place scheduled for the hearing, that party shall be deemed to have waived his or her right to an oral hearing, unless said party either filed with the referee a notice of objection showing good cause why the hearing should have been rescheduled, which notice was timely filed but not ruled upon, or, within 10 days following the date on which the hearing was scheduled, said party filed with the referee a motion to reschedule the hearing showing good cause why neither the party nor his or her representative appeared at the hearing and further showing good cause as to why said party failed to file at the prescribed time any notice of objection to the time and place of the hearing.

(5) If the referee finds either that a notice of objection was timely filed showing good cause to reschedule the hearing, or that the party has within 10 days following the date of the hearing filed a motion showing good cause for failure to appear and to file a notice of objection, the referee shall

reschedule the hearing. If the referee finds that the hearing shall not be rescheduled, he or she shall so notify the party in writing.

(i) 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 created in the adjudication of the claim, shall constitute the record on appeal. After an appeal is filed, the compilation of the record shall be initiated by the inclusion therein of the file created 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 shall be available for examination by the appellant or his or her representative at any time during the pendency of the appeal.

(j) Except where the referee has determined that additional evidence not offered by the appellant at or prior to the hearing is available, the record shall be closed as of the conclusion of the hearing. The appellant may move for an extension of time to submit evidence and the referee may grant the motion upon a showing of good cause for failure to have submitted the evidence earlier. The extension shall be for a period not exceeding 30 days.

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

§ 260.5 Pre-hearing case review.

(a) The referee assigned to a case may, prior to an oral hearing, upon his or her own motion, refer the case back to the bureau of the Board which issued the initial decision for the purpose of reconsideration of that decision, where the referee finds that (1) additional evidence pertinent to the resolution of the issues on appeal was submitted by the appellant at the time the appeal was filed, or subsequent thereto; or (2) additional evidence pertinent to the resolution of the issues on appeal is available and should be procured; or (3) there is some other in

dication in the record that the initial decision may be revised in a manner favorable to the appellant.

(b) Where the referee finds that referral of a case back to the bureau which issued the initial decision for the purpose of reconsideration of that decision would be warranted, the referee shall give that bureau the reason for such referral, together with specific directions as to the handling of the case on reconsideration.

(c) The bureau to which a case is referred shall promptly undertake any additional development required, and shall make a determination as to whether the initial determination may be revised in whole or in part in a manner favorable to the appellant. Upon issuance of its determination, the bureau in question shall return the case along with a copy of its decision to the referee.

(d) Where the bureau to which a case is referred determines to revise its initial decision in whole or in part, that bureau shall notify the appellant of such determination. If the revised determination is wholly favorable to the appellant, he or she shall be notified that the appeal to the Bureau of Hearings and Appeals will be dismissed by the referee assigned to the case. If the revised decision is partially favorable to the appellant, the notice shall inform the appellant that the referee will proceed with the portion of the appellant's case not revised in his or her favor, unless the appellant should request dismissal of the appeal.

(e) The fact that a case on appeal has been referred back to the bureau which issued the initial decision in the case shall not delay the conduct of a hearing scheduled with respect to the appeal, unless the appellant agrees to a delay. If it appears that the bureau to which a case has been referred will not have completed its reconsideration of the case prior to the date of a scheduled hearing on an appeal and the appellant has not agreed to a delay in the conduct of the hearing, the referee shall proceed with the hearing and the handling of the case as though the case had not been referred back to the bureau.

§ 260.6 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 a referee by which he or she claims to be aggrieved.

(b) Final appeal from a decision of a 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 four months from the date upon which notice of the decision is mailed to the appellant at the address furnished by him or her.

(c) The right to further review of a decision of a 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 shall 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: 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 referee, the claim may be referred back to the referee. Thereupon, the referee shall develop new or better evidence if available, receive such new evidence as may be offered, include a transcript of all such evidence in the record, and transmit the entire record to the Board together with his or her 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 or she has argu