EMPLOYER STATUS DETERMINATION

West Texas and Lubbock Railroad Company, Inc.

Plainview Terminal Company

This is the determination of the Railroad Retirement Board

concerning the status of West Texas and Lubbock Railroad Company,

Inc. (WTLR) and Plainview Terminal Company (PTC) as employers under

the Railroad Retirement Act (45 U.S.C. §231 et sea.) (RRA) and the

Railroad Unemployment Insurance Act (45 U.S.C. §351 et sea.)

(RUIA). WTLR and PTC are part of the same corporate family under

the control of RailAmerica, Inc., a holding company which the Board

has previously ruled not to be covered under the RRA and the RUIA.

(See B.C.D. 93-54, August 17, 1993.) Information about WTLR and

PTC was furnished by Mr. Larry W. Bush, Controller of RailAmerica.

West Texas and Lubbock Railroad Company, Inc.

WTLR obtained authority from the Interstate Commerce Commission 

(ICC) in Finance Docket No. 32796 (60 F.R. 66994, December 27,

1995) to acquire from Seagraves, Whiteface and Lubbock Railroad 

Company (BA No.3872) (SWGR) and operate approximately 113 miles of

rail line, consisting of the following three connecting branch 

lines: (1) Between milepost 0.0 at Lubbock, Texas (Burlington

Northern and Santa Fe connection), and milepost 63.8 at Seagraves,

Texas; (2) Between milepost 0.0 at Doud, Texas (connection with

SWGR Lubbock to Seagraves line), and milepost 39.2 at Whiteface,

Texas; and (3) The Pan American Spur from milepost 36.3 (at Coble,

Texas) to "end of track" (approximately 9.3 miles). The ICC

decision stated that WTLR would also obtain certain overhead 

trackage rights.

WTLR began shortline railroad operations and began to compensate 

its 18 employees on November 1, 1995. It interchanges with the

Atchison, Topeka, and Santa Fe (BA No. 1702) and the Burlington

Northern (BA No. 1621) railroads at Lubbock, Texas.

Based upon the information summarized above, the Board finds that

West Texas and Lubbock Railroad Company, Inc. became a rail carrier

employer under the RRA and the RUIA effective November 1, 1995.

Plainview Terminal Company

In ICC Finance Docket No. 32795 (60 F.R. 66988, December 27, 1995),

PTC filed a notice of exemption to acquire the operating rights of

the Floydada and Plainview Railroad Company (BA No. 3874) to

provide local switching service on an approximately 4.6-mile line

of railroad owned by the Atchison, Topeka and Santa Fe Railway 

Company ("Santa Fe") between Plainview Subdivision milepost 627

plus 1791.7 feet at Plainview, Texas, and Floydada Subdivision 

milepost 4 plus 3160 feet at Plainview, Texas.

BCD 1996-26.1 BA # 4863
2

EMPLOYER STATUS DETERMINATION

West Texas and Lubbock Railroad Company, Inc.

Plainview Terminal Company

PTC began to conduct switching operations on the Santa Fe tracks in

Plainview, Texas on November 1, 1995. PTC provides switching

services for three customers on the Santa Fe's track in Plainview.

Mr. Bush stated that PTC has no employees and that switching is

performed by WTLR employees on an "as needed" basis. In a

telephone conversation on January 31, 1996, Mr. Bush stated that

PTC has a switching agreement with Santa Fe, but has no formal

agreement with WTLR. Mr. Bush explained that when switching

services are needed, a crew from WTLR is contacted and sent out to

perform those services. PTC pays a fee to WTLR for the crew and

also pays WTLR a fee for the use of a WTLR locomotive.

In cases similar to this, where an entity has authority to operate

a rail line, but does not actually operate the line in question, a

majority of the Board looks to the identity of the entity operating 

the line and the nature of the relationship of that entity to the

ICC certified carrier to determine the status of the certified 

carrier under the RRA and the RUIA. If the operating entity is

itself a carrier employer covered under the Acts administered by

the Board, or if that entity has been recognized by the ICC as the

operator of the line in question, which will result in that entity 

being found to be a covered employer with respect to the operation 

of the line it has undertaken, and if the certified entity has no

involvement in the actual operation of the rail line, a majority of

the Board will find the certified entity not to be a covered 

employer under the RRA and the RUIA. If, however, the operating 

entity is neither a covered employer nor an entity that has been

recognized by the ICC as the operator of the line, the Board will

find the certified entity to be a covered employer and persons

operating that line to be employees of the covered employer.

In this case, PTC has been authorized by the ICC to conduct

switching operations over the Santa Fe line in question. It has no

employees and uses WTLR employees and a WTLR locomotive to perform 

switching services for its three customers. However, there is no

formal agreement between PTC and WTLR, and WTLR has not been

recognized by the ICC (or by its successor, the Surface

Transportation Board) 1 as the operator of the switching services.

In fact, PTC, and not WTLR, has an agreement with Santa Fe to

provide the switching services. Moreover, since PTC must contact

WTLR each time that a crew is needed to conduct switching service

Effective January 1, 1996, the ICC Termination Act of 1995,

Pub. L. No. 104-88, 109 Stat. 803, abolished the ICC and

established the Surface Transportation Board within the Department 

of Transportation. The Act provides that the Board shall perform 

a number of functions previously performed by the ICC.
3

EMPLOYER STATUS DETERMINATION

West Texas and Lubbock Railroad Company, Inc.

Plainview Terminal Company

and then pays WTLR a fee for both the crew and the use of a WTLR 

locomotive, PTC remains actively involved in the day-to-day 

switching operations. The Board therefore finds that Plainview 

Terminal Company became a rail carrier employer effective November

the date on which switching operations began.

Glen L. Bower

V. M.

Jerome F. Kever