FEB 0 3 2000

EMPLOYER STATUS DETERMINATION

Kingwood Northern, Inc. d/b/a/ West Virginia Northern Railroad (KNI)

This is the decision of the Railroad Retirement Board concerning the status of

Kingwood Northern, Inc. (KNI) d/b/a/ West Virginia Northern Railroad as an

employer under the Railroad Retirement Act (45 U.S.C. §231 etseq.) (RRA) and

the Railroad Unemployment Insurance Act (45 U.S.C. §351 etseq.) (RUIA).

In Surface Transportation Board (STB) Finance Docket Number 32448, filed

January 7, 1994, Kingwood Northern, Inc. (KNI) filed a verified Notice of

Exemption to acquire and operate West Virginia Northern Railroad, Ltd.’s

(WVNR) (former B. A. No. 2342) entire line of railroad including all associated

branch lines between Tunnelton and Kingwood, a distance of approximately

10.7 miles in Preston County, West Virginia. In Board Coverage Decision 95-38,

WVNR was found to have ceased being an employer under the RRA and RUIA

effective April 29, 1994, the date on which it sold all of its assets to KNI.

According to the STB decision, KNI d/b/a WVNR would become a Class III

railroad when it commenced service upon consummation of the sale of the line.

In addition, KNI was assigned reporting marks by the Association ofAmerican

Railroads (AAR) effective January 1, 1999.

Mr. John Garner, II, Vice-President of Operations for KNI, provided

information regarding the railroad. Mr. Stanley M. Hostler is President and

Chief Executive Officer. According to Mr. Garner, KNI is strictly a tourist

railroad and carries no freight. He stated that KNI’s objective was to “preserve

what is left of the history of mountain railroading and coal history...in Preston

County.” Mr. Garner stated that in January 1999, KNI “started to activate the

basics of becoming a freight railroad” based upon a potential business venture

to haul freight. That venture did not come to fruition and KNI “immediately

dropped everything,” according to Mr. Garner. Mr. Garner stated further that

he did not know that KNI had obtained STB authority to operate and

interchange with CSXT. He explained that his employer, who is the present

owner, “bought out the previous owner in April 1998.” Mr. Garner also stated

that the previous owner took all records when he left. Mr. Garner stated his

belief that passenger excursion service began in August 1994 and that there are

no shippers on the rail line. In fact, the last shipper “closed its doors in

September of 1989.” Mr. Garner also explained that KNI sought AAR markings

in February, 1999 when it thought it might obtain freight business. At this

BCD 2000-06
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Kingwood Northern, Inc. d/b/a/ West Virginia Northern Railroad (KNI)

time, KNI remains a tourist railroad which hauls only passengers on a 2 Vz hour

trip from Kingwood to Tunnelton and back. KNI reports that it has two

compensated employees who were hired on April 1, 1998, according to

Mr. Garner.

According to its passenger schedule, KNI operates an “exciting ride from the

past through majestic mountains....” The passenger schedule refers to KNI as

“a scenic and historic railroad for everyone to enjoy.” The passenger schedule

indicates that KNI operates three-hour round trips (including a Vz hour layover

in Tunnelton) on a schedule Monday and Friday at 12:00 P.M. and Saturdays

and Sundays at 11:00 A.M. and 3:00 P.M., May 1st through October 30th. KNI

has an inactive interchange with CSXT.

Section 1(a)(1) of the RRA defines the term “employer” to include:

(i) any carrier by railroad subject to the jurisdiction of the Surface

Transportation Board under Part A of subtitle IV ofTitle 49 [45

U.S.C. §231(a)(l)(i)].

* * * * *

Section 1 of the RUIA contains the same definition.

The information summarized above indicates that KNI is a carrier by rail, since

it operates a passenger railway. However, KNI does not operate, and has never

operated, as a common rail carrier in interstate commerce. Rather, it provides

excursion service solely within the State ofWest Virginia. Thus, it is not

within the jurisdiction of the Surface Transportation Board (STB). See. 49

U.S.C. § 10501(a)(2)(A) (the STB has jurisdiction over rail carrier transportation

in the United States between a place in a State and a place in the same or

another State as part of the interstate rail network).

The Board finds that since Kingwood Northern, Inc. d/b/a/ West Virginia

Northern Railroad does not perform service as a rail common carrier in
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Kingwood Northern, Inc. d/b/a/ West Virginia Northern Railroad (KNI)

interstate commerce, and that it is therefore not an employer under the RRA

and the RUIA.

CherryFT. Thomas

V. M. Speakman, Jr.

Jerome F. Kever