B.C.D. 15-08

EMPLOYER STATUS DETERMINATION

Rapid City, Pierre & Eastern Railroad, Inc. (RCP&E)

May 6. 2015

This is a determination of the Railroad Retirement Board concerning the status of

Rapid City, Pierre & Eastern Railroad, Inc. (RCP&E) as an employer under the 

Railroad Retirement Act (45 U.S.C. § 231 et seq.KRRAl and the Railroad

Unemployment Insurance Act (45 U.S.C. § 351 et seq.XRUIA). The status of

RCP&E under the Acts has not previously been considered.

RCP&E is 100% owned by Genesee & Wyoming, Inc. (GWI). GWI has been 

determined not to be a railroad employer covered under the Acts1. Ms. Jennifer

Rowe, the Corporate Payroll Manager for GWI, provided information on 

RCP&E’s operations and corporate structure. Ms. Rowe provided information in a

response dated April 28, 2014 to an Audit and Compliance questionnaire and 

provided a copy of the Surface Transportation Board (STB) decision regarding

RCP&E’s operations as an enclosure. Ms. Rowe represented that RCP&E

commenced operations on May 31, 2014. RCP&E’s corporate office and address

is in Draper, Utah, and the President of RCP&E is John B. Ovitt (there is not a 

CEO for RCP&E). Ms. Rowe advised that RCP&E will provide standard line haul 

shipping of grain, bentonite clay, ethanol, fertilizer, and other products.

The Surface Transportation Board (STB) in Finance Docket 35799 decided March

24, 2014 in favor of RCP&E’s verified notice of exemption to acquire from 

Dakota, Minnesota & Eastern Railroad Corporation d/b/a Canadian Pacific

(DM&E, a railroad employer since September of 1986, BA#2632) and to operate

approximately 670 miles of rail lines, known as the DM&E West Lines in

Minnesota, South Dakota, Nebraska, and Wyoming. RCP&E was also to acquire

approximately 219 miles of incidental trackage rights over connecting lines of

DM&E and other carriers. The projected revenues of RCP&E will not exceed

those that would qualify it as a Class II rail carrier. RCP&E will interchange with 

BNSF (BA# 1621) and Nebraska Northwestern Railroad, Inc., a railroad employer

under the Acts since April 2010 (BA#5744), and may interchange with UP

(BA#1713) subject to pending commercial agreements. RCP&E has

1 In B.C.D. 03-6, a majority ofthe Board determined that GWI was not covered under the Acts because it was not

under common control with its railroad subsidiaries pursuant to the Union Pacific Holding lUnion Pacific 

Corporation v. United States. 5 F.3d 523 (Fed. Cir. 1993)]. The Board notes that this holding and GWI is not to be

confused with Genesee and Wyoming RR Company, a covered employer (BA#2209) since 1899 and Genesee &

Wyoming Railroad Services, Inc., a covered employer (BA#2639) since 1993.

BA # 5626
2

approximately 187 employees who began to be compensated on May 31,

2014, which was also the start ofrailroad operations.

Section 1 (a)( 1 )(i) of the Railroad Retirement Act (45 U.S.C. § 23 l(a)(l)(i)),

insofar as relevant here, defines a covered employer as:

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

Transportation Board under Part A of subtitle IV of title 49, United

States Code;

Section 1 ofthe RUIA (45 U.S.C. § 351) contains essentially the same definition,

as does section 3231 ofthe Railroad Retirement Tax Act (26 U.S.C. § 3231).

The evidence of record establishes that RCP&E is a rail carrier operating in

interstate commerce. Accordingly, it is determined that Rapid City, Pierre &

Eastern Railroad, Inc. became an employer within the meaning of Section

1 (a)( 1 )(i) of the Railroad Retirement Act (45 U.S.C. § 23 l(a)(l)(i)) and the 

corresponding provision ofthe Railroad Unemployment Insurance Act effective

May 31, 2014, the date RCP&E first began operations and compensated

employees.

FOR THE BOARD

Martha P. Rico 

Secretary to the Board