EMPLOYER STATUS DETERMINATION

San Diego Northern Railway

This is the determination of the Railroad Retirement Board

concerning the status of San Diego Northern Railway (SDNR) as an

employer 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).

SDNR was formed by the North San Diego County Transit Development

Board (NCTD) , and was incorporated on May 24, 1994. NCTD1, a

public agency created by Sections 125000 et sea, of the California

Public Utilities Code, is the recipient of State and Federal grant

funding through which NCTD acquired certain railroad right-of-way

assets from Atchinson, Topeka and Santa Fe Railroad Company (B.A.

No. 1702) in December 1992. SDNR was formed by NCTD as a subsidiary

public entity which has the responsibility for overseeing the

operation of the rail line and equipment.

Information regarding SDNR was provided by Mr. James H. Ellis,

attorney for SDNR, who explained that the SDNR entered into an

agreement on August 18, 1994, with the National Railroad Passenger

Corporation (Amtrak), a covered employer under the Acts (B.A. No.

8301) to operate the commuter rail services. Mr. Ellis stated that

Amtrak will provide all daily services for the operation of the

commuter rail and maintenance of the right-of-way and rail

equipment, subject to the supervision of SDNR.

Section 1 (a) of the RRA (45 U.S.C. § 231(a)) insofar as relevant

here, defines a covered employer as:

(i) any express company, sleeping car company, and

carrier by railroad, subject to subchapter I of chapter

105 of Title 49;

(ii) any company which is directly or indirectly owned

or controlled by, or under common control with, one or

more employers as defined in paragraph (i) of this

subdivision, and which operates any equipment or facility

or performs an services (except trucking service, casual

service, and the casual operations of equipment or

facilities) in connection with the transportation of

passengers or property by railroad....

*****

1 NCTD has been found not to be an employer under the Acts.

Notice No. 95-57.

BCD 1995-99
San Diego Northern Railway

(2) Notwithstanding the provisions of subdivision (1) of

this subsection, the term "employer" shall not include--

(ii) any street, interurban, or suburban electric

railway, unless such railway is operating as a part of a

general diesel-railroad system of transportation, but

shall not exclude any part of the general diesel-railroad

system of transportation now or hereafter operated by any

other motive power. * * *

Section 1 of the RUIA (45 U.S.C. § 351) contains essentially the

same definition.

The evidence establishes that SDNR is not engaged in transportation

of passengers or freight in interstate commerce. Further, there is

no evidence that SDNR provides any service in connection with the

interstate transportation of freight or passengers by rail within

the meaning of section 1(a)(1)(ii) of the Act. Consistent with the

Board's decision regarding the Orange County Transportation

Authority, B.C.D. 94-47, (April 25, 1994), it is determined that

San Diego Northern Railway is not an employer covered by the RRA

and the RUIA.

* * * * *

Glen L. Bower

V. M. Bpeakman, J

Opinion Attached)

Jerome F. Kever
DISSENT OF

V M. SPEARMAN, JR.

ON EMPLOYER STATUS DETERMINATION

SAN DIEGO NORTHERN RAIL WA Y

I disagree with the majority ofthe Board's determination that there is no evidence that

San Diego Northern Railway (SDNR) provides any service in connection with the

interstate transportation offreight orpassengers by rail. Thefact that SDNR has the

responsibilityfor overseeing the operation ofthe rail line and equipment in question

disputes this. Accordingly, I dissent.

e

V. M. Speakman, Jr.

OCT 1 ? 1935

Date