EMPLOYER STATUS DETERMINATION

FULTON COUNTY RAILROAD, INC.

#

This is the decision of the Railroad Retirement Board regarding the

status of the Fulton County Railroad, Inc. (FCR), as an employer

under the Railroad Retirement and Railroad Unemployment Insurance

Acts.

FCR is a switching railway which provides services to only one

customer, Wilson Fertilizer & Grain at Rochester, Indiana. FCR has

one employee. It has now obtained ICC authority for its operation.

It is not now changing its operation but has obtained this 

authority because of the uncertainty regarding future rail service

to be provided by its connecting carrier.

Section 1(a)(1) of the Railroad Retirement Act (45 U.S.C.

§ 231(1) (a) (1)), 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 any service (other than trucking service, 

casual service, and the casual operation of equipment and 

facilities) in connection with the transportation of

passengers or property by railroad * * *.

Sections 1(a) and 1(b) of the Railroad Unemployment Insurance Act

(45 U.S.C. §§ 351(a) and (b)) contain substantially similar

definitions.

The Interstate Commerce Commission has jurisdiction over common

carriers engaged in the interstate transportation of passengers or

property by railroad pursuant to section 10501 of title 49 of the

United States Code. A common carrier may be defined in general as

one which holds itself out to the public as engaging in the

business of transporting people or property from place to place for

compensation. It is the right of the public to demand service that 

is the real criterion determinative of an entity's character as a

common carrier. In contrast, a private carrier is one which,

without making it a vocation or holding itself out to the public as

ready to act for all who desire the service, undertakes by special

agreement in a particular instance only, to transport property or

persons from place to place. Private carriers thus undertake not

to carry for all persons indiscriminately, but rather to transport

only for those with whom they see fit to contract individually.

BCD 1995-39 BA # 2384
2

The Railroad Retirement Board has followed the distinction made by

the Interstate Commerce Commission, which is judicially supported

in The Tap Line Cases. 234 U.S. 1 (1913); also International

Detective Service. Inc, v. Interstate Commerce Commission, 595 F.

2d 862, 865 (D.C. Cir. 1979).

In this case, FCR does not hold itself out to the public as

engaging in the business of transportation of persons or property

over the line in question. Rather it performs services over that 

line only for the one company with which it has contracted.

Accordingly, the Board determines that FCR is not a carrier under

the Acts.

Applying section 1(a) (1) (ii) of the Railroad Retirement Act to the

facts of this case, we find that FCR is owned by Mr. Tom Wilson and 

is not under common control with a carrier. Accordingly, FCR is

not a covered employer under section 1(a)(1(ii); since it is also 

not a carrier, as defined in paragraph (i) of section 1(a)(1) of

the Railroad Retirement Act, it is not an employer under the

Railroad Retirement Act and the Railroad Unemployment Insurance

Act.

Glen L. Bower