Sec.

202.5 Company or person under common control.

202.6 Casual service and the casual operation of equipment or facilities. 202.7 Service or operation in connection with railroad transportation. 202.8 Controlled company or person principally engaged in service or operation in connection with railroad transportation. 202.9 Controlled company or person not principally engaged in service or operation in connection with railroad transportation.

202.10 Commencement of employer status of receiver or trustee, etc.

202.11 Termination of employer status. 202.12 Evidence of termination of employer status.

202.13 Electric railways.

202.14 Service incidental to railroad transportation.

202.15 Railway labor organizations.

AUTHORITY: Secs. 1, 10, 50 Stat. 307, as amended, 314, as amended; 45 U.S.C. 228a, 228j.

SOURCE: 4 FR 1478, Apr. 7, 1939, unless otherwise noted.

§ 202.1 Statutory provisions.

The term "employer" means any carrier (as defined in subsection 1(m) of this section), and any company which is directly or indirectly owned or controlled by one or more such carriers or under common control therewith, and which operates any equipment or facility or performs any service (except trucking service, casual service, and the casual operation of equipment or facilities) in connection with the transportation of passengers or property by railroad, or the receipt, delivery, elevation, transfer in transit, refrigeration or icing, storage, or handling of property transported by railroad, and any receiver, trustee, or other individual or body, judicial or otherwise, when in the possession of the property or operating all or any part of the business of any such employer: Provided, however, That the term "employer" shall not include any street, interurban, or suburban electric railway, unless such railway is operating as a part of a general steam-railroad system of transportation, but shall not exclude any part of the general steam-railroad system now or hereafter operated by any other motive power. The Interstate Commerce Commission is hereby authorized and directed upon request of the Board, or upon complaint of any party interested, to determine after hearing whether any line operated by electric power falls within the terms of this proviso. The term "employer" shall also include railroad associations, traffic associations, tariff bureaus, demurrage bu

reaus, weighing and inspection bureaus, collection agencies and other associations bureaus, agencies, or organizations controlled and maintained wholly or principally by two or more employers as hereinbefore defined and engaged in the performance of services in connection with or incidental to railroad transportation; and railway labor organizations, national in scope, which have been or may be organized in accordance with the provisions of the Railway Labor Act, as amended, and their State and National legislative committees and their general committees and their insurance departments and their local lodges and divisions, established pursuant to the constitution and bylaws of such organizations. (Sec. 1 (a), 50 Stat. 307; 45 U. S. C. 228a (a))

The term "employer" shall not include any company by reason of its being engaged in the mining of coal, the supplying of coal to an employer where delivery is not beyond the mine tipple, and the operation of equipment or facilities therefore, or in any of such activities. (54 Stat. 785; 45 U.S.C. 228a (a))

[4 FR 1478, Apr. 7, 1939, as amended by Board Order 41-526, 7 FR 96, Jan. 6, 1942]

§ 202.2 Company or person principally engaged in carrier business.

Any company or person principally engaged in carrier business is an employer.

§ 202.3 Company or person principally engaged in non-carrier business.

(a) With respect to any company or person principally engaged in business other than carrier business, but which, in addition to such principal business, engages in some carrier business, the Board will require submission of information pertaining to the history and all operations of such company or person with a view to determining whether some identifiable and separable enterprise conducted by the person or company is to be considered to be the employer. The determination will be made in the light of considerations such as the following:

(1) The primary purpose of the company or person on and since the date it was established;

(2) The functional dominance or subservience of its carrier business in relation to its non-carrier business;

(3) The amount of its carrier business and the ratio of such business to its entire business;

rabroad or the recept, delivery, eleraDon transfer ʼn vansin, refrigeration or jong, store a tanding of property transpomed by railroad, if such service or operasion is reasonably d rectly related morally or economically, to the performance of obligators Woch a company or person or companies or persons have undertaken as a common carner by railroad, or to the receipt. delivery, elevation, transfer in trans refrigeranon or icing, storage, or handling of property transported by railroad.

§ 2128 Controlled company or person principally engaged in service or operation in connection with railroad transportation.

Any company or person owned or controlled by one or more carriers or under common control therewith, whose principal business is the operation of equipment or facilities or the performance of service (other than trucking service) in connection with the transportation of passengers or property by railroad, shall be an employer.

§ 202.9 Controlled company or person not principally engaged in service or operation in connection with railroad transportation.

(a) With respect to any company or person owned or controlled by one or more carriers or under common control therewith, performing a service or operating equipment in connection with the transportation of passengers or property by railroad, or the receipt, delivery, elevation, transfer in transit, refrigeration or icing, storage, or handling of property transported by railroad, but which is principally engaged in some other business, the Board will require the submission of information pertaining to the history and all operations of such company or person with a view to determining whether it is an employer or whether some identifiable and separable enterprise conducted by the person or company is to be considered to be the employer, and will make a determination in the light of considerations such as the following:

(1) The primary purpose of the company or person on and since the date it was established;

(2) The functional dominance or subservience of its business which constitutes a service or operation of equipment or facilities in connection with the transportation of passengers or property by railroad in relation to its other business;

(3) The amount of its business which constitutes a service or operation of equipment or facilities in connection with the transportation of passengers or property by railroad and the ratio of such business to its entire business;

(4) Whether such service or operation is a separate and distinct enterprise;

(5) Whether such service or operation is more than casual, as that term is defined in § 202.6.

(b) In the event that the employer is !found to be an aggregate of persons or · legal entities or less than the whole of a legal entity or a person operating in only one of several capacities, then the unit or units competent to assume legal obligations shall be responsible for the discharge of the duties of the 1 employer.

§ 202.10 Commencement

of employer

status of receiver or trustee, etc. A receiver, trustee, or other individual or body, judicial or otherwise, in the possession of the property or operating all or any part of the business of a carrier, or of a company or person owned or controlled by or under common control with such a carrier, which operates any equipment or facility or performs any service in connection with the transportation of passengers or property by railroad, shall be deemed to be an employer beginning as of whichever of the following three dates is the earliest:

(a) The date that it takes possession of such property; or

(b) The first date on which it has authority to operate all or any part of the business of such a carrier, company or person; or

(c) The date that it begins operating without appointinent or authorization all or any part of the business of such a carrier, company or person; Provided, however, That the receiver, trustee, or other individual or body, judicial or otherwise, shall be an employer only with respect to such indi

viduals as would be employees if the preceding employer had continued in the possession of the property or the operation of the business.

§ 202.11 Termination of employer status.

The employer status of any company or person shall terminate whenever such company or person loses any of the characteristics essential to the existence of an employer status.

[Board Order 41-85, 6 FR 1210, Mar. 1, 1941]

§ 202.12 Evidence of termination of employer status.

(a) In determining whether a cessation of an essential characteristic, such as control or service in connection with railroad transportation, has occurred, consideration will be given only to those events or actions which evidence a final or complete cessation. Mere temporary periods of inactivity or failure to exercise functions or to operate equipment or facilities will not necessarily result in a loss of employer status.

(b) The actual date of cessation of employer status shall be the date upon which final or complete cessation of an essential employer characteristic occurs. The following indicate but do not delimit the type of evidence that will be considered in determining the actual date of cessation of an employer status: stoppage of business or operations; the cancellation of tariffs, concurrences, or powers of attorney filed with the Interstate Commerce Commission; the effective date of a certificate permitting abandonment; the effective date of a pertinent judicial action such as the discharge of a receiver, trustee, or other judicial officer, or an order approving sale of equipment or machinery; the sale, transfer, or lease of property, equipment, or machinery essential to the continuance of an employer function or to control by a carrier employer; public or private notices of contemplated or scheduled abandonment or cessation of operations; termination of contract; discharge of last employee; date upon which the right of a railway labor organization to participate in the selection of labor members of the National Railroad Adjustment Board

which have not been published in the FEDERAL REGISTER; and

(3) Administrative staff manuals and instructions to staff that affect any member of the public.

(b) The identifying details to be deleted shall include, but not be limited to, names and identifying numbers of employees and other individuals as needed to comply with section 12 (d) and (n) of the Railroad Unemployment Insurance Act, section 10(b)6 of the Railroad Retirement Act, and § 262.16 of this chapter, or to prevent a clearly unwarranted invasion of personal privacy.

(c) There shall be maintained in the Board's library a current index of the materials referred to in paragraph (a) of this section which will have been issued, adopted, or promulgated subsequent to July 4, 1967. This index shall be available for public inspection and copying at the Board's headquarters offices located at 844 Rush Street, Chicago, Illinois, during the normal business hours of the Board. Copies of the index or any portion thereof may be obtained for a fee equivalent to the costs of reproduction by submitting a written request therefor. Such request should comply with the form for requests as described in paragraph (h) of this section.

(d) The materials and indexes thereto shall be kept, and made available to the public upon request, in the bureaus and offices of the Board which produce or utilize the materials. The following materials currently in use shall, as long as they are in effect as precedents and instructions, be made available in offices of the Board at 844 Rush Street, Chicago:

(1) In the Bureau of Retirement Claims: The Retirement Claims Manual, RCM Circulars, Special Services Manual, Policy Decisions, Procedural Memoranda containing information on the adjudication of claims not contained in the Retirement Claims Manual or in RCM Circulars, Instructions and Circular Letters to Employers, Field Operating Manual (Parts I and VI), FOM Circulars and Memoranda, and the Occupational Disability Rating Schedule.

(2) In the Bureau of Unemployment and Sickness Insurance: the Adjudica

tion Instruction Manual, Regional Operating Manual (Part I), Field Operating Manual (Part II), FOM Circulars and Memoranda, Bureau of Unemployment and Sickness Insurance Circulars, Memorandum Opinions, memorandum instructions on adjudication, and circular letters of instruction to railroad officials.

(3) In the Bureau of Data Processing and Accounts: the Instructions to Employers, and Circular Letters to Employers.

(4) In the Bureau of Law; Legal Opinions.

(5) In the Office of the Secretary of the Board: Decisions and rulings of the Board.

Regional offices and field offices shall also make available to the extent practicable such of these materials and indexes as are furnished them in the ordinary course of business.

(e) The copies of manuals and instructions made available for public copying and inspection shall not include:

(1) Confidential statements, standards, and instructions which do not affect the public, and

(2) Instructions not affecting the public (such as those relating solely to processing and procedure, to management, or to personnel) which it is feasible to separate from instructions that do affect the public.

(f) With the exception of records specifically excluded from disclosure by section 552(b) of Title 5, United States Code, or other applicable statute, any records of or in the custody of this agency, other than those made available under paragraphs (a), (c), and (d) of this section, shall, upon receipt of a written request reasonably describing them, promptly be made available to the person requesting them.

(g) The Chief Executive Officer may charge the person or persons making a request for records under paragraph (f) of this section a fee in an amount not to exceed the costs actually incurred in complying with the request. After February 21, 1975, any such fees charged by the Chief Executive Officer shall be in accordance with the following schedule.

(1) The fee for copies shall be $.10 per copy per page.

(2) The charge for making a manual search for records shall be $6.00 per man hour.

(3) The maximum computer search charge shall be $268.00 per hour ($4.50 per minute).

(4) Any or all fees may be waived or reduced by the Chief Executive Officer whenever he or she determines that it is in the public interest to do

So.

(5) All fees shall be paid to the Board's Director of Budget and Fiscal Operations.

(h) Any person or organization requesting records pursuant to this section shall submit such request in writing to the Chief Executive Officer, Railroad Retirement Board, Room 1536, 844 Rush Street, Chicago, Illinois 60611. All such requests should be clearly and prominently identified as requests for information under the Freedom of Information Act. If submitted by mail or otherwise submitted in an envelope or other cover, requests $ should be clearly and prominently identified as such on the envelope or cover.

(i) The Chief Executive Officer, or any other individual specifically authorized to act on behalf of the Chief Executive Officer, shall have the authority to grant or deny a request for information submitted under this section. The Chief Executive Officer or such authorized representative shall, within 10 working days following the receipt of a request, except as provided in paragraph (j)(1) of this section, make a determination granting or denying the request and notify the requester of his or her decision and if a denial, the reasons therefor. The re1 quester shall be further advised that a total or partial denial may be appealed to the Board as provided in paragraph (j) of this section.

ceipt of the notice of denial. The Board shall render a decision on an appeal within 20 working days following receipt of the appeal except as provided in paragraph (j)(1) of this section. The requester shall promptly be notified of the Board's decision and, in cases where the denial is upheld, of the provisions for judicial review of such final administrative decisions.

(1) In unusual circumstances, as enumerated in § 552(a)(6)(B) of Title 5, United States Code, the time restrictions of paragraphs (i) and (j) of this section may be extended in the aggregate by no more than 10 days by notice to the requester of such extension, the reasons therefor, and the date on which a determination is expected to be dispatched.

(2) For purposes of paragraphs (i) and (j) of this section, a request shall be received by the Chief Executive Officer of the Board when it arrives at the Board's headquarters. Provided, however, That when the estimated fee to be assessed for a given request exceeds $30.00, such request shall be deemed not to have been received by the Chief Executive Officer until the requester is advised of the estimated cost and agrees to bear it. Provided further, That a request which does not fully comply with all the provisions of paragraph (h) of this section shall be deemed to have been received by the Chief Executive Officer on the day it actually reaches his or her office.

(k) Any person in the employ of the Railroad Retirement Board who receives a request for any information, document or record of this agency, or in the custody thereof, shall advise the requester to address such request to the Chief Executive Officer. If the request received is in writing, it shall be immediately referred for action to the Chief Executive Officer.

(1) The Chief Executive Officer shall maintain records of:

(1) The total amount of fees collected by this agency pursuant to this section;

(2) The number of initial denials of requests for records made pursuant to this section and the reason for each;

(3) The number of appeals from such denials and the result of each appeal, together with the reason(s) for

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