B.C.D. 03-27 MAR 2 1 2003

EMPLOYER STATUS DETERMINATION

Northern New England Passenger Rail Authority

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

the Northern New England Passenger Rail Authority as an employer under the

Railroad Retirement Act (45 U.S.C. § 231 et seg.) and the Railroad Unemployment

Insurance Act (45 U.S.C. § 351 et sea.).

The Authority was established in 1995' as a state agency by the Maine Legislature

for the general purpose of promoting passenger rail service. The Authority was

directed to give priority to the restoration of rail service between Portland and

Boston and on December 2, 1996, entered into an agreement with Amtrak for the

provision by Amtrak of passenger service between Portland and Boston. Amtrak’s

Portland-Boston service, known as “The Downeaster," began on December 15,

2001. The Authority has five employees. The first date on which an Authority

employee was compensated was July 17, 1999.

The Authority does not operate the rail line in question itself and does not have

Surface Transportation Board authority to do so. The rail lines involved are owned

by Portland Terminal Company, by Boston and Maine Corporation (both covered

employers under the Acts; B.A. Nos. 4105, 1102, respectively), and by

Massachusetts Bay Transportation Authority (not a covered employer), and are

not owned by the Authority.

The Authority derives no revenue from Amtrak’s operation of the Downeaster and

reimburses Amtrak the difference between the revenue Amtrak receives from

passengers and Amtrak’s cost of operation of the Downeaster.

Section 1 (a)(1) of the Railroad Retirement Act (45 U.S.C. § 231 (a)(1)), 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;

i The legislation establishing the Authority was effective June 29,1995. The first meeting ofthe Authority’s

board of directors was held in September 1995.
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(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 (except trucking

service, casual service, and the casual operation of equipment or

facilities) in connection with the transportation of passengers or

property by railroad * * *.

The Authority is not a carrier by railroad subject to the jurisdiction of the Surface

Transportation Board. Further, it is not owned or controlled by, or under common

control with, a railroad employer. Nor does it fall under any other definition of an 

employer under the Acts administered by the Board.

Accordingly, a majority of the Board determines that the Northern New England 

Passenger Rail Authority is not an employer within the meaning of section i (a)(1)

of the Railroad Retirement Act (45 U.S.C. § 231 (a)(1)) and the corresponding

provision of the Railroad Unemployment Insurance Act.

V. M. Speakman, Jr.

(Separate dissenting opinion

attached)
DISSSENT OF THE LABOR MEMBER

I dissent from the Board’s decision in this case. The Northern New England Passenger 

Rail Authority should be a covered employer under the Railroad Retirement and Railroad 

Unemployment Insurance Acts.

The Authority administers an interstate rail passenger service involving a number of

different rail lines and carriers. It contracts with Amtrak to run a rail operation (“the 

Downeaster”) which, as part ofAmtrak, is a covered employer, over rail lines owned by

the Portland Terminal Company and by Boston and Maine Corporation, both covered 

employers. In Railroad Retirement Board v. Duquesne Warehouse Co.. 149 F.2d 507

(D.C.Cir. 1945), afFd 326 U.S. 446, 90 L.Ed. 192, 66 S.Ct. 238 (1946), the Court of

Appeals for the District ofColumbia stated that the policy ofthe Railroad Retirement Act

was “to cover the business ofrailroading as it is actually carried on.” 149 F.2d at 509.

Without the efforts ofthe Northern New England Passenger Rail Authority, no passenger

rail service would be available between Portland and Boston. The work ofthe Authority 

is part ofthe business ofrailroading as it is actually carried on.

It was set up to promote passenger rail service in the area, administers an agreement it

has with Amtrak, and is involved in the marketing and promoting its service, and

administering the agreement with the “Independent contractor” who provide food service.

Furthermore, although the Authority currently owns no railroad equipment, it retains the

right to purchase Amtrak locomotives. Accordingly, I disagree with the Board’s position 

that the Northern New England Passenger Rail Authority should not be covered under the

Acts administered by the Board.

Further, in connection with the development ofthe record for this coverage

determination, as stated, Amtrak has provided information that the Authority contracts 

for food and beverage service for the Downeaster with L.P.M. Holding Company, d/b/a 

Epicurean Feast, and that Amtrak contracts with Drummac, Inc., for mechanical services

on the Downeaster line. Accordingly, the staff ofthe Board should assemble information

regarding whether the contractors or the employees ofthe contractors who provide 

services to the Downeaster operation should be covered under the Railroad Retirement

and Railroad Unemployment Insurance Acts.

V. M. Speakman, Jr.