[Federal Register Volume 69, Number 120 (Wednesday, June 23, 2004)]
[Notices]
[Pages 35130-35131]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-14237]


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DEPARTMENT OF TRANSPORTATION

Surface Transportation Board

[STB Finance Docket No. 34502]


American Orient Express Railway Company LLC--Petition for 
Declaratory Order

AGENCY: Surface Transportation Board.

ACTION: Institution of declaratory order proceeding; request for 
comments.

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SUMMARY: The Surface Transportation Board is instituting a declaratory 
order proceeding and requesting comments on the petition of American 
Orient Express Railway Company LLC's (AOERC) for an order declaring 
that AOERC is not a common carrier by rail subject to the Board's 
jurisdiction.

DATES: Any interested person may file with the Board written comments 
concerning this issue by July 13, 2004.

ADDRESSES: Send an original and 10 copies of any comments referring to 
STB Finance Docket No. 34502 to: Surface Transportation Board, 1925 K 
Street, NW., Washington, DC 20423-0001. In addition, send one copy of 
any comments to: Robert Bergen, Holland & Knight LLP, 195 Broadway, New 
York, NY 10007.

FOR FURTHER INFORMATION CONTACT: Eric S. Davis, (202) 565-1608. 
[Assistance for the hearing impaired is available through the Federal 
Information Relay Service (FIRS) at: (800) 877-8339.]

SUPPLEMENTARY INFORMATION: By petition filed on April 30, 2004, AOERC 
asks the Board to issue an order declaring that it is not a common 
carrier by rail subject to the Board's jurisdiction.
    On February 9, 2001, the Railroad Retirement Board (RRB) issued a 
decision concluding that AOERC is a covered employer for purposes of 
the Railroad Retirement Act, 45 U.S.C. 231 et seq. (2004), and Railroad 
Unemployment Insurance Act, 45 U.S.C. 351 et seq. (2004) (collectively 
Railroad Retirement Acts) because it determined that AOERC was a 
``reincarnation'' of a previously covered sleeper car carrier. AOERC 
sought a reconsideration of that decision. The RRB appointed a Hearing 
Examiner, who, on May 21, 2002, held a hearing on the petition for 
reconsideration. On May 16, 2003, the Hearing Examiner issued a 
recommendation to the RRB suggesting that AOERC is a covered employer 
not because it was a ``reincarnation'' of a covered sleeper car carrier 
but because it provides common carrier rail transportation and, 
therefore, is under the Board's jurisdiction. The RRB has not acted on 
the petition for a reconsideration or on the Hearing Examiner's 
recommendation because the scope of the Board's jurisdiction over AOERC 
is the only issue on which the questions of coverage depends. The RRB 
has stayed its reconsideration proceeding until July 1, 2004, to allow 
the Board to rule on the question of jurisdiction.
    AOERC is a land excursion company that uses restored vintage 
railroad coaches, diners and sleepers as the central feature of its 
vacation packages. It does not own or operate any locomotives or 
railroad track. Rather, it contracts with the National Passenger 
Railroad Corporation (Amtrak) to provide all railroad related services 
including locomotive power and train and engine crews (Amtrak 
Contract). As part of the vacation packages, specially tailored meals, 
luxury accommodations, on and off the train, and various excursions, 
including walking tours of historic and natural sites, lectures and 
live music are included. AOERC operates seasonally and does not have 
set routes. AOERC's trips and itineraries change annually depending on 
its negotiations with Amtrak. Additionally, AOERC may cancel a planned 
excursion if there are not enough customers or it may add a charter 
trip on a different route. Most of AOERC's employees are part-time 
seasonal employees, and AOERC states that it does not employ 
traditional rail workers because it provides only non-railroad 
amenities and services.
    Amtrak does not own most of the track over which it operates; it 
obtains trackage rights from other railroads to provide service to 
AOERC. Amtrak pulls AOERC's vintage rail cars pursuant to a schedule 
for each excursion that meets Amtrak's and the host railroad's (the 
track owner or operator) availability. AOERC proposes itineraries to 
Amtrak, usually 2 years in advance, so that Amtrak can determine, based 
on its own schedule and the availability of the track routes requested, 
whether they are possible. AOERC cannot offer itineraries that have not 
been approved by Amtrak. Even if an itinerary has been approved, the 
Amtrak Contract does not guarantee that the chosen route will be 
served. Amtrak has the right to cancel or change scheduled routes, 
stops or entire trips. According to AOERC, Amtrak has exercised this 
right on more than one occasion.
    Under the Amtrak Contract, AOERC is responsible for providing its 
car consists in good order and on time to meet Amtrak's and host 
railroads' schedules. Additionally, the train consists must be 
submitted to Amtrak for inspection at the beginning of each touring 
season and before each trip. Amtrak may refuse to pull cars that do not 
pass its inspections.
    Under 49 U.S.C. 10501(b), the Board has exclusive jurisdiction over 
transportation by rail carriers. The term ``rail carrier'' is defined 
as ``a person providing common carrier railroad transportation for 
compensation'' under 49 U.S.C. 10102(5). AOERC asserts that it does not 
meet the definition of a ``railroad'' under 49 U.S.C. 10102(6) because 
it does not own or operate any of the listed equipment; it does not own 
or operate any road or railroad right-of-way; and it does not own or 
operate any of the listed facilities or equipment. AOERC maintains that 
it cannot be considered a ``rail carrier'' subject to the Board's 
jurisdiction because it does not meet the definition of a ``railroad.''
    Moreover, AOERC argues that it does not fit the definition of a 
common carrier because it does not hold itself out to the general 
public as a company engaged in the business of transporting persons or 
property from place to place for compensation. AOERC maintains that it 
does not provide scheduled transportation service on a regular basis 
between points. It claims that, in order to move its cars, it must rely 
entirely on Amtrak and the railroad owners of the track it uses for 
permission to travel. Additionally, AOERC asserts that its schedules 
are based entirely on the availability of Amtrak locomotives and crews 
and railroad trackage, all of which is determined by Amtrak and the 
owners of the track.

[[Page 35131]]

    Finally, AOERC asserts that its excursion business has certain 
similarities to sleeping car service, express service and car rental 
companies all of which, AOERC asserts, are outside of the Board's 
jurisdiction.
    Accordingly, by this notice, the Board is requesting comments on 
this matter.
    Board decisions and notices are available on our website at http://www.stb.dot.gov.

    Decided: June 17, 2004.
    By the Board, David M. Konschnik, Director, Office of 
Proceedings.
Vernon A. Williams,
Secretary.
[FR Doc. 04-14237 Filed 6-22-04; 8:45 am]
BILLING CODE 4915-01-P