[Code of Federal Regulations]
[Title 49, Volume 7]
[Revised as of October 1, 2004]
From the U.S. Government Printing Office via GPO Access
[CITE: 49CFR1039.14]

[Page 86-88]
 
                        TITLE 49--TRANSPORTATION
 
  CHAPTER X--SURFACE TRANSPORTATION BOARD, DEPARTMENT OF TRANSPORTATION
 
PART 1039_EXEMPTIONS--Table of Contents
 
Sec. 1039.14  Boxcar transportation exemptions and rules.

    (a) The Rail transportation of all commodities in boxcars is exempt 
from the provisions of 49 U.S.C. subtitle IV except as otherwise 
provided in this section.
    (b) The Board retains jurisdiction in the following areas:
    (1) Car hire and car service.
    (2) Mandatory interchange of equipment.
    (3) Reciprocal switching or joint use of terminal facilities.
    (4) Car supply.
    (5) Freight car pooling agreements.
    (6) Freight rates applicable to boxcar traffic originating or 
terminating at an industry facility served physically by a Class III 
rail carrier, to the extent provided in paragraphs (c)(4) and (c)(5) of 
this section.
    (c)(1) Except as provided in paragraph (c)(2) of this section, 
carriers are authorized to take the following actions with respect to 
boxcar equipment use:
    (i) Assess charges for empty movement of cars where movements are 
made at the request of the car owner, the Association of American 
Railroads, or the Board. The empty mileage charge is subject to a 
maximum of 35 cents per mile, as adjusted for inflation or deflation 
using the rail cost adjustment factors published periodically by the 
Board in Ex Parte No. 290 (Sub-No. 2), Railroad Cost Recovery 
Procedures. In applying those factors, the figure of 35 cents will be 
treated as having been in effect on October 1, 1982.
    (ii) Store empty cars and reclaim car hire payments beginning at the 
expiration of a 72-hour grace period after the car is made empty.
    (iii) Negotiate bilateral agreements governing car hire rates, empty 
movements, and storage.
    (2) The authorization in paragraphs (c)(1) (i) and (ii) of this 
section will not apply to excluded carriers, as defined in paragraph 
(c)(2)(i) of this section, nor will it apply to any boxcar which, on 
December 30, 1983, was owned or leased by a carrier which then would

[[Page 87]]

have qualified as an excluded carrier and which bears the reporting 
marks of an excluded carrier.
    (i) An ``excluded carrier'' is a Class III carrier or a Class II 
carrier not affiliated with one or more Class I carriers. To be 
affiliated, the Class II carrier must be more than 50 percent owned by 
one or more Class I carriers.
    (ii) The boxcar exclusion of paragraph (c)(2) of this section will 
apply:
    (A) To an excluded boxcar whenever it is owned or leased by any 
Class III carrier and bears a Class III carrier's reporting marks; and
    (B) To an excluded boxcar owned or leased by an excluded Class II 
carrier beginning on October 16, 1986, and ending on October 31, 1990, 
so long as such boxcar has not been otherwise owned or leased by another 
carrier during this period.
    (iii) The exclusion will not apply during any period in which an 
excluded boxcar is leased or assigned to a Class I or affiliated Class 
II carrier. If an excluded Class II carrier becomes a Class III carrier 
within the period under Sec. 1039.14(c)(2)(ii)(B), that carrier will 
thereafter, for purposes of this rule, be treated as if it had been a 
Class III carrier on December 10, 1983.
    (iv) Nothing in paragraph (c)(2) of this section will affect the 
right of any carrier to negotiate bilateral agreements governing car 
hire rates and rules.
    (3) The hourly and mileage car hire rates in effect on January 1, 
1985, as published in AAR Traffic Circular No. OT-10, for any boxcar 
excluded under paragraph (c)(2) of this section, will remain in effect 
without regard to the aging of such car subsequent to January 1, 1986, 
and any modification to the existing car hire formula will not apply to 
such cars. With respect to an excluded boxcar owned or leased by an 
excluded Class II carrier, those car hire rates shall remain in effect 
through October 31, 1990. Any improvements subsequent to January 1, 
1985, to the excluded boxcars capitalized under OT-37 criteria or under 
rebuilt criteria will be subject to the same formula applicable to OT-37 
or rebuilt cars under Ex Parte No. 334 or any other railroad car hire 
proceeding, including any efficiency ratio, if adopted. Any improvements 
or repairs subsequent to December 31, 1990, to the excluded boxcars 
performed under OT-37 criteria or under rebuilt criteria or any other 
criteria shall not result in any increases, additions, or surcharges in 
the car hire rates for such cars.
    (4) No freight rate made effective after April 1, 1985, that applies 
to traffic moving by boxcar and originating or terminating at an 
industry facility served physically by a Class III rail carrier may 
discriminate while these rules are in effect on the basis of:
    (i) The ownership of the boxcar used or the reporting marks any such 
boxcar bears;
    (ii) The car hire rate applicable to the boxcar used; or
    (iii) Any car hire discounts, in the form of reclaims or otherwise, 
available to any carriers with respect to the boxcar used.

Except as prohibited above, carriers may use car ownership or car marks 
for identification purposes when establishing rates.
    (5) The provisions of 49 U.S.C. 10705 and 10705a applicable to joint 
rates and through routes will be effective as to rates and routes 
applicable to boxcar traffic originating or terminating at an industry 
facility served physically by a Class III rail carrier.
    (6) The following carriers are not regarded as Class III or 
unaffiliated Class II carriers for the purpose of this section:

Central New York Railroad Corporation
Cooperstown and Charlotte Valley Railway Corporation
Fonda, Johnstown & Gloversville Railroad Corporation
Lackawaxen and Stourbridge Railroad Corporation
New York, Susquehanna & Western Railway Corporation
Rahway Valley Railroad Company
Staten Island Railway Corporation.

    (d) Carriers must continue to comply with Board accounting and 
reporting requirements. Railroad tariffs pertaining to the exempted 
transportation of commodities in boxcars will no

[[Page 88]]

longer apply. This exemption shall remain in effect, unless modified or 
revoked by a subsequent order of this Board.

[48 FR 20415, May 6, 1983, as amended at 50 FR 20419, May 16, 1985; 51 
FR 32656, Sept. 15, 1986; 51 FR 32922, Sept. 17, 1986; 52 FR 37971, Oct. 
13, 1987; 55 FR 41339, Oct. 11, 1990; 57 FR 53451, Nov. 10, 1992; 57 FR 
56641, Nov. 30, 1992; 61 FR 26847, May 29, 1996]