§ 1033.1 Car hire rates. ( a ) Definitions applicable to this section: ( 1 ) *Car.* A freight car bearing railroad reporting marks, other than an excluded boxcar as defined in § 1039.14(c)(2) of this chapter whenever it is owned or leased by any class III carrier and bears a class III carrier's reporting marks.
( 2 ) *Car hire.* Compensation to be paid by a user to an owner for use of a car. Such compensation may include, but need not be limited to, hourly and mileage rates.
( 3 ) *Fixed rate car.* Any car placed in service or rebuilt prior to January 1, 1993 or for which there was a written and binding contract to purchase, build, or rebuild prior to July 1, 1992, regardless of whether such car bore railroad reporting marks prior to January 1, 1993, provided, however, that until December 31, 1993, all cars shall be deemed to be fixed rate cars.
( 4 ) *Market rate car.* Any car that is not a fixed rate car.
( 5 ) *Owner.* A rail carrier entitled to receive car hire on cars bearing its reporting marks.
( 6 ) *Prescribed rates.* The hourly and mileage rates in effect on December 31, 1990, as published in Association of American Railroads Circular No. OT-10 found in the information section of tariff STB RER 6411-U known as the Official Railway Equipment Register. This information can be obtained at the Association of American Railroads or the Board. Prescribed rates will be enhanced to reflect OT-37 surcharges and Rule 88 rebuilds for work undertaken and completed during 1991 and 1992, and for rebuilding work for which there was a written and binding contract prior to July 1, 1992.
( 7 ) *User.* A rail carrier in possession of a car of which it is not the owner.
( b ) *Fixed rate cars.* Car hire for fixed rate cars shall be determined as follows: ( 1 ) Except as provided in paragraph (b)(3) of this section, for a 10-year period beginning January 1, 1993, the prescribed rates shall continue to apply to fixed rate cars without regard to the aging of such cars subsequent to December 31, 1990. Prescribed car hire rates shall not be increased for any additions and betterments performed on such cars after December 31, 1990. Any OT-37 surcharge to prescribed rates for work performed prior to January 1, 1993 shall expire upon the earlier of: ( i ) The car becoming a market rate car; or
( ii ) The expiration date provided in Association of American Railroads Circular No. OT-37.
( 2 ) Upon termination of the 10-year period specified in paragraph (b)(1) of this section, all fixed rate cars shall be deemed to be market rate cars and shall be governed by paragraph (c) of this section.
( 3 ) ( i ) During each calendar year beginning January 1, 1994, a rail carrier may voluntarily elect to designate up to 10% of the cars in its fleet as of January 1, 1993 to be treated as market rate cars for the purposes of this section. The 10% limitation shall apply each calendar year and shall be noncumulative. Cars designated to be treated as market rate cars shall be governed by paragraph (c) of this section. Such election shall be effective only in accordance with the following provisions: ( A ) An election shall be irrevocable and binding as to the rail carrier making the election and all users and subsequent owners if: ( 1 ) The rail carrier making the election has legal title to the car; or
( 2 ) The rail carrier making the election does not have legal title to the car but obtains written consent for such election from the party holding legal title; or
( 3 ) The transaction pursuant to which the party holding legal title to the car has furnished the car to the rail carrier making the election was entered into after January 1, 1991.
( B ) An election shall be irrevocable and binding only for the term of the transaction pursuant to which the car was furnished to the rail carrier making the election as to that rail carrier and all users and subsequent owners if: ( 1 ) That rail carrier does not have legal title to the car and does not obtain written consent or such election from the party holding legal title;
( 2 ) The transaction was entered into prior to January 1, 1991; and
( 3 ) The transaction does not provide that the compensation to be paid to the party furnishing the car is to be based in whole or in part directly on the car hire earnings of the car; provided, however, that if the rail carrier making the election subsequently obtains legal title to the car, such election shall then be irrevocable and binding as to the rail carrier and all users and subsequent owners.
( C ) The party holding legal title to the car may revoke an election subject to the provisions of paragraph (b)(3)(i)(B) of this section only: ( 1 ) At the time the transaction pursuant to which the car was furnished to the rail carrier making the election is first extended or renewed after January 1, 1991; or
( 2 ) If such transaction is not extended or renewed, at the time such transaction terminates. If such election is so revoked, a rail carrier may make a new election only with the written consent of the party holding legal title to the car, and such election shall be irrevocable and binding as to the rail carrier making the election and all users and subsequent owners.
( ii ) Nothing in paragraph (b)(3)(i) of this section shall be construed to limit the rights of parties to any transaction to provide for the consent of any party to an election made pursuant to paragraph (b)(3)(i) of this section.
( c ) *Market rate cars.* ( 1 ) Market rate cars shall not be subject to prescribed rates or to the provisions of 49 CFR 1039.14(c)(1) (i) and (ii) and (c)(4).
( 2 ) ( i ) The Board shall not prescribe car hire for market rate cars.
( ii ) The Code of Car Hire Rules referenced in the Association of American Railroads Car Service and Car Hire Agreement provides that owners and users party to that agreement shall resolve car hire disputes thereunder. The Board may review allegations of abuse of the car hire dispute resolution process established under those rules.
( iii ) Car hire disputes involving an owner or user not a party to that agreement may be resolved by the Board.
( d ) *Car hire agreements.* Rail carriers are authorized to negotiate and enter into agreements governing car hire.
( e ) *Effective date.* This part shall take effect on January 1, 1994.
[58 FR 60144, Nov. 15, 1993]