Interpretation Response #22-0062
Below is the interpretation response detail and a list of regulations sections applicable to this response.
Interpretation Response Details
March 10, 2023
James A. Perkins
Larson Berg & Perkins PLLC
105 North Third Street, P.O. Box 550
Yakima, WA 98907
Reference No. 22-0062
Dear Mr. Perkins:
This letter is in response to your April 21, 2022, letter requesting clarification of the Hazardous Materials Regulations (HMR; 49 CFR Parts 171-180) applicable to storage incidental to transportation as it relates to rail tanks cars stored on private rail siding. Specifically, you believe that the clarification offered in letter of interpretation (LOI) Reference Number (Ref. No.) 20-0026 conflicts with the responses PHMSA provided in LOI Ref. Nos. 05-0313 and CHI-10-004. In short, these three letters provide clarification regarding whether rail tank cars involved in transloading operations are in transportation and subject to the HMR. It is your understanding that these letters concern the same set of facts and therefore the clarification offered in LOI Ref. No. 20-0026 is wrong. Specifically, you ask PHMSA to clarify its position on whether hazardous materials in a rail tank car stored on a private track at a transloading facility for 2-3 days is subject to the HMR, when the shipping papers specifically disclose that the rail tank car has not yet reached the final customer destination. PHMSA believes that these letters involve different factual scenarios and do not conflict.
LOI Ref. No. 20-0026
In LOI Ref. No. 20-0026, the requestor asks whether the storage of rail tank cars on private track meets the definition of “storage incidental to movement." PHMSA answers that, as described in the requestor's scenario, the storage on private track does not meet the definition of "storage incidental to movement."
The scenario involves rail cars delivered to a private track at a transloading facility and stored for several days before they are unloaded from the rail cars into cargo tank motor vehicles for delivery to a customer. Specifically, PHMSA states that once the rail cars are delivered to the private track of the
This aligns with the HMR, which provide an exception for the storage of rail cars on private track. Section 171.1(d)(3) plainly states that that the HMR do not apply to the "storage of a rail car on private track." This exception overrides the statement in Section 171.1(c)(4)(i)(A) that "storage incidental to transportation" includes storage at the destination at a transloading facility, provided the original shipping documentation identifies the shipment as a through-shipment. Once the tank cars are delivered to the private track, transportation is considered to have ended. Transportation would resume when the hazardous material is prepared for shipment to another destination. As stated in the interpretation, "the HMR apply to the pre-trip functions performed for the next mode of transportation for the hazardous material" – which would include transloading the hazardous material to cargo tank motor vehicles.
LOI Ref. No. 05-0313
In LOI Ref. No. 05-0313, the requestor asks if temporary storage of a railroad car containing hazardous material on a "leased railroad spur" is considered to be in transportation. PHMSA answers that, in the scenario described, “the storage of the hazardous material in a railcar located on a leased railroad spur is considered to be 'in transportation' for purposes of the HMR."
The scenario involves a shipment of Class 3 material carried in cargo tank motor vehicles via public highway to private track, where it is transloaded from cargo tank motor vehicles to a rail car that is then transported to a leased railroad spur and stored for a period of one to three days before being picked up by the carrier and transported to its final destination.
LOI Ref. No. 05-0313 is distinguished from LOI Ref. No. 20-0026, in that it does not involve storage of a rail car on private track.1 In LOI Ref. No. 05-0313, the rail car is stored on track described as a "leased railroad spur," and based on the limited description from the incoming request, it is not clear that this is "private track."2
The hazardous material has left a private rail yard before moving to the "leased railroad spur." Based on the incoming letter, PHMSA did not have enough information to definitively say whether the lease provided for exclusive use and control by the lessee, in order to meet the definition of private track. Thus, the interpretation treats the "leased railroad spur" as non-private track.
The HMR apply to the movement of hazardous material from a private rail yard to the leased railroad spur, and to the storage on non-private track. Without the private track exception, LOI Ref. No. 05-0313 correctly concludes that storage at a transloading facility on non-private track is considered storage incidental to movement.
LOI Ref. No. CHI-10-004
In LOI Ref. No. CHI-10-004, the requestor asks whether transfer operations on track it owns (private track) are "transloading" and subject to the HMR. PHMSA answers that operations at the transfer facility which fall within the definition of "transloading" are "storage incidental to movement," and are subject to the HMR, and that operations that do not meet the definition of "ransloading" would not be "storage incidental to movement" and would not be subject to the HMR.
You noted in your request that this interpretation states storage incidental to movement includes storage between the time the carrier takes possession until the shipment is "delivered to the destination indicated on shipping papers or other documentation."3 A shipping paper showing through-shipment is a strong indicator that a shipment is still in transportation. However, in LOI Ref. No. 20-0026, PHMSA stated that it is not sufficient to overcome the private track exception for rail cars in §171.1(c) and (d)(3). PHMSA found that "[o]nce the tank cars are delivered to the private track of the designated consignee for the rail movement, transportation is considered to have ended, even if the hazardous material is described as a through-shipment to another destination."
LOI Ref. No. CHI-10-004's clarification of what constitutes transloading is largely irrelevant to the facts presented in LOI Ref. No. 20-0026. PHMSA affirms that when the hazardous material is transloaded to the cargo tank motor vehicles on private track, the HMR will apply. LOI Ref. No. 20-0026 states "[t]he storage of hazardous material in the tank car on private track is not subject to the HMR, but the HMR apply to the pre-trip functions performed for the next mode of transportation for the hazardous material." Transloading the hazardous material from the rail cars to cargo tank motor vehicles is a transportation function and is subject to the HMR. However, the storage of the rail cars on private track from the time of delivery, up until transloading begins, is not subject to the HMR, because of the private track exception.
In sum, the three LOIs concern different sets of facts. Neither LOI Ref. Nos. 05-0313 nor CHI-10-004 conflict with LOI Ref. No. 20-0026 because the exception for the storage of rail cars on private track distinguishes the scenario in LOI Ref. No. 20-0026 from those contemplated in earlier interpretations.
I hope this information is helpful. Please contact us if we can be of further assistance.
Dirk Der Kinderen
Chief, Standards Development Branch
Standards and Rulemaking Division
171.1(c)(4)(i)(A), 171.1(d)(3), 171.1(c) and (d)(3)
1 Section 171.8 defines "private track or siding" as (i) track located outside of a carrier's right-of-way, yard, or terminals where the carrier does not own the rails, ties, roadbed, or right-of-way, or (ii) track leased by a railroad to a lessee, where the lease provides for, and actual practice entails, exclusive use of that trackage by the lessee and/or a general system railroad for purpose of moving only cars shipped to or by the lessee, and where the lessor otherwise exercises no control over or responsibility for the trackage or the cars on the trackage.
2 PHMSA has previously stated that track or siding is not considered private if a railroad exercises any responsibility for or control over the trackage or the rail tank cars on the trackage. 68 FR 61920-61922 (Oct. 30, 2003).
3 68 Fed. Reg. at 61920
|§ 171.1||Applicability of Hazardous Materials Regulations (HMR) to persons and functions|