Interpretation Response #24-0018

Below is the interpretation response detail and a list of regulations sections applicable to this response.

Interpretation Response Details

Response Publish Date: 05/28/2024

Company Name:

Individual Name: Mr. Fred Storer

Location State: OK Country: US

View the Interpretation Document

Response text:

May 29, 2024

Mr. Fred Storer
111 W 5th Street, Apt. 803
Tulsa, OK  74103

Reference No. 24-0018

Dear Mr. Storer:

This letter is in response to your February 6, 2024, letter and correspondence with the Pipeline and Hazardous Materials Safety Administration (PHMSA) requesting clarification of the Hazardous Materials Regulations (HMR; 49 CFR Parts 171-180) applicable to the definition of "private track." The HMR defines "private track" in § 171.8 as: (1) 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 (2) 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. You present two different scenarios concerning the determination of "private track" in accordance with the definition provided in § 171.8.

Q1. In the first scenario (i.e., the Downtown location), the South Kansas and Oklahoma Railroad (SKOL Railroad)—i.e., the lessor—leases track to Centennial Energy (i.e., the lessee) for a butane transloading operation. The transloading of the butane is conducted with no intervention or oversight by SKOL Railroad, and SKOL Railroad exercises no control or responsibility over the trackage or rail cars involved in the butane transloading operation—all of which is exclusively carried out by Centennial Energy. You ask whether this scenario would meet the definition of "private track" in § 171.8.

A1. Based on the scenario as described in your letter, the answer is yes. As previously stated, one part of the definition for "private track" in § 171.8 is a track leased by a railroad (i.e., SKOL Railroad), to a lessee, (i.e., Centennial Energy), where the lease provides for, and in practice entails, exclusive use of that trackage by the lessee for the purpose of moving only rail 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. Therefore, based on the scenario described in your letter, it is the opinion of this Office that the scenario at the Downtown location meets the definition of "private track" in § 171.8.

Q2. In the second scenario (i.e., the East Pine location), butane is shipped by BNSF Railway, Inc. directly to US Rail and Logistics (USRL). As presented in your letter, the transloading of the butane occurs exclusively on track owned by BNSF. Furthermore, your letter states that BNSF—as the carrier—exercises complete control of the trackage used during the transloading operation. You ask whether this scenario would meet the definition of "private track" in § 171.8.

A2. Based on the scenario as described in your letter, the answer is no. As previously stated, "private track" is defined in § 171.8 as "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." Therefore, based on the scenario described in your letter, it is the opinion of this Office that the scenario at the East Pine location does not meet the definition of "private track" in § 171.8.

However, if the trackage where the transloading occurs were owned by USRL or were leased to USRL by BNSF with exclusive use by the lessee (i.e. USRL), for the purpose of moving only rail cars shipped to or by the lessee, and the lessor (i.e., BNSF) exercised no control over or responsibility for the trackage or cars on the track, this trackage would meet the definition of "private track" in § 171.8. Lastly, PHMSA views the 745-ft. stretch of track (owned by USRL) as “private track” based on the information you shared regarding lease of that track by the owner.

I hope this information is helpful. Please contact us if we can be of further assistance.

Sincerely,

Steven Andrews
Acting Chief, Regulatory Review and Reinvention Branch
Standards and Rulemaking Division

171.8

Regulation Sections