{"operation":"document","citation":"21-0006","title":"Fletcher & Sippel LLC — Hazardous Materials Safety Interpretation","source_type":"guidance","agency":"Pipeline and Hazardous Materials Safety Administration","status":"guidance","official":true,"published_on":"2021-03-26","effective_on":null,"summary":"21-0006 response to Fletcher & Sippel LLC concerning 171.8.","machine_formats":{"json":"https://regulus.evalyn.ai/document/phmsa-interpretation-21-0006.json","markdown":"https://regulus.evalyn.ai/document/phmsa-interpretation-21-0006.md"},"app_url":"https://regulus.evalyn.ai/document/phmsa-interpretation-21-0006","source_url":"https://www.phmsa.dot.gov/sites/phmsa.dot.gov/files/docs/standards-rulemaking/hazmat/interpretations/74831/210006.pdf","body":"<<>>\n\nU.S. Department\nof Transportation\nPipeline and Hazardous\nMaterials Safety\nAdministration\nMarch 26, 2021\nMichael Barron\nFletcher & Sippel LLC\n29 N Upper Wacker Dr. #800\nChicago, IL 60606\nReference No. 21-0006\nDear Mr. Barron:\nThis letter is in response to your January 26, 2021, email requesting clarification of the\nHazardous Materials Regulations (HMR; 49 CFR Parts 171-180) applicable to the meaning of\nprivate track or private siding as defined in § 171.8. You describe a hypothetical scenario\nbetween a railroad (i.e., a rail carrier) and a private company, involving leased property and\ninterchange tracks. In your scenario, the private company receives hazardous materials from the\nrailroad by way of the interchange tracks, which are owned by the private company but on\nproperty (and inside a rail yard) owned by the railroad and leased to the private company. The\ninterchange tracks connect the private company tracks and the railroad tracks. Further, you state\nthat the lease is “on a non-exclusive basis”; however, you add that this is so that the railroad can\ndeliver and pull cars on the interchange tracks. Therefore, in this arrangement, the railroad only\nuses the interchange tracks to exchange cars with the private company; and the hazardous\nmaterials are subsequently unloaded on the private company’s own tracks by the private\ncompany. You ask whether the interchange tracks meet the definition of a “private track” or\n“private siding.”\nThe answer is yes only if the interchange tracks are used solely by the railroad and the private\ncompany for the purpose of moving cars shipped to or by the private company. The definition\nof “private track” or “private siding” includes a track that is leased by a railroad to a lessee,\nwhere the lease provides for, and actual practice entails, exclusive use of that trackage by the\nlessee and/or a general system railroad for purpose of moving only cars shipped to or by the\nlessee, and where the lessor otherwise exercises no control over or responsibility for the trackage\nor the cars on the trackage. Use of the interchange tracks by the railroad for the purpose of\ndelivery and exchanging cars does not preclude the interchange tracks from the exclusive use\ncriteria. However, if this interchange track has users other than these two entities, the\ninterchange tracks would no longer be considered “private track” or “private siding” for\npurposes of the HMR.\nI hope this information is helpful. Please contact us if we can be of further assistance.\nSincerely,\n1200 New Jersey Avenue, SE\nWashington, DC 20590\nDirk Der Kinderen\nChief, Standards Development Branch\nStandards and Rulemaking Division\n\n<<>>\n\nFrom: Dodd, Alice (PHMSA)\nTo: Hillman, Kenetha CTR (PHMSA)\nSubject: FW: Interpretation of a rule\nDate: Wednesday, January 27, 2021 3:14:18 PM\nAttachments: image004.png\nImportance: High\nCasey\n21-0006\nI was going to assign this to Eugenio but after Dirk said he was out so I was going to skip him for now.\nThe one I’m closing out is complicated so I will send you the next one.\nThanks,\nAlice\nFrom: DerKinderen, Dirk (PHMSA)\nSent: Wednesday, January 27, 2021 11:42 AM\nTo: Hazmat Interps \nCc: Horsley, Adam (PHMSA) \nSubject: FW: Interpretation of a rule\nImportance: High\nAlice,\nPlease process the below request for assignment to staff.\nI believe Safiya (from counsel) had worked on some private track/siding issue in the recent past so\nyou may want to include a note for the specialist who is assigned this interp request that it is\nrecommended to work with Safiya on the substance of the response.\nThanks,\nDirk Der Kinderen\nChief, Standards Development Branch\nPHMSA\n202-366-4460\nFrom: Horsley, Adam (PHMSA)\nSent: Wednesday, January 27, 2021 11:34 AM\nTo: DerKinderen, Dirk (PHMSA) \nCc: Tackett, Christina (PHMSA) ; Kelley, Shane (PHMSA)\n\nSubject: FW: Interpretation of a rule\nImportance: High\nHi Dirk,\nWhen you have time, we have received a request for interpretation on private track. Please let us\nknow if you have any questions.\nBest,\n\n<<>>\n\n- Adam\nAdam Horsley\nDeputy Assistant Chief Counsel, Office of Chief Counsel\nUS Department of Transportation\nPipeline and Hazardous Materials Safety Administration\n1200 New Jersey Avenue, S.E., Washington, D.C. 20590\nOffice: 202.366.8000 ◊ Facsimile: 202.366.7041\nPHMSA Home | LinkedIn | Twitter | HAZMAT | OPS\nPRIVILEGED & CONFIDENTIAL: This e-mail, including any attachments, is confidential, intended\nonly for the named recipient(s) above and may contain information that is privileged, confidential,\nattorney work product or otherwise legally protected. If you have received this message in error, or are\nnot the named recipient(s), please immediately notify me and permanently delete this e-mail message and\nany attachments from your workstation and/or network mail system.\nFrom: Michael J. Barron [mailto:MBarron@fletcher-sippel.com]\nSent: Tuesday, January 26, 2021 4:05 PM\nTo: Chief Counsel, PHMSA (PHMSA) \nSubject: Interpretation of a rule\nCAUTION: This email originated from outside of the Department of Transportation (DOT). Do not click on links or\nopen attachments unless you recognize the sender and know the content is safe.\nGood afternoon. I am an attorney in private practice in the City of Chicago with\nthe firm of Fletcher & Sippel.\nThis is a request for an interpretation of a rule.\nUnder 49 CFR 171.78, Private track or Private siding means:\n(i) Track located outside of a carrier's right-of-way, yard, or terminals where the\ncarrier does not own the rails, ties, roadbed, or right-of-way, or\n(ii) Track leased by a railroad to a lessee, where the lease provides for, and\nactual practice entails, exclusive use of that trackage by the lessee and/or a\ngeneral system railroad for purpose of moving only cars shipped to or by the\nlessee, and where the lessor otherwise exercises no control over or\n\n<<>>\n\nresponsibility for the trackage or the cars on the trackage.\nThe following hypothetical will provide the basis for the question:\nCustomer receives hazardous materials via a common carrier railroad to\nunload. The unloading is done on the customer’s own tracks and land and the\ncustomer has exclusive use of those tracks Only customer moves cars on and\noff these tracks.\nConnecting to the customer’s tracks are the “interchange” tracks. The\ncustomer’s tracks are connected to one end of the “interchange” tracks and\nthe railroad connection is on the other end. The “interchange” tracks are used\nto exchange cars between the railroad and the customer.\nThe “interchange” tracks are owned by the customer.\nThe “interchange” tracks are located inside a yard owned by the railroad.\nThe railroad is leasing the property under the “interchange tracks” to the\ncustomer.\nThe lease is on a non-exclusive basis. This is so railroad can deliver and pull cars\non the “interchange” tracks. Otherwise, railroad cannot be on the tracks so\nexchange of cars would be impossible. Railroad has no other reason to be on\nthese tracks.\nQuestion:\nAre these customer “interchange” tracks considered a “Private track or Private\nsiding”?\nMichael Barron\n312-252-1511\nSent from Mail for Windows 10","truncated":false,"body_characters":7278}