{"operation":"document","citation":"22-0062","title":"Larson Berg & Perkins PLLC — Hazardous Materials Safety Interpretation","source_type":"guidance","agency":"Pipeline and Hazardous Materials Safety Administration","status":"guidance","official":true,"published_on":"2023-03-10","effective_on":null,"summary":"22-0062 response to Larson Berg & Perkins PLLC concerning 171.1.","machine_formats":{"json":"https://regulus.evalyn.ai/document/phmsa-interpretation-22-0062.json","markdown":"https://regulus.evalyn.ai/document/phmsa-interpretation-22-0062.md"},"app_url":"https://regulus.evalyn.ai/document/phmsa-interpretation-22-0062","source_url":"https://www.phmsa.dot.gov/sites/phmsa.dot.gov/files/docs/standards-rulemaking/hazmat/interpretations/77386/220062.pdf","body":"<<<PAGE 1>>>\n\nU.S. Department\nof Transportation\nPipeline and Hazardous\nMaterials Safety\nAdministration\n1200 New Jersey Avenue, SE\nWashington, DC 20590\nMarch 10, 2023\nJames A. Perkins\nLarson Berg & Perkins PLLC\n105 North Third Street, P.O. Box 550\nYakima, WA 98907\nReference No. 22-0062\nDear Mr. Perkins:\nThis letter is in response to your April 21, 2022, letter requesting clarification of the\nHazardous Materials Regulations (HMR; 49 CFR Parts 171-180) applicable to storage incidental\nto transportation as it relates to rail tanks cars stored on private rail siding. Specifically, you\nbelieve that the clarification offered in letter of interpretation (LOI) Reference Number (Ref.\nNo.) 20-0026 conflicts with the responses PHMSA provided in LOI Ref. Nos. 05-0313 and CHI-\n10-004. In short, these three letters provide clarification regarding whether rail tank cars\ninvolved in transloading operations are in transportation and subject to the HMR. It is your\nunderstanding that these letters concern the same set of facts and therefore the clarification\noffered in LOI Ref. No. 20-0026 is wrong. Specifically, you ask PHMSA to clarify its position\non whether hazardous materials in a rail tank car stored on a private track at a transloading\nfacility for 2-3 days is subject to the HMR, when the shipping papers specifically disclose that\nthe rail tank car has not yet reached the final customer destination. PHMSA believes that these\nletters involve different factual scenarios and do not conflict.\nLOI Ref. No. 20-0026\nIn LOI Ref. No. 20-0026, the requestor asks whether the storage of rail tank cars on\nprivate track meets the definition of “storage incidental to movement.” PHMSA answers that, as\ndescribed in the requestor’s scenario, the storage on private track does not meet the definition of\n“storage incidental to movement.”\nThe scenario involves rail cars delivered to a private track at a transloading facility and\nstored for several days before they are unloaded from the rail cars into cargo tank motor vehicles\nfor delivery to a customer. Specifically, PHMSA states that once the rail cars are delivered to\nthe private track of the designated consignee for the rail movement, transportation is considered\nto have ended, even if the hazardous material is described as a through-shipment to another\ndestination.\nThis aligns with the HMR, which provide an exception for the storage of rail cars on\nprivate track. Section 171.1(d)(3) plainly states that that the HMR do not apply to the “storage\n\n<<<PAGE 2>>>\n\nof a rail car on private track.” This exception overrides the statement in Section\n171.1(c)(4)(i)(A) that “storage incidental to transportation” includes storage at the destination at\na transloading facility, provided the original shipping documentation identifies the shipment as a\nthrough-shipment. Once the tank cars are delivered to the private track, transportation is\nconsidered to have ended. Transportation would resume when the hazardous material is\nprepared for shipment to another destination. As stated in the interpretation, “the HMR apply to\nthe pre-trip functions performed for the next mode of transportation for the hazardous material” –\nwhich would include transloading the hazardous material to cargo tank motor vehicles.\nLOI Ref. No. 05-0313\nIn LOI Ref. No. 05-0313, the requestor asks if temporary storage of a railroad car\ncontaining hazardous material on a “leased railroad spur” is considered to be in transportation.\nPHMSA answers that, in the scenario described, “the storage of the hazardous material in a\nrailcar located on a leased railroad spur is considered to be ‘in transportation’ for purposes of the\nHMR.”\nThe scenario involves a shipment of Class 3 material carried in cargo tank motor vehicles\nvia public highway to private track, where it is transloaded from cargo tank motor vehicles to a\nrail car that is then transported to a leased railroad spur and stored for a period of one to three\ndays before being picked up by the carrier and transported to its final destination.\nLOI Ref. No. 05-0313 is distinguished from LOI Ref. No. 20-0026, in that it does not\ninvolve storage of a rail car on private track.1 In LOI Ref. No. 05-0313, the rail car is stored on\ntrack described as a “leased railroad spur,” and based on the limited description from the\nincoming request, it is not clear that this is “private track.” 2\nThe hazardous material has left a private rail yard before moving to the “leased railroad\nspur.” Based on the incoming letter, PHMSA did not have enough information to definitively\nsay whether the lease provided for exclusive use and control by the lessee, in order to meet the\ndefinition of private track. Thus, the interpretation treats the “leased railroad spur” as non-\nprivate track.\nThe HMR apply to the movement of hazardous material from a private rail yard to the\nleased railroad spur, and to the storage on non-private track. Without the private track exception,\nLOI Ref. No. 05-0313 correctly concludes that storage at a transloading facility on non-private\ntrack is considered storage incidental to movement.\nLOI Ref. No. CHI-10-004\n1 Section 171.8 defines “private track or siding” as (i) track located outside of a carrier's right-of-way, yard, or\nterminals where the carrier does not own the rails, ties, roadbed, or right-of-way, or (ii) track leased by a railroad to\na lessee, where the lease provides for, and actual practice entails, exclusive use of that trackage by the lessee and/or\na general system railroad for purpose of moving only cars shipped to or by the lessee, and where the lessor otherwise\nexercises no control over or responsibility for the trackage or the cars on the trackage.\n2 PHMSA has previously stated that track or siding is not considered private if a railroad exercises any responsibility\nfor or control over the trackage or the rail tank cars on the trackage. 68 FR 61920-61922 (Oct. 30, 2003).\n\n<<<PAGE 3>>>\n\nIn LOI Ref. No. CHI-10-004, the requestor asks whether transfer operations on track it\nowns (private track) are “transloading” and subject to the HMR. PHMSA answers that\noperations at the transfer facility which fall within the definition of “transloading” are “storage\nincidental to movement,” and are subject to the HMR, and that operations that do not meet the\ndefinition of “transloading” would not be “storage incidental to movement” and would not be\nsubject to the HMR.\nYou noted in your request that this interpretation states storage incidental to movement\nincludes storage between the time the carrier takes possession until the shipment is “delivered to\nthe destination indicated on shipping papers or other documentation.”3 A shipping paper\nshowing through-shipment is a strong indicator that a shipment is still in transportation.\nHowever, in LOI Ref. No. 20-0026, PHMSA stated that it is not sufficient to overcome the\nprivate track exception for rail cars in §171.1(c) and (d)(3). PHMSA found that “[o]nce the tank\ncars are delivered to the private track of the designated consignee for the rail movement,\ntransportation is considered to have ended, even if the hazardous material is described as a\nthrough-shipment to another destination.”\nLOI Ref. No. CHI-10-004’s clarification of what constitutes transloading is largely\nirrelevant to the facts presented in LOI Ref. No. 20-0026. PHMSA affirms that when the\nhazardous material is transloaded to the cargo tank motor vehicles on private track, the HMR\nwill apply. LOI Ref. No. 20-0026 states “[t]he storage of hazardous material in the tank car on\nprivate track is not subject to the HMR, but the HMR apply to the pre-trip functions performed\nfor the next mode of transportation for the hazardous material.” Transloading the hazardous\nmaterial from the rail cars to cargo tank motor vehicles is a transportation function and is subject\nto the HMR. However, the storage of the rail cars on private track from the time of delivery, up\nuntil transloading begins, is not subject to the HMR, because of the private track exception.\nIn sum, the three LOIs concern different sets of facts. Neither LOI Ref. Nos. 05-0313 nor\nCHI-10-004 conflict with LOI Ref. No. 20-0026 because the exception for the storage of rail cars\non private track distinguishes the scenario in LOI Ref. No. 20-0026 from those contemplated in\nearlier interpretations.\nI hope this information is helpful. Please contact us if we can be of further assistance.\nSincerely,\nDirk Der Kinderen\nChief, Standards Development Branch\nStandards and Rulemaking Division\n3 68 Fed. Reg. at 61920\n\n<<<PAGE 4>>>\n\nCasey\n22-0062\nLARSON BERG & PERKINS PLLC\nLAW OFFICES\nJAMES A. PERKINS\nE-Mail: jim@lbplaw.com\nPaul M. Larson\nRyan D. Griffee\nJoel F. Murray\nZach A. Stambaugh\nStephan D. A. Yhann\nOf Counsel:\nJames A. Perkins\nJames S. Berg\nOur File: 5593.002\nApril 21, 2022\nVIA EMAIL: VASILIKI.TSAGANOS@DOT.GOV\nPIPELINE AND HAZARDOUS MATERIALS SAFETY ADMINISTRATION\nOFFICE OF CHIEF COUNSEL\nAttn: Vasiliki Tsaganos\n1200 New Jersey Avenue, SE\nWashington, DC 20590\nRe: Conflicting Opinion Letters\nDear Ms. Tsaganos:\nOn behalf of several “transportation” clients of our firm who have been provided with a copy of a\nrecent May 21, 2020 “opinion/interpretation” letter authored by Mr. Dirk Der Kinderen (Kinderen), I\nam writing to you because based on our reading, his letter is facially inconsistent in its statements,\nwith two prior “opinion/interpretation” letters which were previously issued by the Pipeline and\nHazardous Materials Safety Administration.\nThe first issued letter was authored by Mr. John A. Gale, then Chief of Standards Development for\nthe Office of Hazardous Materials Standards, dated February 27, 2006 (see attached Exhibit 1).\nThe second August 23, 2010 letter was issued by Mr. Bizunesh Scott for Mr. Frazer Hilder, who was\nthen employed by the Office of Chief Counsel (but whom we understand has since retired).\nTurning first to attached letter Exhibit 1, the letter is clear in stating that a “detached” rail car\ncontaining a Class 3 chemical, which is located “on a leased railroad spur for a period of 1-3 days\nbefore it is picked up by the rail carrier and transported to its final destination” is considered to be “in\ntransportation” for purposes of the federal government’s Hazardous Materials Regulations (HMR),\n49 C.F.R. § 171.1(c).\nThe letter goes on to state that “[s]torage incidental to movement” includes “storage at a\ntransloading facility” until the particular container (here tank car) is physically delivered to the\ndestination shown “on a shipping document, package marking, or other medium.”\nIn 2010, this same “opinion/interpretation” of the HMR’s was again confirmed by attached letter\nExhibit 2.\nSpecifically on page 1, this second letter states that under “[f]ederal hazardous material\ntransportation law, 49 U.S.C. § 5101 et seq.,” and the implementing HMR’s found at 49 C.F.R. parts\n105 North Third Street, P. O. Box 550, Yakima, WA 98907\nPhone: (509) 457-1515 - Fax: (509) 457-1027\n\n<<<PAGE 5>>>\n\nPIPELINE AND HAZARDOUS MATERIALS SAFETY ADMINISTRATION\nOFFICE OF CHIEF COUNSEL\nAttn: Vasiliki Tsaganos\nApril 21, 2022\nPage 2\n171-180 “the movement of property and loading, unloading, or storage incidental to the movement”\nis defined to be a “transportation” covered by the HMR’s.\nIn the first paragraph on page 2 of letter Exhibit 2, the letter again confirms that “storage at a\ntransloading facility, provided the original shipping documentation identifies the shipment as a\nthrough-shipment and identifies the final destination or destinations of the hazardous material” is\nconsidered to be part of the HMR covered act of “transportation”. (49 C.F.R. § 171.1(c)(4)(i)(A)).\nThe letter goes on to say that not only is the temporary “storage” of a cargo tank in transit to its final\ndestination covered by the HMR’s, but any “transloading” which may occur from a tank car to a\ntruck is also covered by the HMR’s.\nIn this regard, attached letter Exhibit 2 also specifically states “transloading” is defined as “the\ntransfer of a hazardous material by any person from one bulk packaging to another bulk packaging,\nfrom a bulk packaging to a non-bulk packaging, or from a non-bulk packaging to a bulk packing for\npurposes of continuing the movement of the hazardous material in commerce.” (49 C.F.R.\n§ 171.8).\nAt the bottom of letter page 2, the author discusses that in the Department’s October 30, 2003 final\nrule, it was specifically explained that “storage incidental to movement” of a hazardous material\n“includes storage by any person between the time that a carrier takes physical possession of a\nhazardous material for the purpose of transporting it, until the package containing the hazardous\nmaterial is delivered to the destination indicated on shipping papers or other documentation.\n” (68\nFed. Reg. at 61920).\nTurning now to the most recent May 21, 2020 “opinion/interpretation” letter issued by Mr. Kinderen\n(see attached letter Exhibit 3), in letter paragraph 2 , that letter inconsistently states that\npurportedly tank cars on a private track at a transloading facility for brief 2-3-day period (and which\nare not attached to a train) are not supposedly in “transportation” under the HMR’s even though the\nshipping paperwork specifically discloses that the material has not yet reached the final customer\ndestination. That statement directly conflicts with the following letter Exhibit 1 statement:\nThe HMR define “storage incidental to movement” to include “storage of a transport\nvehicle, freight container, or package containing a hazardous material by any person\nbetween the time that a carrier takes physical possession of the hazardous material\nfor the purpose of transporting it in commerce until the package containing the\nhazardous material is physically delivered to the destination indicated on a shipping\ndocument, package marking, or other medium.\n” [Emphasis added.]\nIt also directly conflicts with the statement made in attached letter Exhibit 2 that “storage incidental\nto the movement of a hazardous material, which is part of transportation of a hazardous material in\ncommerce”\n, . . . does include “storage at a transloading facility, provided the original shipping\ndocumentation identifies the shipment as a through-shipment and identifies the final destination or\ndestinations of the hazardous material.\n” (49 C.F.R. § 171.1(c)(4)(i)(A)). [Emphasis added.]\nThat attached letter Exhibit 3 is completely inconsistent with the Department’s prior interpretation of\nthe relevant regulations is then made crystal clear by the letter Exhibit 3 statement that purportedly\na tank car delivered to a private track “transloading facility” for only two or three days is not still\n\n<<<PAGE 6>>>\n\nPipeline and Hazardous Materials Safety Administration\nOffice of Chief Counsel\nAttn: Vasiliki Tsaganos\nApril 21,2022\nPage 3\n“storage incidental to movement”, even if the shipping papers specifically identify that the material is\nbeing transported as a “through-shipment\" to another destination which the “shipping document,\npackage marking, or other medium” specifically describes. (See 49 C.F.R. § 171.8).\nImportantly, this inconsistency in the opinion letters can have far-reaching implications. Specifically,\nthe HMR regulations at-issue affect all intermodal operations, not just rail tank carto highway cargo\ntank material transfers. For example, assume an intermodal ISO container is transferred from a\nvessel to a holding yard at a port and two weeks later, a motor carrier arrives to continue the\n“through-shipment”, because the vessel is no longer attached to the ISO container, does that mean,\ni.e., Clean Air Act federal regulations apply rather than the HMR’s because the ISO container was\nno longer “in transportation” per 49 C.F.R. § 171.1(c)?\nSince attached letter Exhibits directly contradicts both the clear language of the referenced HMR’s\nand no less than two prior “opinion/interpretation” letters issued by the Department concerning the\nsame set of facts, to make the Department’s position about its regulations clear, so that industry\nparticipants can know with certainty whether the HMR’s do or do not apply to “through-shipment\"\ncontainers at a transioading facility for only two or three days (when the shipping papers specifically\nidentify that a “through-shipment\" is occurring), we would ask that you now officially rescind the\nrecently issued “opinion/interpretation\" letter attached as Exhibit 3, Reference No. 20-0026.\nYour prompt attention to this request is appreciated.\nWe would finally note that if upon reading the attached letters you disagree that there is a clear\ninconsistency in the conclusions being expressed, your explaining the basis upon which you\ndisagree that the letters are inconsistent would be sincerely appreciated.\nVery truly yours\nLarson Berg ^kins PLLC\nJarfaes'A. Perkins\nJAP/ssp\nEnclosures\n\n<<<PAGE 7>>>\n\nEXHIBIT 1\n\n<<<PAGE 8>>>\n\nof Transportation\nU.S. Department\n400 Seventh Street, S.W.\nWashington, D.C. 20590\nPipeline and\nAdministration\nHazardous Materials Safety\nFEB\n2 / 2006\nMs. Patricia E. Lin\nRef. No. 05-0313\nCounsel, Environmental Practice Group\nChevron U.S.A. Inc.\n1500 Louisiana Street\nHouston, TX 77002\nDear Ms. Lin:\nHazardous Materials Regulations (HMR; 49 CFR Parts 171-180). Specifically, you ask if\nThis is in response to your November 23, 2005 letter requesting clarification of the\ntemporary storage of a railroad car containing hazardous material on a leased railroad\nspur is considered to be \"in transportation.\" In addition, you ask if the shipper or carrier\nthe following scenario:\nis financially responsible for any release during transportation. Your question pertains to\nfacility in Alabama to its processing plant in Mississippi. Initially, the shipment is\nA shipper consigns a shipment of a Class 3 (Flammable liquid) material from a vendor's\ntransloaded from the trucks to a railcar. The railcar is stored on a leased railroad spur for\ncarried in trucks via public highway to a private rail yard. The shipment is then\ndestination.\na period of 1-3 days before it is picked up by the rail carrier and transported to its final\nIn the scenario you describe in your November 23 letter, the storage of the hazardous\ntransportation\" for purposes of the HMR. See § 171.1(c). Specifically, in the scenario\nmaterial in a railcar located on a leased railroad spur is considered to be \"in\nmovement\" and subject to all applicable HMR requirements. The HMR define \"storage\nyou describe, the storage of the material at the rail yard is \"storage incidental to\nincidental to movement\" to include \"storage of a transport vehicle, freight container, or\ntakes physical possession of the hazardous material for the purpose of transporting it in\npackage containing a hazardous material by any person between the time that a carrier\ncommerce until the package containing the hazardous material is physically delivered to\nthe destination indicated on a shipping document, package marking, or other medium.\"\nSee § 171.8. Storage incidental to movement also includes storage at a transloading\nfacility. See §171.1(c)(4).\nFinancial responsibility for a release of hazardous material during transportation is not\nregulated by the HMR. However, federal law does provide for civil and criminal\n174.67\n050313\n\n<<<PAGE 9>>>\n\nfederal hazardous materials transportation law. See 49 U.S.C. §§ 5123 and 5124.\npenalties when a person is found to have knowingly and/or willfully violated the HMR or\nThope this information is helpful.\nSincerely,\nlisten se\n/ Chief, Standards Development\nOffice of Hazardous Materials Standards\n\n<<<PAGE 10>>>\n\nEXHIBIT 2\n\n<<<PAGE 11>>>\n\nU.S. Department\nof Transportation\n1200 New Jersey Ave., S.E.\nWashington, D.C. 20590\nMaterials Safety Administration\nPipeline and Hazardous\nChief Counsel\nOffice of\n08/23/2010\nMr. Phil Zlaket\nDirector of Manufacturing\nAnd Corporate Compliance\nACCU CHEM Conversion, Inc.\n13226 Nelson Avenue\nCity of Industry, CA 91746\nDear Mr. Zlaket:\nThis responds to your April 16, 2010 letter to Frazer Hilder of my office concerning facilities\noperated by your company at which rail tank cars are received and the liquid hazardous materials\ncontained in the tank cars are transferred to cargo tank motor vehicles for delivery to the ultimate\nrecipient. You ask whether these operations constitute \"transloading\" and are subject to the\nFederal hazardous material transportation law, 49 U.S.C. § 5101 et seq., and the Hazardous\nMaterials Regulations (HMR), 49 C.F.R. parts 171-180.\nAs you describe your company's transfer operations:\n1. Your company owns the track on which the transfer operations take place.\n2. The \"original shipper\" of the hazardous material to your facility is filling an order for\nthis material by its customer, but that shipper does not provide the rail carrier with\ndocumentation which identifies the ultimate recipient of the material. Rather, during the transfer\noperations at your facility, separate documentation is prepared which identifies the \"original\nshipper as the shipper of the cargo tank containing the HM and the end user as the consignee.\"\n3. On occasion, the original shipper of the hazardous material asks you to dilute the\nmaterial with water, and you do this by adding the appropriate amount of water to the cargo tank\njust before transferring the hazardous material from the rail tank car to the cargo tank motor\nvehicle.\nFederal hazardous material transportation law defines \"transports\" and \"transportation\" to mean\n\"the movement of property and loading, unloading, or storage incidental to the movement.\" 49\nU.S.C. § 5101(13). As explained in the HMR, storage incidental to the movement of a\nhazardous material, which is part of transportation of a hazardous material in commerce, does\nnot include \"storage of a hazardous material at its final destination as shown on a shipping\n\n<<<PAGE 12>>>\n\ndocument,\" but does include \"storage at a transloading facility, provided the original shipping\ndocumentation identifies the shipment as a through-shipment and identifies the final destination\nor destinations of the hazardous material.\" § 171.1(c)(4)(i)(A). \"Transloading\" is defined as\n\"the transfer of a hazardous material by any person from one bulk packaging to another bulk\npackaging, from a bulk packaging to a non-bulk packaging, or from a non-bulk packaging to a\nbulk packaging for the purpose of continuing the movement of the hazardous material in\ncommerce.\" 49 C.F.R. § 171.8.\nThese provisions in the HMR were adopted in PHMSA's \"HM-223\" rulemaking. See the final\nrules published October 30, 2003 (68 Fed. Reg. 61906), and April 15, 2005 (70 Fed. Reg.\n20018). As your letter suggests, language in the preamble to these final rules helps to explain\nwhether or not your company's operations are \"transloading\" subject to the HMR, as follows:\nFirst, transfer operations that meet the definition of \"transloading\" in the HMR may take place\non track owned by your company.\nIn the April 15, 2005 final rule, we removed the words \"at an intermodal facility from the\ndefinition of \"transloading\" adopted in the October 30, 2003 final rule because we agreed\nthat \"the location at which transloading occurs should not dictate whether the operation is\nregulated as a transportation function.\" 70 Fed. Reg. at 20020. In this manner, we\n\"clarified] that transloading is regulated under the HMR irrespective of the location at\nwhich the operation occurs.\" Id. at 20021. The language in 49 C.F.R. § 171.1(c)(4)(ii),\nthat \"[s]torage incidental to movement includes rail cars containing hazardous materials\nthat are stored on track that does not meet the definition of 'private track or siding' in\n§ 171.8\" does not mean that the storage may not take place on a \"private track or siding.\"\nSecond, unless some \"original shipping documentation identifies the shipment as a through-\nshipment and identifies the final destination or destinations of the hazardous material\" the\ntransfer operations conducted at your facility do not meet the definition of \"transloading\" and are\nnot \"storage incidental to movement\" of a hazardous material. 49 C.F.R. § 171.1(c)(4)(i)(A).\nIn the October 30, 2003 final rule, we explained that \"storage incidental to movement\" of\na hazardous material \"includes storage by any person between the time that a carrier takes\nphysical possession of a hazardous material for the purpose of transporting it until the\npackage containing the hazardous material is delivered to the destination indicated on\nshipping papers or other documentation.\" 68 Fed. Reg. at 61920. In the April 15, 2005\nfinal rule, we agreed that \"transloading is a transportation function,\" rather than a \"pre-\ntransportation\" activity, but did not modify the condition that \"the original shipping\ndocument include[] information that the shipment is a through-shipment to an identified\ndestination.\" 70 Fed. Reg. at 20020.\nThe discussion of \"transloading\" in these final rules recognized that a \"through-\nshipment\" may involve both rail and highway transportation. Id. We also recognize that\nthe shipping documentation that accompanies the rail portion of a \"through-shipment\"\nmay only show the transfer facility as the destination, but original documentation\nprepared by the \"original shipper,\" before transportation has started, is considered the\n2\n\n<<<PAGE 13>>>\n\nonly reliable evidence of a \"through-shipment.\" The \"three separate documents\" you\ndescribe cannot be \"taken as a whole\" to constitute \"original shipping documentation\" of\na \"through-shipment\" when one of these documents is prepared during the transfer\noperations at your facility. Under that scenario, the original shipper has the ability to\nselect the consignee of what is, essentially, a \"new\" shipment by motor carrier.\nThird, the dilution of the material transported to your facility by rail car, during transfer to a\ncargo tank motor vehicle, creates a different material and is not simply \"storage incidental to\nmovement\" of a hazardous material.\nAs noted above, transloading\" is defined as \"the transfer of a hazardous material by any\nperson from one bulk packaging to another bulk packaging, from a bulk packaging to a\ncontinuing the movement of the hazardous material in commerce.\" 49 C.F.R. § 171.8.\nnon-bulk packaging, or from a non-bulk packaging to a bulk packaging for the purpose of\nWe explained in the October 30, 2003 final rule that \"transloading' is a pure transfer\" of\nthe hazardous material, and it \"does not include operations that involve the transfer of a\nhazardous material from one packaging to another for purposes of mixing, blending, or\notherwise altering the hazardous materials.\" 68 Fed. Reg. at 61919. Thus, the dilution\nthat takes place at your facility is an alteration of the material delivered by the rail carrier,\nso that there is not a \"pure transfer\" from the rail car to cargo tank motor vehicles.\nFinally, we also explained in 49 C.F.R. § 171.1(f)(2) that, even when the transfer operations at a\nfacility meet the definition of \"transloading\" and are \"storage incidental to movement\" of a\nhazardous material, that facility may still be \"subject to applicable laws and regulations of state\nand local governments and Indian tribes,\" so long as those non-Federal requirements are not\npreempted under the criteria set forth in 49 U.S.C. § 5125.\nIn the April 15, 2005 final rule, we added a clarification to § 171.1(f) \"that non-Federal\nentities may impose regulations on functions that are not covered by the HMR or Federal\nhazmat law, except where PHMSA has specifically determined that the regulation of the\nhazardous materials-related function is not necessary. Appellants correctly note that\nPHMSA has in some cases determined that safety or security regulations may not apply\nto all hazardous materials or to specific types of shipments.\" 70 Fed. Reg. at 20025. We\nalso noted that, \"separate from the preemption criteria in 49 U.S.C. 5125, a non-Federal\nrequirement affecting transportation, including the transportation of hazardous materials,\nmay also be preempted under the commerce clause of the United States Constitution or\nother statutes such as 49 U.S.C. 20106, 31141.\" 70 Fed. Reg. at 20024. Thus, a state or\nlocal requirement applying to hazardous materials at a transfer facility, that constitutes an\n\"obstacle\" to accomplishing and carrying out Federal hazardous material transportation\nlaw or the HMR, would be preempted - even if the non-Federal requirement did not\ndirectly apply to a transportation activity.\nIn sum, operations at a transfer facility that fall within the definition of \"transloading\" are\n\"storage incidental to movement\" of the hazardous material and subject to requirements in the\nHMR, but state or local requirements on the transfer facility may not be preempted when those\nnon-Federal requirements do not apply to the subject matters in 49 U.S.C. § 5125(b)(1) and are\n3\n\n<<<PAGE 14>>>\n\nnot otherwise an \"obstacle\" to accomplishing and carrying out Federal hazardous material\ntransportation law and the HMR. Conversely, operations at a transfer facility that do not meet\nthe definition of \"transloading\" would not be \"storage incidental to movement\" of the hazardous\nmaterial and would not be subject to requirements in the HMR, but those non-Federal\nrequirements may be preempted if their practical effect would conflict with requirements in the\nHMR on the subject matters in 49 U.S.C. § 5125(b)(1) or otherwise create an \"obstacle\" to\naccomplishing and carrying out Federal hazardous material transportation law and the HMR.\nI hope this information is helpful. If you need further assistance, you may contact Mr. Hilder at\n202-366-4400.\nSincerely\nBizunesh Scott\nChief Counsel\n\n<<<PAGE 15>>>\n\nEXHIBIT 3\n\n<<<PAGE 16>>>\n\nU.S. Department\nof Transportation\nPipeline and Hazardous\nMaterials Safety\nAdministration\n1200 New Jersey Avenue, SE\nWashington, DC 20590\nMay 21, 2020\nJeff R. Thomas\nSTAR Consulting\n85 S. LaVerne Street\nFallon, NV 89406\nReference No. 20-0026\nDear Mr. Thomas:\nThis letter is in response to your March 23, 2020, email and subsequent email correspondence\nrequesting clarification of the Hazardous Materials Regulations (HMR; 49 CFR Parts 171-180)\napplicable to storage incidental to movement. Specifically, you describe a scenario involving\nintermodal transportation and ask whether, in the specific scenario you describe, the storage of\nrail tank cars on private track meets the definition of “storage incidental to movement.”\nIn your scenario, a hazardous material is transported by rail in tank cars from a manufacturing\nplant to a transloading facility. The tank cars are delivered to a private track at the transloading\nfacility, and after a 2-3 day period, are unloaded from the tank cars into cargo tank motor\nvehicles for delivery to a customer. You ask whether the tank cars containing hazardous material\nare considered to be in “storage incidental to movement” (see §§ 171.1(c)(4) and 171.8) during\nthe 2-3 day period they are stored on private track at the transloading facility, and therefore\nsubject to the requirements of the HMR.\nThe answer is no. As described in your scenario, the storage on private track does not meet the\ndefinition of “storage incidental to movement.” Once the tank cars are delivered to the private\ntrack of the designated consignee for the rail movement, transportation is considered to have\nended, even if the hazardous material is described as a through-shipment to another destination.\nThe storage of hazardous material in the tank car on private track is not subject to the HMR, but\nthe HMR apply to the pre-trip functions performed for the next mode of transportation for the\nhazardous material.\nI hope this information is helpful. Please contact us if we can be of further assistance.\nSincerely,\nDirk Der Kinderen\nChief, Standards Development Branch\nStandards and Rulemaking Division\n\n<<<PAGE 17>>>\n\nFrom: DerKinderen, Dirk (PHMSA)\nTo: Hazmat Interps\nSubject: FW: Follow up\nDate: Friday, June 24, 2022 8:33:21 AM\nAttachments: Office of Chief Counsel ltr 04-21-22.pdf\nAlice,\nPlease log into the system and assign to someone in PHH11.\nThanks,\nDirk Der Kinderen\nChief, Standards Development Branch\nPHMSA\n202-366-4460 (desk)\n202-365-4684 (cell)\nFrom: Tsaganos, Vasiliki (PHMSA) <vasiliki.tsaganos@dot.gov>\nSent: Thursday, June 23, 2022 4:06 PM\nTo: jim@lbplaw.com\nCc: DerKinderen, Dirk (PHMSA) <Dirk.DerKinderen@dot.gov>; Horsley, Adam (PHMSA)\n<adam.horsley@dot.gov>; Tsaganos, Vasiliki (PHMSA) <vasiliki.tsaganos@dot.gov>\nSubject: Follow up\nDear Mr. Perkins,\nThank you for your inquiry/ letter dated April 21, 2022. I have referred your inquiry and the attached\nletter to our Standards and Rulemaking division to be handled as a request for a letter of\ninterpretation. That office will reach out to you soon to confirm that they have begun work on this\nrequest. In the meantime, if you need additional information, please reach out to Dirk DerKinderen,\nChief of Standards Development. Mr. DerKinderen can be reached by phone at (202) 366-4460, or\nby email at Dirk.DerKinderen@dot.gov. I hope this information is helpful and apologize for the delay\nin acknowledging your letter.\nMany thanks,\nVasiliki Tsaganos\nDeputy 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: 202.366.0639 ◊ Facsimile: 202.578.9223\n\n<<<PAGE 18>>>\n\nPHMSA Home | LinkedIn | Twitter | HAZMAT | OPS\nPRIVILEGED & CONFIDENTIAL: This e-mail, including any attachments, is confidential, intended only\nfor 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\nare not the named recipient(s), please immediately notify me and permanently delete this e-mail\nmessage and any attachments from your workstation and/or network mail system.","truncated":false,"body_characters":33900}