Larson Berg & Perkins PLLC — Hazardous Materials Safety Interpretation

Page 1U.S. Department of Transportation Pipeline and Hazardous Materials Safety Administration 1200 New Jersey Avenue, SE Washington, DC 20590 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 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. 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#

Page 2of 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 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).#

Page 3In 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 “transloading” 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. Sincerely, Dirk Der Kinderen Chief, Standards Development Branch Standards and Rulemaking Division 3 68 Fed. Reg. at 61920#

Page 4Casey 22-0062 LARSON BERG & PERKINS PLLC LAW OFFICES JAMES A. PERKINS E-Mail: jim@lbplaw.com Paul M. Larson Ryan D. Griffee Joel F. Murray Zach A. Stambaugh Stephan D. A. Yhann Of Counsel: James A. Perkins James S. Berg Our File: 5593.002 April 21, 2022 VIA EMAIL: VASILIKI.TSAGANOS@DOT.GOV PIPELINE AND HAZARDOUS MATERIALS SAFETY ADMINISTRATION OFFICE OF CHIEF COUNSEL Attn: Vasiliki Tsaganos 1200 New Jersey Avenue, SE Washington, DC 20590 Re: Conflicting Opinion Letters Dear Ms. Tsaganos: On behalf of several “transportation” clients of our firm who have been provided with a copy of a recent May 21, 2020 “opinion/interpretation” letter authored by Mr. Dirk Der Kinderen (Kinderen), I am writing to you because based on our reading, his letter is facially inconsistent in its statements, with two prior “opinion/interpretation” letters which were previously issued by the Pipeline and Hazardous Materials Safety Administration. The first issued letter was authored by Mr. John A. Gale, then Chief of Standards Development for the Office of Hazardous Materials Standards, dated February 27, 2006 (see attached Exhibit 1). The second August 23, 2010 letter was issued by Mr. Bizunesh Scott for Mr. Frazer Hilder, who was then employed by the Office of Chief Counsel (but whom we understand has since retired). Turning first to attached letter Exhibit 1, the letter is clear in stating that a “detached” rail car containing a Class 3 chemical, which is located “on a leased railroad spur for a period of 1-3 days before it is picked up by the rail carrier and transported to its final destination” is considered to be “in transportation” for purposes of the federal government’s Hazardous Materials Regulations (HMR), 49 C.F.R. § 171.1(c). The letter goes on to state that “[s]torage incidental to movement” includes “storage at a transloading facility” until the particular container (here tank car) is physically delivered to the destination shown “on a shipping document, package marking, or other medium.” In 2010, this same “opinion/interpretation” of the HMR’s was again confirmed by attached letter Exhibit 2. Specifically on page 1, this second letter states that under “[f]ederal hazardous material transportation law, 49 U.S.C. § 5101 et seq.,” and the implementing HMR’s found at 49 C.F.R. parts 105 North Third Street, P. O. Box 550, Yakima, WA 98907 Phone: (509) 457-1515 - Fax: (509) 457-1027#

Page 5PIPELINE AND HAZARDOUS MATERIALS SAFETY ADMINISTRATION OFFICE OF CHIEF COUNSEL Attn: Vasiliki Tsaganos April 21, 2022 Page 2 171-180 “the movement of property and loading, unloading, or storage incidental to the movement” is defined to be a “transportation” covered by the HMR’s. In the first paragraph on page 2 of letter Exhibit 2, the letter again confirms that “storage at a transloading facility, provided the original shipping documentation identifies the shipment as a through-shipment and identifies the final destination or destinations of the hazardous material” is considered to be part of the HMR covered act of “transportation”. (49 C.F.R. § 171.1(c)(4)(i)(A)). The letter goes on to say that not only is the temporary “storage” of a cargo tank in transit to its final destination covered by the HMR’s, but any “transloading” which may occur from a tank car to a truck is also covered by the HMR’s. In this regard, attached letter Exhibit 2 also specifically states “transloading” is defined as “the transfer of a hazardous material by any person from one bulk packaging to another bulk packaging, from a bulk packaging to a non-bulk packaging, or from a non-bulk packaging to a bulk packing for purposes of continuing the movement of the hazardous material in commerce.” (49 C.F.R. § 171.8). At the bottom of letter page 2, the author discusses that in the Department’s October 30, 2003 final rule, it was specifically explained that “storage incidental to movement” of a hazardous material “includes storage by any person between the time that a carrier takes physical possession of a hazardous material for the purpose of transporting it, until the package containing the hazardous material is delivered to the destination indicated on shipping papers or other documentation. ” (68 Fed. Reg. at 61920). Turning now to the most recent May 21, 2020 “opinion/interpretation” letter issued by Mr. Kinderen (see attached letter Exhibit 3), in letter paragraph 2 , that letter inconsistently states that purportedly tank cars on a private track at a transloading facility for brief 2-3-day period (and which are not attached to a train) are not supposedly in “transportation” under the HMR’s even though the shipping paperwork specifically discloses that the material has not yet reached the final customer destination. That statement directly conflicts with the following letter Exhibit 1 statement: The HMR define “storage incidental to movement” to include “storage of a transport vehicle, freight container, or package containing a hazardous material by any person between the time that a carrier takes physical possession of the hazardous material for the purpose of transporting it in commerce until the package containing the hazardous material is physically delivered to the destination indicated on a shipping document, package marking, or other medium. ” [Emphasis added.] It also directly conflicts with the statement made in attached letter Exhibit 2 that “storage incidental to the movement of a hazardous material, which is part of transportation of a hazardous material in commerce” , . . . does include “storage at a transloading facility, provided the original shipping documentation identifies the shipment as a through-shipment and identifies the final destination or destinations of the hazardous material. ” (49 C.F.R. § 171.1(c)(4)(i)(A)). [Emphasis added.] That attached letter Exhibit 3 is completely inconsistent with the Department’s prior interpretation of the relevant regulations is then made crystal clear by the letter Exhibit 3 statement that purportedly a tank car delivered to a private track “transloading facility” for only two or three days is not still#

Page 6Pipeline and Hazardous Materials Safety Administration Office of Chief Counsel Attn: Vasiliki Tsaganos April 21,2022 Page 3 “storage incidental to movement”, even if the shipping papers specifically identify that the material is being transported as a “through-shipment" to another destination which the “shipping document, package marking, or other medium” specifically describes. (See 49 C.F.R. § 171.8). Importantly, this inconsistency in the opinion letters can have far-reaching implications. Specifically, the HMR regulations at-issue affect all intermodal operations, not just rail tank carto highway cargo tank material transfers. For example, assume an intermodal ISO container is transferred from a vessel to a holding yard at a port and two weeks later, a motor carrier arrives to continue the “through-shipment”, because the vessel is no longer attached to the ISO container, does that mean, i.e., Clean Air Act federal regulations apply rather than the HMR’s because the ISO container was no longer “in transportation” per 49 C.F.R. § 171.1(c)? Since attached letter Exhibits directly contradicts both the clear language of the referenced HMR’s and no less than two prior “opinion/interpretation” letters issued by the Department concerning the same set of facts, to make the Department’s position about its regulations clear, so that industry participants can know with certainty whether the HMR’s do or do not apply to “through-shipment" containers at a transioading facility for only two or three days (when the shipping papers specifically identify that a “through-shipment" is occurring), we would ask that you now officially rescind the recently issued “opinion/interpretation" letter attached as Exhibit 3, Reference No. 20-0026. Your prompt attention to this request is appreciated. We would finally note that if upon reading the attached letters you disagree that there is a clear inconsistency in the conclusions being expressed, your explaining the basis upon which you disagree that the letters are inconsistent would be sincerely appreciated. Very truly yours Larson Berg ^kins PLLC Jarfaes'A. Perkins JAP/ssp Enclosures#

Page 7EXHIBIT 1#

Page 8of Transportation U.S. Department 400 Seventh Street, S.W. Washington, D.C. 20590 Pipeline and Administration Hazardous Materials Safety FEB 2 / 2006 Ms. Patricia E. Lin Ref. No. 05-0313 Counsel, Environmental Practice Group Chevron U.S.A. Inc. 1500 Louisiana Street Houston, TX 77002 Dear Ms. Lin: Hazardous Materials Regulations (HMR; 49 CFR Parts 171-180). Specifically, you ask if This is in response to your November 23, 2005 letter requesting clarification of the temporary storage of a railroad car containing hazardous material on a leased railroad spur is considered to be "in transportation." In addition, you ask if the shipper or carrier the following scenario: is financially responsible for any release during transportation. Your question pertains to facility in Alabama to its processing plant in Mississippi. Initially, the shipment is A shipper consigns a shipment of a Class 3 (Flammable liquid) material from a vendor's transloaded from the trucks to a railcar. The railcar is stored on a leased railroad spur for carried in trucks via public highway to a private rail yard. The shipment is then destination. a period of 1-3 days before it is picked up by the rail carrier and transported to its final In the scenario you describe in your November 23 letter, the storage of the hazardous transportation" for purposes of the HMR. See § 171.1(c). Specifically, in the scenario material in a railcar located on a leased railroad spur is considered to be "in movement" and subject to all applicable HMR requirements. The HMR define "storage you describe, the storage of the material at the rail yard is "storage incidental to incidental to movement" to include "storage of a transport vehicle, freight container, or takes physical possession of the hazardous material for the purpose of transporting it in package containing a hazardous material by any person between the time that a carrier commerce until the package containing the hazardous material is physically delivered to the destination indicated on a shipping document, package marking, or other medium." See § 171.8. Storage incidental to movement also includes storage at a transloading facility. See §171.1(c)(4). Financial responsibility for a release of hazardous material during transportation is not regulated by the HMR. However, federal law does provide for civil and criminal 174.67 050313#

Page 9federal hazardous materials transportation law. See 49 U.S.C. §§ 5123 and 5124. penalties when a person is found to have knowingly and/or willfully violated the HMR or Thope this information is helpful. Sincerely, listen se / Chief, Standards Development Office of Hazardous Materials Standards#

Page 10EXHIBIT 2#

Page 11U.S. Department of Transportation 1200 New Jersey Ave., S.E. Washington, D.C. 20590 Materials Safety Administration Pipeline and Hazardous Chief Counsel Office of 08/23/2010 Mr. Phil Zlaket Director of Manufacturing And Corporate Compliance ACCU CHEM Conversion, Inc. 13226 Nelson Avenue City of Industry, CA 91746 Dear Mr. Zlaket: This responds to your April 16, 2010 letter to Frazer Hilder of my office concerning facilities operated by your company at which rail tank cars are received and the liquid hazardous materials contained in the tank cars are transferred to cargo tank motor vehicles for delivery to the ultimate recipient. You ask whether these operations constitute "transloading" and are subject to the Federal hazardous material transportation law, 49 U.S.C. § 5101 et seq., and the Hazardous Materials Regulations (HMR), 49 C.F.R. parts 171-180. As you describe your company's transfer operations: 1. Your company owns the track on which the transfer operations take place. 2. The "original shipper" of the hazardous material to your facility is filling an order for this material by its customer, but that shipper does not provide the rail carrier with documentation which identifies the ultimate recipient of the material. Rather, during the transfer operations at your facility, separate documentation is prepared which identifies the "original shipper as the shipper of the cargo tank containing the HM and the end user as the consignee." 3. On occasion, the original shipper of the hazardous material asks you to dilute the material with water, and you do this by adding the appropriate amount of water to the cargo tank just before transferring the hazardous material from the rail tank car to the cargo tank motor vehicle. Federal hazardous material transportation law defines "transports" and "transportation" to mean "the movement of property and loading, unloading, or storage incidental to the movement." 49 U.S.C. § 5101(13). As explained in the HMR, storage incidental to the movement of a hazardous material, which is part of transportation of a hazardous material in commerce, does not include "storage of a hazardous material at its final destination as shown on a shipping#

Page 12document," but does include "storage at a transloading facility, provided the original shipping documentation identifies the shipment as a through-shipment and identifies the final destination or destinations of the hazardous material." § 171.1(c)(4)(i)(A). "Transloading" is defined as "the transfer of a hazardous material by any person from one bulk packaging to another bulk packaging, from a bulk packaging to a non-bulk packaging, or from a non-bulk packaging to a bulk packaging for the purpose of continuing the movement of the hazardous material in commerce." 49 C.F.R. § 171.8. These provisions in the HMR were adopted in PHMSA's "HM-223" rulemaking. See the final rules published October 30, 2003 (68 Fed. Reg. 61906), and April 15, 2005 (70 Fed. Reg. 20018). As your letter suggests, language in the preamble to these final rules helps to explain whether or not your company's operations are "transloading" subject to the HMR, as follows: First, transfer operations that meet the definition of "transloading" in the HMR may take place on track owned by your company. In the April 15, 2005 final rule, we removed the words "at an intermodal facility from the definition of "transloading" adopted in the October 30, 2003 final rule because we agreed that "the location at which transloading occurs should not dictate whether the operation is regulated as a transportation function." 70 Fed. Reg. at 20020. In this manner, we "clarified] that transloading is regulated under the HMR irrespective of the location at which the operation occurs." Id. at 20021. The language in 49 C.F.R. § 171.1(c)(4)(ii), that "[s]torage incidental to movement includes rail cars containing hazardous materials that are stored on track that does not meet the definition of 'private track or siding' in § 171.8" does not mean that the storage may not take place on a "private track or siding." Second, unless some "original shipping documentation identifies the shipment as a through- shipment and identifies the final destination or destinations of the hazardous material" the transfer operations conducted at your facility do not meet the definition of "transloading" and are not "storage incidental to movement" of a hazardous material. 49 C.F.R. § 171.1(c)(4)(i)(A). In the October 30, 2003 final rule, we explained that "storage incidental to movement" of a hazardous material "includes storage by any person between the time that a carrier takes physical possession of a hazardous material for the purpose of transporting it until the package containing the hazardous material is delivered to the destination indicated on shipping papers or other documentation." 68 Fed. Reg. at 61920. In the April 15, 2005 final rule, we agreed that "transloading is a transportation function," rather than a "pre- transportation" activity, but did not modify the condition that "the original shipping document include[] information that the shipment is a through-shipment to an identified destination." 70 Fed. Reg. at 20020. The discussion of "transloading" in these final rules recognized that a "through- shipment" may involve both rail and highway transportation. Id. We also recognize that the shipping documentation that accompanies the rail portion of a "through-shipment" may only show the transfer facility as the destination, but original documentation prepared by the "original shipper," before transportation has started, is considered the 2#

Page 13only reliable evidence of a "through-shipment." The "three separate documents" you describe cannot be "taken as a whole" to constitute "original shipping documentation" of a "through-shipment" when one of these documents is prepared during the transfer operations at your facility. Under that scenario, the original shipper has the ability to select the consignee of what is, essentially, a "new" shipment by motor carrier. Third, the dilution of the material transported to your facility by rail car, during transfer to a cargo tank motor vehicle, creates a different material and is not simply "storage incidental to movement" of a hazardous material. As noted above, transloading" is defined as "the transfer of a hazardous material by any person from one bulk packaging to another bulk packaging, from a bulk packaging to a continuing the movement of the hazardous material in commerce." 49 C.F.R. § 171.8. non-bulk packaging, or from a non-bulk packaging to a bulk packaging for the purpose of We explained in the October 30, 2003 final rule that "transloading' is a pure transfer" of the hazardous material, and it "does not include operations that involve the transfer of a hazardous material from one packaging to another for purposes of mixing, blending, or otherwise altering the hazardous materials." 68 Fed. Reg. at 61919. Thus, the dilution that takes place at your facility is an alteration of the material delivered by the rail carrier, so that there is not a "pure transfer" from the rail car to cargo tank motor vehicles. Finally, we also explained in 49 C.F.R. § 171.1(f)(2) that, even when the transfer operations at a facility meet the definition of "transloading" and are "storage incidental to movement" of a hazardous material, that facility may still be "subject to applicable laws and regulations of state and local governments and Indian tribes," so long as those non-Federal requirements are not preempted under the criteria set forth in 49 U.S.C. § 5125. In the April 15, 2005 final rule, we added a clarification to § 171.1(f) "that non-Federal entities may impose regulations on functions that are not covered by the HMR or Federal hazmat law, except where PHMSA has specifically determined that the regulation of the hazardous materials-related function is not necessary. Appellants correctly note that PHMSA has in some cases determined that safety or security regulations may not apply to all hazardous materials or to specific types of shipments." 70 Fed. Reg. at 20025. We also noted that, "separate from the preemption criteria in 49 U.S.C. 5125, a non-Federal requirement affecting transportation, including the transportation of hazardous materials, may also be preempted under the commerce clause of the United States Constitution or other statutes such as 49 U.S.C. 20106, 31141." 70 Fed. Reg. at 20024. Thus, a state or local requirement applying to hazardous materials at a transfer facility, that constitutes an "obstacle" to accomplishing and carrying out Federal hazardous material transportation law or the HMR, would be preempted - even if the non-Federal requirement did not directly apply to a transportation activity. In sum, operations at a transfer facility that fall within the definition of "transloading" are "storage incidental to movement" of the hazardous material and subject to requirements in the HMR, but state or local requirements on the transfer facility may not be preempted when those non-Federal requirements do not apply to the subject matters in 49 U.S.C. § 5125(b)(1) and are 3#

Page 14not otherwise an "obstacle" to accomplishing and carrying out Federal hazardous material transportation law and the HMR. Conversely, operations at a transfer facility that do not meet the definition of "transloading" would not be "storage incidental to movement" of the hazardous material and would not be subject to requirements in the HMR, but those non-Federal requirements may be preempted if their practical effect would conflict with requirements in the HMR on the subject matters in 49 U.S.C. § 5125(b)(1) or otherwise create an "obstacle" to accomplishing and carrying out Federal hazardous material transportation law and the HMR. I hope this information is helpful. If you need further assistance, you may contact Mr. Hilder at 202-366-4400. Sincerely Bizunesh Scott Chief Counsel#

Page 15EXHIBIT 3#

Page 16U.S. Department of Transportation Pipeline and Hazardous Materials Safety Administration 1200 New Jersey Avenue, SE Washington, DC 20590 May 21, 2020 Jeff R. Thomas STAR Consulting 85 S. LaVerne Street Fallon, NV 89406 Reference No. 20-0026 Dear Mr. Thomas: This letter is in response to your March 23, 2020, email and subsequent email correspondence requesting clarification of the Hazardous Materials Regulations (HMR; 49 CFR Parts 171-180) applicable to storage incidental to movement. Specifically, you describe a scenario involving intermodal transportation and ask whether, in the specific scenario you describe, the storage of rail tank cars on private track meets the definition of “storage incidental to movement.” In your scenario, a hazardous material is transported by rail in tank cars from a manufacturing plant to a transloading facility. The tank cars are delivered to a private track at the transloading facility, and after a 2-3 day period, are unloaded from the tank cars into cargo tank motor vehicles for delivery to a customer. You ask whether the tank cars containing hazardous material are considered to be in “storage incidental to movement” (see §§ 171.1(c)(4) and 171.8) during the 2-3 day period they are stored on private track at the transloading facility, and therefore subject to the requirements of the HMR. The answer is no. As described in your scenario, the storage on private track does not meet the definition of “storage incidental to movement.” Once 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. The 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. I hope this information is helpful. Please contact us if we can be of further assistance. Sincerely, Dirk Der Kinderen Chief, Standards Development Branch Standards and Rulemaking Division#

Page 17From: DerKinderen, Dirk (PHMSA) To: Hazmat Interps Subject: FW: Follow up Date: Friday, June 24, 2022 8:33:21 AM Attachments: Office of Chief Counsel ltr 04-21-22.pdf Alice, Please log into the system and assign to someone in PHH11. Thanks, Dirk Der Kinderen Chief, Standards Development Branch PHMSA 202-366-4460 (desk) 202-365-4684 (cell) From: Tsaganos, Vasiliki (PHMSA) <vasiliki.tsaganos@dot.gov> Sent: Thursday, June 23, 2022 4:06 PM To: jim@lbplaw.com Cc: DerKinderen, Dirk (PHMSA) <Dirk.DerKinderen@dot.gov>; Horsley, Adam (PHMSA) <adam.horsley@dot.gov>; Tsaganos, Vasiliki (PHMSA) <vasiliki.tsaganos@dot.gov> Subject: Follow up Dear Mr. Perkins, Thank you for your inquiry/ letter dated April 21, 2022. I have referred your inquiry and the attached letter to our Standards and Rulemaking division to be handled as a request for a letter of interpretation. That office will reach out to you soon to confirm that they have begun work on this request. In the meantime, if you need additional information, please reach out to Dirk DerKinderen, Chief of Standards Development. Mr. DerKinderen can be reached by phone at (202) 366-4460, or by email at Dirk.DerKinderen@dot.gov. I hope this information is helpful and apologize for the delay in acknowledging your letter. Many thanks, Vasiliki Tsaganos Deputy Chief Counsel, Office of Chief Counsel US Department of Transportation Pipeline and Hazardous Materials Safety Administration 1200 New Jersey Avenue, S.E., Washington, D.C. 20590 Office: 202.366.0639 ◊ Facsimile: 202.578.9223#

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