McCarthy, Sweeney & Harkaway, P.C. — Hazardous Materials Safety Interpretation

Page 1US.Department of Transportation Office of the Chief Counsel Seven St SW Washington. D.C 20590 Research and Special Programs Administration Lawrence W. Bierlein, Esq. MAY - 9 2003 Suite 600 McCarthy, Sweeney & Harkaway, P.C. Ref. No. 04-0038 2175 K Street, N.W. Washington, D.C. 20037 Dear Mr. Bierlein: This responds to your request for a retraction of a letter of interpretation issued by the Research and Special Programs Administration's Office of Hazardous Materials Standards (OHMS) concerning the definition under the Hazardous Materials Regulations (HMR; 49 CFR Parts 171-180) of a "manufacturer" of a cargo tank, cargo tank motor vehicle, or cargo tank equipment that forms part of the cargo tank wall. Specifically, you suggest that OHMS erred when it interpreted the definition to include persons who attach a cargo tank to a motor vehicle by strapping or other means that do not involve welding to the cargo tank wall. The definition in question is contained in § 178.320(a) of the HMR. The definition reads as follows: Manufacturer means any person engaged in the manufacture of a DOT specification cargo tank, cargo tank motor vehicle, or cargo tank equipment which forms part of the cargo tank wall. This term includes attaching a cargo tank to a motor vehicle or to a motor vehicle suspension component which involves welding on the cargo tank will. A manufacturer shall register with the Department in accordance with subpart F of part 107 in subchapter A of this chapter. As your letter notes, the definition was most recently revised in 1996 under a final rule issued under Docket HM-189M. The preamble to the HM-189M final rule stated that the definition was revised to clarify that the term does not include persons (assemblers) who attach a cargo tank to the motor vehicle or to motor vehicle component if no welding to the 040038 178.320#

Page 22 I agree that the definition for "manufacturer" in § 178.320(a) when read alongside the 1996 preamble language is ambiguous and confusing, at best. For this reason, RSPA will York State Police. We will address the ambiguity of the current definition in a future withdraw the October 21, 2002 interpretation addressed to Sergeant Eric C. Adair, New rulemaking. Sincerely, Nancy E. Machado Assistant Chief Counsel for Hazardous Materials Safety#

Page 3LAWRENGE W. BIERLEIN LAW OFFICES JOHN M. CUTLER, JF DOUGLAS M. CANTEr MCCARTHY, SWEENEY. & HARKAWAY, P.C. SUITE 600 202) 775-557 FACSIMILI STEVEN J. KALISH ANDREW P. GOLDSTEIN 2175 K STREET, N.W. CHANNING D. STROTHER, JR. RICHARD D. LIEBERMAN WASHINGTON, D. C. 20037 MSH@MSHPC.COM E-MAIL (202) 775-5560 WEBSITE KAREN R. O'BRIEN OF COUNSEL hTtp://ww.MSHPC.coM March 21, 2003 Nancy Machado, Esq. Office of Chief Counsel (DCC-10) 1032310) Research & Special Programs Administration U.S. Department of Transportation 400 Seventh Street, SW Washington, DC 20590 835 Dear Ms. Machado: like you to review the attached documents and as counsel ultimately retract a On behalf of the National Propane Gas Association, Inc. (NPGA), I would letter of clarification issued by Regulations. On October 21, 2002, endeavoring to respond to an inquiry from a State enforcement official, Del Billings wrote the attached letter (Ref. No. 02-0257). In this letter, he concluded that a person "who removes an existing MC331 cargo tank from a chassis and places it on a new chassis, by means of strapping or welding or non-welding methods, meets the definition of a manufacturer," as that term is defined in 49 CFR 178.320(a)(Italics added). I understand there was considerable pressure to get this letter out in a hurry. The rulemaking record for Section 178.320(a), however, shows the letter to be in error. Specifically, in HM-189M (61 Fed Reg. 51334, 51335; Oct. 1, his term does not include persons (asseinblers) who attach a cargo tank to the 1996), DOT stated: "The definition for 'Manufacturer' is revised to clarify that motor vehicle, or to a motor vehicle component if it involves no welding on the cargo tank wall." (Italics. added.) series of ripple effects in Parts 107, 173, 178, and 180. The only appropriate tank wall were a "manufacturer," this reading of the regulation would have a mechanism for such a significant change is notice-and-comment rilemaking.#

Page 4We do not need a new letter of clarification, because to us the rule is clear as it stands. What we do need and request, however, is an explicit retraction of the letter and removal of the letter from the RSPA web site where it now appears. Please contact me if you have any questions on this request. Sincerely, For eatin#