{"operation":"document","citation":"04-0038","title":"McCarthy, Sweeney & Harkaway, P.C. — Hazardous Materials Safety Interpretation","source_type":"guidance","agency":"Pipeline and Hazardous Materials Safety Administration","status":"guidance","official":true,"published_on":"2003-05-09","effective_on":null,"summary":"04-0038 response to McCarthy, Sweeney & Harkaway, P.C. concerning 178.320.","machine_formats":{"json":"https://regulus.evalyn.ai/document/phmsa-interpretation-04-0038.json","markdown":"https://regulus.evalyn.ai/document/phmsa-interpretation-04-0038.md"},"app_url":"https://regulus.evalyn.ai/document/phmsa-interpretation-04-0038","source_url":"https://www.phmsa.dot.gov/sites/phmsa.dot.gov/files/legacy/interpretations/Interpretation%20Files/2004/040038.pdf","body":"<<<PAGE 1>>>\n\nUS.Department\nof Transportation\nOffice of the\nChief Counsel\nSeven St SW\nWashington. D.C 20590\nResearch and\nSpecial Programs\nAdministration\nLawrence W. Bierlein, Esq.\nMAY - 9 2003\nSuite 600\nMcCarthy, Sweeney & Harkaway, P.C.\nRef. No. 04-0038\n2175 K Street, N.W.\nWashington, D.C. 20037\nDear Mr. Bierlein:\nThis responds to your request for a retraction of a letter of interpretation issued by the\nResearch and Special Programs Administration's Office of Hazardous Materials Standards\n(OHMS) concerning the definition under the Hazardous Materials Regulations (HMR; 49\nCFR Parts 171-180) of a \"manufacturer\" of a cargo tank, cargo tank motor vehicle, or cargo\ntank equipment that forms part of the cargo tank wall. Specifically, you suggest that OHMS\nerred when it interpreted the definition to include persons who attach a cargo tank to a motor\nvehicle by strapping or other means that do not involve welding to the cargo tank wall.\nThe definition in question is contained in § 178.320(a) of the HMR. The definition reads as\nfollows:\nManufacturer means any person engaged in the manufacture of a DOT\nspecification cargo tank, cargo tank motor vehicle, or cargo tank equipment\nwhich forms part of the cargo tank wall. This term includes attaching a cargo\ntank to a motor vehicle or to a motor vehicle suspension component which\ninvolves welding on the cargo tank will. A manufacturer shall register with the\nDepartment in accordance with subpart F of part 107 in subchapter A of this\nchapter.\nAs your letter notes, the definition was most recently revised in 1996 under a final rule\nissued under Docket HM-189M. The preamble to the HM-189M final rule stated that the\ndefinition was revised to clarify that the term does not include persons (assemblers) who\nattach a cargo tank to the motor vehicle or to motor vehicle component if no welding to the\n040038\n178.320\n\n<<<PAGE 2>>>\n\n2\nI agree that the definition for \"manufacturer\" in § 178.320(a) when read alongside the 1996\npreamble language is ambiguous and confusing, at best. For this reason, RSPA will\nYork State Police. We will address the ambiguity of the current definition in a future\nwithdraw the October 21, 2002 interpretation addressed to Sergeant Eric C. Adair, New\nrulemaking.\nSincerely,\nNancy E. Machado\nAssistant Chief Counsel\nfor Hazardous Materials Safety\n\n<<<PAGE 3>>>\n\nLAWRENGE W. BIERLEIN\nLAW OFFICES\nJOHN M. CUTLER, JF\nDOUGLAS M. CANTEr\nMCCARTHY, SWEENEY. & HARKAWAY, P.C.\nSUITE 600\n202) 775-557\nFACSIMILI\nSTEVEN J. KALISH\nANDREW P. GOLDSTEIN\n2175 K STREET, N.W.\nCHANNING D. STROTHER, JR.\nRICHARD D. LIEBERMAN\nWASHINGTON, D. C. 20037\nMSH@MSHPC.COM\nE-MAIL\n(202) 775-5560\nWEBSITE\nKAREN R. O'BRIEN\nOF COUNSEL\nhTtp://ww.MSHPC.coM\nMarch 21, 2003\nNancy Machado, Esq.\nOffice of Chief Counsel (DCC-10)\n1032310)\nResearch & Special Programs Administration\nU.S. Department of Transportation\n400 Seventh Street, SW\nWashington, DC 20590\n835\nDear Ms. Machado:\nlike you to review the attached documents and as counsel ultimately retract a\nOn behalf of the National Propane Gas Association, Inc. (NPGA), I would\nletter of clarification issued by Regulations.\nOn October 21, 2002, endeavoring to respond to an inquiry from a State\nenforcement official, Del Billings wrote the attached letter (Ref. No. 02-0257). In\nthis letter, he concluded that a person \"who removes an existing MC331 cargo\ntank from a chassis and places it on a new chassis, by means of strapping or\nwelding or non-welding methods, meets the definition of a manufacturer,\" as that\nterm is defined in 49 CFR 178.320(a)(Italics added). I understand there was\nconsiderable pressure to get this letter out in a hurry.\nThe rulemaking record for Section 178.320(a), however, shows the letter\nto be in error. Specifically, in HM-189M (61 Fed Reg. 51334, 51335; Oct. 1,\nhis term does not include persons (asseinblers) who attach a cargo tank to the\n1996), DOT stated: \"The definition for 'Manufacturer' is revised to clarify that\nmotor vehicle, or to a motor vehicle component if it involves no welding on the\ncargo tank wall.\" (Italics. added.)\nseries of ripple effects in Parts 107, 173, 178, and 180. The only appropriate\ntank wall were a \"manufacturer,\" this reading of the regulation would have a\nmechanism for such a significant change is notice-and-comment rilemaking.\n\n<<<PAGE 4>>>\n\nWe do not need a new letter of clarification, because to us the rule is clear\nas it stands. What we do need and request, however, is an explicit retraction of\nthe letter and removal of the letter from the RSPA web site where it now appears.\nPlease contact me if you have any questions on this request.\nSincerely,\nFor eatin","truncated":false,"body_characters":4638}