{"operation":"document","citation":"13-0242","title":"Mr. Joseph E. Connelly — Hazardous Materials Safety Interpretation","source_type":"guidance","agency":"Pipeline and Hazardous Materials Safety Administration","status":"guidance","official":true,"published_on":"2014-04-17","effective_on":null,"summary":"13-0242 concerning 171.7, 171.8.","machine_formats":{"json":"https://regulus.evalyn.ai/document/phmsa-interpretation-13-0242.json","markdown":"https://regulus.evalyn.ai/document/phmsa-interpretation-13-0242.md"},"app_url":"https://regulus.evalyn.ai/document/phmsa-interpretation-13-0242","source_url":"https://www.phmsa.dot.gov/sites/phmsa.dot.gov/files/legacy/interpretations/Interpretation%20Files/2013/130242.pdf","body":"<<<PAGE 1>>>\n\nU.S. Department\nof Transportation\nPipeline and Hazardous\nMaterials Safety\nAdministration\n1200 New Jersey Avenue, SE\nWashington, D.C. 20590\nMr. Joseph E. Connelly\nP.O. Box231\nElkton, MD 21922\nRef. No. 13-0242\nDear Mr. Connelly:\nThis responds to your December 23, 2013 letter requesting clarification of the applicability\nof material incorporated by reference under § 171.7 of the hazardous materials regulations\n{HMR; 49 CFR Parts 171-180). In your letter, you refer to a previous letter of interpretation\n(Ref. No. 06-0147; June 29, 2006) that indicates, for purposes of the HMR, the specific\nversion of a document incorporated by reference must be used regardless of whether the\ndocument has been updated after being made part of the HMR. Your questions regarding\nmaterial incorporated by reference are paraphrased and answered as follows:\nQl. Section 171.7 still references the December 2000 edition of the Association of\nAmerican Railroads Manual of Standards and Recommended Practices, Section C-\nPart III, Specification for Tank Cars, Specification M-1002 (see§ 171.7(k)(1)) even\nthough there are more recent versions including the current 2007 version and its\namendments. Is there any circumstance in which the Department of Transportation\n(Department) can enforce provisions of the 2007 edition or its amendments?\nAl. The answer is no. Incorporated by reference, as defined in§ 171.8, means a\npublication or a portion of a publication that is made a part of the HMR. In\naccordance with§ 171.7(a)(1), material not specifically set forth but incorporated by\nreference is considered to be part of the HMR. Matter is incorporated only as it is in\neffect on the date of issuance of the regulation( s) referring to that material. In other\nwords, material incorporated by reference is a snapshot in time of the material at the\ntime a regulation is published in a final mlemaking that references the material. The\nmaterial listed in§ 171.7 is approved by the Director of the Federal Register and is\nincorporated as it exists on the date of the approval. A notice of any change in the\nmaterial incorporated by reference into the HMR would require regulatory action\nand would be published in the Federal Register. Regarding enforcement, the\nDepartment, along with PHMSA and the relevant modal administrations, have the\nauthority to enforce the Federal hazardous material law, 49 CFR Subchapter A-\nHazardous Materials and Oil Transportation, and the HMR (see§ 107.301). Thus,\nas the Department specifically enforces the HMR, provisions of any publication or\nportion thereof (e.g., an updated version of a standard) not made a part of the HMR\nare not enforceable by the Department.\n\n<<<PAGE 2>>>\n\nQ2. Is there any circumstance in which the Department can enforce provisions of\nthe 2000 edition of the manual that are not listed in§ 171.7(k)(l)?\nA2. The answer is no. Only the provisions of a publication or the portions thereof\nthat are made part of the HMR are enforceable. Thus, any material from the 2000\nedition not incorporated by reference as part of§ 171.1 (k)(1) is not enforceable.\nI hope this information is helpful. If you have further questions, please contact this office.\nSincerely,\n·~~)\n?M-/1K_: pjl::t:J\nfotL Robert Benedict\nef, Standards Development Branch\nStandards and Rulemaking Division\n\n<<<PAGE 3>>>\n\nDecember 23, 2013\nMr. Charles E. Betts\nDirector, Standards and Rulemaking Division\nU.S. DOT/PHMSA (PHH-1 0)\n1200 New Jersey Avenue, SE East Building, 2nd Floor\nWashington, DC 20590\nDear Mr. Betts:\nI am requesting a formal interpretation with regards to 49 CFR § 171.7, concerning incorporation by reference.\nhad previously sent the request through the INFO Center on September 18, 2013 but to date have not received\na response.\nOn July 27, 2006, Mr. John A Gale responded to Mr. Patrick Riley as follows:\nJu/27, 2006\nMr. Patrick F. Reilly\nReference No. 06-0147\n919 Parkview Road\nMoscow, PA 18444\nDear Mr. Reilly:\nThis responds to your June 29, 2006 letter requesting clarification on§ 171.7 Reference material, materials\nincorporated by reference into the Hazardous Materials Regulations (HMR; 49 CFR 171-180). Specifically, you\nask whether the \"Association of American Railroads, AAR Manual of Standards and Recommended Practices,\nSection C-Part Ill, Specification for Tank Cars, Specification M-1002, December 2000 edition\" referenced in§\n171.7 is the most current version.\nThe AAR standard you reference was updated as of December 1, 2003. However, the updated standard has not\nbeen incorporated by reference into the HMR. Therefore, for purposes of the HMR, the 2000 edition referenced\nin § 171. 7 must be used.\nI hope this answers your inquiry.\nSincerely,\nJohn A. Gale\nChief, Standards Development\nOffice of Hazardous Material Standards\n171.7\nSince Mr. Riley's letter and Mr. Gale's response, the Association of American Railroads released a 2007 version\nof this very same manual, which has been constantly updated to reflect industry changes. My questions are as\nfollows:\nGiven that the incorporation by reference in §171.7 still references the December 2000 edition of the manual is\nthere any circumstance in which the Department of Transportation can enforce the provisions listed in the 2007\nmanual or its amendments?\nGiven that the incorporation by reference in §171.7 incorporates only the following provisions of the December\n2000 edition of the manual as follows:\n(1) AAR Manual of Standards and Recommended Practices, Section C-Part Ill,\nSpecifications for Tank Cars, Specification M-1 002, (AAR Specifications for Tank\n\n<<<PAGE 4>>>\n\nCars), December2000, § 173.31; 179.6; 179.7; 179.15; 179.16; 179.20; 179.22;\nH9.100-9; 179.100-10; 179.100-12; 179.100-13; 179.100-14; 179.100-18; 179.101-\n1; 179.102-1; 179.102-4; 179.102-17; 179.103-5; 179.200-7; 179.200-9; 179.200-\n10; 179.200-11; 179.200-13; 179.200-17; 179.200-22; 179.201-6; 179.220-6;\n179.220-7; 179.220-10; 179.220-11; 179.220-14; 179.220-18; 179.220-26; 179.300-\n9; 179.300-10; 179.300-15; 179.300-17; 179.400-5; 179.400-6; 179.400-8; 179.400-\n11; 179.400-12; 179.400-15; 179.400-18; 179.400-20; 179.400-25; 180.509;\n180.513; 180.515; 180.517.\nIs there any circumstance by which the Department of Transportation can enforce provisions of the manual\nwhich are not listed above?\nThank You in advance for your time in reviewing this matter.\n/c )\n~/ ''·''//\n. ~\n\"Jesept(E. Con;elly -\nPO Box 231\nElkton MD 21922","truncated":false,"body_characters":6413}