Interpretation Response #04-0038 ([McCarthy, Sweeney & Harkaway, P.C.] [Lawrence W. Bierlein, Esq.])
Below is the interpretation response detail and a list of regulations sections applicable to this response.
Interpretation Response Details
Response Publish Date:
Company Name: McCarthy, Sweeney & Harkaway, P.C.
Individual Name: Lawrence W. Bierlein, Esq.
Location State: DC Country: US
View the Interpretation Document
Response text:
May 9, 2003
Lawrence W. Bierlein, Esq. Reference No. 04-0038
McCarthy, Sweeney & Harkaway, P.C.
Suite 600
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 cargo tank wall is involved. Our intention in revising the definition in 1996 was to clarify that manufacturers who do not perform operations involving welding to a cargo tank wall need not be authorized ASME manufacturing/repair facilities. We did not intend to limit the definition of "manufacturer" only to persons who perform operations involving welding.
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 withdraw the October 21, 2009 interpretation addressed to Sergeant Eric C. Adair, New York State Police. We will address the, ambiguity of the current definition in a future rulemaking.
Sincerely,
Nancy E. Machado
Assistant Chief Counsel
for Hazardous Materials Safety
178.320