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U.S. Department of Transportation U.S. Department of Transportation Icon United States Department of Transportation United States Department of Transportation

Interpretation Response #13-0242 ([Mr. Joseph E. Connelly])

Below is the interpretation response detail and a list of regulations sections applicable to this response.

Interpretation Response Details

Response Publish Date:

Company Name:

Individual Name: Mr. Joseph E. Connelly

Location State: MD Country: US

View the Interpretation Document

Response text:

April 17, 2014
 

Mr. Joseph E. Connelly
P.O. Box 231
Elkton, MD 21922

Ref. No. 13-0242

Dear Mr. Connelly:

This responds to your December 23, 2013 letter requesting clarification of the applicability of material incorporated by reference under § 171.7 of the hazardous materials regulations (HMR; 49 CFR Parts 171-180).  In your letter, you refer to a previous letter of interpretation (Ref. No. 06-0147; June 29, 2006) that indicates, for purposes of the HMR, the specific version of a document incorporated by reference must be used regardless of whether the document has been updated after being made part of the HMR.  Your questions regarding material incorporated by reference are paraphrased and answered as follows:

Q1.  Section 171.7 still references the December 2000 edition of the Association of American Railroads Manual of Standards and Recommended Practices, Section C-Part III, Specification for Tank Cars, Specification M-1002 (see § 171.7(k)(1)) even though there are more recent versions including the current 2007 version and its amendments.  Is there any circumstance in which the Department of Transportation (Department) can enforce provisions of the 2007 edition or its amendments?

A1.  The answer is no.  Incorporated by reference, as defined in § 171.8, means a publication or a portion of a publication that is made a part of the HMR.  In accordance with § 171.7(a)(1), material not specifically set forth but incorporated by reference is considered to be part of the HMR.  Matter is incorporated only as it is in effect on the date of issuance of the regulation(s) referring to that material.  In other words, material incorporated by reference is a snapshot in time of the material at the time a regulation is published in a final rulemaking that references the material.  The material listed in § 171.7 is approved by the Director of the Federal Register and is incorporated as it exists on the date of the approval.  A notice of any change in the material incorporated by reference into the HMR would require regulatory action and would be published in the Federal Register.  Regarding enforcement, the Department, along with PHMSA and the relevant modal administrations, have the authority to enforce the Federal hazardous material law, 49 CFR Subchapter A-Hazardous Materials and Oil Transportation, and the HMR (see § 107.301).  Thus, as the Department specifically enforces the HMR, provisions of any publication or portion thereof (e.g., an updated version of a standard) not made a part of the HMR are not enforceable by the Department.

Q2.   Is there any circumstance in which the Department can enforce provisions of the 2000 edition of the manual that are not listed in § 171.7(k)(1)?

A2.  The answer is no.  Only the provisions of a publication or the portions thereof that are made part of the HMR are enforceable.  Thus, any material from the 2000 edition not incorporated by reference as part of § 171.1(k)(1) is not enforceable.  

I hope this information is helpful.  If you have further questions, please contact this office.

Sincerely,

Robert Benedict
Chief, Standards Development Branch
Standards and Rulemaking Division

171.7, 171.8

Regulation Sections

Section Subject
171.7 Reference material
171.8 Definitions and abbreviations