{"operation":"document","citation":"PI-22-0010","title":"Navajo Tribal Utility Authority — Pipeline Safety Interpretation","source_type":"guidance","agency":"Pipeline and Hazardous Materials Safety Administration","status":"guidance","official":true,"published_on":"2023-08-23","effective_on":null,"summary":"PI-22-0010 response to Navajo Tribal Utility Authority concerning 192.1.","machine_formats":{"json":"https://regulus.evalyn.ai/document/phmsa-interpretation-pi-22-0010.json","markdown":"https://regulus.evalyn.ai/document/phmsa-interpretation-pi-22-0010.md"},"app_url":"https://regulus.evalyn.ai/document/phmsa-interpretation-pi-22-0010","source_url":"https://www.phmsa.dot.gov/sites/phmsa.dot.gov/files/docs/standards-rulemaking/pipeline/interpretations/77791/ntua-pi-22-0010-08-23-2023-part1921.pdf","body":"<<>>\n\nU.S. Department\nof Transportation\nPipeline and Hazardous\nMaterials Safety\nAdministration\n1200 New Jersey Avenue, SE\nWashington, DC 20590\nAugust 23, 2023\nMr. Antony M. Davison\nNatural Gas ECO Manager\nNavajo Tribal Utility Authority\nP.O. BOX 170\nFT. Defiance, AZ 86504\nDear Mr. Davison:\nIn a letter to the Pipeline and Hazardous Materials Safety Administration (PHMSA), dated\nApril 5, 2022, you requested an interpretation of the Federal pipeline safety regulations in\n49 Code of Federal Regulations (C.F.R.) Part 192 with respect to the § 192.1(a) scope\napplicability to your gas pipeline outside of the Navajo Nation borders in the state of New\nMexico.\nYou stated that until recently all Navajo Tribal Utility Authority (NTUA) owned and operated\nnatural gas pipelines have been confined within the Navajo Nation borders. You also stated that\nwith a recent acquisition of a portion of a former Questar Southern Trails Pipeline, NTUA now\nowns and will soon operate approximately 30-miles of pipeline that is located outside of the\nNavajo Nation border.\nYou further stated that PHMSA issued an interpretation to CPN Pipeline Company dated\nFebruary 5, 2007, which you believe may exclude NTUA from having to comply with the\nFederal pipeline safety regulations based on the § 192.3 definition of “Person.”1 You asked if\nthe previously issued interpretation is also applicable to NTUA’s 30 miles of pipeline operated\noutside of the Navajo Nation borders so that the pipeline would not have to comply with Part\n192.\nPHMSA’s written clarifications of the Federal pipeline safety regulations are provided in the\nform of interpretation letters. These letters reflect the Agency's current application of the\nregulations to the specific facts presented by the person requesting the clarification.\nInterpretations are not generally applicable, do not create legally-enforceable rights or\nobligations, and are provided to help the specific requestor understand how to comply with the\nregulations.\n1 See February 5, 2007, Letter to Scott Vickers from Florence L. Hamm, PI-07-015, available at:\nhttps://www.phmsa.dot.gov/regulations/title49/interp/PI-07-0105 (hereafter “2007 interpretation”).\nThe Pipeline and Hazardous Materials Safety Administration, Office of Pipeline Safety provides written clarifications of the Regulations (49 CFR\nParts 190-199) in the form of interpretation letters. These letters reflect the agency's current application of the regulations to the specific facts\npresented by the person requesting the clarification. Interpretations are not generally applicable, do not create legally-enforceable rights or\nobligations, and are provided to help the specific requestor understand how to comply with the regulations.\n\n<<>>\n\nPage 2 of 2\nHaving considered and analyzed your request, PHMSA has concluded that the Pipeline Safety\nAct (PSA) applies to NTUA’s owned or operated facilities outside of the Navajo Nation borders.\nPHMSA’s pipeline safety program is a broadly applicable federal law and nothing in the law or\nlegislative history indicates that pipelines operated by tribes were intended to be excluded from\nthe pipeline safety program. In addition, a tribal owner or tribal operator of a pipeline is subject\nto PHMSA’s jurisdiction pursuant 49 U.S.C. § 60102(a)(2)(A), which broadly states that pipeline\nsafety standards apply to “any or all of the owners or operators of pipeline facilities.” To\nexclude tribal operators would frustrate the purpose of the PSA and Congressional intent for a\nnationally applicable federal safety program by allowing safety gaps that pose an unreasonable\nrisk to persons, property, and the environment outside the reservation. This interpretation of the\nPSA is in line with other federal safety and environmental regulatory programs that apply to\ntribes, as well as the federal hazardous materials transportation laws under which PHMSA\nregulates hazardous materials.\nIn your case, NTUA would be operating the former Questar Southern Trails natural gas pipeline,\nwhich is outside of the Navajo Nation’s borders. Under these specific facts and applying the\nabove analysis, NTUA, as owner and operator of the pipeline, must comply with the 49 CFR Part\n192 regulations, pursuant to 49 U.S.C. § 60102(a)(2)(A) and 49 U.S.C. 60118(a). 2\nIf we can be of further assistance, please contact Tewabe Asebe at 202-366-5523.\nSincerely,\nJohn A. Gale\nDirector, Office of Standards\nand Rulemaking\n2 With regard to the 2007 interpretation referenced in your request, that interpretation was issued to a pipeline\ncompany that was not a tribe and that asked several questions related to the location of its pipeline. The requester\ndid not ask the question presented by NTUA, which is whether a tribe must comply with the PSA. It was\nunnecessary for PHMSA in 2007 to suggest a view on whether tribal operator are among the entities defined as a\n“person” under the PSA. Moreover, PHMSA believes the 2007 interpretation was incorrect to state that the PSA\ndoes not apply to tribally-operated facilities for the reasons stated above. In addition, depending on its structure, a\ntribal organization that owns or operates a pipeline may fall under the definition of “person” under 1 U.S.C. § 1 and\n49 C.F.R. § 192.3 as a corporation, company, association, or other enumerated business entity. For these reasons,\nthe discussion of tribal operators in the 2007 interpretation is retracted. PHMSA notes further that the agency has a\nlong history of regulating tribally-owned and -operated pipelines and appreciates the cooperation of those operators\nin our shared goal of pipeline safety.\nThe Pipeline and Hazardous Materials Safety Administration, Office of Pipeline Safety provides written clarifications of the Regulations (49 CFR\nParts 190-199) in the form of interpretation letters. These letters reflect the agency's current application of the regulations to the specific facts\npresented by the person requesting the clarification. Interpretations are not generally applicable, do not create legally-enforceable rights or\nobligations, and are provided to help the specific requestor understand how to comply with the regulations.\n\n<<>>\n\nNAVAJO TRIBAL UTILITY AUTHORITY\nAN ENTERPR ISE OF THE NAVAJO NATION\nApril 5, 2022\nOffice of Pipeline Safety (PHP-30)\nPHMSA, U.S. Depart ment of Transportation\n1200 New Jersey Avenue SE .\nWashington, DC 20590-0001\nTo Whom It May Concern,\nI write to you on the suggestion of Jason Montoya, Chief of the New Mexico Pipeline Safety Bureau\n(NMPSB).\nThis letter is requesting the United States Department of Transportation, Pipeline and Hazardous\nMaterials Safety Administration's Office of Pipeline Safety (\"OPS\" ) confirm its prior interpretation that its\nregulation of \" persons\" operating pipelines does not extend to Indian tribe owned and operated pipelines.\nNavajo Tribal Utility Authority (NTUA) is a wholly owned enterprise of the Navajo Nation, a federally\nrecognized Indian tribe. NTUA exists under the laws of the Navajo Nation and has its principal office in\nFort Defiance, Arizona . NTUA was created as a wholly owned enterprise of the Nation by the Navajo Tribal\nCouncil in 1959, for the purpose of bringing electric power to a portion of the Navajo Nation. NTUA has\nsince increased its electric services and expanded to provide natural gas and other utility services.\nUntil recently, all NTUA owned and operated natural gas pipelines have been confined within the Navajo\nNation boarders. As such, its pipeline facilities have not been subject to Federal or State regulatory\noversite. However, w ith the recent acquisition of a portion the former Questar Souther11 Trai ls Pi pelinP;\nNTUA now owns and will soon operate approximately 30-miles of pipeline that is located outside of the\nNavajo Nation boarder, in the state of New Mexico. This raises question to where the regulatory over site\nof this pipeline starts and ends, or if it is even regulated at all since it is owned and operated by NTUA?\nAfter research of various interpretations regarding§ 192.3, an interpretation dated February 5, 2007, to\nMr. Scott Vickers of CPN Pipeline Company was discovered. The interpretation states in response to one\nof Mr. Vickers' questions that:\nThe answer to your question depends on who is operating the pipeline, not on where the pipeline is located. That is,\nthe pipeline safety regulations in Part 192 apply to a \"person\" who operates pipeline facilities. The regulations define\na person ta mean \"any individual, firm, joint venture, partnership, corporation, association, State, municipality,\ncooperative association, or joint stock association, and including any trustee, receiver, assignee, or personal\nrepresentative thereof.\"\nHome Office:\nP.O. BOX170\nFT. DEFIANCE, AZ 86504\nTUBA CITY\nKAYENTA SHIPROCK\nP.O. BOX 37\nKAYENTA. AZ 86033\nCHINLE FORT DEFIANCE\nDILCON CROWN POINT\nP.O. BOX398\nP.O. BOX 1749\nP.O. BOX549\nP.O. BOX587\nHC63BOXD P.O. BOX1825\nTUBA CITY, AZ 86045 SHI PROCK, NM 87420\nCHINLE, AZ 86503 FT. DEFIANCE, AZ 86504 WINSLOW, AZ 86047 CROWNPOINT, NM 87313\nCALL 800-528-5011 OR 928-729-5721 FOR ALL OFFICES.\n*This institution is an equal opportunity provider and employer.\n\n<<>>\n\nPage 2\nLtr: PHMSA Interpretation Request\nApril 5, 2022\nThe definition of a \"person\" in Part 192 does not include Indian tribes or the BLM {Federal Government). Therefore,\nthe regulations do not apply to Indian tribes or to the BLM, regardless of whether the pipeline facilities are located\non or off the Indian or BLM lands. If, however, an independent contractor (or other person) were to operate Indian\nor BLM pipeline facilities, the contractor would have to meet all the applicable requirements of Part 192 for the\nregulated segments of the pipeline.\nThrough review of this interpretation with the NMPSB, it is understood that the definition of \"Person\" in\nPart 192 does not pertain to NTUA since it is a wholly owned enterprise of the Navajo Nation, a federally\nrecognized Indian tribe and therefore relieves all NTUA owned and operated pipelines of any regulatory\nover site.\nWhile NTUA is fuily committed to safe operation of its natural gas facilities, NTUA seeks confirmation of\nOPS's prior int erpretation to clarify the scope of regulations applicable to NTUA's system. Any insight into\nthe matter is appreciated .\nSincerely,\ncJJ:;:;;; m ~\nAntony M. Davison\nNatural Gas ECO Manager\nAttachments\n• NTUA Southern Tra ils Pipeline Map (including Navajo Nation Boundaries)\n• PHMSA Interpretation dated February 5, 2007\n• NMPSB Email\n\n<<>>\n\n0\nU.S . Department\nof Transportation\nPipeline and Hazardous\nMaterials Safety Administration\n400 Seventh Street. S W\nWashington O.C 20590\nFEB - 5 2007\n:vtr. Scott Vickers\nCompliance Manager\nCPN Pipeline Company\n60 River Road\nRio Vista.CA 94571\nDear Mr. Vickers:\nThis is in response to your letter of April 15. 2004, renewing your earlier reque ·t for an\ninterpretation of 49 CFR 192.1 and 192.3. Your letter concerned l'he jurisdictional end-point of a\nlateral pipeline running from a transmi sion pipeline to an electrical power plant.\nIn your letter you ask, ·· Where vmuld the jurisdiction end at the pou er plant side of the\nlateral? Would the jurisdiction end at the property line, fence line, first mfre on the property, at\nthe pm,·er equipment or other?\"\nAs urning the lateral pipeline in question i a transmi sion line as defined in * 192.3. pipeline\nsafety authority extends to the point where transportation ends. even if thi point is on plant\nproperty. In many ca e , the end-point i where the lateral pipeline enters the plant grounds,\nusually at a security fence line. If, however, a measurement meter (or other component\nnece sary to control the pre sure or safety of the pipeline) is on the plant grounds, the end-point\n\\\\Ould be the meter (or other component, if the component is down tream of the meter).\nYou also ask, '·{( the poH\"er plant is 011 BLM lands or Indian land does it change H ·lzere the\njurisdiction would end:)\"\nThe ans,, er to your question depends on who is operating the pipeline. not on \\\\ here the\npipeline is located. That is. the pipeline safety regulations in Part 192 appl} to a \"11crso11 .. ,.., ho\noperate. pipeline facilities. The regulation define a person to mean \"any indi1'id11ul . .firm. jornt\n1 ·ent11re. partners/zip. corporation, association. State, m1111icipalit_i·. cooperatil·e association. or\njoint stock association. and including any trustee. receil'er. assignee. or personal represcntatin'\nthereof' ..\nThe definition of a \"person\" in Part 192 does not include Indian tribes or the BLM (Federal\nGovernment). Therefore. the regulations do not apply to Indian tribes or to the BLM. regardless\nof\\\\ hether the pipeline facil itics arc located on or off the Indian or B LM lands. It: howc\\ er. an\nindependent contractor ( or other person) were to operate Indian or BLM pipeline facilitie~. the\ncontractor would have to meet all the applicable requirements of Part 192 for the regulated\nsegments of the pipeline.\n\n<<>>\n\nFinally, you asked, \"Where can !find statutes, regulations, or interpretation letters to\nsupport 1he answer to question number one and number two?\"\nPHMSA has a public web site (http://www.phmsa.dot.gov) with links to the Federal pipeline\nsafety laws, regulations and interpretations.\nIf I can further assist you with this, or any other pipeline regulatory tpatter, please contact me\nat (202) 366-4595.\nSincerely,\nSCe~ 'S-~\nFlorence·L. Hamn\nDirector, Office of Regulations\nA pipeline safety regulatory interpretation applies a particular rule to a particular set of facts and circumstances, and as such, ma)\nbe relied upon only by those persons to whom the interpretation is specifically addrcs~\n\n<<>>\n\nAntony Davison\nFrom:\nSent:\nTo:\nCc:\nSubject:\nMontoya, Jason N, PRC \nTuesday, March 29, 2022 11 :06 AM\nAntony Davison; Stanovcak, James, PRC\nWalter W. Haase; Melissa Segay; Judy Chavez\nRE: [EXTERNAL] NTUA Introduction Meeting: Southern Trails Pipeline acquisition\n[EXTERNAL EMAIL] Use caution before clicking on links, opening attachments, or responding. DO NOT CLICK unless you\nrecognize the sender and know the content is safe.\nThis will be put on hold per my previous email and, if necessary, scheduled for a later date but based on the interpretation\nthe pipeline would be non-j urisdictional.\nJason N. Montoya, P.E.\nPipeline Safety Bureau Chief\nConfidentiality Notice: This email, including all attachment is for the sole use of the intended recipient (s) and may contain confidential and privileged\ninfo rmation. Any unauthorized review, use, disclosure or distribution is prohibited unless specifically provided under the New Mexico Inspection of Public\nRecords Act. If you are not the indented recipient, please contact the sender and destroy all copies of the message.\nFrom: Antony Davison \nSent: Tuesday, March 29, 2022 8:52 AM\nTo: Stanovcak, James, PRC \nCc: Montoya, Jason N, PRC ; Walter W. Haase ; Melissa Segay\n; Judy Chavez \nSubject: RE: [EXTERNAL] NTUA Introduction Meeting: Southern Trails Pipeline acquisition\nYes, that will work. Can you provide some details on the inspection and the inspection guide or protocol that will be\nused in the inspection? We would like to prepare the documentation in advance .\n.Jl.ntony\nFrom: Stanovcak, James, PRC \nSent: Tuesday, March 22, 2022 4:55 PM\nTo: Antony Davison \nCc: Montoya, Jason N, PRC \nSubject: RE : [EXTERNAL] NTUA Introduction Meeting: Southern Trails Pipeline acquisition\n[EXTERNAL EMAIL] Use caution before clicking on links, opening attachments, or responding. DO NOT CLICK unless you\nrecognize the sender and know the content is safe.\nHello Antony,\nWe would like to schedule an inspection of your pipeline beginning May 10th through May 13th\nIf that week doesn't work for you, we can schedule it later in the year.\nPlease let me know if we can put this on our official calendar.\n1\n\n<<>>\n\nThanks\nFrom: Antony Davison \nSent: Monday, March 7, 2022 5:53 PM\nTo: Montoya, Jason N, PRC \nCc: Stanovcak, James, PRC ; Melissa Segay ; Judy Chavez\n; Heather Clah ; Walter W. Haase ; Glenn Steiger\n\nSubject : RE : [EXTERNAL] NTUA Introduction Meeting: Southern Trails Pipeline acquisition\nJason,\nThank you for the reply. Will the PSB initiate the scheduling of the inspection you reference? If so, can you provide\nsome tentative dates and a schedule? This will help us plan ahead to ensure efficient. use of everyone' s time .\n.'Anton y\nFrom: Montoya, Jason N, PRC \nSent: Monday, M arch 7, 2022 5:33 PM\nTo: Antony Davison \nCc: Stanovcak, James, PRC ; Melissa Segay ; Judy Chavez\n; Heather Clah \nSubject: RE : [EXTERNAL] NTUA Introduction Meeting: Southern Trails Pipeline acquisition\n[EXTERNAL EMAIL] Use caution before clicking on links, opening attachments, or responding. DO NOT CLICK unless you\nrecognize the sender and know the content is safe.\nGood evening Antony.\nYour email below is a good summary of our discussion. As noted, the PSB highly recommends a standard inspection be\nconducted in the near future to ensure NTUA' s plans and procedures will be sufficient prior to taking over operations of\nthe pipeline. It would be a great dialogue to have so all parties will establish a benchmark and understanding moving\nforward .\nThanks.\nJason N. Montoya, P.E.\nPipeline Safety Bureau Chief\nConfidentialitv Notice: This email, including all attachment is for the sole use of the intended recipient (s) and may contain confidential and privileged\ninformation. Any unauthorized review, use, disclosure or distribution is prohibited unless specifically provided under the New Mexico Inspection of Public\nRecords Act. If you are not the indented recipient, please contact the sender and destroy all copies of the message.\nFrom: Antony Davison \nSent: Wednesday, March 2, 2022 8:20 PM\nTo : Montoya, Jason N, PRC \nCc: Melissa Segay ; Judy Chavez ; Heather Clah \nSubject: [EXTERNAL] NTUA Introduction Meeting: Southern Trails Pipeline acquisition\nCAUTION : This ema il originated outside of our organization. Exercise caution prior to clicking on links or opening\nattachments.\n2\n\n<<>>\n\nHi Jason,\nIt was great to meet with you in a virtual setting today. I felt we had a very productive discussion and I want to follow it\nup with an email t hat memorializes summary to help guide future discussion.\nToday, we discussed that the New Mexico Pipeline Regulatory Commission (Commission) has been involved with PHMSA\nand the NTUA throughout the acquisition process of the Southern Trails Pipeline (STP). The acquisition consists of\napproximately 30-miles of jurisdictional, 20-inch diameter steel pipe that originates at the outside of the Harvest\nMidstream production facility and extends to the eastern boarder of the Navajo Nation where jurisdiction stops The\npipeline continues east, across the Navajo Nation crossing into Arizona and Utah, to its termination point located at Grey\nMountain. NTUA officially took ownership of the STP as of November 2021, however Dominion has continued to\nmaintain responsibility for compliance and operation of the pipeline in accordance with the their O&M procedures\nduring the transition period of 1-year. The transition period is set to expire in November 2022 and NTUA will then take\nfull responsibility for operation and compliance of the line.\nWith the completion of the acquisition of ownership, and in preparation for the end of the transition, NTUA has filed for\nand received a new OPID (40324) under PHMSA as distribution operator. NTUA has intended to operate the pipeline as\ndistribution since negotiations began on the acquisition some 5-years ago, however there seems to be some uncertainty\nto the official determination on classification of the pipeline. You explained that the pipeline may meet one of the three\nrequirements that will classify it as transmission, however an interpretation from PHMSA might be required to make a\nfinal determination. You suggested that I provide you a justification on why I feel that the line does not meet the criteria\nfor transmission classification and provide you that as a basis for discussion. I will begin work on that in preparation for\nfutute discussion.\nYou also mentioned that a visit from the Commission, that includes a standard comprehensive audit, will help ensure\nthat compliance maintained on the pipeline throughout the transition and ensure NTUA has the required programs in\nplace that will be necessary to be a compliance operator prior to commencing operations. I welcome that idea and I\ncertainly look forward to an email from you on this, so that we can work out the details and I can include the Dominion\nteam .\nAs I am sure you are aware, there are still many more topics to cover to ensure NTUA is ready to operate the STP in full\ncompliance of all Federal and State regulations by next November that we could not cram into this initial one-hour\nmeeting. I look forward to hearing back from you soon and working with the Commission to cover the remaining\nitems. I am optimistic of a very successful relationship between the NTUA and the New Mexico Pipeline Regulatory\nCommission as NTUA continues the safe operation of the STP pipeline for the benefit of the Navajo Nation .\n..'Antony Davison\nNatural Gas ECO Manager\nNavajo Tribal Utility Authority\nOffice: 928-729-4655\nEmail : antonyd@ntua.com\n3","truncated":false,"body_characters":21951}