{"operation":"document","citation":"PI-76-041","title":"National LP-Gas Association — Pipeline Safety Interpretation","source_type":"guidance","agency":"Pipeline and Hazardous Materials Safety Administration","status":"guidance","official":true,"published_on":"1976-07-28","effective_on":null,"summary":"PI-76-041 response to National LP-Gas Association concerning 192.11.","machine_formats":{"json":"https://regulus.evalyn.ai/document/phmsa-interpretation-pi-76-041.json","markdown":"https://regulus.evalyn.ai/document/phmsa-interpretation-pi-76-041.md"},"app_url":"https://regulus.evalyn.ai/document/phmsa-interpretation-pi-76-041","source_url":"https://www.phmsa.dot.gov/sites/phmsa.dot.gov/files/legacy/interpretations/Interpretation%20Files/Pipeline/1976/PI76041.pdf","body":"<<<PAGE 1>>>\n\nJuly 28, 1976\nMr. Richard H. Stock\nNational LP-Gas Association\n1800 N. Kent Street\nArlington, Virginia 22209\nDear Mr. Stock:\nThis responds to your letter of June 8, 1976, regarding interpretations of terms in 49 CFR\n192.11(a) and enforcement policy.\nIn our letter to you dated May 27, 1976, we stated that for the purpose of Section 192.11(a):\n\"A 'system' normally consists of a tank storing petroleum gas in liquid form and the\nappurtenant pipelines and other facilities used by the operator of the system to deliver gas\nto one or more customers.\"\nYou propose that we reconsider this interpretation to provide, alternatively, that as the term\n\"system\" is used in the second instance in Section 192.11(a), it means either \"a system that serves\n10 or more customers\" or \"a system that serves more than one customer.\" The logic of the\nproposal is, respectively, that as used in the second instance in Section 192.11(a), the term\n\"system\" should have a meaning consistent with its meaning as used in the first instance, and that\nthe Natural Gas Pipeline Safety Act of 1968 (the Act) does not authorize regulation of a system\nserving a single customer.\nWith respect to the first argument, our interpretation of the term \"system\" relates to the physical\nmeans of transporting petroleum gas and not to the number of customers served. Thus, there is\nnot any inconsistency in applying the interpretation to the term as it is used in each instance in\nSection 192.11(a). Moreover, the separate qualifying phrases, \"that serves 10 or more\ncustomers\" and \"any portion of which is located in a public place,\" serve to identify those systems\nwhich are subject to regulation and are not related to the meaning of the term \"system.\"\nAlso, we do not agree with the second argument that regulation of a system serving only one\ncustomer is not authorized. The Act applies to all transportation of gas that \"affects\" interstate\ncommerce. The Supreme Court has held that even a single intrastate transaction can reduce\npotential interstate markets and thus be properly regulated under the commerce clause of the\nConstitution. Therefore, in the absence of any specific statutory language to the contrary, we\nbelieve that all\ntransportation of gas to the ultimate consumer sufficiently affects interstate commerce to bring it\nunder the Act.\ndal\\192.1-a\\11\\76-07-28\n1\n\n<<<PAGE 2>>>\n\nYour second proposal concerns our interpretation of the term \"public place\" in Section 192.11(a).\nWe have interpreted the term \"public place\" to mean a place which is generally open to all persons\nin a community as opposed to being restricted to specific persons, including churches, schools,\nand commercial buildings as well as any publicly owned right-of-way or property frequented by\npersons. You propose that we qualify this interpretation by limiting it to \"that portion of a public\nplace to which an invitee would normally have access.\" The purpose of the amended\ninterpretation would be to exclude from regulation small single-tank systems generally located at\nthe rear of a public place or in a kitchen or furnace room where persons are not reasonably\nexpected to enter.\nWe do not feel that the objective of this second proposal would be consistent with pipeline safety.\nAlthough the likelihood of outside interference with systems in public places may be minimized by\nlocating the systems in restricted areas, the risk of injury to the public is not hereby eliminated.\nOther causes of failure, for example, a malfunction of the system itself, could result in a fire or\nexplosion and harm persons at the public place. It is this eventuality against which the rule is\nintended to protect. While we agree in principle that public safety should not hinge on ownership\nof the gas in a system, our statutory responsibility for safety only relates to the transportation of\ngas in or affecting commerce, which ends when title to the gas passes to the ultimate consumer.\nFinally, we cannot concur with your suggested enforcement policy since Part 192 must be\nenforced as written and interpreted. Any change in the application of Part 192 to petroleum gas\nsystems must be accomplished through the rulemaking process. If it can be demonstrated, as you\nsuggest, that the application of Part 192 does not contribute to safety in areas which conflict with\nor are additional to NFPA standards 58 and 59, then the pertinent rules should be changed on that\nbasis.\nWe look forward to your further submissions concerning Docket No. Pet. 76-7, particularly as\nthey may relate to what Federal safety regulation is needed or appropriate for the small petroleum\ngas system operator.\nSincerely,\nCesar DeLeon\nActing Director\nOffice of Pipeline\nSafety Operations\nJune 8, 1976\nMr. Cesar DeLeon\nActing Director\nOffice of Pipeline Safety Operations\ndal\\192.1-a\\11\\76-07-28\n2\n\n<<<PAGE 3>>>\n\nDepartment of Transportation\n2100 2nd Street, S.W.\nWashington, D.C. 20560\nDear Mr. DeLeon:\nThis letter is further to my letter of April 8, 1967 and a meeting between Mr. Charles\nSawyer, myself, and Mr. Buck Furrow of your office, held on May 25, 1976.\nThe purpose of this letter is to request several interpretations. The first interpretation if\nfor the word \"system\" as it occurs in the second instance in Section 193.11(a) of Title 49 of the\nCode of Federal Regulations, i.e., \"or in a system, any portion of which is located in a public\nplace\". It is suggested that \"system\" as used in the second instance be interpreted to mean \"a\nsystem\" that serves 10 or more costumers\". And thus be consistent with its meaning as used in\nthe first instance in Section 193.11(a).\nAs we have previously pointed out the unnecessary expense or unreasonable liability\ncreated by application of Part 192.11(a) as presently interpreted will force LP-Gas firms to sell all\nor part of their installations to individual customers. The authority or regulatory agencies does\nnot extend to the customer if not engaged in the distribution of gas. The change in ownership of\nLP-Gas installations serving 9 or less customers, which would result from the continued\napplication of Section 192.11(a), would place the responsibility for maintaining the installation\nunder the control of those unfamiliar with safety standards. Clearly this is contrary to the interests\nof government, the LP-Gas industry, and the public.\nAlternatively we request that the word \"system\" as used in the second instance in Section\n192.11(a) i.e., \"or in a system, any portion of which is located in a public place be interpreted\nto mean a system that serves more than one customer\". It appears obvious from the basic\nlegislation, the Congressional history of it, the regulations, and the comments thereto that pipeline\nsafety provisions were never intended to apply to a single installation employing a few feet of\nservice line. The conclusion from any other interpretation would be that the regulations could\napply to the millions of single customer installations throughout the nation.\nWe submit that Part 192 of Title 49 has as its primary purpose the regulation of the\ntransmission of large volumes of gas at high pressure over long distances. To attempt to require\nsingle customer installations to conform to Part 192 is not only an inequitable and unnecessary\nburden on the small volume user, but more significantly, it adds nothing to the safe operation of\nthese installations.\nAdditionally or alternatively, we request that a \"public place\" as used in Section 192.11(a)\nbe qualified and interpreted to mean, \"that a portion of a public place to which an invitee would\ndal\\192.1-a\\11\\76-07-28\n3\n\n<<<PAGE 4>>>\n\nnormally have access\". The typical LP-Gas installation serving a public place consists of a storage\ntank, usually segregated at the rear of the public place and a service line normally no longer than\n10 feet in length. LP-Gas appliance(s) are located in a distinct portion of the structure set aside\nfor their use such as a kitchen or furnace room. The adoption of this interpretation would exempt\nfrom the application of Part 192 those public places presently encumbered by it merely because\nthey are, in effect, served by LP-Gas.\nIn a letter from you to Mr. Harold E. Shutt dated November 18, 1976, it was stated that a\nchurch with a propane tank located on its property to supply fuel for heating purposes was not\nsubject to the jurisdiction of Part 192 since that part does not extend to gas which has been\npurchased by and entered the possession of the ultimate consumer. It was further stated that,\n\"This jurisdictional limitation is indicated by the definition of the term \"service line\" in Section\n192.3. Because the church which you describe is the ultimate consumer of the gas it is not subject\nto Part 192\".\nIn the case of the single customer installation, cited previously in this letter, the customer\nis \"the ultimate consumer of the gas\", although title may not pass until the gas leaves the meter\nlocated on the customer's property. Thus, the only distinction between the consumers for whom\nwe seek relief and the illustration cited in the referenced letter of November 18, 1976 is the\ndifference of when title passes. The two installations are physically identical with the single\nexception being the use of a meter as a means of measuring the quantity of gas consumed, rather\nthan determining this on the basis of the amount of gas replaced in the storage tank. Surely the\napplication of safety regulations is not to be determined by the legal abstraction of the indicia of\nownership.\nIn both, the example of the church and the single customer installation, \"a portion\" of the\ninstallation is located in a \"public place\". However, the latter is subject to Part 192 regulations\nwhile the former is not. The adoption of the interpretation suggested would reconcile this\ninconsistency, preserve the integrity of Part 192.11(a) as presently written, and avoid its\napplication from seeming to depend upon irrelevant concepts of ownership. Interpreting \"public\nplace\" to mean, \"that a portion of a public place to which an invitee would normally have access\",\nwould exempt Part 192 from applying to the most frequently encountered LP-Gas installations\nwhere storage, piping, and appliances are separate and distinct from that portion of the public\nplace to which all but those with a purpose or need can reasonably be expected to enter.\nIt should be recognized that the granting of the requested interpretations would not leave\nLP-Gas systems unregulated. Such systems would continue to remain subject to the application\nof NFPA standards 58 and 59. These standards have experienced an exceptional safety record,\nand we are unaware of any incident involving LP-Gas which would have been prevented by the\nadditional application of Part 192.\nFinally, additionally or alternatively, we request that a statement of enforcement policy be\nissued to the effect that, NFPA standards 58 and 59 will apply to any installations of nine or less\ndal\\192.1-a\\11\\76-07-28\n4\n\n<<<PAGE 5>>>\n\ncustomers in the absence of an affirmative showing that application of Part 192 will substantially\nenhance the safe operation of such installations\". This would place the burden of proving the\nneed for the application of Part 192 upon those responsible for enforcement, and in instances\nwhere it cannot be demonstrated that Part 192 would contribute substantially to achieving greater\nsafety only standards 58 and 59 would be applicable.\nI am in receipt of your letter of May 27, 1976 in which you request additional information\nin order to determine if rulemaking action is justified, in behalf of the NLPGA, concerning 49\nCFR 192.11(a). The Association is in the process of compiling the requested documentation, and\nI will contact you in the near future on this matter.\nThank you very much for your attention to these enclosed requests, and please let us\nknow if we may supply any additional information to assist you in reaching a final decision.\nWith warm regards, I am\nSincerely,\nRichard H. Stock\ndal\\192.1-a\\11\\76-07-28\n5","truncated":false,"body_characters":12024}