{"operation":"document","citation":"PI-78-016","title":"National LP-Gas Association — Pipeline Safety Interpretation","source_type":"guidance","agency":"Pipeline and Hazardous Materials Safety Administration","status":"guidance","official":true,"published_on":"1978-06-07","effective_on":null,"summary":"PI-78-016 response to National LP-Gas Association concerning 192.11.","machine_formats":{"json":"https://regulus.evalyn.ai/document/phmsa-interpretation-pi-78-016.json","markdown":"https://regulus.evalyn.ai/document/phmsa-interpretation-pi-78-016.md"},"app_url":"https://regulus.evalyn.ai/document/phmsa-interpretation-pi-78-016","source_url":"https://www.phmsa.dot.gov/sites/phmsa.dot.gov/files/legacy/interpretations/Interpretation%20Files/Pipeline/1978/PI78016.pdf","body":"<<<PAGE 1>>>\n\nMr. Daniel N. Myers\nDirector, Legislative Services\n& Associate Counsel\nNational LP-Gas Association\n1800 N. Kent Street\nArlington, Virginia 22209\nDear Mr. Myers:\nThis responds to you letter of March 24, 1978, with regard to the following interpretation\npublished in Advisory Bulletin No. 75-9 dated September 1975:\n\"Question: In 49 CFR 192.11(a), does the language 'any portion of which is located in a\npublic place (such as a highway)' refer only to publicly owned rights-of-way or property/\"\n\"OPSO Interpretation: The term 'public place' in Section 192.11(a) means a place which is\ngenerally open to all persons in a community as opposed to being restricted to specific\npersons. We consider churches, schools, and commercial buildings as well as any publicly\nowned right-of-way or property which if frequented by persons to be public places under\nSection 192.11(a).\nYou have questioned the authority of the Office of Pipeline Safety Operations (OPSO) to interprt\nits regulations in this manner, citing the Natural Gas Pipeline Safety Act's reference to the\nAdministrative Procedures Act (APA) and establishment of the Technical Pipeline Safety\nStandards Committee. This argument neglects to recognize the limited applicability of the notice\nand public procedure requirements of the APA. Those requirements expressly do not apply to\ninterpretive rules -- i.e., rules of statements issued by an agency to advise the public of the\nagency's construction of the statues and rules which it administers (see 4 USC 553). OPSO's\ninterpretation of Section 192.11 is properly considered an interpretive rule in that it does not alter\nor modify the regulation but rather explains and clarifies the intended meaning and applicability of\nthe rule.\nThe absence of published procedures regarding interpretations does not invalidate OPS's authority\nto issue such interpretations. Any government agency which engages in rulemaking is\ntraditionally authorized to interpret the rules which it prescribes.\nRegarding the merits of the interpretation, you have said it is erroneous in its conclusion and\narbitrary in its application. You point out that the \"highway\" example of a public place illustrates\nthat the Office of Pipeline Safety (OPS) intended the term to mean only public roadways, right-of-\nDB\nC:\\WP51\\INTERPRT\\192\\11\\78-06-07\n1\n\n<<<PAGE 2>>>\n\nway, and similar areas. You mention that if OPS had intended to give the words \"public place\" a\nbroader definition, the Office had the opportunity to do so in 1970 when the regulation was\nissued. In considering this argument, we looked for any background information from which we\nmight conclude that the \"highway example was intended as an exclusive definition of the term\n\"public place.\" From the information available, we do not find that this result was intended. The\nonly reasonable alternative conclusion is that the term \"highway\" was used merely as an example\nof a public place, and the applicability of that regulation wa not intended to be limited to that\nparticular type of public place. Of primary concern to this Office are pipelines located in any type\nof public place which would expose the public to the possible hazards of LPG. The clarifying\ninterpretation citing \"churches, schools, and commercial buildings\" as other examples of a \"public\nplace\" is well within this limitation.\nYou further illustrate your disagreement with this Office's interpretation by pointing to a letter\ndated November 18, 1975, to Mr. Harold E. Shutt, Chief Engineer Gas and Electric Division, for\nthe Illinois Commerce Commission. There Opso concluded that propane facilities which were\nowned, or alternatively, leased by the church were not subject to Part 192 since the purchased gas\nhad \"entered the possession of the ultimate customer.\" You say that because the church in Mr.\nShutt's example is private property, whether or not it is frequented by the public, exceptions must\nbe carved out for those instances, like the church, where the facilities are owned or leased by the\nproperty owner.\\\nThe exception carved out for public places such as the church example is founded on our\ninterpretation of the extent of jurisdiction of the Natural Gas Pipeline Safety Act of 1968 over the\ntransportation of gas. Our interpretation, which limits jurisdiction at the point where gas has been\npurchased and received by the ultimate consumer, is consistent with the legislative history of the\nAct. Such a distinction is practicable, since this point of transfer of gas ownership is easily\nidentifiable.\nAs an extension of this interpretation, it is logical to conclude that in situations where an entire\npipeline system is providing gas to a single ultimate consumer and the entire system is located on\nproperty owned by that ultimate consumer, that system is also outside the Act's jurisdiction. The\npurpose of the Act is to provide for the regulation of gas transportation up to the point where gas\nreaches the consumer. In a single tank-single customer situation, where the system is on the\ncustomer's property, we believe the gas has effectively reached the consumer and thus the system\nis beyond the scope of the Act.\nFor the above reasons, we conclude that the subject interpretation of the term \"public place\" in\nSection 192.11(a) was properly issued and is neither erroneous of arbitrary. Therefore, we deny\nyour request that the interpretation be rescinded.\nIn the meantime, as I previously requested in my letter to your association on May 27, 1976, we\nstill solicit the following information from your association:\nDB\nC:\\WP51\\INTERPRT\\192\\11\\78-06-07\n2\n\n<<<PAGE 3>>>\n\n1. 2. 3. 4. 5. Please explain how the existing regulation of systems with nine or less customers, a\nportion of which is in a public place, creates \"an intolerable burden of enforcement\" as\nalleged.\nSince Part 192 now incorporates by reference NFPA Standards 58 and 59, the standards\nwith which most operators are familiar, please give examples of the \"Confusion\" allegedly\ncaused by regulation under Part 192.\nSection 192.11(a) provides that \"In the event of a conflict (with NFPA 58 or 59), the\nrequirements of (Part 192) prevail.\" Please identify any areas of conflict, and show why\napplication of requirements in Part 192 would be appropriate.\nPlease substantiate the charge that \"unnecessary expense\" and \"unreasonable liability\" are\ncreated by application of Section 192.11(a) to systems with nine or less customers.\nWhat alternative amendment other then absolute exemption might satisfy the regulatory\ndifficulties that are believed to exist?\nWe believe that a comprehensive set of new safety standards for LPG facilities would remove\nmany of your present difficulties. We would welcome any efforts you might make toward\ndevelopment of such standards.\nSincerely,\n/signed/\nCesar DeLeon\nAssociate Director for\nPipeline Safety Regulation\nMaterials transportation Bureau\nDB\nC:\\WP51\\INTERPRT\\192\\11\\78-06-07\n3","truncated":false,"body_characters":6926}