[Federal Register: September 26, 2003 (Volume 68, Number 187)]
[Rules and Regulations]
[Page 55436-55443]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr26se03-6]
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DEPARTMENT OF HOMELAND SECURITY
Coast Guard
33 CFR Part 126
[USCG-1998-4302]
RIN 1625-AA07 (Formerly RIN 2115-AE22)
Handling of Class 1 (Explosive) Materials or Other Dangerous
Cargoes Within or Contiguous to Waterfront Facilities
AGENCY: Coast Guard, DHS.
ACTION: Final rule.
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SUMMARY: The Coast Guard is updating the regulations relating to the
handling of packaged and bulk-solid dangerous cargo at waterfront
facilities. These updated regulations reflect improved safety
procedures and modern transportation methods, such as the use of
containers. This rule also updates the requirements for handling these
dangerous cargoes and incorporates industry standards.
DATES: This regulation is effective October 27, 2003, except for Sec.
126.15(a)(3), which contains information collection requirements that
have not been approved by the Office of Management and Budget (OMB).
The Coast Guard will publish a document in the Federal Register
announcing the effective date of that paragraph. The incorporation by
reference of certain publications listed in the regulations is approved
by the Director of the Federal Register as of October 27, 2003, except
for the incorporation by reference in Sec. 126.15(a)(3), which will be
approved as of the effective date announced in the Federal Register.
ADDRESSES: Comments and material(s) received from the public, as well
as documents mentioned in this preamble as being available in the
docket, are part of docket [USCG-1998-4302] and are available for
inspection or copying at the Docket Management Facility, U.S.
Department of Transportation, room PL-401, 400 Seventh Street, SW.,
Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday,
except Federal holidays. You may also find this docket on the Internet
at http://dms.dot.gov.
FOR FURTHER INFORMATION CONTACT: If you have questions on this rule,
call Brian Robinson, Project Manager, Vessel and Facility Operating
Standards Division (G-MSO-3), room 1218, telephone 202-267-0018, e-mail brobinson@comdt.uscg.mil. If you have questions on viewing the docket,
call Dorothy Beard, Chief, Dockets, Department of Transportation, at
202-366-5149.
SUPPLEMENTARY INFORMATION:
Regulatory History
On October 29, 1998, we published a notice of proposed rulemaking
entitled ``Handling of Class 1 (Explosive) Materials or Other Dangerous
Cargoes within or Contiguous to Waterfront Facilities'' in the Federal
Register (63 FR 57964). On January 12, 1999, we published a notice in
the Federal Register reopening the comment period for this rulemaking
(64 FR 1770). We received eight letters commenting on the proposed
rule. No public hearing was requested, and none was held.
Background and Purpose
The regulations in 33 CFR part 126 prescribing requirements for
designated waterfront facilities that handle, store, and transfer
hazardous materials to and from vessels were written in the 1950s and
have never been significantly updated.
[[Page 55437]]
On September 4, 1990, the Coast Guard published a final rule (55 FR
36252) amending part 126 to exclude its application to bulk-liquid
hazardous materials, other than certain liquefied gases. Moreover, on
August 3, 1995, the Coast Guard published a final rule (60 FR 39788)
further amending part 126 to exclude its application to the remaining
liquefied gases and to transfer the requirements for the control of
liquefied hazardous gas transfers from 33 CFR 126.15(o) to 33 CFR part
127. As amended, part 126 applies only to facilities handling packaged
and dry-bulk hazardous materials.
On January 13, 1993, the Coast Guard published an advance notice of
proposed rulemaking ((ANPRM)(58 FR 4127)) requesting comments on
proposed changes to 33 CFR part 126. The Coast Guard received 11
comments in response to the ANPRM.
We are amending our regulations in 33 CFR part 126 concerning
waterfront facilities handling certain dangerous cargo. These
amendments are necessary to better address the hazards and precautions
necessary for packaged cargo, which have changed significantly with the
advent of containerization. We are also incorporating up-to-date
industry standards and reorganizing the part for clarity.
All measurements in this rule are in Syst[eacute]me International
D'Unites (SI) units, with the English measurement following in
parentheses. The Omnibus Trade and Competitive Act of 1988 (Pub. L.
100-418) designates the SI system as the preferred system of weights
and measurements for United States trade and commerce. The American
Society of Testing and Materials (ASTM) and the American Society of
Mechanical Engineers (ASME) also support the conversion to metric
standards.
Discussion of Comments and Changes
A discussion of the comments received and changes made to the
proposed rule follow.
Section numbers
1. Sections numbered under the outmoded system for numbering
sections (e.g., Sec. 126.01) are renumbered using the current system
(e.g., Sec. 126.1).
Applicability (Sec. 126.1)
1. We added new Sec. 126.1 to make it clear that this part has
requirements not only for waterfront facilities but also for vessels at
those facilities. For example, see new Sec. 126.30 on welding and
hotwork on facilities and vessels at those facilities.
Definitions (Sec. 126.01, and Sec. 126.3)
1. One comment recommended that the definition of ``container'' be
the same as in the Intermodal Safe Container Act (ISCA) and its
implementing regulations at 49 CFR parts 450 through 453.
We do not agree. The ISCA and its regulations address the technical
standards for the construction and structural integrity of containers.
The proposed definition for ``container'' is the same as found in 49
CFR parts 170 through 176 for containers used in the transportation of
hazardous materials.
2. We have added the definition of ``facility operator'' in this
section. See the explanation for this under ``hotwork'' (Sec. 126.30)
in this section of the preamble.
Conditions for designating waterfront facilities (Sec. 126.15)
1. One comment asked whether the proposed changes to Sec.
126.15(a) would continue to apply to facilities handling dry, bulk-
solid dangerous cargo.
As stated in the preamble to the NPRM, proposed Sec. 126.15
differentiates between container terminals and other designated
waterfront facilities. Proposed Sec. 126.15(a) would apply to those
facilities not handling dangerous cargo in transport units and proposed
Sec. 126.15(b) would apply to container terminals. Proposed Sec. Sec.
126.15(c) through 126.15(n) would apply to all designated waterfront
facilities. We reorganized Sec. 126.15 to make this differentiation
clearer. New paragraph (a) contains requirements for all waterfront
facilities subject to this part; new paragraph (b) contains additional
requirements for facilities that handle dangerous cargo not in
transport units; and new paragraph (c) contains additional requirements
for facilities that handle dangerous cargo in transport units.
Cargo spacing
1. Two comments requested clarification as to whether these updated
regulations would eliminate all restrictions on the physical
arrangement of dry, bulk-solid dangerous cargoes.
The existing regulations for cargo spacing were designed to permit
firefighting access to storage areas. Though we are revising Sec.
126.15 by removing most of the requirements for the arrangement of
cargo, freight, merchandise, or material, including dry, bulk-solid
materials, we still require at least one main aisle, as indicated in
the National Fire Protection Association (NFPA) Code 307, chapter 8-5.
The only exception to having at least one main aisle is when cargo is
transferred directly to or from railroad cars or vehicles. For that
reason, it is unnecessary to use trucks within the structure.
Therefore, an aisle must not be required. Additionally, you must
segregate bulk-solid cargoes according to Sec. 126.27(g) for product
compatibility. We encourage facility owners and operators to coordinate
with the Captain of the Port (COTP) and local fire-service officials to
implement these new standards based on the structure of the facility
and local fire-service practices.
Construction of piers, wharves, and terminal buildings
1. One comment requested that we incorporate the standards in NFPA
307, chapters 3 and 4, for the construction of piers, wharves, and
terminal buildings into these regulations.
We do not agree with this comment. While we recognize that the
requirements of NFPA 307 represent generally accepted building
practices, the standards for the design and construction of designated
waterfront facilities are best established by State or local
authorities. Additionally, we determined that, in many ports, the
construction aspects of NFPA 307 are already enforced, usually by the
local fire department, in conjunction with other building codes.
Existing facilities
1. One comment noted that, by applying the NFPA standards to
existing facilities, we would create a large financial burden on
industry, particularly for facilities and terminals that were built
many years ago.
Because NFPA 307 does not require refurbishment of existing
facilities for this purpose, only those facilities that are rebuilding
or remodeling existing structures and those building completely new
structures will be affected. Paragraph 1-2 of NFPA 307 states: ``Unless
otherwise noted, it is not intended that the provisions of this
document be applied to facilities, equipment, structures, or
installations that were existing or approved for construction prior to
the effective date of the document, except in those cases in which it
is determined by the authority having jurisdiction that the existing
situation involves a distinct hazard to life or property.''
Additionally, in many ports, the construction aspects of NFPA 307 are
already enforced by local authorities. Accordingly, we will not require
owners to refurbish existing facilities unless there is a distinct
safety hazard.
[[Page 55438]]
Warning signs (Sec. 126.15(e))
1. One comment requested clarification as to who, at each facility,
is responsible for enforcing the regulations required by this section
that are posted on the warning signs. This comment asked if we will
cite a terminal owner if we find an individual smoking in a ``No
Smoking'' area.
Generally, our enforcement actions will target the party subject to
these regulations who can most effectively bring about compliance or a
remedy for the deficiencies or alleged violations. The COTP is still
responsible for identifying who is responsible for a violation and
initiating appropriate enforcement actions.
International shore connection (Sec. 126.15(g))
1. One comment recommended that a designated waterfront facility,
that conducts cargo operations with foreign-flag vessels, should be
allowed to use an international shore connection provided by the local
fire department rather than provide its own connection at that
facility.
We conditionally agree with this comment. As stated in the NPRM,
the international shore connection makes it possible to connect
dissimilar U.S. facilities and fire main connections for foreign
vessels in the event of an emergency. You must make available an
international shore connection that meets ASTM F-1121 by providing it
yourself or through your local emergency response department.
Railroad or highway vehic1es (Sec. l26.27(b))
1. One comment asked if the COTP must be notified when containers
with dangerous cargo in railroad or highway vehicles are being
transported across or on the facility solely for transfer to or from a
ferry.
We have clarified this paragraph by adding the words ``transport
units'' to the exceptions listed in Sec. 126.27(b). Transport units
and railroad or highway vehicles carrying containers loaded with
dangerous cargo across or on the facility solely for transfer to a
ferry are not subject to these reporting requirements.
Net explosive quantity (Sec. 126.27(b)(1))
1. Three comments recommended that the quantity of explosives
triggering a notification to the COTP under Sec. 126.27(b)(1) should
be revised to specify that the net explosive quantity is used. The net
explosive quantity is the most commonly used indicator in the industry
of the actual amount of explosives present.
We agree with this comment and have revised this paragraph.
Flammable Gases (Sec. 126.27)
1. Two comments recommended that the proposed amendments to Sec.
126.27(b)(2) concerning the provisions for notification to the COTP for
shipments of Class 2, Division 2.1 (Flammable Gas), apply to bulk
packaging of this product.
We agree with these comments and have revised this paragraph. For
the purposes of this section, the definition of ``bulk packaging'' is
the same as that found in 49 CFR 171.8.
Segregation (Sec. 126.27)
1. Two comments recommended that we allow the same exception from
the segregation requirements for break-bulk dangerous cargo in limited
quantity packaging in Sec. Sec. 126.27(d) to 126.27(e) for limited
quantity packaging in transport units. This was suggested for
consistency with the International Maritime Dangerous Goods Code. One
of these comments also suggested that we clarify the regulations
regarding segregating transport units at a facility according to 49 CFR
176.83(f). The same requirements should apply for ``on-deck''
horizontal stowage.
We agree with these comments and have revised this paragraph
accordingly.
2. Two comments objected to the proposed requirement that
containers loaded with dangerous cargoes must be segregated according
to 49 CFR 176.83. These comments described a local practice where
containers loaded with dangerous cargo are required to be stored on a
chassis rather than in grounded storage. These comments stated that, by
removing the containers with dangerous cargo from grounded storage, the
port would provide a safer environment by enabling easier access and
identification in the event of an emergency. This, among other
benefits, would reduce handling and provide greater accessibility for
monitoring.
As stated in the preamble to the proposed rule, these rules will
establish minimum safety standards for the operation of designated
waterfront facilities. With approximately 485 facilities being subject
to these regulations, we recognize that there are situations where the
application of these regulations is not practical. This might arise
because of local conditions or because the local port authorities or
facility owners or operators have developed programs or operational
practices to ensure safety, such as the one described by these
comments. Existing Sec. 126.11 allows the COTP to grant waivers of
compliance; new Sec. 126.12 allows the COTP to examine alternative
methods of compliance. Both of these sections allow the minimum safety
standards to be tailored to meet unique, local conditions and to
provide for the development and implementation of alternative methods
of ensuring safety. Facility owners and operators, who have developed
alternative methods of ensuring safety, such as the one described in
these comments, may request a waiver or alternative from the COTP under
Sec. Sec. 126.11 or 126.12.
Water soluble oxidizers (Sec. 126.27(h))
1. One comment requested clarification of the requirements in Sec.
126.27(h). This requires you to store water-soluble oxidizers (Division
5.1) in a manner that prevents them from coming into contact with
water. This comment stated that industry takes every precaution to
ensure these materials are kept dry but does not plan for abnormal
situations, such as the vessel sinking or hurricanes.
This section applies to the storage of dangerous cargoes at
designated waterfront facilities and not while they are on a vessel or
in another mode of transportation. Therefore, we retain our proposed
language.
Liquid oxidizers (Sec. 126.27(i))
1. One comment objected to the provisions in proposed Sec.
126.27(i) that requires liquid oxidizers (Division 5.1) materials to be
stored so that, in the event of a leak from their packaging, they would
not come in contact with organic materials. This comment stated that
industry was unaware of any incidents resulting from a leak of a liquid
oxidizer coming in contact with organic material. It added that the
current segregation standards under International Maritime Organization
(IMO) and Research and Special Programs Administration (RSPA) for the
transportation of dangerous goods are adequate.
We do not agree with this comment. While we agree that the IMO and
RSPA segregation standards are adequate for transportation purposes,
the requirements of this section apply to the storage of dangerous
cargoes at designated waterfront facilities. We recognize that,
although there are possible combinations of Division 5.1 products and
organic materials that would not result in a hazardous reaction, there
are many other possible combinations of these materials that could
produce a dangerous chemical reaction. Therefore, we retain our
proposed language.
[[Page 55439]]
Storage (Sec. 126.27(j))
1. One comment expressed concern that proposed Sec. 126.27(j),
which would require that dangerous cargo on the facility be stored in a
manner that retards the spread of fire, could be interpreted to mean
that explosives stored within an explosive storage magazine would have
to be interspersed with fire-retardant material. This comment requested
that we clarify this section by indicating that this does not apply to
packages within an explosive storage magazine.
This section applies to the storage of dangerous cargo at a
designated waterfront facility. If a designated waterfront facility has
the capability to store explosive materials within an explosive storage
magazine, this type of storage is already adequately addressed under
other existing Federal, State, and local regulations and, therefore,
would not be subject to this requirement.
Hotwork (Sec. 126.30)
1. One comment noted that the facility operator is responsible for
welding or hotwork conducted at a facility. The comment also requested
clarification regarding the definition of a ``facility operator.'' This
comment asked if we would recognize a contractual delegation if a
facility operator contractually makes another company, such as a
vendor, responsible for compliance with these requirements.
We have noted this comment and have added a definition of
``facility operator'' to these regulations to help clarify their role.
It is the responsibility of the facility owner or operator to ensure
safety at their facility. The actions of any vendors or other
contracted parties at a facility are subject to the control and
oversight of the owner or operator while on the facility. Therefore,
the owner or operator retains the ultimate responsibility for
compliance with these regulations.
2. One comment requested that we change Sec. 126.30(a) to allow
welding or hotwork to be performed on a vessel when dangerous cargo is
within the specified distances but stowed inside a container and the
COTP is notified of the work before it begins.
We agree with this comment and have revised this paragraph.
Clarity of the final rule
1. You may notice some changes in the final rule that are not
discussed in this section of the preamble. These are non-substantive
changes intended simply to improve the clarity of our regulations.
Future rulemaking
1. Two comments addressed issues that are beyond the scope of this
current rulemaking. They requested that we initiate a separate
rulemaking to address concerns over the loading and unloading of Class
1 (Explosive) materials at waterfront facilities according to these
regulations and Coast Guard policies.
Incorporation by Reference
The Director of the Federal Register has approved the material in
Sec. 126.5 for incorporation by reference under 5 U.S.C. 552 and 1 CFR
part 51. Copies of the material are available from the sources listed
in Sec. 126.5.
Regulatory Evaluation
This rule is not a ``significant regulatory action'' under section
3(f) of Executive Order 12866 and does not require an assessment of
potential costs and benefits under section 6(a)(3) of that Order. The
Office of Management and Budget has not reviewed it under that Order.
It is not ``significant'' under the regulatory policies and procedures
of the Department of Homeland Security (DHS). A summary of the
Regulatory Evaluation follows:
This rule amends 33 CFR part 126 to better address the hazards and
precautions necessary for packaged dangerous cargo, which have changed
significantly with the advent of containerization. As amended, part 126
applies only to waterfront facilities handling packaged and bulk-solid
dangerous cargo. This rule incorporates up-to-date industry standards.
According to the Marine Safety Management System, there are 485
waterfront facilities that handle, store, and transfer dangerous cargo
to and from vessels. We estimate that the maximum implementation cost
of the rule is $304 per affected facility. This cost includes 4 warning
signs per facility at $50 per sign, 1 international shore connection at
$100 per international shore connection, and $4 for posting warning
signs per entity. Some facilities, however, may already meet the
requirements, and will not incur additional cost. The present value of
the total cost of this rule during 2002 through 2012 is $111,425. The
cost calculation is based on the assumption that half of the facilities
would already have warning signs and international shore connections.
No documented marine casualties were found in our databases that could
have been prevented by the regulations; however, the rule will
contribute to a higher level of marine safety at waterfront facilities.
Small Entities
Under the Regulatory Flexibility Act (5 U.S.C. 601-612) and
Executive Order 13272, Proposed Consideration of Small Entities, we
considered whether this rule would have a significant economic impact
on a substantial number of small entities. The term ``small entities''
comprises small businesses, not-for-profit organizations that are
independently owned and operated and are not dominant in their fields,
and governmental jurisdictions with populations of less than 50,000.
There are 485 waterfront facilities that will be affected by this
rule. We estimate that some facilities will not incur additional cost,
while others will incur minimal cost. The maximum cost per facility is
approximately $300.
Because this cost is minimal, even for a small entity, the Coast
Guard certifies, under 5 U.S.C. 605(b), that this final rule will not
have a significant economic impact on a substantial number of small
entities.
Assistance for Small Entities
Under section 213(a) of the Small Business Regulatory Enforcement
Fairness Act of 1996 (Pub. L. 104-121), we offered to assist small
entities in understanding the rule so that they could better evaluate
its effects on them and participate in the rulemaking. We provided
opportunity for public comment in the notice of proposed rulemaking
(NPRM) entitled ``Handling of Class 1 (Explosive) Materials or Other
Dangerous Cargoes within or Contiguous to Waterfront Facilities''
published on October 29, 1998, in the Federal Register (63 FR 57964).
On January 12, 1999, we published a notice in the Federal Register
reopening the comment period for this rulemaking (64 FR 1770).
Additionally, the NPRM provided small businesses, organizations, or
governmental jurisdictions a Coast Guard contact to ask questions
concerning this rule's provisions.
Small businesses may send comments on the actions of Federal
employees who enforce, or, otherwise, determine compliance with,
Federal regulations to the Small Business and Agriculture Regulatory
Enforcement Ombudsman and the Regional Small Business Regulatory
Fairness Boards. The Ombudsman evaluates these actions annually and
rates each agency's responsiveness to small business. If you wish to
comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR
(1-888-734-3247).
[[Page 55440]]
Collection of Information
This rule calls for a new collection-of-information under the
Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). The collection-
of-information consists of posting warning signs at all designated
waterfront facilities as required in Sec. 126.15(a)(3). These signs
must meet the requirements of the National Fire Protection Association
(NFPA) 307.
No comments were received regarding the collection-of-information
requirement.
This rule amends an existing Office of Management and Budget (OMB)
approved collection, OMB control number 1625-0016 (formerly 2115-0054),
that expires on November 30, 2004. As required by 44 U.S.C. 3507(d), we
submitted a copy of this rule to OMB for its review of the collection-
of-information. OMB has not yet completed its review of, or approved,
the changes to this collection. Therefore, Sec. 126.15(a)(3) in the
final rule will not become effective until approved by OMB. We will
publish a document in the Federal Register announcing OMB's approval
and the effective date of that section.
You are not required to respond to a collection-of-information
unless it displays a currently valid OMB control number.
Federalism
A rule has implications for federalism under Executive Order 13132,
Federalism, if it has a substantial, direct effect on State or local
governments and would either preempt State law or impose a substantial,
direct cost of compliance on them. We have analyzed this rule under
Executive Order 13132 and have determined that it does not have
implications for federalism under that Order.
Unfunded Mandates Reform Act
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538)
requires Federal agencies to assess the effects of their discretionary
regulatory actions. In particular, the Act addresses actions that may
result in the expenditure by a State, local, or tribal government, in
the aggregate, or by the private sector of $100,000,000 or more in any
one-year. Though this rule will not result in such an expenditure, we
do discuss the effects of this rule elsewhere in this preamble.
Taking of Private Property
This rule will not effect a taking of private property or,
otherwise, have taking implications under Executive Order 12630,
Governmental Actions and Interference with Constitutionally Protected
Property Rights.
Civil Justice Reform
This rule meets applicable standards in sections 3(a) and 3(b)(2)
of Executive Order 12988, Civil Justice Reform, to minimize litigation,
eliminate ambiguity, and reduce burden.
Protection of Children
We have analyzed this rule under Executive Order 13045, Protection
of Children from Environmental Health Risks and Safety Risks. This rule
is not an economically significant rule and does not concern an
environmental risk to health or risk to safety that may
disproportionately affect children.
Indian Tribal Governments
This rule does not have tribal implications under Executive Order
13175, Consultation and Coordination with Indian Tribal Governments,
because it does not have a substantial, direct effect on one or more
Indian tribes, or on the relationship between the Federal Government
and Indian tribes, or on the distribution of power and responsibilities
between the Federal Government and Indian tribes.
Energy Effects
We have analyzed this rule under Executive Order 13211, Actions
Concerning Regulations That Significantly Affect Energy Supply,
Distribution, or Use. We have determined that it is not a ``significant
energy action'' under that order because it is not a ``significant
regulatory action'' under Executive Order 12866 and is not likely to
have a significant, adverse effect on the supply, distribution, or use
of energy. The Administrator of the Office of Information and
Regulatory Affairs has not designated it as a significant energy
action. Therefore, it does not require a Statement of Energy Effects
under Executive Order 13211.
Environment
We have considered the environmental impact of this rule and
concluded that, under figure 2-1, paragraph (34)(a), of Commandant
Instruction M16475.1D, this rule is categorically excluded from further
environmental documentation. This rule concerns handling and storage
procedures and will contribute to a higher level of marine safety at
waterfront facilities. A ``Categorical Exclusion Determination'' is
available in the docket where indicated under ADDRESSES.
List of Subjects in 33 CFR Part 126
Explosives, Harbors, Hazardous substances, Incorporation by
reference, Reporting and recordkeeping requirements.
0
For the reasons discussed in the preamble, the Coast Guard amends 33
CFR part 126 as follows:
PART 126--HANDLING OF DANGEROUS CARGO AT WATERFRONT FACILITIES
0
1. The authority citation for part 126 continues to read as follows:
Authority: 33 U.S.C. 1231; Department of Homeland Security
Delegation No. 0170.
0
2. Revise the part heading to read as set forth above.
Sec. Sec. 126.01, 126.05, 126.07, 126.09 and 126.10 [Removed]
0
3. Remove Sec. Sec. 126.01, 126.05, 126.07, 126.09 and 126.10.
0
4. Add Sec. 126.1 to read as follows:
Sec. 126.1 What does this part apply to?
This part applies to waterfront facilities handling packaged and
bulk-solid dangerous cargo and to vessels at those facilities.
0
5. Add Sec. 126.3 to read as follows:
Sec. 126.3 Definitions.
As used in this part--
Break-bulk means packages that are handled individually,
palletized, or unitized for purposes of transportation, as opposed to
materials in bulk and containerized freight.
Bulk means without mark or count and directly loaded or unloaded to
or from a hold or tank on a vessel without the use of containers or
break-bulk packaging.
Captain of the port or COTP means the officer of the Coast Guard,
under the command of a District Commander, is designated by the
Commandant for the purpose of giving immediate direction to Coast Guard
law enforcement activities within an assigned area.
Cargo of particular hazard means any of the following:
(1) Division 1.1 and 1.2 explosives, as defined in 49 CFR 173.50,
for which a permit is required under 33 CFR 126.17.
(2) Ammonium nitrate products, division 5.1 (oxidizing) materials
listed in 49 CFR 176.410, for which a permit is required under 49 CFR
176.415.
(3) Division 4.3 dangerous when wet products as defined in 49 CFR
173.124, in excess of 60 mt.
(4) Division 2.3 and 6.1 poison inhalation hazard products as
defined in 49 CFR 173.115 and 173.132, respectively.
[[Page 55441]]
(5) Class 7 highway route controlled quantity radioactive material
or fissile material, controlled shipment, as defined in 49 CER 173.403.
Commandant means the Commandant of the United States Coast Guard.
Container means a reusable container that has a volume of 1.81
cubic meters (64 cubic feet) or more, is designed and constructed to
permit being lifted with its contents intact, and is intended primarily
for containment of packages (in unit form) during transportation.
Dangerous cargo means all hazardous materials listed in 49 CFR
parts 170 through 179, except those materials preceded by an ``A'' in
the Hazardous Materials Table in 49 CFR 172.101 and all cargo listed in
46 CFR part 148.
Designated dangerous cargo means Division 1.1 and 1.2 explosives as
defined in 49 CFR 173.50.
Designated waterfront facility means a waterfront facility
designated under Sec. 126.13 for the handling, storing, loading, and
discharging of any hazardous material(s) subject to the Dangerous
Cargoes Regulations (49 CFR parts 170 through 179), except for those
materials preceded by an ``A'' in the Hazardous Materials Table in 49
CFR 172.101 and for those materials carried as bulk liquids.
Facility of particular hazard means a designated waterfront
facility that is authorized to handle a cargo of particular hazard.
Facility operator means the person or company who owns, operates,
or is responsible for the operation of a waterfront facility.
Net tons means net weight in tons.
Net weight, in reference to material in a package, tank, or
container, means the weight of the contents of a package, tank, or
container and does not include the weight of any packaging material or
containing devices.
Transport unit means a transport vehicle or a container.
Waterfront facility means all piers, wharves, and similar
structures to which a vessel may be secured; areas of land, water, or
land and water under and in the immediate proximity to these
structures; buildings on or contiguous to these structures; and the
equipment and materials on or in these structures or buildings. The
term does not include facilities directly operated by the Department of
Defense.
0
6. Add Sec. 126.5 to read as follows:
Sec. 126.5 Incorporation by reference: Where can I get a copy of the
publications mentioned in this part?
(a) Certain material is incorporated by reference into this part
with the approval of the Director of the Federal Register under 5
U.S.C. 552(a) and 1 CFR part 51. To enforce any edition other than that
specified in paragraph (b) of this section, we must publish a notice of
change in the Federal Register and the material must be available to
the public. All approved material is available for inspection at the
Office of the Federal Register, 800 North Capitol Street NW., suite
700, Washington, DC, and at the U.S. Coast Guard, Vessel and Facility
Operating Standards Division (G-MSO-2), room 1210, 2100 Second Street
SW., Washington, DC 20593-0001, and is available from the sources
indicated in paragraph (b) of this section.
(b) The materials approved for incorporation by reference in this
part, and the sections affected, are as follows:
American Society for Testing and Materials (ASTM), 100 Barr
Harbor Drive, PO Box C700 West CONSHOHOCKEN, PA 19428-2959:
ASTM F-1121, Standard Specification for International Shore 126.15
Connections for Marine Fire Applications, 1987 Edition......
National Fire Protection Association (NFPA), One Batterymarch
Park, P.O. Box 9101, Quincy, MA 02269-9101:
NFPA 10, Standard for Portable Fire Extinguishers, 1998 126.15
Edition.....................................................
NFPA 13, Standard for the Installation of Sprinkler Systems, 126.15
1996 Edition................................................
NFPA 14, Standard for the Installation of Standpipe and Hose 126.15
Systems, 1996 Edition.......................................
NFPA 30, Flammable and Combustible Liquids Code, 1996........ 126.15
NFPA 51B, Standard for Fire Prevention in Use of Cutting and 126.30
Welding Processes, 1994 Edition.............................
NFPA 70, National Electrical Code, 1996...................... 126.15
NFPA 307, Standard for the Construction and Fire Protection 126.15
of Marine Terminals, Piers, and Wharves, 1995 Edition.......
0
7. Add Sec. 126.12 to read as follows:
Sec. 126.12 How do I request the use of an alternative method of
complying with a requirement in this part?
(a) An owner or operator of a waterfront facility may request that
the COTP allow the use of an alternative method of complying with a
requirement in this part.
(b) The request must establish, to the COTP's satisfaction--
(1) That compliance with the requirement is economically or
physically impractical; and
(2) That the alternative requested provides an equivalent or
greater level of safety.
(c) The COTP examines the request and provides an answer, in
writing, within 30 days of receipt of the request.
0
8. Revise Sec. 126.15 to read as follows:
Sec. 126.15 What conditions must a designated waterfront facility
meet?
(a) All designated waterfront facilities must meet the following:
(1) Fire extinguishing equipment. Fire extinguishing equipment,
such as automatic sprinklers, hydrants, hose connections, and
firefighting water supplies must be available and maintained in
adequate quantities and locations. Fire extinguishing equipment must
meet State and local laws. In the absence of applicable State and local
laws, fire extinguishing equipment must meet NFPA 10, 13, 14, and 307.
(Incorporated by reference, see Sec. 126.5.)
(2) Fire appliances. The location of all fire appliances, such as
hydrants, standpipes, hose stations, fire extinguishers, and fire alarm
boxes must be conspicuously marked and readily accessible according to
NFPA 10, 13, 14, and 307.
(3) Warning signs. Warning signs must be constructed and installed
according to NFPA 307, chapter 7-8.7.
(4) Lighting. If the facility transfers dangerous cargo between
sunset and sunrise, it must have outdoor lighting that adequately
illuminates the transfer work area. The lighting must be installed and
maintained according to NFPA 70 (Incorporated by reference, see Sec.
126.5.) and must be located or shielded so that it cannot be mistaken
for an aid to navigation and does not interfere with navigation on
waterways.
(5) International shore connection. If the facility conducts cargo
operations involving foreign-flag vessels, the facility must have an
international shore connection meeting ASTM F-1121. (Incorporated by
reference, see Sec. 126.5.)
(6) Access to the facility. Whenever dangerous cargo is transferred
or stored on the facility, access to the facility must be limited to--
(i) Personnel working on the facility or vessel;
(ii) Delivery and service personnel authorized to conduct their
business;
(iii) Coast Guard and other Federal, State, and local officials;
(iv) Local emergency personnel, such as police officers and
firemen; and
(v) Other persons authorized by the owner or operator of the
facility.
(7) Security measures. Guards must be stationed, or equivalent
controls acceptable to the COTP must be used, to deter and detect
unlawful entrance; to
[[Page 55442]]
detect and report fire hazards, fires, and releases of dangerous
cargoes and hazardous materials; to check the readiness of protective
equipment; and to report other emergency situations at the facility.
(8) Coast Guard personnel. At any time, Coast Guard personnel must
be allowed to enter the facility to conduct inspections or board
vessels moored at the facility.
(9) Material handling equipment, trucks, and other motor vehicles.
When dangerous cargo is being transferred or stored on the facility,
material handling equipment, trucks, and other motor vehicles operated
by internal combustion engines must meet the requirements of NFPA 307,
chapter 9.
(10) Smoking. Smoking is allowed on the facility where permitted
under State or local law. Signs must be posted marking authorized
smoking areas. ``No Smoking'' signs must be conspicuously posted
elsewhere on the facility.
(11) Rubbish and waste material. All rubbish, debris, and waste
materials must be placed in adequate receptacles.
(12) Adequacy of equipment, materials, and standards. The COTP may
determine that any equipment, material, or standard is not reasonably
adequate under the circumstances. If so, the COTP informs the owner or
operator in writing and provides an opportunity for the owner or
operator to have the deficiency corrected.
(b) All designated waterfront facilities that handle dangerous
cargo, not in transport units, must also meet the following:
(1) Arrangement of cargo, freight, merchandise, or material. Cargo,
freight, merchandise, and other items or material on the facility must
be arranged to provide access for firefighting and clearance for fire
prevention according to NFPA 307, chapter 8-5.
(2) Portable fire extinguishers. Each facility must have and
maintain, in adequate quantities and locations, portable fire
extinguishers that meet the requirements of NFPA 10. These
extinguishers must be inspected and maintained in accordance with NFPA
10.
(3) Electrical systems. All new electrical equipment and wiring
installed on the facility must be of the same type and installed as
specified under NFPA 70. All defective or dangerous electrical
equipment and wiring must be promptly repaired, replaced, or
permanently disconnected.
(4) Heating equipment and other sources of ignition. Open fires and
open-flame lamps are prohibited on the facility. Heating equipment must
meet NFPA 307, chapter 9-4.
(5) Maintenance stores and supplies. Hazardous material(s) used in
the operation or maintenance of the facility may be stored only in
amounts necessary for normal operating conditions. These materials must
be stored in compartments that are remote from combustible material;
constructed to provide safe storage; and kept clean and free of scrap
materials, empty containers, soiled wiping rags, waste, and other
debris. Flammable liquids must be stored according to NFPA 30, chapter
4. (Incorporated by reference, see Sec. 126.5.)
(c) All designated waterfront facilities that handle dangerous
cargo in transport units must also meet the following:
(1) Terminal yards. Terminal yards must conform to the standards in
NFPA 307, chapter 5.
(2) Containers. Containers packed with dangerous cargo that are
vertically stacked must be stacked no more than four high.
0
9. In Sec. 126.27--
0
a. Revise paragraphs (b) introductory text, (b)(1), (b)(2), (b)(3), and
(b)(7);
0
b. Remove paragraph (b)(8);
0
c. Revise paragraphs (d) through (i); and
0
d. Add paragraphs (j) through (1) to read as follows:
Sec. 126.27 General permit for handling dangerous cargo.
* * * * *
(b) You must notify the COTP before you handle, store, stow, load,
discharge, or transport, in the net weight amounts specified, the
following dangerous cargo, except when contained within transport units
or railroad or highway vehicles being transported across or on the
waterfront facility solely for transfer to or from a railroad-car
ferry, highway-vehicle ferry, or carfloat:
(1) Class 1, Division 1.3 and Division 1.5 (Explosive) materials,
with a net explosive quantity in excess of 36,400 kg (40 net tons) at
any one time.
(2) Class 2, Division 2.1 (Flammable Gas) materials in bulk
packaging; or Division 2.3 (Poison Gas) materials in excess of 72,800
kg (80 net tons) at any one time.
(3) A Class 7 (Radioactive) material in a highway route controlled
quantity, as defined in 49 CFR 173.403.
* * * * *
(7) A bulk shipment of a cargo of particular hazard.
* * * * *
(d) Break-bulk dangerous cargo must be segregated according to 49
CFR 176.83(a) through (c). No separation is required for break-bulk
dangerous cargo in limited-quantity packaging.
(e) Transport units and portable tanks containing dangerous cargo
must be segregated according to 49 CFR 176.83(a), (b), and (f). The
requirements for vertical segregation and for on-deck, horizontal
segregation in 49 CFR 176.83(f) apply. No separation is required for
transport units containing dangerous cargo only in limited quantity
packaging.
(f) Break-bulk dangerous cargo must be segregated from transport
units containing dangerous cargo according to 49 CFR 176.83(e).
(g) Solid dangerous bulk cargo must be separated to prevent the
interaction of incompatible materials in the event of an accident.
Cargo not required to be segregated, when in break-bulk form, is not
required to be segregated, when in bulk form. Dangerous cargo in break-
bulk form must be segregated from solid dangerous cargo in bulk
according to 49 CFR 176.83.
(h) Materials that are dangerous when wet (Division 4.3), water-
soluble oxidizers (Division 5.1), and corrosive solids (Class 8) must
be stored in a manner that prevents them from coming into contact with
water.
(i) Corrosive liquids (Class 8) and liquid oxidizers (Division 5.1)
must be handled and stored so that, in the event of a leak from their
packaging, they would not come in contact with organic materials.
(j) Dangerous cargo stored on the facility must be arranged in a
manner that retards the spread of fire, such as by interspersing
dangerous cargo with inert or fire retardant material.
(k) Dangerous cargo stored on the facility, but not intended for
use on the facility, must be packaged, marked, and labeled according to
49 CFR parts 171 through 180, as if the cargo was in transportation.
(l) Class 7 (Radioactive) material must be stored as specified in
49 CFR 173.447.
0
10. Add Sec. 126.30 to read as follows:
Sec. 126.30 What are the conditions for conducting welding and
hotwork?
(a) The facility operator must ensure that all welding or hotwork
conducted at the facility meets the requirements of this section. Each
operator of a vessel moored to the facility must ensure that all
welding or hotwork conducted on the vessel meets the requirements of
this section.
(b) The COTP may require an operator of a facility or of a vessel
moored at the facility to notify the COTP before conducting welding or
hotwork. Regardless of whether or not the COTP required notice, the
facility operator must notify the COTP before conducting
[[Page 55443]]
welding or hotwork on a vessel when containerized dangerous cargo is
located within the distances listed in paragraph (f) of this section.
(c) Before conducting welding or hotwork, flammable vapors,
liquids, or solids must be completely removed from any container, pipe,
or transfer line being worked on.
(d) Before conducting welding or hotwork on tanks, tanks used for
storage of flammable or combustible substances must be tested and
certified gas free.
(e) All welding and hotwork must be conducted according to NFPA
51B. (Incorporated by reference, see Sec. 126.5.)
(f) Welding or hotwork is prohibited during gas freeing operations
within 30.5 meters (100 feet) of bulk cargo operations involving
flammable or combustible materials, within 30.5 meters (100 feet) of
fueling operations, within 30.5 meters (100 feet) of explosives, or
within 15.25 meters (50 feet) of other hazardous materials.
(g) If the welding or hotwork is on the boundary of a compartment
(i.e., bulkhead, wall, or deck), a fire watch, in addition to that
called for in NFPA 51B, must be stationed in the adjoining compartment.
(h) Personnel on fire watch must have no other duties except to
watch for the presence of fire and to prevent the development of
hazardous conditions.
(i) All safety precautions in relation to purging, inerting, or
venting for all hotwork on containers must be followed.
(j) All local laws and ordinances must be followed.
(k) If a fire or other hazard occurs, all cutting, welding, or
other hotwork equipment must be shut down.
Dated: September 8, 2003.
T.H. Gilmour,
Assistant Commandant for Marine Safety, Security and Environmental
Protection.
[FR Doc. 03-23667 Filed 9-25-03; 8:45 am]
BILLING CODE 4910-15-P