[Federal Register Volume 68, Number 187 (Friday, September 26, 2003)]
[Rules and Regulations]
[Pages 55436-55443]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-23667]


=======================================================================
-----------------------------------------------------------------------

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.

-----------------------------------------------------------------------

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 
[email protected]. 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