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January 30, 1992

MEMORANDUM FOR:  GILBERT J. SAULTER
                Regional Administrator

FROM:            PATRICIA K. CLARK, Director 
                Directorate of Compliance Programs

SUBJECT:         Exxon's Baton Rouge Refinery Decision To Classify Marine
                Terminal Docks As Unclassified In Applying NFPA-NEC

The principal issue in this matter is whether the Coast Guard or OSHA has authority over the bulk storage, handling and transfer of dangerous cargo, oil or hazardous material which involves vessel loading or discharging. Section 4(b)(1) of the OSH Act provides that OSHA has no authority over a working condition if another Federal agency has a regulation dealing with that working condition. Pursuant to 33 U.S.C. Section 1231, a provision of the Ports and Waterways Safety Act, the Coast Guard has promulgated regulations (33 CFR Part 126) dealing with working conditions for the loading and discharging of vessels at waterfront facilities involving the handling and storage of "dangerous cargo", "designated dangerous cargo" or "cargo of a particular hazard." Further, pursuant to this same section, the Coast Guard has promulgated regulations (33 CFR Part 154) for working conditions involving facilities capable of transferring oil or hazardous material, in bulk, to or from a vessel. If the cargo handled at the facility is of the type specified in these Coast Guard regulations (33 CFR Part 126 and 154), then OSHA authority is preempted with respect to the bulk transfer and storage operations.

It is noted that OSHA is preempted only at facilities used solely for bulk storage, handling and transfer operations. Vessels being loaded or discharged at facilities performing functions other than the bulk storage, handling and transfer of dangerous/hazardous cargos are subject to OSHA regulation for other functional areas (e.g.; production, manufacturing). Should the marine facility in question not involve the transfer or storage of the above referenced bulk cargos then applicable OSHA regulations under 29 CFR 1910, 1917 and 1918 apply. Applicable electrical regulations at an OSHA designated "marine terminal" are covered by 29 CFR 1910 per 29 CFR 1917.1(a)(2)(i).