Federal Register / Vol. 63, No. 107 /Thursday, June 4, 1998 /Rules and Regulations 30411

the criteria for a significant regulatory

action under Executive Order 12866.

Thus, it was not subject to OMB review.

Regulatory Flexibility Act

We certify that this regulation will not

have a significant economic impact on

a substantial number of small entities.

Therefore, a regulatory flexibility

analysis as provided in the Regulatory

Flexibility Act, as amended, is not

required.

Paperwork Reduction Act

This regulation imposes no reporting/

recordkeeping requirements

necessitating clearance by OMB.

(Catalog of Federal Domestic Assistance

Program Nos. 96.001, Social SecurityDisability Insurance; 96.002, Social SecurityRetirement Insurance; 96.004, Social

Security-Survivors Insurance; 96.006,

Supplemental Security Income)

List of Subjects in 20 CFR Part 404

Administrative practice and

procedure, Blind, Disability benefits,

Old-Age, Survivors and Disability

Insurance, Reporting and recordkeeping

requirements, Social security.

Dated: May 27, 1998.

Kenneth S. Apfel,

Commissioner of Social Security.

For the reasons set forth in the

preamble, part 404, subpart P, chapter

III of title 20 of the Code of Federal

Regulations is amended as set forth

below.

PART 404—FEDERAL OLD-AGE,

SURVIVORS AND DISABILITY

INSURANCE (1950— )

Subpart P—[Amended]

1. The authority citation for subpart P

of part 404 continues to read as follows:

Authority: Secs. 202, 205(a), (b), and (d)–

(h), 216(i), 221(a) and (i), 222(c), 223, 225,

and 702(a)(5) of the Social Security Act (42

U.S.C. 402, 405(a), (b), and (d)–(h), 416(i),

421(a) and (i), 422(c), 423, 425, and

902(a)(5)); sec. 211(b), Pub. L. 104–193, 110

Stat. 2105, 2189.

2. Appendix 1 to subpart P of part 404

is amended by revising items 1, 3, 11,

12, and 15 of the introductory text

before Part A to read as follows:

Appendix 1 to Subpart P—Listing of

Impairments

* * * * *

1. Growth Impairment (100.00): July 1,

1999.

* * * * *

3. Special Senses and Speech (2.00 and

102.00): July 1, 1999.

* * * * *

11. Multiple Body Systems (110.00): July 1,

1999.

12. Neurological (11.00 and 111.00): July 1,

1999.

* * * * *

15. Immune System (14.00 and 114.00):

July 1, 1999.

* * * * *

[FR Doc. 98–14599 Filed 6–3–98; 8:45 am]

BILLING CODE 4190–29–P

DEPARTMENT OF TRANSPORTATION

Research and Special Programs

Administration

49 CFR Parts 107, 171, 172, 173, 174,

175, 176, 177

[Notice No. 98–6]

Hazardous Materials: Formal

Interpretation of Regulations

AGENCY: Research and Special Programs

Administration (RSPA), DOT.

ACTION: Formal interpretation of

regulations.

SUMMARY: This document publishes a

formal interpretation of the Hazardous

Materials Regulations (HMR) concerning

the responsibilities of a carrier when

accepting hazardous materials for

transportation in commerce. This

interpretation is being published in

order to facilitate better public

understanding and awareness of the

HMR.

EFFECTIVE DATE: June 4, 1998.

FOR FURTHER INFORMATION CONTACT:

Frazer C. Hilder, Office of the Chief

Counsel, Research and Special Programs

Administration, U.S. Department of

Transportation, 400 Seventh Street, SW,

Washington, DC 20590–00001;

telephone 202–366–4400.

SUPPLEMENTARY INFORMATION: As part of

its implementation of the Federal

hazardous material transportation law,

49 U.S.C. 5101 et seq., RSPA issues the

Hazardous Materials Regulations

(HMR), 49 CFR parts 171–180. From

time to time, RSPA’s Chief Counsel

issues formal interpretations of the

HMR. These interpretations generally

involve multimodal issues and are

coordinated with the other DOT

agencies which, together with RSPA,

enforce the HMR: Federal Aviation

Administration, Federal Highway

Administration, Federal Railroad

Administration, and United States Coast

Guard. This document publishes a Chief

Counsel’s interpretation concerning the

responsibilities of a carrier when

accepting hazardous materials for

transportation in commerce. This

interpretation addresses issues raised in

a letter by Mr. E.A. Altemos, of HMT

Associates, and is consistent with an

August 19, 1997 written response to Mr.

Altemos by RSPA’s Associate

Administrator for Hazardous Materials

Safety.

In addition to these infrequent formal

interpretations by RSPA’s Chief

Counsel, RSPA’s Office of Hazardous

Materials Standards provides

information and informal clarifications

of the HMR on an ongoing basis,

through (1) a telephonic information

center (1–800–467–4922) to answer oral

questions and (2) informal written

interpretations or clarifications in

response to written inquiries. RSPA’s

formal interpretations and informal

letter clarifications (and additional

information concerning the HMR) are

also available through the Hazmat

Safety Homepage at ‘‘http://

hazmat.dot.gov.’’ In addition, some of

RSPA’s interpretations and

clarifications may be reproduced or

summarized in selected trade

publications.

Further information concerning the

availability of informal guidance and

interpretations of the HMR is set forth

in 49 CFR 107.14. RSPA believes that

publication of its interpretations should

promote a better understanding of the

HMR and improve compliance with the

HMR.

Issued in Washington, DC, on May 28,

1998.

Judith S. Kaleta,

Chief Counsel.

[Int. No. 98–1]

Background

Mr. E.A. Altemos, HMT Associates,

requested clarification of requirements in the

HMR concerning an air carrier’s acceptance

of packages containing hazardous materials.

This inquiry concerned only the carrier’s

responsibilities relating to hazardous

materials offered by another person, and not

a carrier’s transportation of its own materials

or products. (For information on an air

carrier’s transportation of its own company

materials, or ‘‘COMAT,’’ see ‘‘COMAT

FACTS’’ in RSPA’s January 1998 Safety

Alert, available on the Hazmat Safety

Homepage.)

Although Mr. Altemos’s question was

posed in the context of air transportation, the

HMR requirements discussed in RSPA’s

interpretation apply to carriers by all modes

of transportation.

Interpretation

Basic requirements in the HMR set forth in

49 CFR 171.2(a) and (b), and applicable to

carriers in all modes of transportation, are

that no person may

accept a hazardous material for

transportation in commerce unless * * * the

hazardous material is properly classed,

described, packaged, marked, labeled, and in

condition for shipment as required or
30412 Federal Register / Vol. 63, No. 107 /Thursday, June 4, 1998 /Rules and Regulations

authorized by applicable requirements of [the

HMR], or an exemption, approval, or

registration issued under [the HMR] * * *

[or]

transport a hazardous material in commerce

unless * * * the hazardous material is

handled and transported in accordance with

applicable requirements of [the HMR], or an

exemption, approval, or registration issued

under [the HMR] * * *

A carrier’s acceptance and transportation

of hazardous materials can involve several

different situations, including the following

two ends of the spectrum:

1. the shipment is declared by the offeror,

in one manner or another, to contain

hazardous materials and complies (in whole

or in part) with requirements in the HMR; or

2. whether intentionally or

unintentionally, the shipment is not declared

by the offeror to contain hazardous materials,

and no attempt has been made to comply

with the HMR (the ‘‘undeclared’’ or ‘‘hidden’’

shipment).

The Secretary of Transportation has

delegated to agencies within the Department

(Federal Aviation Administration, Federal

Highway Administration, Federal Railroad

Administration, United States Coast Guard,

and Research and Special Programs

Administration), the authority in 49 U.S.C.

5123 to assess a civil penalty against any

person who ‘‘knowingly violates’’ any

requirement in the HMR, including the

provisions in § 171.2 (a) and (b) quoted

above. Section 5123(a) provides that a person

‘‘acts knowingly’’ when

(A) the person has actual knowledge of the

facts giving rise to the violation; or

(B) a reasonable person acting in the

circumstances and exercising reasonable care

would have that knowledge.

Accordingly, a carrier knowingly violates

the HMR when the carrier accepts or

transports a hazardous material with actual

or constructive knowledge that a package

contains a hazardous material which has not

been packaged, marked, labeled, and

described on a shipping paper as required by

the HMR. This means that a carrier may not

ignore readily apparent facts that indicate

that either (1) a shipment declared to contain

a hazardous material is not properly

packaged, marked, labeled, placarded, or

described on a shipping paper, or (2) a

shipment actually contains a hazardous

material governed by the HMR despite the

fact that it is not marked, labeled, placarded,

or described on a shipping paper as

containing a hazardous material.

The Department’s October 4, 1977

interpretation concerning 49 CFR 175.30

(reproduced below) relates to the first

situation in the above paragraph, i.e., when

an air carrier receives a shipment

accompanied by a shipping paper containing

a shipper’s certification that hazardous

materials within the shipment have been

classed, packaged, marked, labeled and

accurately described as required. See 49 CFR

172.204. Whenever, in the course of

examining the shipping paper and

performing the required visual inspection of

the package, an air carrier has reason to know

of discrepancies, the carrier may not simply

rely on the shipper’s certification.

In the case of an undeclared or hidden

shipment, all relevant facts must be

considered to determine whether or not a

reasonable person acting in the

circumstances and exercising reasonable care

would realize the presence of hazardous

materials. In an enforcement proceeding, this

is always a question of fact, to be determined

by the fact-finder. Because innumerable fact

patterns may exist, it is not practicable to set

forth a list of specific criteria to govern

whether or not the carrier has sufficient

constructive knowledge of the presence of

hazardous materials within an undeclared or

hidden shipment to find a knowing violation

of the HMR.

Information concerning the contents of

suspicious packages must be pursued to

determine whether hazardous materials have

been improperly offered. A carrier’s

employees who accept packages for

transportation must be trained to recognize a

‘‘suspicious package,’’ as part of their

function—specific training as specified in 49

CFR 172.704(a)(2), because the legal standard

remains the knowledge that a reasonable

person acting in the circumstances and

exercising reasonable care would have.

Because this standard applies to all modes of

transportation, a single training program and

a uniform screening process can be

developed for all of a company’s employees

involved in surface or air transportation.

At the same time, an offeror who fails to

properly declare (and prepare) a shipment of

hazardous materials bears the primary

responsibility for a hidden shipment.

Whenever hazardous materials have not been

shipped in compliance with the HMR, DOT

generally will attempt to identify and bring

an enforcement proceeding against the

person who first caused the transportation of

a noncomplying shipment. The procedures

applicable to DOT civil penalty enforcement

cases procedures are set forth in 14 CFR

13.16 (FAA); 33 CFR part 1, subpart 1.07

(USCG); 49 CFR part 109, subpart B (FRA);

49 CFR part 107, subpart D (RSPA); and 49

CFR part 386 (FHWA).

To the extent that any carrier, regardless of

the mode of transportation, is truly

‘‘innocent’’ in accepting an undeclared or

hidden shipment of hazardous materials, it

lacks the knowledge required for assessment

of a civil penalty. However, when a carrier

acts ‘‘knowingly,’’ as defined in 49 U.S.C.

5123(a), it must be considered subject to civil

penalties. RSPA rejects any suggestion that a

carrier would be deemed to have

‘‘knowingly’’ accepted a hazardous material

for transportation, and be subject to civil

penalties under 49 U.S.C. 5123, only when

the material is described as a hazardous

material on a shipping paper or other

commercial documentation, or the package is

marked or labeled in a manner as prescribed

by the HMR. That approach would

improperly limit a carrier’s responsibility to

situations involving a ‘‘declared’’ shipment.

DEPARTMENT OF TRANSPORTATION

Office of the Secretary

October 4, 1977.

Subj: Air Carrier’s Responsibility for

Inspection of Hazardous Materials

Packages.

From: Assistant General Counsel for

Materials Transportation Law.

To: Director, Transportation Safety Institute,

TES–15

This is in response to your request of

August 25, 1977, for our opinion as to

whether an air carrier has a specific

regulatory obligation to inspect hazardous

materials packages prior to acceptance for air

transportation to insure the shipper’s

compliance with specific regulatory

requirements of parts 173 and 178. With the

question, you have supplied your analysis

and conclusion that except for the physical

integrity inspection provided for in

§ 175.30(b) there is no duty on the air carrier

to inspect hazardous materials packages prior

to acceptance for transportation in order to

determine compliance with the requirements

of parts 173 and 178. Thus, it is your opinion

that the air carrier may rely on the shipper’s

certification accompanying the shipment.

Section 175.30 prescribes the requirements

that must be met before an air carrier accepts

a shipment of hazardous materials for

transportation. In achieving compliance with

these requirements, the air carrier must,

under paragraph (a), examine the shipment

against the information supplied on the

shipping paper, and must, under paragraph

(b), make a visual inspection for leaks and

damaged packaging. Consequently, I agree

with your analysis and conclusion that the

regulations permit the air carrier to rely on

the information supplied on the shipping

paper, unless, in complying with paragraphs

(a) and (b), he has reason to know that there

are discrepancies.

[FR Doc. 98–14561 Filed 6–3–98; 8:45 am]

BILLING CODE 4910–60–P

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric

Administration

50 CFR Part 679

[Docket No. 961107312–7021–02; I.D.

052098B]

Fisheries of the Exclusive Economic

Zone Off Alaska; Bycatch Rate

Standards for the Second Half of 1998

AGENCY: National Marine Fisheries

Service (NMFS), National Oceanic and

Atmospheric Administration (NOAA),

Commerce.

ACTION: Pacific halibut and red king crab

bycatch rate standards; request for

comments.

SUMMARY: NMFS announces Pacific

halibut and red king crab bycatch rate

standards for the second half of 1998.

Publication of these bycatch rate

standards is required under regulations