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
Federal Register / Vol. 63, No. 107 /Thursday, June 4, 1998 /Rules and Regulations 30413

implementing the vessel incentive

program. This action is necessary to

implement the bycatch rate standards

for vessel operators who participate in

the Alaska groundfish trawl fisheries.

The intent of this action is to reduce

prohibited species bycatch rates and

promote conservation of groundfish and

other fishery resources.

DATES: Effective 1201 hours, Alaska

local time (A.l.t.), July 1, 1998, through

2400 hours, A.l.t., December 31, 1998.

Comments on this action must be

received at the following address no

later than 4:30 p.m., A.l.t., June 30,

1998.

ADDRESSES: Comments should be

mailed to Susan J. Salveson, Assistant

Regional Administrator, Sustainable

Fisheries Division, NMFS, P.O. Box

21668, Juneau, AK 99802–1668, Attn:

Lori Gravel; or be delivered to 709 West

9th Street, Federal Building, Room 401,

Juneau, AK.

FOR FURTHER INFORMATION CONTACT:

Susan J. Salveson, 907–586–7228.

SUPPLEMENTARY INFORMATION: The

domestic groundfish fisheries in the

exclusive economic zone of the Bering

Sea and Aleutian Islands management

area (BSAI) and Gulf of Alaska (GOA)

are managed by NMFS according to the

Fishery Management Plan for the

Groundfish Fishery of the Bering Sea

and Aleutians Islands Area and the

Fishery Management Plan for

Groundfish of the Gulf of Alaska

(FMPs). The FMPs were prepared by the

North Pacific Fishery Management

Council (Council) under the authority of

the Magnuson-Stevens Fishery

Conservation and Management Act and

are implemented by regulations

governing the U.S. groundfish fisheries

at 50 CFR part 679.

Regulations at § 679.21(f) implement a

vessel incentive program to reduce

halibut and red king crab bycatch rates

in the groundfish trawl fisheries. Under

the incentive program, operators of

trawl vessels may not exceed Pacific

halibut bycatch rate standards specified

for the BSAI and GOA midwater pollock

and ‘‘other trawl’’ fisheries and for the

BSAI yellowfin sole and ‘‘bottom

pollock’’ fisheries. Vessel operators also

may not exceed red king crab bycatch

standards specified for the BSAI

yellowfin sole and ‘‘other trawl’’

fisheries in Bycatch Limitation Zone 1

(defined in § 679.2). The fisheries

included under the incentive program

are defined in regulations at

§ 679.21(f)(2).

Regulations at § 679.21(f)(3) require

that halibut and red king crab bycatch

rate standards for each fishery included

under the incentive program be

published in the Federal Register. The

standards are in effect for specified

seasons within the 6-month periods of

January 1 through June 30 and of July

1 through December 31. For purposes of

calculating vessel bycatch rates under

the incentive program, 1998 fishing

months were specified in the Federal

Register on December 3, 1997 (62 FR

63878).

Halibut and red king crab bycatch rate

standards for the first half of 1998 also

were published in the Federal Register

(62 FR 63878, December 3, 1997). As

required by § 679.21(f)(3) and (4), the

Administrator of the Alaska Region,

NMFS (Regional Administrator), has

established the bycatch rate standards

for the second half of 1998 (July 1

through December 31). These standards

were endorsed by the Council at its

April 1998 meeting and are set out in

Table 1. The bycatch rate standards are

based on the following information:

1. Previous years’ average observed

bycatch rates;

2. Immediately preceding season’s

average observed bycatch rates;

3. The bycatch allowances and

associated fishery closures specified

under § 679.21(d) and (e);

4. Anticipated groundfish harvests;

5. Anticipated seasonal distribution of

fishing effort for groundfish; and

6. Other information and criteria

deemed relevant by the Regional

Administrator.

TABLE 1.—BYCATCH RATE STANDARDS BY FISHERY FOR THE SECOND HALF OF 1998 FOR PURPOSES OF THE VESSEL

INCENTIVE PROGRAM IN THE BSAI AND GOA

Fishery Bycatch rate

standard

Halibut bycatch rate standards (kilograms of halibut per metric ton of groundfish catch)

BSAI Midwater pollock ......................................................................................................................................................................... 1.0

BSAI Bottom pollock ............................................................................................................................................................................ 5.0

BSAI Yellowfin sole .............................................................................................................................................................................. 5.0

BSAI Other trawl .................................................................................................................................................................................. 30.0

GOA Midwater pollock ......................................................................................................................................................................... 1.0

GOA Other trawl .................................................................................................................................................................................. 40.0

Zone 1 red king crab bycatch rate standards (number of crab per metric ton of groundfish catch)

BSAI yellowfin sole .............................................................................................................................................................................. 2.5

BSAI Other trawl .................................................................................................................................................................................. 2.5

Bycatch Rate Standards for Pacific

Halibut

The halibut bycatch rate standards for

the 1998 trawl fisheries are unchanged

from those implemented in 1997. The

Regional Administrator based standards

for the second half of 1998 on

anticipated seasonal fishing effort for

groundfish species and on 1994–1998

halibut bycatch rates observed in the

trawl fisheries included under the

incentive program. In determining these

bycatch rate standards, the Regional

Administrator considered the annual

and seasonal bycatch specifications for

the BSAI and GOA trawl fisheries (63

FR 12689, March 16, 1998, and 63 FR

12027, March 12, 1998, respectively).

He further recognized that directed

fishing for Pacific cod in the Western

and Central Regulatory Areas of the

GOA is closed for the remainder of the

year. The GOA shallow-water and deepwater trawl fishery species complexes

will reopen on July 1 when the third

seasonal apportionment of the halibut

bycatch limit established for the GOA

trawl fisheries becomes available. In the

Bering Sea, the rockfish and rock sole/

flathead sole/other flatfish fishery

categories will open or reopen on July

1 when seasonal apportionments of

halibut bycatch allowances specified for

these fisheries become available. The

BSAI yellowfin sole and Pacific cod

trawl fisheries are ongoing, and no
30414 Federal Register / Vol. 63, No. 107 /Thursday, June 4, 1998 /Rules and Regulations

closure has yet been projected due to

crab or halibut bycatch. The Regional

Administrator also considered the

September 1 opening date of the 1998

Bering Sea pollock ‘B’ season

(§ 679.23(e)(2)) and the Gulf of Alaska

third season pollock fishery

(§ 679.23(d)(2)).

The halibut bycatch rate standards for

the BSAI yellowfin sole and ‘‘bottom

pollock’’ trawl fisheries are each set at

5 kilograms (kg) of halibut per metric

ton (mt) of groundfish. These standards

approximate the average annual rates

observed on trawl vessels participating

in these fisheries since 1992.

The halibut bycatch rate standard for

the BSAI and GOA midwater pollock

fisheries (1 kg of halibut/mt of

groundfish) is higher than the bycatch

rates normally experienced by vessels

participating in these fisheries. This

standard is intended to encourage vessel

operators to maintain off-bottom trawl

operations and limit further bycatch of

halibut in the pollock fishery when

halibut bycatch restrictions at § 679.21

prohibit directed fishing for pollock by

vessels using non-pelagic trawl gear.

A bycatch rate standard of 30 kg

halibut/mt of groundfish is established

for the BSAI ‘‘other trawl’’ fishery. This

standard has remained unchanged since

1992. A bycatch rate standard of 40 kg

of halibut/mt of groundfish is

established for the GOA ‘‘other trawl’’

fishery, which is unchanged since 1994.

The considerations that support these

bycatch rate standards for the ‘‘other

trawl’’ fisheries are unchanged from

previous years and are discussed in the

Federal Register publications of 1995

bycatch rate standards (60 FR 2905,

January 12, 1995, and 60 FR 27425, May

24, 1995).

Observer data collected from the 1997

GOA ‘‘other trawl’’ fishery show average

third and fourth quarter halibut bycatch

rates of 26 and 48 kg of halibut/mt of

groundfish, respectively. The first

quarter rate from 1998 was lower, at 23

kg of halibut/mt of groundfish. Observer

data from the 1997 BSAI ‘‘other trawl’’

fishery show third and fourth quarter

halibut bycatch rates of 21 and 3 kg of

halibut/mt of groundfish, respectively.

The first quarter rate from the 1998

BSAI ‘‘other trawl’’ fishery was 12 kg of

halibut/mt of groundfish.

Bycatch Rate Standards for Red King

Crab

The red king crab bycatch rate

standard for the yellowfin sole and

‘‘other trawl’’ fisheries in Zone 1 of the

Bering Sea subarea is 2.5 crab/mt of

groundfish during the second half of

1998. This standard has remained

unchanged since 1992.

Through May 2, 1998, the rock sole/

flathead sole/other flatfish fishery

category had taken 20 percent of its

annual red king crab bycatch allowance.

The Pacific cod and yellowfin sole

fisheries have taken only 41 percent and

4 percent, respectively, of their bycatch

allowances. The Regional Administrator

anticipates that the non-pelagic trawl

gear closure of the red king crab savings

area in Zone 1 will continue to result in

low red king crab bycatch rates for the

remainder of the year and is

maintaining the 2.5 red king crab/mt of

groundfish bycatch rate standard.

The Regional Administrator has

determined that the bycatch rate

standards set out in Table 1 are

appropriately based on the information

and considerations necessary for such

determinations under § 679.21(f)(4).

These bycatch rate standards may be

revised and published in the Federal

Register when deemed appropriate by

the Regional Administrator, pending his

consideration of the information set

forth at § 679.21(f)(4).

Classification

This action is taken under 50 CFR

679.21(f) and is exempt from OMB

review under E.O. 12866.

Authority: 16 U.S.C. 773 et seq., 1801 et

seq., and 3631 et seq.

Dated: June 1, 1998.

Richard W. Surdi,

Acting Director, Office of Sustainable

Fisheries, National Marine Fisheries Service.

[FR Doc. 98–14869 Filed 6–1–98; 3:38 pm]

BILLING CODE 3510–22–P