29668 Federal Register / Vol. 63, No. 104 / Monday, June 1, 1998 /Rules and Regulations

applicants and licensees that may one

day choose to develop and provide such

service.

3. The Commission will send a copy

of this final certification, along with this

Second Report and Order, in a report to

Congress pursuant to the Small Business

Regulatory Enforcement Fairness Act of

1996, 5 U.S.C. 801(a)(1)(A), and to the

Chief Counsel for Advocacy of the Small

Business Administration, 5 U.S.C.

605(b). A copy of this certification will

also be published in the Federal

Register.

4. Ordering Clauses. Accordingly, it is

ordered, that pursuant to the authority

of Sections 4(i) and 303(r) of the

Communications Act of 1934, as

amended, 47 U.S.C. 154(i) and 393(r),

this Second Report and Order is

adopted, and Part 21 of the

Commission’s Rules are amended.

5. It is further ordered, that the rule

amendment will become effective

August 10, 1998, following approval by

the Office of Management and Budget,

unless a notice is published in the

Federal Register stating otherwise.

6. It is further ordered, that the

Commission’s Office of Public Affairs,

Reference Operations Division, shall

send a copy of this Second Report and

Order, including the Final Regulatory

Flexibility Act Certification, to the Chief

Counsel for Advocacy of the Small

Business Administration, in accordance

with section 605(b) of the Regulatory

Flexibility Act, 5 U.S.C. 601 et seq.

7. It is further ordered, that CC Docket

No. 86–179 is terminated.

List of Subjects in 47 CFR Part 21

Communications common carriers,

Reporting and recordkeeping

requirements, Television.

Federal Communications Commission.

Magalie Roman Salas,

Secretary.

Rule Changes

Part 21 of Chapter 1 of Title 47 of the

Code of Federal Regulations is amended

as follows:

PART 21—DOMESTIC PUBLIC FIXED

RADIO SERVICES

1. The authority citation for part 21

continues to read as follows:

Authority: Secs. 1, 2, 4, 201–205, 208, 215,

218, 303, 307, 313, 314, 403, 404, 410, 602;

48 Stat. 1064, 1066, 1070–1073, 1076, 1077,

1080, 1082, 1083, 1087, 1094, 1098, 1102, as

amended; 47 U.S.C. 151, 154, 201–205, 208,

215, 218, 303, 307, 313, 314, 403, 602; 47

U.S.C. 552, 554.

2. Section 21.940 is added to read as

follows:

§ 21.940 Non-subscription MDS service.

The Commission must be notified,

and prior Commission approval

obtained, before Multipoint Distribution

Service or Multichannel Multipoint

Distribution Service may be provided on

a non-subscription basis.

[FR Doc. 98–14376 Filed 5–29–98; 8:45 am]

BILLING CODE 6712–01–P

FEDERAL COMMUNICATIONS

COMMISSION

47 CFR Part 73

[MM Docket No. 96–171; RM–8846, RM–

9145]

Radio Broadcasting Services; Indian

Springs, NV, Mountain Pass, CA,

Kingman, AZ, St. George, UT

AGENCY: Federal Communications

Commission.

ACTION: Withdrawal of final rule.

SUMMARY: The Commission, on its own

motion, pursuant to section 1.113(a) of

the Commission’s Rules, withdraws the

final rule in this proceeding, DA 98–

689, published at 63 FR 23226, April 28,

1998. That document substituted

Channel 257C for Channel 257A at

Indian Springs, Nevada, modified the

construction permit of Station KPXC to

specify the higher powered channel,

substituted Channel 259B for Channel

258B at Mountain Pass, California,

modified the license of Station KHYZ to

specify the alternate Class B channel,

substituted Channel 261C2 for Channel

260C2 at Kingman, Arizona, modified

the license of Station KGMN to specify

the alternate Class C2 channel,

substituted Channel 260C for Channel

259C at St. George, Utah, modified the

license of Station KZEZ to specify the

alternate Class C channel, and allotted

Channel 272C to Indian Springs,

Nevada, as a new allotment.

DATES: This withdrawal is effective May

27, 1998.

FOR FURTHER INFORMATION CONTACT:

Leslie K. Shapiro, Mass Media Bureau,

(202) 418–2180.

SUPPLEMENTARY INFORMATION: This is a

synopsis of the Commission’s Order, DA

No. 98–1003, adopted May 22, 1998,

and released May 27, 1998. The full text

of this Commission decision is available

for inspection and copying during

normal business hours in the FCC

Reference Center (Room 239), 1919 M

Street, NW., Washington, DC. The

complete text of this decision may also

be purchased from the Commission’s

copy contractor, International

Transcription Services, Inc., (202) 857–

3800, 1231 20th Street, NW,

Washington, DC 20036.

List of Subjects in 47 CFR Part 73

Radio broadcasting.

Federal Communications Commission.

John A. Karousos,

Chief, Allocations Branch, Policy and Rules

Division, Mass Media Bureau.

The final rule amending § 73.202

published on April 28, 1998, at 63 FR

23226, is withdrawn.

[FR Doc. 98–14471 Filed 5–29–98; 8:45 am]

BILLING CODE 6712–01–P

DEPARTMENT OF TRANSPORTATION

Research and Special Programs

Administration

49 CFR Part 107

[Notice No. 98–5]

Hazardous Materials Ticketing

Program

AGENCY: Research and Special Programs

Administration (RSPA), DOT.

ACTION: Notification continuing the

ticketing program.

SUMMARY: On May 15, 1996, RSPA

initiated a pilot program for issuing

tickets for certain hazardous materials

transportation violations. The goal of

the program has been to streamline

administrative procedures, cut costs,

and reduce regulatory burdens on

persons subject to Federal hazardous

materials transportation law. Tickets

have been issued for violations that had

little or no direct impact on safety.

Penalties have been substantially

reduced for persons who paid the

amounts assessed in the tickets.

This program is consistent with the

recommendation in the National

Performance Review to streamline the

enforcement process by implementing

pilot programs to offer greater flexibility

in enforcement methods. RSPA’s

ticketing program has successfully cut

costs, simplified the processing of

violations, and achieved compliance

through more efficient and effective

processes. RSPA has decided to make

ticketing a permanent part of its

compliance program.

EFFECTIVE DATE: May 15, 1998.

FOR FURTHER INFORMATION CONTACT: John

J. O’Connell, Jr., Director, Office of

Hazardous Materials Enforcement, (202)

366–4700; or Donna L. O’Berry, Office

of the Chief Counsel, (202) 366–4400,

Research and Special Programs

Administration, U.S. Department of
Federal Register / Vol. 63, No. 104 / Monday, June 1, 1998 /Rules and Regulations 29669

Transportation, 400 Seventh Street SW,

Washington DC 20590–0001.

SUPPLEMENTARY INFORMATION:

I. Background

The Research and Special Programs

Administration (RSPA) is the

administration within the Department of

Transportation (DOT) primarily

responsible for implementing the

Federal hazardous materials

transportation law (Federal hazmat law),

49 U.S.C. 5101–5127. RSPA does this by

issuing and enforcing the Hazardous

Materials Regulations (HMR), 49 CFR

Parts 171–180.

Under delegations from the Secretary

of Transportation [49 CFR Part 1], the

authority for enforcement under Federal

hazardous materials transportation law

(Federal hazmat law), 49 U.S.C. 5101–

5127, is shared by RSPA and each of the

four modal administrations: the Federal

Highway Administration, the Federal

Railroad Administration, the Federal

Aviation Administration and the United

States Coast Guard. RSPA has primary

jurisdiction over packaging

manufacturers, reconditioners, and

retesters (except with respect to bulk

packagings, which are the responsibility

of the applicable modal administrations)

and shared authority over shippers of

hazardous materials.

RSPA’s Office of the Chief Counsel

(OCC) may initiate administrative

proceedings for violations of the HMR,

and these proceedings may result in a

civil penalty, an order directing

compliance actions, or both. 49 CFR

107.307. OCC initiates an administrative

proceeding by mailing a notice of

probable violation (NOPV) to a person

believed to have violated the HMR. 49

CFR 107.311. The NOPV specifies the

alleged violations(s) of the HMR, states

the proposed penalty, and includes a

copy of the inspection/investigation

report. Within 30 days of receiving the

NOPV, the recipient of the notice may

admit the allegations by paying the

proposed penalty, make an informal

response, or request a formal hearing. 49

CFR 107.313, 107.315.

The recipient who chooses to respond

informally submits a written response to

OCC to contest the alleged violations or

the proposed penalty. OCC considers

the inspection report, the response, and

any additional evidence obtained to

determine whether the recipient

committed the alleged violations and, if

so, the appropriate penalty in

accordance with the statutory criteria

for penalty determination, 49 U.S.C.

5123(c). See also RSPA’s civil penalty

guidelines at 49 CFR 107, Subpart D,

Appendix A. If the recipient requests an

informal conference, RSPA provides an

opportunity to supplement the written

response in person or by telephone with

the OCC attorney and the inspector.

Information obtained by OCC during the

informal conference becomes part of the

case file. Unless the NOPV is

withdrawn, the Chief Counsel issues an

order finding a violation or violations

and, for each violation found, assesses

a civil penalty. The order may be

appealed to the RSPA Administrator.

See generally 49 CFR 107.317,

107.325(b).

Alternatively, the recipient may

request a formal administrative hearing

on the record before an ALJ from DOT’s

Office of Hearings. At the conclusion of

the hearing, the ALJ determines whether

the alleged violations have been

committed and, if so, imposes a penalty

in accordance with the statutory

assessment criteria. Either party may

appeal a decision of the ALJ to the

RSPA Administrator. See generally, 49

CFR 107.319, 107.325(a).

At any time during an informal or a

formal proceeding, RSPA and the

recipient of the notice may agree upon

an appropriate resolution of the case. 49

CFR 107.327.

II. Procedures Under the Ticketing

Program

On August 21, 1995, RSPA published

a notice of proposed rulemaking

(NPRM), under Docket HM–207E [60 FR

43430], seeking public comment on a

proposal to implement a pilot program

for ticketing certain violations of the

HMR. On October 17, 1995, RSPA

extended the comment period for an

additional 30 days. See 60 FR 53729. On

February 26, 1996, RSPA published the

final rule for the ticketing program; that

rule contained no expiration date. The

final rule was effective on May 15, 1996.

See 61 FR 7178.

Under the program, the Associate

Administrator for Hazardous Materials

Safety is authorized to issue tickets for

certain HMR violations that were

handled through the civil penalty

process. Violations eligible for inclusion

in the pilot ticketing program are those

that do not have a substantial impact on

safety. Because the program is designed

to ease administrative and regulatory

burdens on persons subject to

enforcement proceedings under the

HMR, violations eligible, under 49 CFR

107.309, for letters of warning generally

are not included in the pilot ticketing

program. This procedure will remain

the same.

The preamble of the final rule also

suggested a number of violations for

inclusion in the ticketing program.

These violations included, among

others, operating under an expired

exemption, failing to register as a

hazardous materials shipper when

required, failing to maintain training

records, and failing to file hazardous

materials incident reports. In the final

rule, RSPA indicated that, based on

comments received and experience

gained through administration of the

pilot ticketing program, additional types

of violations might be added to the

program. RSPA has determined to

continue to include all of the previously

mentioned violations as part of the

ticketing program. In addition, RSPA

has added to the program violations

such as failing to conduct hazardous

materials training, marking a packaging

with unauthorized DOT specification

markings after October 1, 1994, using

unauthorized DOT specification

packagings after October 1, 1996, and

failing to follow the packaging

manufacturer’s closing instructions for

closing a package. RSPA believes that

there is a continuing need for flexibility

and, therefore, will not establish a

definitive list of violations under this

program.

RSPA will continue its policy of not

processing violations under the

ticketing program when more serious

violations are also alleged. Furthermore,

a previous ticketing violation will

continue to be considered a ‘‘prior’’

violation in the event of a future

violation of the HMR by the same party.

As contemplated in the final rule, the

Associate Administrator for Hazardous

Materials Safety has delegated the

ticketing authority to the Director,

Office of Hazardous Materials

Enforcement (OHME), who in turn has

redelegated the authority to the six

OHME unit chiefs. RSPA field

inspectors conduct the inspections of

parties. Unit chiefs then evaluate the

inspector reports and issue tickets to

parties when appropriate. Tickets are

not issued on the spot by inspectors

following an inspection.

A ticket includes a statement of the

facts supporting the alleged violation. In

addition, the ticket sets forth the

maximum penalty provided by statute,

the proposed penalty determined

according to the RSPA civil penalty

guidelines, see 49 CFR part 107, Subpart

D, Appendix A, and the ticket penalty

amount. The ticket states that the

recipient must pay the penalty or

contest the violation or penalty within

45 days of receipt of the ticket.

Typically, the civil penalty contained

in the ticket is substantially less than

the penalty that would be imposed

under current procedures or that could

be imposed by an ALJ at a hearing.

RSPA’s policy is to calculate a penalty

as it does under its current procedures
29670 Federal Register / Vol. 63, No. 104 / Monday, June 1, 1998 /Rules and Regulations

and guidelines and then reduce that

penalty by 50 percent for each violation

processed under this program. In no

case will a penalty be less than the

statutory minimum of $250.

If the recipient pays the ticket amount

and states that action has been taken to

correct the violation, the matter is

closed and there is no further agency

action. If the recipient elects to contest

a ticket, that person may do so, within

45 days of receiving the ticket, by

making an informal response under 49

CFR 107.317 or requesting a formal

hearing under 49 CFR 107.319. In this

situation, the ticket will be the

functional equivalent of an NOPV, and

contested matters will be handled by

OCC. OCC will not be bound by the

reduced penalty amount shown on the

ticket and could impose a penalty as

high as the unreduced proposed penalty

determined under RSPA’s civil penalty

guidelines, which is also shown on the

ticket. OCC will not seek a penalty

greater than the highest penalty amount

shown on the ticket.

A recipient waives the right to a

hearing by failing to respond to the

ticket within 45 days. Moreover, failure

to respond is deemed an admission of

the violation, and the reduced penalty is

owed to RSPA. Unpaid penalty amounts

constitute a debt owed to the United

States Government.

III. Pilot Ticketing Program Evaluation

The NPRM contained a proposal for a

two-year pilot program. RSPA indicated

in the preamble of the final rule that, at

the end of two years from May 15, 1996,

it would evaluate the program in terms

of cost savings, time savings, and impact

on the effectiveness of its compliance

program.

1. Experience Under the Program

Between June 1, 1996 and April 30,

1998, RSPA issued 380 tickets and

closed 285 tickets with collection of

$351,757 in civil penalties. Regarding

the closed tickets, 231 of them (82%)

involved one or more of the violations

previously listed. Nearly half of all the

closed tickets involved failure to train

employees, failure to maintain records

of training or both. The next most

frequent violations were manufacture of

unauthorized DOT specification

packaging after its expiration date (8%),

failure to register with RSPA (7%), and

operating under an expired exemption

(6%).

2. Cost Savings

RSPA has determined that, because of

its streamlined approach, the ticketing

program has produced significant costs

savings for its compliance program and

for the regulated community. A party

who chooses to pay the ticket receives

an immediate cost saving because the

proposed penalty is half of what it

would have been in a civil penalty

proceeding. The ticket recipient also

avoids the need to make a detailed

written response to the agency (other

than a statement addressing corrective

action) and avoids the oral and written

communications that arise during OCC

processing of the case. The formal

hearing process is bypassed and legal

fees are avoided.

OHME and OCC realize cost savings

when a party elects to pay a ticket

because there is no OCC or post-ticket

OHME involvement in the matter. OCC

does not have to issue an NOPV, hold

an informal conference, respond to a

compromise offers, issue an order,

participate in ALJ proceedings, draft a

decision on appeal, or issue a close-out

letter. OHME avoids involvement in

informal conferences or ALJ

proceedings and does not have to

interact with the OCC on factual and

technical issues.

Even where a ticket is contested, there

are cost savings to OCC, which will not

be required to issue an NOPV, but can

rely on the ticket to have provided

notice of the alleged violations to the

ticket recipient. The information that

OCC receives from OHME will contain

the ticket, a response to the ticket

(which may set forth corrective action)

and possibly a compromise offer. This

information allows OCC to begin

processing the case in a more advanced

state than would otherwise be the case

and reduces the overall processing time.

3. Time Savings

As stated in the discussion of cost

savings, the ticketing program has

produced significant time savings in the

amount of work required by OHME,

OCC and the ticket recipient to process

an enforcement case. In addition, the

average length of time it takes to process

a ticket is significantly less than the

time it takes to process a case under the

current procedures. To illustrate, RSPA

closed 200 civil penalty cases in 1997;

the average time from issuance of the

Notice of Probable Violation to closure

of the case was 17 months. By contrast,

RSPA closed 145 tickets in 1997; the

average time from issuance to closure

was 1.5 months.

4. Impact on the Effectiveness of RSPA’s

Compliance Program

The primary means for RSPA to

determine the effectiveness of its

enforcement program is to conduct

reinspections of companies involved in

enforcement actions. Although RSPA’s

reinspection program with regard to

civil penalties cases is extensive, RSPA

only recently began to do reinspections

of parties which had received tickets.

Thus far, the compliance rate is over

90%.

Another direct result of the

effectiveness of the ticketing program is

the ability of RSPA personnel to spend

the time saved by disposing of cases

through tickets on other matters, such as

outreach programs, inspection and

investigation of more serious types of

violations and more expeditious

processing of existing enforcement

cases.

IV. Conclusion

In light of the cost and time savings

for all involved parties and the positive

impact on the effectiveness of RSPA’s

hazardous materials compliance

program, RSPA has decided to continue

the ticketing program.

Issued in Washington, DC on May 22,

1998.

Alan I. Roberts,

Associate Administrator for Hazardous

Materials Transportation.

[FR Doc. 98–14285 Filed 5–29–98; 8:45 am]

BILLING CODE 4910–60–P

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric

Administration

50 CFR Part 679

[Docket No. 971208297–8054–02; I.D.

052698A]

Fisheries of the Economic Exclusive

Zone Off Alaska; Groundfish Fisheries

by Vessels using Hook-and-Line Gear

in the Gulf of Alaska

AGENCY: National Marine Fisheries

Service (NMFS), National Oceanic and

Atmospheric Administration (NOAA),

Commerce.

ACTION: Closure.

SUMMARY: NMFS is prohibiting directed

fishing for groundfish by vessels using

hook-and-line gear in the Gulf of Alaska

(GOA), except for sablefish or demersal

shelf rockfish. This action is necessary

because the second seasonal bycatch

allowance of Pacific halibut apportioned

to hook-and-line gear targeting

groundfish other than sablefish or

demersal shelf rockfish in the GOA has

been caught.

DATES: Effective 1200 hrs, Alaska local

time (A.l.t.), May 26, 1998, until 1200

hrs, A.l.t., September 1, 1998.

FOR FURTHER INFORMATION CONTACT:

Mary Furuness, 907–586–7228.