Comments Invited

The FAA invites interested persons to participate in this rulemaking by submitting written comments, data, or views on the ARC's recommendations. The most helpful comments reference a specific portion of the recommendation and include supporting data. To ensure the docket does not contain duplicate comments, please send only one copy of written comments, or if you are filing comments electronically, please submit your comments only one time.

We will file in the docket all comments we receive, as well as a report summarizing each substantive public contact with FAA personnel concerning this proposed rulemaking. We will consider all comments we receive on or before the closing date for comments. We will consider comments filed after the comment period has closed if it is possible to do so without incurring expense or delay.

You can get an electronic copy using the Internet by:

(1) Searching the Federal eRulemaking Portal at http://www.regulations.gov;

(2) Visiting the Office of Rulemaking's Web page at http://www.faa.gov/avr/arm/index.cfm; or

(3) Accessing the Government Printing Office's Web page at http://www.gpoaccess.gov/fr/index.html.

You can also get a copy by sending a request to the Federal Aviation Administration, Office of Rulemaking, ARM-1, 800 Independence Avenue, SW., Washington, DC 20591, or by calling (202) 267-9680. Make sure to identify the docket number, notice number, or amendment number of this rulemaking.

On October 5, 2007, the FAA published Notice No. 07-15, Automatic Dependent Surveillance—Broadcast (ADS-B) Out performance requirements to support Air Traffic Control (ATC) service (72 FR 56947; Oct. 5, 2007). Comments to that document were to be received on or before January 3, 2008. On November 19, 2007, the FAA extended the comment period until March 3, 2008 (72 FR 64966).

On July 15, 2007, the Administrator established the ADS-B Aviation Rulemaking Committee (ARC). The ADS-B ARC provides a forum for the U.S. aviation community to discuss and review the ADS-B NPRM, formulate recommendations on presenting and structuring an ADS-B mandate, and consider additional actions that may be necessary to implement those recommendations. On September 26, 2008, pursuant to its responsibilities under the charter, the ADS-B ARC submitted to the FAA specific recommendations addressing the NPRM. These ARC recommendations have been placed in the docket.

To give the public an opportunity to comment on the recommendations received from the ARC, the FAA is reopening the comment period for an additional 30 days. The purpose of the comment period is to receive public comments on the ARC recommendations; the FAA is not reopening the comment period on the NPRM.

As a result of advances in hydraulic fracturing, and higher natural gas prices, natural gas well development activity in the Susquehanna River Basin has increased dramatically in the past year, resulting in a large number of project applications being filed with the Commission seeking approval for the withdrawal and consumptive use of water for that activity. The Commission is hereby proposing a rulemaking action to handle the large and immediate influx of project applications, and to avoid adverse, cumulative adverse or interstate effects to the water resources of the basin.

The proposed rule modifies the definition of “project “for purposes of natural gas well development, requires review and approval of any natural gas well development project involving the withdrawal or consumptive use of water, and adds a specific approval by rule process associated with the consumptive use of water by such projects. The Commission's current approval by rule process is available for use only if the sole source of water is a public water supply system. Under the contemplated rule change, the approval by rule process would allow for the consumptive use of wastewater, acid mine water and other sources of water for natural gas well development projects. The proposal would not change the current process used to review groundwater or surface water withdrawals.

In addition, two editorial changes are made to the existing approval by rule provision relating to the consumptive use of water withdrawn from public water supply systems to make that provision consistent with the new approval by rule provision for natural gas well development projects.

For the reasons set forth in the preamble, the Susquehanna River Basin Commission proposes to amend 18 CFR part 806 as follows:

On July 2, 2007, New Jersey promulgated amendments to Title 7, Chapter 27, Subchapter 14, “Control and Prohibition of Air Pollution from Diesel-Powered Motor Vehicles,” of the New Jersey Administrative Code, that limits the amount of time that engines of diesel-powered motor vehicles may idle. New Jersey's original diesel idling rule, adopted on December 2, 1985, prohibits any person from allowing the engine of a diesel-powered motor vehicle to idle for more than three consecutive minutes. However, it also provides exceptions to and exemptions from the three-minute limit. New Jersey's July 2007 rule revision adds, deletes, and revises certain exceptions and exemptions, with the overall goal of further limiting air emissions from idling diesel-powered vehicles within New Jersey. This revised rule became operative on July 25, 2007. On September 13, 2007, New Jersey submitted its revised diesel idling rule to EPA for approval as a SIP revision.

New Jersey's original diesel idling rule provided two exceptions to the three-minute limit: When at an operator's place of business, a diesel vehicle was allowed to idle for up to 30 minutes; and when a diesel vehicle's engine had been stopped for three or more hours, the vehicle was allowed to idle for up to 15 minutes. New Jersey's revised rule deletes the first exception and revises the second, so that the 15-minute limit only applies when the ambient temperature is below 25 degrees Fahrenheit. In addition, New Jersey adopted a new exception, to allow a diesel bus that is actively discharging or picking up passengers to idle for 15 consecutive minutes in a 60-minute period.

New Jersey's rule also initially contained eight exemptions to the three-minute idling limit. Diesel vehicles were exempt from the three-minute limit when engaged in the following: discharging or picking up passengers; idling in traffic; idling to provide power to auxiliary equipment (except heating or air conditioning systems); idling while being or waiting to be examined by a motor vehicle inspector; actively performing emergency services; undergoing repair or service; connecting or detaching trailers; or, for diesel vehicles equipped with sleeper berths, while the sleeper berth was being used for rest, unless the vehicle had an auxiliary power system to maintain cabin comfort or assist with cold-weather starting.

In its revised rule, New Jersey removed the exemption for picking up and discharging passengers, replacing it with a 15-minute idling limit (see above), and removed the exemption for connecting or detaching trailers. New Jersey also clarified that a diesel vehicle being repaired or serviced may idle only if operation of the engine is essential to the repair or service being performed. New Jersey is also limiting the sleeper berth exemption by removing this exemption for any vehicle not equipped with either a 2007 or newer engine or an older engine retrofitted with a properly functioning diesel particulate filter. The revised sleeper berth exemption becomes effective on May 1, 2010. However, the Commissioner of the New Jersey Department of Environmental Protection may delay the effective date of this revised exemption for up to one year, if it is determined that public safety would be adversely affected if the exemption were to take effect on May 1, 2010. Finally, New Jersey adopted a new exemption allowing technologies designed to reduce idling (such as auxiliary power units, generator sets, or bunk heaters) to operate provided the diesel vehicle's main engine is not idling.

In addition to the new and revised exemptions, New Jersey adopted a new provision prohibiting a diesel vehicle from idling for more than three minutes when parked in a space with available electrification technology, which is defined as “* * * a technology that harnesses an off-vehicle electrical system to provide a vehicle with climate control and other needs.” There are no exemptions from this provision.

EPA has evaluated New Jersey's SIP revision submittal (described above), including the comments and responses New Jersey received during its public process. EPA has determined that New Jersey adequately addressed the comments received and that New Jersey's revised diesel idling rule is enforceable and approvable as a control strategy to attain and maintain the national ambient air quality standards, as consistent with section 110(a)(2) of the Clean Air Act, 42 U.S.C. 7410(a)(2).

EPA is proposing to approve the revisions to New Jersey's diesel idling rule as part of New Jersey's ozone and particulate matter SIPs.

Under the Clean Air Act, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. Accordingly, this action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:

• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);

• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq. );

• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. );

• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Public Law 104-4);

• Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);

• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);

• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);

• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the Clean Air Act; and

• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).

In addition, this rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the state, and EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law.

This document proposes to take action on amendments to the Renewable Fuel Standard program requirements. We have published a direct final rule which amends the Renewable Fuel Standard program requirements in the “Rules and Regulations” section of this Federal Register because we view this as a noncontroversial action and anticipate no adverse comment. We have explained our reasons for this action in the preamble to the direct final rule.

If we receive no adverse comment, we will not take further action on this proposed rule. If we receive adverse comment, we will withdraw the direct final rule and it will not take effect. We would address all public comments in any subsequent final rule based on this proposed rule. If we receive adverse comment on a distinct provision of this rulemaking, we will publish a timely withdrawal in the Federal Register indicating which provisions we are withdrawing. The provisions that are not withdrawn will become effective on the date set out above, notwithstanding adverse comment on any other provision.

This is a synopsis of the Commission's Notice of Proposed Rulemaking , MB Docket No. 07-125, adopted June 27, 2007, and released June 29, 2007. The full text of this Commission decision is available for inspection and copying during normal business hours in the FCC's Reference Information Center at Portals II, CY-A257, 445 Twelfth Street, SW., Washington, DC 20554. This document may also be purchased from the Commission's duplicating contractors, Best Copy and Printing, Inc., 445 12th Street, SW., Room CY-B402, Washington, DC 20054, telephone 800-378-3160 or http://www.BCPIWEB.com . This document does not contain proposed information collection requirements subject to the Paperwork Reduction Act of 1995, Public Law 104-13. In addition, therefore, it does not contain any proposed information collection burden “for small business concerns with fewer than 25 employees,” pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C. 3506(c)(4).

Provisions of the Regulatory Flexibility Act of 1980 do not apply to this proceeding.

Members of the public should note that from the time a Notice of Proposed Rulemaking is issued until the matter is no longer subject to Commission consideration or court review, all ex parte contacts are prohibited in Commission proceedings, such as this one, which involve channel allotments. See 47 CFR 1.1204(b) for rules governing permissible ex parte contacts.

For information regarding proper filing procedures for comments, see 47 CFR 1.415 and 1.420.

For the reasons discussed in the preamble, the Federal Communications Commission proposes to amend 47 CFR Part 73 as follows:

I. Background

Under authority delegated by the Secretary of Transportation (Secretary), four agencies within DOT enforce the Hazardous Materials Regulations (HMR), 49 CFR parts 171-180 and other regulations, approvals, special permits, and orders issued under Federal Hazardous Material Transportation Law (Hazmat Law), 49 U.S.C. 5101 et seq. ; the Federal Aviation Administration (FAA), 49 CFR 1.47(j)(1); Federal Railroad Administration (FRA), 49 CFR 1.49(s)(1); Federal Motor Carrier Safety Administration (FMCSA), 49 CFR 1.73(d)(1); and Pipeline and Hazardous Materials Safety Administration (PHMSA), 49 CFR 1.53(b)(1). The Secretary has delegated authority to each respective operating administration to exercise the enhanced inspection and enforcement authority conferred by the Hazardous Materials Transportation Safety and Security Reauthorization Act of 2005 (HMTSSRA). 71 FR 52751, 52753 (Sept. 7, 2006). The United States Coast Guard (USCG) is authorized to enforce the HMR in connection with certain transportation or shipment of hazardous materials by water. This authority originated with the Secretary and was first delegated to USCG prior to 2003, when USCG was made part of the Department of Homeland Security. Enforcement authority over “bulk transportation of hazardous materials that are loaded or carried on board a vessel without benefit of containers or labels, and received and handled by the vessel without mark or count, and regulations and exemptions governing ship's stores and supplies” was also transferred in 2003. DHS Delegation No. 0170.1(2)(103) & 2(104); see also 6 U.S.C. 458(b), 551(d)(2). The USCG inspects portable tanks and freight containers primarily under two laws: the Safe Container Act 46 U.S.C. 80501 et seq. with its implementing regulations found in 46 CFR 450-453, and 49 U.S.C Chapter 51 Transportation of Hazardous Material as it relates to waterborne transportation. DOT will coordinate its inspections, investigations, and enforcements aboard vessels and waterfront facilities, as defined in 33 CFR 126.3, with the USCG to avoid duplicative or conflicting efforts. Moreover, nothing proposed herein would affect USCG's enforcement authority with respect to transportation of hazardous materials.

Each year, about three billion tons of hazardous materials are transported in the United States. United States Government Accountability Office, Undeclared Hazardous Materials: New DOT Efforts May Provide Additional Information on Undeclared Shipments, GAO-06-471, at 9 (March 2006) (GAO Report). Under DOT-mandated safety standards, including suitable packaging and handling, nearly all of these shipments move through the system safely and without incident. When incidents do occur, DOT-mandated labels and other forms of hazard communication provide transportation employees and emergency responders the information necessary to mitigate the consequences. Together, these risk controls provide a high degree of protection. Yet their effectiveness depends largely on compliance by hazmat offerors, beginning with proper classification and packaging of hazardous materials. When a package containing hazardous materials is placed in transportation without regard to HMR requirements, the effectiveness of all other risk controls is compromised, increasing both the likelihood of an incident and the severity of consequences. Accordingly, we have long considered undeclared shipments of hazardous materials to be a serious safety issue. The HMR define “undeclared hazardous material” as a material “offered for transportation in commerce without any visible indication to the person accepting the hazardous material for transportation that a hazardous material is present, on either an accompanying shipping document, or the outside of a transport vehicle, freight container, or package” that is subject to the hazardous materials communication standards. 49 CFR 171.8.

Approximately 1.2 million hazardous materials shipments are transported daily; of those, approximately 800,000 involve consolidations, intermodal, or intramodal transfers and in-transit storage. 68 FR at 67751 (Dec. 3, 2003). These figures do not include the unknown numbers of hazardous materials shipments that are undeclared and, accordingly, less readily accounted for. To detect and deter hidden shipments of hazardous materials, PHMSA's predecessor agency amended the HMR in 2004 to require persons who discover shipments of undeclared hazardous materials to report these incidents to the agency. 49 CFR 171.16(a)(4). These requirements were intended, in part, to “define the extent of the problem, establish trends, and help gauge the effectiveness of efforts to reduce undeclared shipments.” 68 FR 67746, 67754. In 2005, offerors and carriers reported about 1,000 incidents of undeclared hazardous materials, 70 of which involved shipments entering the United States from abroad. GAO Report at 28.

FAA enforcement statistics show that undeclared hazardous materials are a frequent and persistent problem. In 1993, FAA reported 420 enforcement cases involving undeclared hazardous materials shipments. Seven years later, the number of such enforcement cases rose to 1,716.

Hidden hazardous materials pose a significant threat to transportation workers, emergency responders, and the general public. By definition, an undeclared shipment does not include markings or documentation designed to communicate the material's hazards in the event of an accidental release. And experience demonstrates that undeclared hazardous materials are more likely to be packaged improperly and, consequently, more likely to be released in transportation. Moreover, it is likely that terrorists who seek to use hazardous materials to harm Americans will move those materials as hidden shipments. Accordingly, although the presence of undeclared hazardous materials by no means demonstrates wrongful intent, we cannot expect to target willful violations and security threats by limiting inspections and enforcement to declared shipments. One way to address the problem of undeclared shipments is by expanding our inspection authority to permit an enforcement officer to open and examine packages suspected to contain hazardous materials. This expanded enforcement authority would also provide us with a tool to identify declared hazardous materials shipments that nonetheless may not have been prepared in accordance with the HMR requirements.

DOT's experience enforcing Federal hazmat law and the HMR also suggests a need for expedited procedures to address imminent safety hazards. Imminent hazards, by definition, require immediate intervention to reduce the substantial likelihood of death, serious illness, severe personal injury, or a substantial endangerment to health, property, or the environment. Under current statutory law, DOT may obtain relief against a hazmat safety violation posing an imminent hazard only by court order. Even with such a threat present, the DOT operating administration seeking such relief must coordinate with the Department of Justice (DOJ) to file a civil action against the offending party, and seek and obtain a restraining order or preliminary injunction. As a practical matter, judicial relief could rarely be obtained before the hazardous transportation movement is complete. The streamlined administrative remedies implemented in this rulemaking will materially enhance our ability to prevent unsafe movements of hazardous materials and reduce related risks.

On August 10, 2005, the President signed the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU), which included the Hazardous Materials Transportation Safety and Security Reauthorization Act of 2005 (HMTSSRA) as Title VII of the statute, 119 Stat. 1891. Section 7118 of HMTSSRA revised 49 U.S.C. 5121 to read:

Congress enacted HMTSSRA in part to combat the problem of undeclared hazardous materials shipments. While section 7118 of HMTSSRA (Section 7118), which amended 49 U.S.C. 5121, enhances DOT's authority to discover undeclared hazardous materials shipments, the application of this enforcement authority is not limited to undeclared shipments. On a broader scale, Section 7118 promotes the Department's inspection and enforcement authority “to more effectively identify hazardous materials shipments and to determine whether those shipments are made in accordance with the [H]azardous [M]aterials [R]egulations.” H. Conf. Rep. No. 109-203, at 1079 (2005), reprinted in 2005 U.S.C.C.A.N. 452, 712. Congress reasoned that the Department needed enhanced inspection and enforcement authority to ensure that “DOT officials, law enforcement and inspection personnel * * * have the tools necessary to accurately determine whether hazardous materials are being transported safely and in accordance with the relevant law and regulations.” H. Conf. Rep. No. 109-203, at 1081, 2005 U.S.C.C.A.N. at 714. Section 7118 carries out this directive by authorizing DOT employees to access, open and examine a package (except for the packaging that is immediately adjacent to the suspected hazardous material's contents) that was offered for, or is in transportation in commerce, when those employees have an objectively reasonable and articulable belief that the shipment may contain a hazardous material, remove the package from transportation when the shipment may pose an imminent hazard, order the shipment to be transported, opened, and tested at an appropriate facility, as necessary, and permit the shipment to resume its transportation when an inspection does not identify an imminent hazard.

Following enactment of HMTSSRA, several interested parties recommended that PHMSA issue regulations that adopt the traditional notice and comment rulemaking procedure rather than the temporary regulations prescribed by statute. PHMSA agrees that the traditional notice and comment rulemaking is necessary. As described further below, this rulemaking presents several critical factual and policy issues warranting public comment and development of an administrative record.

This NPRM proposes procedures to implement the expanded enforcement authority conferred in HMTSSRA. These procedures would apply to hazardous materials safety compliance and enforcement activities conducted by PHMSA, FAA, FRA, and FMCSA inspection personnel. Specifically, we are proposing procedures to enable DOT inspectors to open, detain, and remove a hazardous materials shipment from transportation in commerce, and order the package to be transported to a facility to analyze its contents. In addition, we are proposing procedures for issuing emergency orders to address imminent hazards. As proposed, these procedures will apply in a number of contexts and circumstances:

• We are proposing procedures under which an inspector may open a package to determine whether it contains an undeclared hazardous material or otherwise does not comply with applicable regulatory requirements. These procedures apply to the opening of an overpack, outer packaging, freight container, or other packaging component not immediately adjacent to the hazardous material. Inspectors will not open single packagings (such as cylinders, portable tanks, cargo tanks, or rail tank cars) nor will inspectors open the innermost receptacle of a combination packaging.

• We are proposing procedures under which an inspector may temporarily remove a package or shipment from transportation when the inspector believes that the package or shipment poses an imminent hazard. Such a belief may arise from a compliance problem identified as a result of opening the package or from conditions observed through an inspection that does not include opening the package. As proposed, the inspector may remove a package or shipment from transportation on his or her own authority provided he records his belief in writing. An inspector may temporarily remove any type of package or shipment from transportation if he or she has a “reasonable and articulable belief” that the package poses an imminent hazard.

• We are proposing procedures under which an inspector may order the person in possession of or responsible for the package to transport the package and its contents to a facility that will examine and analyze its contents. An inspector may issue such an order for any type of package or shipment, not merely those packages for which package opening is authorized. As proposed, the inspector may issue this order on his own authority provided he documents his reasoning.

• We are proposing procedures under which an inspector will assist in preparing a package for safe and prompt transportation if, after a complete examination of a package initially thought to pose an imminent hazard, no imminent hazard is found. If the package has been opened, the inspector will assist in reclosing the package in accordance with the packaging manufacturer's closure instructions or an alternate closure method approved by PHMSA, marking the package to indicate that it was opened and reclosed in accordance with DOT procedures, and returning it to the person from whom it was obtained.

• We are proposing procedures for the issuance of an out-of-service (OOS) order if, after complete examination of a package initially thought to pose an imminent hazard, an imminent hazard is indeed found to exist. The OOS order effects the permanent removal of the package from transportation by prohibiting its movement until it has been brought into compliance with all applicable regulatory requirements. An OOS order may be issued for any type of packaging or shipment. For example, in the case of motor carriers, DOT will apply the Commercial Vehicle Safety Alliance (CVSA) OOS criteria for hazardous materials in identifying an imminent hazard for which an OOS order may be issued.

• We are proposing procedures for the issuance of an emergency order when PHMSA, FAA, FMCSA, or FRA determines that a non-compliant shipment or an unsafe condition or practice is causing an imminent hazard. As proposed, the PHMSA, FAA, FMCSA, or FRA Administrator may issue an emergency order without advance notice or opportunity for a hearing. The emergency order may be issued in conjunction with or in place of an OOS order. The emergency order may impose emergency restrictions, prohibitions, or recalls and may be issued for any type of shipment and for any unsafe condition posing an imminent hazard, not merely unsafe conditions related to packaging.

PHMSA published a notice on January 25, 2006 (71 FR 4207), inviting interested persons to participate in a series of public meetings to comment on the agency's implementation of section 7118. The notice identified 11 possible topics on which PHMSA would begin a discussion at the public meetings. The topics were:

PHMSA convened public meetings on February 21, 2006, in Dallas, Texas; March 8, 2006, in Washington, DC; and March 15, 2006, in Seattle, Washington; in which the agency invited interested persons to comment on the agency's implementation of section 7118 within the context of the above 11 topics and any other issues of interest. The material comments both oral and written elicited from these meetings are summarized below. (Transcripts of these meetings are available on the U.S. Government Regulations.gov Web site at http://www.regulations.gov. )

Several participants (Brumbaugh, Jackson, McElhoe, Rinehart, Roberts, Surovi, Tobin, Association of Hazmat Shippers (AHS), Alaska Airlines, Boeing Company, Dangerous Goods Advisory Council (DGAC) and Tyco Healthcare (Tyco)) expressed concern about how DOT intends to exercise its new enforcement authority, i.e., identifying undeclared shipments or non-compliant shipments and the procedures DOT would follow when opening such packages during an inspection. Additionally, the International Vessel Operators Hazardous Materials Association (VOHMA) and Council on Safe Transportation of Hazardous Articles (COSTHA) questioned the manner in which section 7118 would apply to carriers given that carriers may not open packages that they do not own. Others suggested that DOT should limit the exercise of its enhanced inspection and enforcement authority to an offeror's facility to minimize the risk of a hazardous material release during transportation and to direct enforcement effort toward the parties most responsible for ensuring proper packaging and certification.

PHMSA Response: As discussed above, the primary objectives of DOT's enhanced inspection and enforcement authority are to discover and prevent undeclared shipments of hazardous materials that would otherwise pose imminent hazards in transportation. This authority, however, is not limited to undeclared hazardous material shipments. If a shipment, whether or not it is a declared hazardous material, is found to be leaking; is improperly marked, labeled or packaged; or the shipping paper indicates a potential problem, a DOT inspector may invoke this authority to open and examine the shipment to determine the scope of the problem and potential hazard. In addition, if the shipment poses an imminent hazard, the inspector may remove it from transportation. The procedures governing such inspections are enumerated under proposed section 109.3(b) and discussed in the section-by-section analysis below. In other words, PHMSA intends for DOT inspectors to use their enhanced inspection authority to verify that hazardous materials shipments are packaged, marked, and labeled in compliance with DOT requirements.

The package opening authority, however, applies only to an overpack, outer packaging, freight container, or other packaging component that is not immediately adjacent to the hazardous material it contains. Thus, as proposed, DOT inspectors will not open packagings that serve as the primary means of containment (such as cargo tanks, portable tanks, railroad tank cars, or cylinders) and will not open inner packagings of combination packages (such as the bottles inside a fiberboard box or test tubes inside an infectious substances triple packaging). In any case, this proposed rule in no way limits the Department's general inspection and investigation authority under 49 U.S.C. 5103(b)(1). The final rule will authorize certain additional investigatory techniques and remedies, without limiting DOT's existing authority with respect to the safe transportation, including security, of hazardous materials in intrastate, interstate, and foreign commerce. Section 5103(b) also grants the Secretary regulatory authority with respect to security in the transportation of hazardous materials. Therefore, the authority to issue emergency orders is not limited to safety; rather, it is foreseeable that this authority may be invoked in a case of national emergency to address potential security violations involving the transportation of hazardous materials.

PHMSA foresees that DOT hazardous materials inspections will continue at offeror or carrier fixed facilities or terminals. But we note that inspections may be conducted at other locations within the Department's jurisdiction, consistent with the authority conveyed by section 7118, depending upon the relevant circumstances and as necessary to promote the interest of public safety. PHMSA recognizes that detaining a shipment may impact a commercial transaction involving the package in transit and will make every effort to avoid unnecessary delays and interruptions.

The instances in which this authority may be invoked are heavily fact-specific and situation-dependent. Thus, it would not serve the interest of public safety to limit the context in which this authority may be exercised. Though we will make every effort to avoid unnecessary delays and shipment interruptions, the authority granted in SAFETEA-LU is sufficiently specific and particularized, authorizing designated DOT agents to open a package in transportation if that agent has an objectively reasonable and articulable belief that the package may contain a hazardous material, irrespective of the location at which the package is identified.

With respect to comments regarding carriers' ability to open packages, we do not intend this rulemaking to affect contractual or other legal rights or obligations surrounding the carrier-shipper relationship. Although carriers and shippers may wish to clarify or address their contractual arrangements, the regulatory procedures we are proposing do not depend on carriers' consent or assistance in opening packages. Should a carrier refuse consent, section 7118 authorizes an agent of the Secretary to open the package himself or herself or to order the package to be transported to an appropriate facility at which it may be opened and examined. In any case, we consider contract negotiations among private entities beyond the scope of this rulemaking.

The operating administrations responsible for enforcement of the HMR—PHMSA, FMCSA, FAA, and FRA—all worked together under PHMSA's leadership to develop this proposed rule. This NPRM proposes regulations that establish a clear, basic outline of the procedures all four operating administrations will use to implement DOT's new enforcement authority. To provide for uniformity across modes of transportation and separate enforcement staffs, the regulations proposed in this NPRM must be broad and provide a common framework. The operating administrations are also developing a joint operations manual to address issues particular to a specific mode of transportation or regulated industry. It is our intent that the joint operations manual will be publically available on PHMSA's Web site at the time of issuance of the Final Rule. The proposed regulations set out a framework for the procedures PHMSA, FMCSA, FAA, and FRA will employ when conducting inspections or investigations, thus ensuring consistency in approaches and enforcement measures among modes of transportation. A Final Rule, implemented with the guidance of an operational manual, will ensure that this authority, especially a finding of an imminent hazard, is used effectively yet judiciously. It will focus and direct an informed enforcement effort to address problems with undeclared shipments of hazardous material and other packaging communication requirements while preventing the additional authority from being misused as an exploratory tool or without reasoned deliberation.

Commenters raised two critical questions regarding the legal standards that determine whether DOT may open a shipment and detain and remove it from transportation. The American Trucking Association (ATA), COSTHA, DaRuBa Enterprises (DaRuBa), Arrowhead Industrial Services, DGAC, VOHMA, and Tyco contend that the operative term “objectively reasonable and articulable belief” requires further explanation. AHS, COSTHA, and VOHMA also requested clarification on what the term “imminent hazard” means. Finally, several interested persons, including DGAC, ATA, and the Institute of Makers of Explosives (IME) questioned how PHMSA would define these terms in the regulatory text.

PHMSA Response: The proposed rule defines “objectively reasonable and articulable belief” as “a belief based on particularized and identifiable facts that provide an objective basis to believe or suspect.” See proposed § 109.1. The proposed rule defines “imminent hazard” as “the existence of a condition relating to hazardous material that presents a substantial likelihood that death, serious illness, severe personal injury, or a substantial endangerment to health, property, or the environment may occur before the reasonably foreseeable completion date of a formal proceeding begun to lessen the risk of that death, illness, injury, or endangerment.” See proposed § 109.1. This proposed definition of “imminent hazard” is consistent with the statutory definition of the term found in 49 U.S.C. 5102(5). Both of these terms determine whether the Department may detain, open, and examine a suspect shipment for the presence of hazardous material in its contents and/or remove the package from transportation in commerce.

PHMSA starts with the premise that an offeror that places articles in a closed and opaque container has a legitimate expectation of privacy and retains a possessory interest in those items when they are being transported in commerce. Jacobsen , 466 U.S. at 113, 114; U.S. v. Villarreal , 963 F.2d at 773. The hazardous materials transportation industry, however, is closely regulated, meaning that a person engaging in this industry has a reduced expectation of privacy. U.S. v. V-1 Oil Company , 63 F.3d 909, 911 (9th Cir. 1995), cert. denied , 517 U.S. 1208 (1996). DOT therefore is authorized to conduct warrantless and unannounced inspections of an entity that offers or transports hazardous material in commerce to determine its level of compliance with the Hazmat Law and HMR under the “administrative search” doctrine. Id . at 913.

When the government asserts control of the shipment and its contents, e.g., by detaining the package from further transportation, it has conducted a seizure subject to the Fourth Amendment. Jacobsen , 466 U.S. at 120. Nevertheless, brief investigative detentions are authorized, provided there is a reasonable articulable suspicion that the shipment does not comply with regulatory requirements. V-1 Oil Company v. Means , 94 F.3d 1420, 1424 (10th Cir. 1996). Known as a “ Terry ” stop after the landmark decision, Terry v. Ohio , 392 U.S. 1 (1968), such an investigative stop is permitted when an inspector can “point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant” the detention. Terry , 392 U.S. at 21. The inspector must have particularized and identifiable facts, i.e., some articulable basis, to believe that a Federal statute or regulation has been violated. See Brierley v. Schoenfeld , 781 F.2d 838, 841 (10th Cir. 1986). Terry employs a “less demanding standard than probable cause and requires a showing considerably less than preponderance of the evidence.” Illinois v. Wardlow , 528 U.S. 119, 123 (2000). (In contrast, probable cause means “a fair probability that contraband or evidence of a crime will be found.” Alabama v. White , 496 U.S. 325, 330 (1990)). In short, DOT need only establish a “minimal level of objective justification” to detain, open, and inspect a shipment that may have hidden or undeclared hazardous materials. See U.S. v. Sokolow , 490 U.S. 1, 7 (1989).

Accordingly, an inspector would need to produce facts establishing that the official reasonably believed that a noncomplying condition existed. U.S. v. Delfin-Colina , 464 F.3d 392, 398 (3d Cir. 2006). An inchoate hunch or guess would be insufficient: an inspector is required to set out evidence supporting the detention. Alabama , 496 U.S. at 329-30; see also 59 FR 7448, 7454 (Feb. 15, 1994) (FRA “reasonable cause” testing standard requires reasonable suspicion). The information relied upon may come from a variety of sources, including but not limited to the following: package appearance, identity of offeror or carrier, an odor emanating from a container, and anonymous tips. U.S. v. Wheat , 278 F.3d 722, 726 (8th Cir. 2001), cert. denied , 537 U.S. 850 (2002). The basis for reasonable suspicion would center on the totality of circumstances experienced by the inspector and the official's skill and experience in determining whether an investigative stop would be justified. Brierley , 781 F.2d at 841. The Department therefore would afford its inspectors reasonable discretion in making reasonable suspicion findings in light of the flexible nature of Terry and its progeny.

While this proposed regulation implements the Department of Transportation's enforcement authority, it does not in any way affect Department of Homeland Security (DHS) agents exercising their statutory authority at points of entry. Therefore, DOT's standards for the inspection and detention of packagings, vehicles or persons, including a requirement of an objectively reasonable and articulable belief that a package may contain a hazardous material, do not apply to DHS, which operates under separate statutory and regulatory authorities.

Finally, Department officials would exercise reasonable, intrusive means when stopping a shipment from continuing in transportation in commerce. An inspector would be authorized to hold a package at a terminal or depot until qualified personnel or shipping papers arrived to ascertain its contents. The inspector also would be permitted to order the shipment to be moved to an appropriate facility when necessary to safely conduct an inspection. See Means , 94 F.3d at 1427. The inspector would release the shipment for transportation when the underlying objectives of the detention had been met.

The term imminent hazard has been defined in the hazmat law for many years (49 U.S.C. 5102(5)) and PHMSA proposes to retain that definition without change. An imminent hazard exists when an unsafe condition or practice, or a combination thereof, causes, or is causing, a situation that is likely to result in serious injury or death, or significant property or environmental damage if not discontinued immediately. The proposed rule would authorize a designated DOT inspector to remove a package from transportation if the inspector has an objectively reasonable and articulable belief that the package may pose an imminent hazard, provided that he contemporaneously documents such belief in accordance with the regulations issued under section 7118(e).

In summary, this proposed rule would provide three new enhanced enforcement tools. First, a Department inspector would be permitted to stop, open, and examine a shipment when he or she has a reasonable suspicion that the package contains a hazardous material. Depending on the circumstances, a package may be suspicious even if it bears no mark, label, or shipping paper indicating the presence of a hazardous material. In other cases, a package could be marked or labeled incorrectly, thus causing the inspector to believe that the package contains hazardous material. Misidentification of the package contents can have serious safety implications, well justifying use of the package opening authority to inspect HMR compliance. Listing of an incorrect UN identification number, for example, could result in improper segregation, handling, and/or response measures. Likewise, the inspector could elect to open a package that is properly marked and labeled but that appears not to comply with other regulatory requirements or otherwise presents an imminent hazard.

Second, the Department inspector or delegated official would be authorized to remove the package and related packages in the shipment from transportation in commerce and order their delivery to an appropriate facility for testing and analysis when he or she has determined that an imminent hazard may exist. A finding of imminent hazard is not a prerequisite to the detention, opening and examination of a package suspected of containing a hazardous material. Third, upon further investigation, PHMSA on its own initiative, or after advice and recommendation from the other modal officials, may issue a recall of an entire packaging design if it presents an imminent hazard.

Several commenters expressed concern about the reclosing of packages after they have been opened. Allergan, COSTHA, Delta Airlines, and Rykos expressed concern about preserving the integrity of a package after it has been opened and found not to contain an undeclared hazardous material. The regulated community also was interested in learning about the manner in which DOT intends to reclose certain packagings that have been opened in transit, including specification packaging; refrigeration packaging; specific-mode packaging; pharmaceutical manufacturing and healthcare products packaging; overnight or express delivery packaging; and packages containing expensive, valuable, or perishable products. American President Lines (APL), the Association of American Railroads, Nuclear Energy Institute, and Rykos inquired about reclosing packagings that require specialized seals, and the ATA suggested that DOT develop a seal or tape to identify that a package has been opened to ensure against rejection upon delivery. Finally, American Eagle Airlines, Brookwarehousing Corporation, COSTHA, DGAC, International Warehouse Logistics Association (IWLA), United Parcel Service, and VOHMA advised that PHMSA should consider whether small businesses or carrier terminals are properly equipped to reclose a package that is already in transit at the time DOT conducts an inspection.

PHMSA Response: The Department is developing internal operational procedures to address the proper closure of packaging in accordance with the HMR. As part of these procedures, we are considering affixing a DOT-specific tape over the packaging that identifies the agency and the inspector who opened the package in question. These procedures will be covered within the joint operations manual discussed above in the section entitled “Types of Outer Packages that could be Opened by Inspectors.”

We are sensitive to concerns about reclosing shipments that are opened during a hazardous materials inspection. The availability of qualified personnel, equipment, accessibility, and other capabilities are factors we are considering for the guidelines on reclosing shipments after conducting inspections. PHMSA thus solicits further comments from the public on these and other factors in reclosing packages and the manner and materials available to prevent release of hazardous materials.

The ATA and VOHMA expressed concern that enhanced inspections may delay their business operations and questioned whether exercising this authority may impact carriers' other existing regulatory requirements. For example, ATA expressed concern that the amount of time required to open and examine a package may potentially affect a carrier's obligation to comply with hours of service requirements under the Federal Motor Carrier Safety Regulations. Moreover, VOHMA stated that if a package is opened in accordance with this enhanced authority, inspectors may not be able to restore every package in accordance with the manufacturer's instructions, and thus the package could become noncompliant with other regulatory requirements or be refused by the consignee.

PHMSA Response: We believe that the package opening authority can be exercised without undue interference with business operations. DOT will take reasonable measures to narrow the scope of an enhanced inspection to determine compliance with the HMR and will remove a shipment from transportation only when there is a reasonable basis for suspecting that the package may pose an imminent hazard. Correspondingly, the Department will limit the time of such inspections to minimize transportation delays when we can do so without compromising transportation safety. We request comments relating to any time-sensitive standards or consignment contracts mandated by law that may be affected by a final rule.

The implementation of this enhanced authority will not waive or supersede any other regulatory requirements. The packages must be reclosed and shipped in accordance with the HMR. An inspector who exercises this enhanced authority will take action to facilitate the resumption of transportation in commerce if the package is found to be in compliance with the HMR. If the package is not in compliance, the package will not be returned to the stream of commerce until the package is brought into conformance with the HMR.

The ATA and DGAC inquired about which entity would transport a hazardous material package to an offsite facility, pay to transport, and test the material subject to this authority.

PHMSA Response: The operating administration requiring the testing will pay for the transportation and analysis of the material if the package is found to be in compliance with the HMR. If the material is found to be packaged in violation of the HMR, the costs for the transportation and analysis of the material would be taken into consideration at the time any civil penalty is assessed against the party responsible for the violation (usually the offeror). Furthermore, nothing herein is intended to relieve any entity or person of hazmat clean-up costs under Federal, State, or local laws as enforced by other Federal government agencies ( e.g. , Environmental Protection Agency, Bureau of Alcohol Tobacco, Firearms, and Explosives, and Occupational Safety and Health Administration).

Commenters addressed the issue of the impact that an emergency order may have on an offeror or transporter that is subject to its requirements. Their primary concern was the effect that an emergency order may have on commercial operations relating to pre-transportation and transportation functions that are regulated by the HMR.

PHMSA Response: PHMSA understands that an emergency order may affect commercial operations of offerors or transporters that perform regulated activities. Indeed, because issuance of an emergency order does not require a finding of noncompliance, it is possible that such an order could require a regulated entity to alter or amend otherwise lawful practices or transactions. The circumstances warranting such extraordinary action are necessarily fact-specific and, in all likelihood, rarely encountered. In any case, DOT intends to tailor the remedy to the imminent hazard present, issuing only the appropriate restriction, prohibition, recall, or out-of-service order necessary to abate the condition. We will use this enforcement tool judiciously, as a means of addressing imminent hazards and not as a substitute for rulemaking or other measures for addressing emergent risks.

Commenters also raised the issue of whether DOT or its operating administrations would be liable for any damages to business operations when an inspector conducts an enhanced inspection or when a modal administration issues an emergency order. In particular, the interested persons asked whether the Federal government would be responsible for compensatory, consequential, or incidental damages incurred by any regulated entity that had its shipments contaminated, damaged, delayed, destroyed, or removed from service as a result of an enhanced inspection or emergency order.

PHMSA Response: PHMSA acknowledges that the exercise of enhanced inspection and enforcement authority occasionally may result in the breach of packages and/or delay of shipments that have been offered and transported in full compliance with regulatory requirements. Although we will strive to minimize such effects, we believe the public benefits to be gained through enhanced inspection and enforcement measures justify the increased burdens. The exercise of enhanced inspection and enforcement authority in accordance with the proposed rule will protect life, property, and the environment, and improve the performance of the transportation system by reducing risks posed by undeclared and other noncompliant hazardous materials shipments.

To minimize burdens on the transportation system, the Department will take measures to target and manage its exercise of enhanced inspection and enforcement remedies. Such measures include training its inspectors to exercise appropriate discretion while carrying out their inspection tasks consistently with HMTSSRA and a final rule. In any case, we do not expect DOT to bear financial responsibility for private costs related to our exercise of enhanced inspection and enforcement authority. Under the discretionary function exception, the Federal Tort Claims Act (FTCA) would bar any common law tort action against the Department or operating administration based on such activities. See 28 U.S.C. 2680(a); United States v. S.A. Empresa de Viacao Aerea Rio Grandense , 467 U.S. 797, 809-10 (1984) (“ Varig Airlines ”) (discretionary function exemption was intended to exempt claims stemming from Federal agencies' regulatory activities); Hylin v. U.S. , 755 F.2d 551, 553 (7th Cir. 1985) (discretionary function exception prohibits tort claims against government for inspection and enforcement activities requiring exercise of discretion); Mid-South Holding Co. v. United States , 225 F.3d 1201, 1206 (11th Cir. 2000) (discretionary function exception applies to any discretionary act irrespective of “administrative level at which it is authorized or taken”); Wells v. United States , 655 F. Supp. 715, 720 (D.D.C. 1987) (government's discretionary acts in regulating private conduct “are presumptively exempt from liability”), aff'd , 851 F.2d 1471 (D.C. Cir. 1988), cert. denied , 488 U.S. 1029 (1989); cf., Roundtree v. United States , 40 F.3d 1036 (9th Cir. 1994) (FAA not liable in suspending operating certificate under FTCA's discretionary function exception).

APL and DGAC recommended that DOT properly train the inspectors who will exercise the enhanced inspection and enforcement authority in the field. They contend training is essential to ensure that well-defined inspections are conducted, enforcement actions are measured, and the public (and the inspectors themselves) are protected.

PHMSA Response: PHMSA agrees that the DOT inspectors conducting enhanced inspections will need to be trained on carrying out such inspections. Inspectors will also be trained on utilizing an enforcement remedy commensurate with the non-complying condition or imminent hazard identified and having the requisite knowledge in repackaging shipments that have been opened. The inspectors also will need to be trained on various scenarios in which they will need to order a shipment to be transferred to an appropriate facility for testing and analysis. Because all Department inspectors will have the same general training and modal specific instruction (as discussed above in the section on “Types of Outer Packages that could be Opened by Inspectors”), PHMSA is confident that inspectors will be proficient in applying the enhanced inspection and enforcement regulations to inspections conducted at offeror or carrier facilities.

APL, ATA, IME, and Prezant Consulting cautioned that DOT and State inspectors conducting hazardous materials inspections need to be consistent in carrying out the regulations implementing the enhanced inspection and enforcement authority.

PHMSA Response: The proposed rule is limited in scope to authorized Federal enforcement employees of PHMSA, FRA, FAA, and FMCSA. The proposed regulations and underlying statutory authority are Federal; they would not empower State officials to exercise the enhanced inspection and enforcement authority. All emergency orders under this enhanced enforcement authority will be issued solely by the Federal government, not State participants. These proposed regulations are not intended to be part of the Motor Carrier Safety Assistance Program (MCSAP) or the Rail Safety State participation program. However, the proposed regulations would not limit the States from passing similar statutes or from promulgating similar regulations for their hazardous materials transportation enforcement officials.

APL, IWLA, DaRuBa, and Tyco expressed concern about notifying offerors and consignees about a possible delay in arrival because DOT intended to open a package for inspection.

PHMSA Response: PHMSA believes that all parties responsible for a shipment that is opened or removed from transportation need to be notified of the action taken. DOT inspectors will be required to communicate the findings made and enforcement measures taken to the appropriate offeror, recipient, and carrier of the package, and the expected delay or detention based on the condition of the shipment, location of the inspection, and need and availability of personnel, equipment, and other resources to reclose the package to safely resume its transportation.

Commenters questioned who would assume control of a package when an inspection found undeclared hazardous material or determined that the shipment may pose an imminent hazard, and when such control would commence.

PHMSA Response: The offeror tendering the package or the carrier transporting the shipment retains custody of the shipment until the government asserts or exercises dominion or control over the package and its contents. Jacobsen , 466 U.S. at 120. Once an inspector opens the package to continue the inspection or detain or remove the shipment from transportation, the Department will become the responsible custodian for the package. If a package is opened but does not pose an imminent hazard, and is otherwise in compliance with the HMR, the inspector will assist in reclosing the package, at which point custody will revert to the offeror or carrier, and reenter the transportation stream. If a package is non-compliant before it is opened, and it is later found not to pose an imminent hazard, the offeror or carrier will resume custody of the package at the conclusion of the investigation. It is the ultimate responsibility of the offeror to bring any such package into compliance.

This proposed rule contemplates DOT informing the private party of the government's intent to assert and relinquish control of the shipment and the measures it will take to safeguard and reclose the package until it is safe to resume its movement in transportation. PHMSA welcomes comments on the parties' expectations when the government exercises control of a package and whether further clarification of possessory interest is necessary.

PHMSA proposes to add part 109 to Title 49, Code of Federal Regulations, prescribing standards and procedures governing exercise of enhanced inspection and enforcement authority by DOT operating administrations. Below is an analysis of the proposed regulatory provisions.

This section contains a comprehensive set of definitions. PHMSA proposes to promulgate these definitions in order to clarify the meaning of important terms as they are used in the text of this proposed rule. Several terms introduce concepts new to the HMR. These definitions require further discussion as set forth below. Other terms defined in this rule are borrowed from the Hazmat Law at 49 U.S.C. 5102 and are used in their statutory meaning.

Administrator and Agent of the Secretary or agent are proposed to identify the parties authorized by delegation from the Secretary to carry out the functions of the proposed rule. Administrator is defined as the head official of each operating administration within DOT to whom the Secretary has delegated authority under 49 CFR part 1 and any person employed by an operating administration to whom the Administrator has delegated authority to carry out this rule. Likewise, Agent of the Secretary or agent means a Federal officer or employee, including an inspector, investigator, or specialist authorized by the Secretary or Administrator to conduct inspections or investigations under the Hazmat Law and HMR.

Chief Safety Officer or CSO refers to the Assistant Administrator for PHMSA who is appointed in competitive service by the agency's Administrator. See 49 U.S.C. 108(e).

Emergency order is defined as an emergency restriction, prohibition, recall, or out-of-service (OOS) order. (The term “out-of-service order” is defined below.) As proposed, an Administrator, and in the case of an OOS order, an agent of the Secretary would be authorized to impose an equitable remedy restricting, prohibiting, recalling, or removing from service a package that contains a hazardous material. An emergency order is the type of extraordinary relief available to address imminent hazard circumstances.

Freight container is defined as it is defined in 49 CFR 171.8 and has been included in this section for clarity and ease of referral.

Immediately adjacent to the hazardous material contained in the package means a packaging that is in direct contact with the hazardous material, or otherwise serves as the primary means of containment of the hazardous material.

As defined by statute, imminent hazard means “the existence of a condition that presents a substantial likelihood that death, serious illness, severe personal injury, or a substantial endangerment to health, property, or the environment may occur before the reasonably foreseeable completion date of a formal proceeding begun to lessen the risk of that death, illness, injury, or endangerment.” 49 U.S.C. 5102(5). Restated, an imminent hazard exists when any condition is likely to result in serious injury or death, or significant property or environmental damage if not discontinued immediately. Cf . Sen. Rep. No. 98-424, at 12 (1984), reprinted in 1984 U.S.C.C.A.N. 4785, 4796 (definition of “imminent hazard” under the Motor Carrier Safety Act).

Objectively reasonable and articulable belief is defined in this proposed rule as a belief based on discrete facts or indicia that provide a reasonable basis to believe or suspect that a shipment may contain a hazardous material. The term, which is discussed above in the context of DOT inspections of hazardous materials shipments, codifies the temporary stop and detention principle often referred to as a “ Terry ” stop, referring to Terry v. Ohio , 392 U.S. 1 (1968). The reasonable suspicion standard must be more than an “inchoate and unparticularized suspicion or `hunch[,]' ” id . at 27, meaning that a reasonable person possessing the same information as the inspector had must have believed that the action taken was appropriate. Id . at 21-22. In determining whether an officer or agent had such a reasonable suspicion, courts consider the “totality of the circumstances.” See Schneckloth v. Bustamonte , 412 U.S. 218 (1973). At its core, the term refers to an investigatory stop in which there is particularized suspicion based on observations made, inferences drawn, and deductions made that the shipment does not comply with the Hazmat Law or HMR. See generally, U.S. v. Cortez , 449 U.S. 411, 417-18 (1981).

The brief investigative detention enables the inspectors to conduct a more thorough inspection to determine the level of compliance with the Hazmat Law or HMR and is reasonably related in scope to the circumstances justifying the detention. See Means , 94 F.3d at 1424; U.S. v. McSwain , 29 F.3d 558, 561 (10th Cir. 1994). This legal standard authorizes minimally intrusive conduct to detain a shipment for a short duration when articulable facts and circumstances suggest that a package contains undeclared hazardous materials. See McSwain , 29 F.3d at 561. The agency notes that the standard authorizes inspectors to employ reasonable intrusive means, but not the least intrusive means, to conduct an inspection, meaning that safety and security measures may justify moving a package to another site when necessary to carry out an inspection. See Means , 94 F.3d at 1427.

Out-of-service (OOS) order is defined as a written requirement issued by an agent of the Secretary prohibiting further movement or operation of an aircraft, vessel, motor vehicle, train, railcar, locomotive, transport vehicle, or freight container, portable tank, or other package until certain conditions have been satisfied. An order is similar in concept and application to a special notice for repairs that FRA issues for freight cars, locomotives, passenger equipment, and track segments. See 49 CFR part 216. The definition covers transport vehicles and packages that are unsafe for further movement, requiring that the equipment be removed from transportation until repairs are made or safety conditions are met. PHMSA believes that an OOS order is appropriate when equipment or a shipment is unsafe for further service or presents an unreasonable or unacceptable risk to safety, creating an imminent hazard at a given instant.

Packaging as defined in this part is more expansive than the definition provided at 49 CFR 171.8. In this part, proposed § 109, the term includes a freight container, intermediate bulk container, overpack, or trailer as a receptacle to contain a hazardous material. As proposed, the regulatory text would authorize DOT inspectors to open, detain, and remove from transportation such container or enclosure units when circumstances warrant.

Perishable refers to a hazardous material that may experience accelerated decay, deterioration, or spoilage. PHMSA envisions etiologic agents, such as biological products, infectious substances, medical waste, and toxins as perishable commodities that will require special handling.

Properly qualified personnel means a company, partnership, proprietorship, or individual who is qualified to inspect, examine, open, remove, test, or transport hazmat shipments.

Remove means to keep a package from entering into the stream of transportation in commerce; to take a package out of the stream of transportation in commerce by physically detaining a package that was offered for transportation in commerce; or stopping a package from continuing in transportation in commerce. The term is defined to make clear that if a DOT inspector has an objectively reasonable and articulable belief that a package may pose an imminent hazard, that inspector is authorized to stop, detain, and prevent the further transportation in commerce of that package until the imminent hazard is abated.

Safe and expeditious refers to appropriate measures or procedures available to minimize any delays in resuming the movement of a perishable hazardous material.

Trailer is added to set out the contours of another type of package that is subject to this rule. Although a trailer and freight container perform the same function, a trailer has a chassis, hitch, and tires attached to the unit, enabling it to travel as a cargo unit attached to a tractor.

Proposed § 109.3 sets out the inspections and investigations that agents of the Secretary (e.g., DOT inspectors) would be authorized to conduct in implementing the HMTSSRA. Of significance, this section would implement section 7118 by enabling inspectors to open, detain, and remove a hazardous material shipment from transportation in commerce, and order the package to be transported to a facility that can analyze its contents.

Paragraph (a) of § 109.3 reiterates the authority to initiate inspections and investigations as provided by 49 U.S.C. 5121(a), which has been delegated to the operating administrations and redelegated to the inspectors by internal delegation. The operating administrations focus their inspection resources on the mode of transportation that they oversee. See 49 CFR 1.47(j)(1) (FAA), 1.49(s)(1) (FRA), 1.53(b)(1) (PHMSA), and 1.73(d)(1) (FMCSA). Nevertheless, operating administrations may “use their resources for DOT-wide purposes, such as inspections of shippers by all modes of transportation.” 65 FR 49763, 49764 (Aug. 15, 2000). DOT believes that broad delegation authority is necessary to address cross-modal and intermodal issues to combat undeclared hazardous materials shipments. Id. at 49763. Accordingly, DOT inspectors would be authorized to carry out the enhanced inspection and enforcement authority rule across different modes of transportation.

Proposed § 109.3(b) sets out the enhanced inspection process when conducting hazardous materials inspections. Inspectors must present their credentials for examination upon request under 49 U.S.C. 5121(c)(2) and may gather information by interviewing, photocopying, photographing, and audio and video recording during inspections or investigations. The inspections or investigations may be conducted at any pre-transportation or transportation facility wherever a hazardous material is offered, transported, loaded, or unloaded or stored incidental to the hazardous material movement, provided they are performed “at a reasonable time and in a reasonable manner.” See 49 U.S.C. 5121(c)(1)(A); 49 CFR 171.1. PHMSA interprets “reasonable time” to mean an entity's regular business hours. PHMSA believes “reasonable manner” means that DOT inspectors may gather information from any entity or source that is related to the transportation of hazardous materials in commerce whenever hazardous material operations or work connected to such operations are being performed. See generally H.R. Rep. No. 96-1025, at 14 (1980), reprinted in 1980 U.S.C.C.A.N. 3830, 3839. DOT also may issue and serve administrative subpoenas for documents or other tangible things when such evidence is necessary to assist an inspection or investigation. Each operating administration would serve the subpoena in accordance with its own regulations. See 14 CFR 13.3 (FAA), 49 CFR 105.45-.55 (PHMSA), 49 CFR 209.7 (FRA), and 49 CFR 386.53 (FMCSA). PHMSA believes that this provision would enable DOT to gather information from any source, including the offeror, carrier, packaging manufacturer or tester responsible for the shipment, to learn about the nature of the contents of the package. This process would promote communication and cooperation by all concerned parties and enable the Department to detect and deter undeclared hazardous material shipments.

Proposed § 109.3(b)(4) implements the authority conferred by 49 U.S.C. 5121(c)(1) to enable DOT inspectors to take enhanced inspection and enforcement action. Under § 109.3(b)(4)(i), inspectors may open an overpack, outer packaging, freight container, or other package component that is not immediately adjacent to the hazardous material contents and inspect the inside of the receptacle or container for undeclared hazardous material, provided that the officials have an objectively reasonable and articulable belief that the shipment contains hazardous material. (Please see above for PHMSA's discussion of the meaning and application of “objectively reasonable and articulable belief.”) Therefore, shipments such as plastic bottles or drums, which are in direct contact with a hazardous material, will not be opened pursuant to this authority. PHMSA expects DOT inspectors to exercise this enhanced authority at locations through which hazardous materials are shipped and transported, including port facilities, weigh stations, international border crossings, interchange points, intermodal facilities, and terminals to identify undeclared hazardous material shipments or other noncompliant shipments that are offered for transportation, or being transported, in commerce.

The enhanced inspection authority builds on the existing authority to conduct warrantless inspections. Under the administrative search doctrine, a company engaged in a closely regulated activity, such as hazardous materials transportation, has no Fourth Amendment protection against unannounced compliance inspections. See V-1 Oil , 63 F.3d at 913 (FRA's warrantless and unannounced inspection of a hazardous materials transportation facility is constitutional); see also U.S. v. Burger , 482 U.S. 691 (1987); Skinner, 489 U.S. at 625 (railroad industry is pervasively regulated to ensure safety); U.S. v. Mendoza-Gonzalez , 363 F.3d 788, 794 (8th Cir. 2004) (commercial trucking is a closely regulated industry); Means , 94 F.3d at 1426 (motor carrier industry is closely regulated); Suburban O'Hare Com'n v. Dole , 787 F.2d 186, 188 (7th Cir.) (aviation industry is closely regulated), cert. denied , 479 U.S. 847 (1986). The proposed rule would enable inspectors who already have unconditional access to property relating to hazardous material transportation to more closely examine certain shipments. In all cases, DOT inspections are limited by time, place, and manner in which a package may be opened. The statute (49 U.S.C. 5121) limits the discretion of the inspectors, delineating the scope of inspections and defining the objective circumstances in which the package opening authority may be exercised. These limitations promote uniform application of the enhanced inspection authority, while leaving inspectors sufficient discretion to respond effectively to circumstances encountered in the field. We note that DOT's use of unannounced, warrantless inspections has survived legal and constitutional challenge, as reflected in the cases cited above. Although evidence gathered in hazmat inspections or investigations could later serve as the basis for criminal prosecution, our use of warrantless inspections serves a legitimate and lawful purpose: detecting and deterring undeclared hazardous material shipments. See Skinner , 489 U.S. at 620-21 n.5 (1989) (FRA inspection program served lawful purpose and was not a pretext to collect evidence for criminal law enforcement purposes).

Proposed § 109.3(b)(4)(ii) implements 49 U.S.C. 5121(c)(1)(C) by permitting a DOT inspector to remove from transportation in commerce a package (including a freight container) when the inspector has an objectively reasonable and articulable belief that the package contains a hazardous material and may pose an imminent hazard. PHMSA intends to employ this remedy when necessary to suspend or restrict the transportation of a shipment that is deemed unsafe. See S. Rep. No. 101-444, at 10 (1990), reprinted in 1990 U.S.C.C.A.N. 4595, 4604. Should this condition exist, the inspector must document the basis for removing the package from transportation as soon as practicable, including the findings that the shipment contained a hazardous material and the imminent hazard identified. The documentation requirement safeguards the inspection and enforcement process by requiring DOT to specifically describe the hazard present and substantiate the need to remove the shipment from the stream of commerce. The documentation will chronicle the activities and events culminating in removing the package from transportation. The documentation must provide sufficient justification to pursue further investigation into the contents of a package. This section further provides that an inspector must limit this removal to a reasonable duration of time in order to determine whether the package may pose an imminent hazard.

Section 109.3(b)(4)(iii), which implements 49 U.S.C. 5121(c)(1)(E), proposes that an agent of the Secretary may order the party in possession of the package, or otherwise responsible for the shipment, to have it transported to, opened, and examined at an appropriate facility if it is not practicable to examine the contents of a package at the time of the stop. This provision would enable DOT to facilitate learning about the nature of the product inside the shipment by permitting delivery of the shipment to a facility that is capable of identifying the contents. PHMSA intends for DOT to employ this remedy only when an on-site inspection is inadequate or a facility has the sophisticated personnel, equipment, and information technology to assist in the inspection or investigation. Qualified personnel may be asked to assist DOT when the inspectors open, detain, or remove a shipment, if it is possible that a package may experience a leak, spill, or release. Proposed § 109.3(b)(4)(iv) provides this authorization.

Under proposed § 109.3(b)(5), an inspector would make a reasonable effort to assist in preparing a shipment to reenter transportation after opening or detaining the package if the shipment does not pose an imminent hazard and reentry in transportation is otherwise practicable. The inspector or a designee would reclose the package in accordance with the packaging manufacturer's instructions or other procedures approved by PHMSA's Associate Administrator for Hazardous Materials Safety. The inspector would then mark and certify that the shipment was opened and reclosed, and return the shipment for transportation, as quickly as practicable. Additionally, the inspector would assist in the safe and expeditious movement of a shipment that contains a perishable material once it is determined that the package does not present an imminent hazard. These measures, of course, presume that the package otherwise complies with the HMR. The Department's operating administrations would not be responsible for bringing an otherwise non-specification or non-compliant package into compliance and resuming its movement in commerce. If the package did not comply with the HMR, the fact that a DOT official opened it in the course of an inspection or investigation would not make DOT or its inspector responsible for bringing the package into compliance.

At this juncture, PHMSA is soliciting comments from interested parties about appropriate closure measures that would reseal opened packages. In particular, we seek comments from manufacturers of receptacles, containers, or other units that perform a containment function for hazardous material and hope to learn of equipment, instruments, and types of resealment that may be used to reclose a shipment. PHMSA is further requesting comments or suggestions from manufacturers, packaging companies, offerors, and carriers about the appropriate manner of reclosing a shipment containing a perishable material, including medical material such as radiopharmaceuticals and radionuclides, for prompt re-transportation. PHMSA also is contemplating using a special tape that would identify that the package was opened by a DOT inspector. The agency requests comments on whether tape or another adhesive would provide adequate notice that a DOT inspector opened a shipment.

Proposed § 109.3(b)(6) addresses the situation in which a package is found to present an imminent hazard. This section would authorize the Administrator of each operating administration, or his/her designee, to issue an OOS order prohibiting the movement of a package until the imminent hazard is abated and the package has been brought into compliance with the HMR. Consequently, if an inspector determines that a package presents an imminent hazard, the carrier or other person in possession of, or responsible for, the package must remove the package from transportation until it is brought into compliance with the HMR. OOS orders ensure that if a package presents an imminent hazard, immediate action is taken to abate that hazard. Proposed paragraph (b)(6)(i) provides that a package subject to an OOS order may be moved from the place where it is first discovered to present an imminent hazard to the nearest location where remedial action can be taken to abate the hazard and bring the package into compliance with the HMR, provided that before the move, the agent issuing the OOS order is notified of the planned move. Proposed paragraph (b)(6)(ii) would require that the recipient of an OOS order notify the agent who issued the order when the package is brought into compliance with the HMR.

Proposed paragraph (b)(6)(iii) provides an appeal process for a recipient of an OOS order to challenge the issuance of the order. The appeal process proposed for OOS orders is consistent with the appeal process proposed for other types of emergency orders set forth in proposed § 109.5(e)-(h), discussed below.

Section 109.3(c) proposes that the operating administration would close the investigative file and inform the subject party of the decision when the agency determines that no further action is necessary. This provision clarifies when an investigation concludes and states that DOT will notify respondent that the file has been closed without prejudice to further investigation.

Proposed § 109.5, which implements 49 U.S.C. 5121(d) authorizes DOT operating administrations to issue emergency orders to remove hazardous materials shipments from transportation in commerce without advance notice or an opportunity for a hearing. This section governs the issuance of emergency restrictions, prohibitions, OOS orders, and recalls, all of which fit within the purview of an emergency order. (See above for PHMSA's meaning and application of the term “emergency order.”)

The predicate for issuing an emergency order is a violation of the Hazmat Law or HMR, or an unsafe condition or practice, whether or not it violates an existing statutory or regulatory requirement, which amounts to or is causing an imminent hazard. PHMSA believes that such an extraordinary remedy is necessary to address emergency situations or circumstances involving a hazard of death, illness, or injury to persons affected by an imminent hazard. Cf. United Transp. Union v. Lewis , 699 F.2d 1109, 1113 (11th Cir. 1983) (FRA emergency order authority is necessary to abate unsafe conditions or practices that extend to hazard of death or injury to persons); 49 U.S.C. 46105(c) (FAA is authorized to issue orders to meet existing emergency relating to safety in air commerce); 49 U.S.C. 521(b)(5) (FMCSA permitted to order a motor carrier OOS when vehicle or operation constitutes an imminent hazard to safety, i.e. , “substantially increases the likelihood of serious injury or death if not discontinued immediately”). The Department intends that each operating administration issue an emergency order only after an inspection, investigation, testing, or research determines that an imminent hazard exists that requires exercising this enforcement tool to eliminate the particular hazard and protect public safety. See House Conf. Rep. No. 109-203 at 1080, 2005 U.S.C.C.A.N. at 714; see generally H.R. Rep. No. 96-1025, at 12, reprinted in 1980 U.S.C.C.A.N. 3830, 3837 (“purpose of the emergency powers provision is to vest administrative discretion in the Secretary to protect the public safety”). The order must articulate a sufficient factual basis that addresses the emergency situation warranting prompt prohibitive action. As proposed, the operating administrations would be conferred authority to take immediate measures to address a particular safety or security threat.

Proposed paragraph (a) outlines the critical elements that must be established before an agency may issue an emergency order. Principally, the order must be in writing and describe the violation, condition or practice that is causing the imminent hazard; enumerate the terms and conditions of the order; be circumscribed to abate the imminent hazard; and inform the recipient that it may seek administrative review of the order by filing a petition with PHMSA's CSO. In other words, the order must be narrowly tailored to the discrete and specific safety hazard and identify the corrective action available to remedy the hazard. Due to the urgent nature of the action, a petitioner would have 20 calendar days to file the petition after the emergency order is issued. See 49 U.S.C. 5121(d)(3). (The time period that would apply is proposed at paragraph (a)(4), which adopts, in pertinent part, Fed. R. Civ. P. 6(a)). The proposed provision would ensure that the operating administrations employ uniform procedures and standards when issuing emergency orders and provides a degree of certainty and predictability to the regulated community about the requisite elements to establish a prima facie emergency order.

PHMSA proposes providing a party with administrative due process rights to seek redress of an emergency order, and thus, proposed paragraph (b) sets forth requirements for filing a petition for administrative review of an emergency order. The petition: (1) Must be in writing; (2) specifically state which part of the emergency order is being appealed; (3) include all information and arguments in support thereof; and (4) indicate whether a formal administrative hearing is requested. Should a petitioner request a hearing, the party must detail the material facts in dispute giving rise to the hearing request. The petition also must be addressed to PHMSA's CSO with a copy transmitted to the Chief Counsel of the operating administration issuing the emergency order. Proposed paragraph (c) provides that the Office of Chief Counsel of the operating administration that issued the emergency order may file a response, including appropriate pleadings, with the CSO within five days after receiving the petition. PHMSA proposes this short turnaround to enable the issuing operating administration to present evidence and argument supporting the emergency order. PHMSA notes that Congress mandated that DOT must resolve the petition within 30 days of its receipt unless the operating administration issues a subsequent order extending the original order, pending review of the petition. See 49 U.S.C. 5121(d)(4).

Under proposed paragraph (d), the CSO would review the petition and response and issue a decision within 30 days upon receipt of the petition if the petitioner does not request a formal hearing or the petition fails to assert material facts in dispute. The CSO's decision would constitute final agency action in this instance. Alternatively, if the petition contains a request for a formal hearing and states material facts in dispute, the CSO would assign the petition to DOT's Office of Hearings. PHMSA thus proposes designating the CSO as the first line of review of emergency orders. It is possible that the CSO would amend, affirm, lift, modify, stay, or vacate the emergency order upon review.

PHMSA believes that the CSO should serve as the primary adjudicator of petitions. Designating a single decision maker to handle all petitions will promote consistency in the application of review standards. The CSO is the leading safety authority in PHMSA, which is the agency that issues the HMR, interprets the Hazmat Law and its implementing regulations, and oversees DOT's hazardous materials transportation program.

Proposed paragraphs (e) through (h) set out the administrative hearing procedures that the Department's Office of Hearings would employ. Upon receiving the petition from the CSO, the Chief Administrative Law Judge would assign it to an Administrative Law Judge (ALJ), who would schedule and conduct an “on the record” hearing under 5 U.S.C. 554, 556, and 557. PHMSA believes that a petitioner should be afforded a formal hearing that addresses the merits of a petition to ensure that a record is created in a proceeding that will form the basis for final agency action and judicial review, if necessary.

Paragraph (e) provides that an ALJ may administer oaths and affirmations, issue subpoenas as authorized by each operating administration's regulations, enable the parties to engage in discovery, and conduct settlement conferences and hearings to resolve disputed factual issues. PHMSA expects ALJs to conduct efficient and expeditious proceedings, including controlling discovery actions, to enable the parties to obtain relevant information and present material arguments at a hearing within the time parameters established.

Paragraph (f) permits a petitioner to appear in person or through an authorized representative. The representative need not be an attorney. The operating administration, however, would be represented by an attorney from its Office of Chief Counsel. Paragraph (g) delineates the service rules governing the emergency order and review process. Generally, parties may effect service by electronic transmission via e-mail (with the pertinent document in Adobe PDF format attached) or facsimile, certified or registered mail, or personal delivery. Additionally, the operating administration that issued the emergency order must identify the list of persons, including the Department's docket management system, to receive the order and serve it by “hand delivery,” unless such delivery is not practicable. The agency will also publish a notice of the emergency order in the Federal Register as soon as practicable after the order's issuance.

Paragraph (h) proposes requiring the ALJ to issue a report and recommendation when the record is closed. The decision must contain factual findings and legal conclusions based on legal authorities and evidence presented on the record. Critically, the decision must be issued within 25 days after the CSO receives the petition. Under paragraph (i), which codifies 49 U.S.C. 5121(d)(4), the emergency order will no longer be effective if the ALJ or CSO has not ruled on the petition within 30 days of the CSO's receipt of the petition, unless the Administrator who issued the emergency order determines in writing that the imminent hazard continues to exist. The order then would remain in effect pending the disposition of the petition unless stayed or modified by the Administrator. PHMSA maintains that this provision is necessary to ensure that the order is extended to abate the imminent hazard.

Paragraph (j) would provide that an aggrieved party may file a petition for reconsideration of the ALJ's report and recommendation within one day of the issuance of the decision. The CSO then must issue a final agency decision no later than 30 days from the receipt of the petition for review, unless a subsequent emergency order is issued. In that case, the CSO would have three calendar days to render the decision after receiving the petition for reconsideration. The CSO's decision on the merits of a petition for reconsideration would constitute final agency action.

Paragraph (k) would enable an aggrieved party to seek judicial review of either the CSO's administrative decision or the CSO's adoption of the ALJ's report and recommendation. Judicial review would be available in an appropriate U.S. Court of Appeals under 49 U.S.C. 5127, 49 U.S.C. 20114(c), 28 U.S.C. 2342, and 5 U.S.C. 701-706. All parties should note that the filing of a petition will not stay or modify the force and effect of final agency action unless otherwise ordered by the appropriate U.S. Court of Appeals.

Paragraph (l) would specify the computation of time in the adjudications process.

Section 109.7 implements 49 U.S.C. 5121(d). Generally, PHMSA received new recall authority in HMSSTRA to work hand in hand with our previous authority under 49 U.S.C. 5103(b)(1)(A)(iii) to prescribe regulations for the safe transportation, including security, of hazardous materials in intrastate, interstate, and foreign commerce. Specifically, PHMSA proposes to implement the authority to recall packagings, containers, or package components which were improperly designed, manufactured, fabricated, inspected, marked, maintained, reconditioned, repaired, or tested but sold as qualified DOT packages, containers, or packaging components for use in the transportation of hazardous materials in commerce.

In addition to seeking relief in Federal court with respect to an imminent hazard, this proposed section defines the need for general remedies available through litigation. As such, an Administrator may also request the Attorney General bring an action in the appropriate U.S. district court for all other necessary or appropriate relief, including, but not limited to, injunctive relief, punitive damages, and assessment of civil penalties as provided by 49 U.S.C. 5122(a). Proposed § 109.11 would authorize an Administrator to request DOJ to bring a cause of action in the appropriate U.S. district court seeking legal and equitable relief, including civil penalties, punitive damages, temporary restraining orders, and preliminary and permanent injunctions, to enforce the Hazmat Law, HMR, or an order, special permit, or approval issued.

This NPRM is published under the authority of 49 U.S.C. 5103(b) which authorizes the Secretary to prescribe regulations for the safe transportation, including security, of hazardous material in intrastate, interstate, and foreign commerce and under the authority of 49 U.S.C. 5121(e). If adopted as proposed, the final rule would revise PHMSA's inspection and enforcement procedures in PHMSA's regulations to implement 49 U.S.C. 5121(c) and (d), as amended by HMTSSRA. Specifically, this proposed rule implements the enhanced inspection and enforcement authority mandated by section 7118 by enabling DOT to open, detain, and remove packages from transportation where appropriate, and issue emergency orders limiting or restricting packages from transportation. The NPRM carries out the statutory mandate and clarifies DOT's role and responsibility in ensuring that hazardous materials are being safely transported and promoting the regulated community's understanding and compliance with regulatory requirements applicable to specific situations and operations.

This NPRM is a significant regulatory action under section 3(f) of Executive Order 12866 and, therefore, was reviewed by the Office of Management and Budget. This rule is also significant under the Regulatory Policies and Procedures of the DOT (44 FR 11034). A copy of the regulatory evaluation is available for review in the docket.

This NPRM has been analyzed in accordance with the principles and criteria contained in Executive Order 13132 (“Federalism”). As amended by HMTSSRA, 49 U.S.C. 5125(i) provides that the preemption provisions in Federal hazardous material transportation law do “not apply to any procedure * * * utilized by a State, or Indian tribe to enforce a requirement applicable to the transportation of hazardous material.” Accordingly, this proposed rule has no preemptive effect on state, local, or Indian tribe enforcement procedures and penalties, and preparation of a federalism assessment is not warranted.

This NPRM has also been analyzed in accordance with the principles and criteria contained in Executive Order 13084 (“Consultation and Coordination with Indian Tribal Governments”). Because this proposed rule does not significantly or uniquely affect the communities of the Indian tribal governments and does not impose substantial direct compliance costs, the funding and consultation requirements of Executive Order 13084 do not apply.

The Regulatory Flexibility Act (5 U.S.C. 601 et seq. ) requires an agency to review regulations to assess their impact on small entities unless the agency determines that a rule is not expected to have significant impact on a substantial number of small entities. Based on the assessment in the preliminary regulatory evaluation I hereby certify that, while the proposed rule will affect a substantial number of small businesses, there will be no significant economic impact. This proposal applies to offerors and carriers of hazardous materials, some of which are small entities; however, there will not be any economic impact on any person who complies with Federal hazardous materials law and the regulations and orders issued under that law.

Potentially affected small entities. The proposals in this NPRM will apply to persons who perform, or cause to be performed, functions related to the transportation of hazardous materials in transportation in commerce. This includes offerors of hazardous materials and persons in physical control of a hazardous material during transportation in commerce. Such persons may primarily include motor carriers, air carriers, vessel operators, rail carriers, temporary storage facilities, and intermodal transfer facilities. Unless alternative definitions have been established by the agency in consultation with the Small Business Administration, the definition of “small business” has the same meaning as under the Small Business Act (15 CFR parts 631-657c). Therefore, since no such special definition has been established, PHMSA employs the thresholds (published in 13 CFR 121.201) of 1,500 employees for air carriers (NAICS Subgroup 481), 500 employees for rail carriers (NAICS Subgroup 482), 500 employees for vessel operators (NAICS Subgroup 483), $18.5 million in revenues for motor carriers (NAICS Subgroup 484), and $18.5 million in revenues for warehousing and storage companies (NAICS Subgroup 493). Of the approximately 116,000 entities to which the proposals in this NPRM would apply (104,000 of which are motor carriers), we estimate that about 90 percent are small entities.

Potential cost impacts. The NPRM proposal to implement the enhanced enforcement and investigation authority applies to all persons subject to the HMR. We expect the exercise of this authority will produce a deterrent effect far beyond the number of packages actually detained, opened, or removed from transportation. Over a ten-year period, we estimate the proposed rule would result in the reduction of 40,299,701 undeclared shipments of hazardous material across three modes of transportation (air, rail, and highway), and the avoidance of 63 serious incidents and 2,104 non-serious incidents. The estimated costs to industry are fairly minimal; we estimate $45,997 in total cost to the industry over ten years.

Potential costs savings. Although the potential cost of implementing this enhanced enforcement authority could total $2,307,897 for the four operating administrations, the potential benefit from avoiding incidents total $9,697,748 over a ten-year period.

Alternate proposals for small business. In accordance with the Regulatory Flexibility Act, we also considered whether special standards should be developed to minimize the regulatory burden on small businesses. In the case of compliance standards, it is sometimes possible to establish exceptions or different requirements for small businesses without compromising the overall objectives of the rule. However, we have concluded that such relief is not appropriate for the rules at issue here, pertaining to inspection procedures and safety remedies. Although DOT may well consider companies' relative sizes in deciding how to allocate inspection resources, once an inspection or investigation is underway, the size of an individual entity has no proper bearing on the exercise of enhanced inspection and enforcement authority. In the case of a suspicious package, for instance, the risk to public safety and need for enforcement action does not depend on the size of the company responsible for the hazard.

PHMSA has analyzed this proposed rulemaking in accordance with the Paperwork Reduction Act of 1995 (PRA). The PRA requires Federal agencies to minimize paperwork burden imposed on the American public by ensuring maximum utility and quality of federal information, ensuring the use of information technology to improve Government performance, and improving the federal government's accountability for managing information collection activities. This proposal contains no new information collection requirements subject to the PRA as the requirements applicable to all collections of information conducted or sponsored by a federal agency do not apply to a collection of information “during the conduct of a civil action to which the United States or any official or agency thereof is apart, or during the conduct of an administrative action, investigation, or audit involving an agency against specific individuals or entities” (5 CFR 1320.4).

The proposal in this NPRM would not impose unfunded mandates under the Unfunded Mandates Act of 1995. The proposed rule would not result in annual costs of $100 million or more, in the aggregate, to any of the following: State, local, or Indian tribal governments, or the private sector, and is the least burdensome alternative to achieve the objective of the proposed rule.

The National Environmental Policy Act, 42 U.S.C. 4321-4375, requires that Federal agencies analyze proposed actions to determine whether an action will have a significant impact on the human environment. The Council on Environmental Quality (CEQ) regulations order Federal agencies to conduct an environmental review considering (1) the need for the proposed action (2) alternatives to the proposed action (3) probable environmental impacts of the proposed action and alternatives and (4) the agencies and persons consulted during the consideration process. 40 CFR 1508.9(b).

Congress enacted HMTSSRA in part to combat the problem of undeclared hazardous materials shipments. The broader authority of HMTSSRA allows the Department to identify hazardous materials shipments and to determine whether those shipments are made in accordance with the HMR. Congress determined that this authority would equip DOT officials and inspection personnel with the necessary tools to accurately determine whether hazardous materials are being transported safely and in accordance with the relevant law and regulations. See Background section of the preamble to this NPRM, supra .

Because this NPRM addresses a Congressional mandate, we have limited latitude in defining alternative courses of action. The option of taking no action would be both inconsistent with Congress' direction and undesirable from the standpoint of safety and enforcement. Failure to implement the new authority would perpetuate the problem of undeclared hazardous material shipments and resulting incidents or releases. It would also leave PHMSA and other operating administrations without an effective plan to abate an imminent safety hazard.

The selected alternative could result in decreasing the likelihood of an incident, or a release of hazardous material, e.g., explosives, flammables, or corrosives. These hazardous materials could ignite, leak, or react with other material, thereby causing fires and explosions in confined spaces such as aircraft or vessels. If such incidents occurred while an aircraft or vessel is in transportation, the consequences would likely threaten human health and the environment. If hazardous material shipments are not properly marked, labeled, packaged, and handled, every person who comes into contact with the shipment could be at risk. Emergency responders would not be able to extinguish a fire in the most effective and timely manner because an undeclared shipment would not contain the correct hazard communications, thus possibly exacerbating the situation or prolonging the public's exposure to a release.

Before preparing this NPRM, we held a series of public meetings and invited all interested persons to offer comments on topics related to this proposed rule. We received no comments regarding environmental concerns.

A regulation identifier number (RIN) is assigned to each regulatory action listed in the Unified Agenda of Federal Regulations. The Regulatory Information Service Center publishes the Unified Agenda in spring and fall of each year. The RIN contained in the heading of this document can be used to cross-reference this action with the Unified Agenda.

Anyone is able to search the electronic form of all comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review DOT's complete Privacy Act Statement in the Federal Register published on April 11, 2000 (Volume 65, Number 70; Pages 19477-78) or you may visit http://www.regulations.gov .

In consideration of the foregoing, PHMSA proposes to add a new part 109 to Title 49, Subtitle B, Chapter 1, Subchapter A to read as follows:

Table of Contents I. Background A. Overview of Motorcycle Safety Problem B. Benefits of Motorcycle Helmets and Motorcycle Helmet Use Laws C. Provisions of FMVSS No. 218 Addressed in This Rulemaking D. Current Enforceability Issues 1. State Motorcycle Helmet Use Laws 2. FMVSS No. 218 II. The Proposed Rule A. Summary of Key Proposed Changes 1. Labeling Proposal To Reduce Misleading labeling of Novelty Helmets 2. Size Labeling and Location of the “DOT” Certification Label 3. Retention Test 4. Impact Attenuation Test 5. Helmet Conditioning Tolerances B. Proposals To Aid Enforcement of State Motorcycle Helmet Use Laws 1. Current Requirements for Certification Labeling 2. Proposed Upgrades to the Certification Labeling Requirements a. Application of a “DOT” Symbol Water Decal b. Addition of Lettering Indicating the Manufacturer and the Helmet Model Designation c. Addition of the Word “Certified” Under the “DOT” Symbol d. Letters/Numbers 3. Alternatives Considered a. Sewing the “DOT” Symbol to the Chinstrap b. Molding or Embossing the “DOT” Symbol into the Helmet c. Using a Hologram “DOT” Symbol C. Size Labeling and Location of the “DOT” Certification Label 1. Location of the Certification Label 2. Helmet Size Labeling Requirement D. Retention System Quasi-Static Load Application Rate E. Impact Attenuation Test Upgrades 1. The Impact Sites a. Problems With “Identical Impacts” b. NHTSA Proposal c. Rationale for a 1.9 cm ( 3/4 -inch) Tolerance 2. Impact Attenuation Test Speed a. Current Impact Attenuation Test Procedures b. Concerns Regarding Current Test Procedures c. Rationale for Impact Attenuation Speed Tolerance Level d. Alternative Test Methods Examined F. Tolerances for Helmet Conditioning Specifications G. Correction of Figures 7 and 8 H. Update SAE Reference to J211 III. Effective Date IV. Benefits/Costs V. Public Participation VI. Rulemaking Analyses and Notices I. Background A. Overview of Motorcycle Safety Problem

There is a pressing need for improvements in motorcycle safety. After falling steadily during the late 1980's and early 1990's, and leveling off in the mid-1990's, motorcycle rider fatalities and the related fatality rate have increased every year since 1997. 1 Fatalities increased 127 percent between 1997 and 2006 (from 2,116 deaths in 1997 to 4,810 deaths in 2006). 2 In 2006, motorcycle rider fatalities exceeded the number of pedestrian fatalities for the first time since NHTSA began collecting fatal motor vehicle crash data in 1975, and now account for 11 percent of all annual motor vehicle fatalities. 3

A number of explanations have been offered for the steady increase in the last 10 years, including increases in motorcycle sales, increases in the percentage of older riders, and increases in engine size. However, the increase in the number of deaths resulting from motorcycle crashes has been disproportionately fast compared to the increases in the number of motorcycles on the road and the distance they are driven. Motorcycles make up about 2.4 percent of all registered vehicles and 0.3 percent of all vehicle miles traveled (VMT), but account for 11 percent of all traffic crash fatalities in 2006, compared to 5.0 percent in 1997. This represents a significant increase as a proportion of the annual loss of life in traffic crashes. In recent years, fatality rates for motorcycle riders have increased faster than the increase in motorcycle exposure (VMT on motorcycles as well as the number of registered motorcycles). The number of fatalities per 100 million VMT on motorcycles has more than doubled, increasing from 21 in 1997 to 42.5 in 2005. Similarly, the number of fatalities per 100,000 registered motorcycles increased from 55 in 1997 to 73.5 in 2005. Compared with a passenger car occupant, a motorcycle rider is 37 times more likely to die in a crash, based on vehicle miles traveled.

The National Transportation Safety Board (NTSB) recently made similar assessment of the motorcycle safety problem. The assessment came in a Safety Alert, “Alarming Rise in Motorcycle Deaths,” issued by NTSB in September 2007:  4

• Deaths from motorcycle crashes have more than doubled in the past 10 years—from 2,116 in 1997 to 4,810 in 2006—an alarming trend. Another 88,000 people were injured in motorcycle crashes in 2006.

• The yearly number of motorcycle deaths is more than double the annual total number of people killed in all aviation, rail, marine and pipeline accidents combined.

• Head injuries are a leading cause of death in motorcycle crashes.

Among the measures available for improving motorcycle safety, none is more effective than use of motorcycle helmets. The steadily increasing toll of motorcyclist fatalities would have been lower had all motorcyclists been wearing motorcycle helmets that meet the performance requirements issued by this agency. In potentially fatal crashes, helmets have an overall effectiveness of 37 percent in preventing fatalities. 5 According to the data for 2006, helmets saved an estimated 1,658 lives in that year. If there had been 100 percent helmet use among motorcycle riders, an additional 752 lives could have been saved that year. 6

Again, in its September 2007 Safety Alert, the NTSB came to similar conclusions:

• DOT-compliant helmets are extremely effective. They can prevent injury and death from motorcycle crashes.

• If you are in a crash without a helmet, you are three times more likely to have brain injuries.

• Wearing a helmet reduces the overall risk of dying in a crash by 37%.

• In addition to preventing fatalities, helmets reduce the need for ambulance service, hospitalization, intensive care, rehabilitation, and long-term care.

• Wearing a helmet does not increase the risk of other types of injury.

The value of helmet use can be demonstrated in other ways. Data from the agency's Fatality Analysis Reporting System (FARS) for the period 1995-2004 also show the importance of motorcycle helmets. Even though the percentage of riders who use motorcycle helmets is larger than the percentage of riders who do not, non-users suffer more fatal head injuries. From 2000 to 2002, an average of 35 percent of helmeted riders who died suffered a head injury, while an average of 51 percent of the non-users who died suffered a head injury. 7

Unfortunately, a significant percentage of motorcyclists either wear noncompliant helmets or do not wear any helmet at all. In 2006, 20 States and the District of Columbia required all motorcyclists to wear helmets. In those 21 jurisdictions, FMVSS No. 218-compliant helmets were used by 68 percent of motorcyclists; non-compliant helmets were used by 15 percent of motorcyclists; and no helmets were used by an estimated 17 percent of motorcyclists. Comparatively, in the 30 States with partial or no helmet use laws, only 37 percent of motorcyclists used FMVSS No. 218-compliant helmets; 13 percent used non-compliant helmets; and 50 percent did not use a helmet at all. 8 These data are presented below in tabular form:

This data shows that a considerable number of motorcyclists both in states with and without helmet use laws are wearing non-compliant helmets. As discussed below, such helmets do not provide adequate protection.

The noncompliant helmets are commonly called “novelty” helmets. They are not properly constructed for highway use, and typically lack the strength, energy absorption capability, and size necessary to protect their users. They do not meet the safety requirements of FMVSS No. 218 and are not certified as such. In fact, recent compliance test data on novelty helmets showed that they failed all of the FMVSS No. 218 performance requirements. 9 Manufacturers of these helmets frequently include disclaimers that contend the helmets are not intended for protecting the persons who wear them from injury. These manufacturers claim that they are not intended for highway use. Nonetheless, as the above table shows, a significant proportion of motorcyclists use novelty helmets on the highway.

NHTSA is making efforts to gather more specific data in this area. Among other efforts to generate the information necessary to improve highway safety, the 3rd Edition of the Model Minimum Uniform Crash Criteria (MMUCC) Guideline, which aims to provide a data set for describing crashes of motor vehicles, has been revised to characterize if motorcyclists involved in crashes were wearing 218-compliant helmets, other helmets, or no helmets.

The purpose of FMVSS No. 218 is to reduce deaths and injuries to motorcyclists and other motor vehicle users resulting from head impacts. To do so, the standard establishes minimum performance requirements for helmets. These requirements include three performance tests: (1) An impact attenuation test; (2) a penetration test; and (3) a retention system test; as well as various labeling requirements.

The impact attenuation test is designed to ensure that helmets retain structural integrity and attenuate impact energy during a variety of crash scenarios. The test measures acceleration imparted to an instrumented test headform on which a complete helmet is mounted. The helmet/headform combination is dropped in a guided free fall upon either a fixed hemispherical anvil or a fixed flat anvil.

The penetration test simulates a head impact with a piercing object. This test is conducted by dropping a penetration test striker in guided free fall, with its axis aligned vertically, onto the outer surface of the complete helmet when mounted on a headform.

The retention system test is a test designed to help ensure the helmet remains securely fastened to the rider's head. It is conducted by applying a tensile load to the retention assembly.

For each test, the helmet is conditioned in one of four different ways prior to testing. These include: (1) An ambient condition; (2) a low temperature condition; (3) a high temperature condition; and (4) a water immersion condition.

Labeling requirements are also set forth in Standard No. 218. These require that the manufacturer label each helmet permanently and legibly with the manufacturer's name or identification, precise model designation, size, month and year of manufacture, and instructions to the purchaser. The manufacturer must permanently label each helmet with the “DOT” symbol, which constitutes the manufacturer's certification that the helmet conforms to the applicable FMVSSs. Standard No. 218 also sets forth the requirements and acceptable locations of these labels.

This notice addresses several issues relating to the enforceability of state mandatory helmet laws and FMVSS No. 218. The first issue relates to the difficulties that States have had in establishing that some motorcyclists are using helmets that have not been certified to the Federal Standard. A second issue relates to the inability of some helmet manufacturers to locate the certification label as required by the standard due to the presence of edge rolls on helmets. Third, there have been issues relating to determinations of noncompliance in the agency's own testing of helmets under the guidelines in FMVSS No. 218.

The first issue concerns the use of “novelty” helmets by motorcyclists operating on the highway. In order to reap the benefits of compliant helmets, better enforcement against the use of novelty helmets by motorcyclists is needed. Novelty motorcycle helmets are not certified by their manufacturers as compliant with FMVSS No. 218 and offer the wearer no protection against injury. 10 Some motorcyclists wearing novelty helmets have been affixing “DOT” symbol stickers to their helmets to create the appearance of properly certified, compliant helmets. These stickers closely resemble the “DOT” certification symbol required by FMVSS No. 218 and can be purchased from stores selling novelty helmets or from online retailers.

The ability of novelty helmet users to affix inexpensive, easy-to-obtain labels resembling legitimate certification labels has complicated the efforts of state and local law enforcement personnel to enforce requirements for the use of properly certified helmets. They make it difficult for law enforcement officials in states with helmet use laws to determine whether or not a rider is wearing a helmet certified to FMVSS No. 218. The stickers make it difficult to prove whether or not a motorcycle wearer is deliberately flouting mandatory helmet use laws by wearing a novelty helmet with a misleading “DOT” label that improperly suggests the helmet is certified. 11 The use of these labels provides the wearer with a plausible basis for the assertion that he or she believes that the helmet he or she is using has been certified to the Federal standard. Further, sellers of these labels, which currently merely contain the letters “DOT,” attempt to avoid any responsibility for their sale and use by asserting that the labels are not counterfeit certification labels, but merely labels bearing letters that stand for “Doing Our Thing.”  12 As a result, application of these stickers to non-compliant helmets enables motorcyclists to avoid arrest and penalties in situations where state and local helmet laws require the use of a certified DOT-compliant motorcycle helmet.

In addition to this problem, improper use of the “DOT” symbol on non-complying helmets places motorcycle helmet manufacturers that design, test, and certify their helmets to FMVSS No. 218 requirements at a financial disadvantage, as novelty helmets do not undergo the same manufacturing or testing procedures to ensure their effectiveness in a crash, and thus can be marketed to unwary buyers as inexpensive alternatives to properly-certified helmets.

NHTSA has had several types of problems with enforcing FMVSS No. 218. One of them involves the requirement regarding the location of the certification labels. During FY 2000-2003, NHTSA has found that 14 percent of the motorcycle helmets tested for compliance did not comply with the labeling requirements of S5.6(e) of the standard because the “DOT” symbol on these helmets was slightly above the required location. Paragraph S5.6(e) mandates that the horizontal centerline of the certification label be located between 1 1/8 inches and 1 3/8 inches from the lower edge of the helmet. This is partly because the helmet manufacturers have been concerned that making design changes to the helmet so that the “DOT” symbol could be placed in the required location would affect the helmet's performance. In instances in which the manufacturer demonstrated that it placed the symbol as close to the required location as possible, NHTSA chose not to take action against the manufacturer.

The other main issue concerns the enforceability of determinations of noncompliance with the performance requirements in FMVSS No. 218. During fiscal year (FY) 2002 and 2003 compliance testing, the agency discovered ambiguities in the language of the impact attenuation test and the retention test when testing helmets manufactured by NexL Sports Products (NexL). NHTSA compliance testing found that NexL's helmets failed to meet the performance requirements of FMVSS No. 218 on helmet impact attenuation, penetration, and retention.

In its response to the agency's finding of noncompliance, NexL claimed that the agency's impact attenuation tests were invalid because the agency violated S7.1.4 of the standard by testing the helmets at velocities lower than the minimum required 19.7 ft/s (6 m/s). NHTSA found that the helmets did not comply with the impact attenuation requirements of FMVSS No. 218 during agency testing, which is typically conducted at speeds somewhat less than 19.7 ft/s. Because the impact attenuation test, as written, requires a minimum impact speed of 19.7 ft/s, the agency determined that this language could be ambiguous.

With regard to the retention test, NexL stated that it tested its helmets at the required static load condition, and that its testing did not result in any displacement failures. In its investigation, NHTSA found that NexL was able to achieve passing results by adjusting the load application rate of the test equipment until a passing displacement result (less than one inch, or 2.54 cm, of displacement) was achieved. In other words, by applying the required tensile load to the helmet at one rate, NexL was able to achieve a passing result, while in a similar test where the load was applied at a different rate, NHTSA results showed a noncompliance. Because the rate of application of the static load was ambiguous in the standard, NHTSA decided not to undertake an enforcement action.

In order for NHTSA to be better able to take enforcement actions in these types of situations, both performance tests (impact attenuation and retention system) need to be revised to make them less ambiguous. Specifically, for the impact attenuation test, a velocity range needs to be specified; and with regard to the retention test, a rate of load application must be specified. It is believed that these changes will provide clearer guidance to manufacturers conducting tests specified in FMVSS No. 218, as well as enable NHTSA to better undertake enforcement actions when a noncompliance is discovered.

We are proposing three requirements for helmet certification labeling: (1) The application of a “DOT” symbol water decal to the helmet beneath clear coating; (2) lettering on that decal indicating the manufacturer's name and/or brand name and the helmet model designation in the space above the “DOT” symbol; and (3) the word “certified” in a horizontally centered position beneath the “DOT” symbol on that decal.

The agency is proposing that the required label on helmets be positioned such that the horizontal centerline of the DOT symbol is located between one and three inches (2.5-7.6 cm) from the lower edge of the helmet. In addition, the agency is proposing that helmets be labeled with a “discrete size,” which will correspond to the appropriate test headform.

The agency is specifying a load application rate for the retention test. In addition, in light of this requirement, we are reclassifying the retention test as a quasi-static test, instead of a static test.

NHTSA is proposing to specify test velocity and tolerance limits for the impact attenuation test. Specifically, we are proposing that the test velocity be specified any speed between 15.7 ft/s to and including 18.4 ft/s (from 4.8 m/s to and including 5.6 m/s) for the impact on the hemispherical anvil, and any speed from 18.4 ft/s to and including 21.0 ft/s (from 5.6 m/s to and including 6.4 m/s) for the impact on the flat anvil. In addition, we are proposing to remove the drop height requirement from the impact attenuation test.

NHTSA is proposing to set tolerances for the helmet conditioning procedures. For the ambient condition, the range is any temperature from 61 °F to and including 79 °F (from 16 °C to and including 26 °C) and any relative humidity from 30 to and including 70 percent. For the low temperature condition, the range is any temperature from 5 °F to and including 23 °F (from −15 °C to and including −5 °C). For the high temperature condition, the range is any temperature from 113 °F to and including 131 °F (from 45 °C to and including 55 °C). For the water immersion test, the range for the water temperature is from 68 °F to and including 86 °F (from 20 °C to and including 30 °C). In addition, NHTSA is proposing that the 12 hour duration be classified as a minimum duration.

The proposed rule would establish additional requirements for certification labels that would entail processes that are inexpensive for the helmet manufacturer, but would be more difficult and expensive for those who may be producing false “certification” labels. The new requirements would also help consumers and law enforcement personnel distinguish between certified and uncertified helmets, facilitating the enforcement of state and local helmet laws. The proposed additional requirements would make it difficult for stores selling misleading “DOT” labels to claim that they did not intend to sell labels indicating certification, but were merely selling “Doing Our Thing” stickers. 14 It is difficult to establish a plausible reason such a sticker would include manufacturing information or the word “certified.” It would then be clear that any store selling a sticker with the proposed labeling requirements would be selling labels intended to deceive law enforcement officials about whether a helmet is certified. The above enforcement benefits can be obtained without imposing an undue burden upon motorcycle helmet manufacturers. Most important, the additional labeling requirements should result in a safety benefit through the increased use of proper head protection for motorcycle riders.

NHTSA is proposing the use of a water decal for the “DOT” symbol which would be affixed to the motorcycle helmet before the shell's clear coating is applied. Additionally, the label would be required to bear lettering indicating the manufacturer's name or brand name and the helmet model designation in the space above the “DOT” symbol, as well as the word “certified” in a horizontally centered position beneath the “DOT” symbol. These additional requirements would make production of labels that create the misleading impression that a helmet is properly certified more difficult and expensive, which would both deter the production and sale of such labels and help law enforcement officers enforce state helmet use laws.

The current labeling standard imposes limited requirements regarding certification labeling. Aside from the size, location, and contrasting color, the configuration of the symbol is not specified. Motorcycle helmet manufacturers are required to affix the certifying “DOT” symbol to the outer surface of the helmet. The color of the symbol's lettering must contrast with the background. The “DOT” letters must be at least 3/8 inch (1 cm) high, centered laterally with the horizontal centerline of the symbol located a minimum of 1 1/8 inches (2.9 cm) and a maximum of 1 3/8 inches (3.5 cm) from the bottom edge of the posterior portion of the helmet.

NHTSA proposes several additional requirements for the certification labeling of motorcycle helmets. These requirements include: (1) The application of a “DOT” symbol water decal to the helmet beneath the clear coating; (2) the manufacturer's name or brand name and the helmet model designation in the space above the “DOT” symbol; and 3) the word “certified” in a horizontally centered position beneath the “DOT” symbol. These proposals are further described in the following sections. The appendix also provides illustrations of the current label, as well as labels that would comply with the proposed requirements.

The agency's proposals regarding the issue of misleading labels on novelty helmets are based on substantial analysis of the needs of law enforcement personnel and the concerns of manufacturers. In 2005, NHTSA's Office of Traffic Injury Control (TIC) and Office of Vehicle Safety Compliance (OVSC) conducted an informal telephone survey of seven law enforcement offices, 15 a law enforcement organization, 16 and five motorcycle helmet manufacturers  17 to discuss the problem of misleading “DOT” symbols. Respondents were asked their opinion on various approaches to the problem, the advantages and disadvantages of suggested approaches, and on other changes in the requirements that could help identify noncompliant helmets. Additionally, NHTSA published a Motorcycle Safety Program Plan on July 3, 2006. 18 This plan discussed—among other topics—proposed initiatives to amend FMVSS No. 218 to address the problem of misleading labeling.

In lieu of the current typical practice of applying a simple certification sticker with adhesive to the outer surface of a helmet, NHTSA proposes requiring the application of a “DOT” symbol water decal to the helmet and then the application of a layer of clear coating over the decal and the entire outer surface of the helmet. Clear coating is usually the final step in motorcycle helmet production. The agency believes that all current FMVSS No. 218-compliant helmets have clear coating. Clear coating over the “DOT” symbol would result in a smooth surface that is visually and tactilely different from a sticker applied to the surface after the clear coating process is completed.

Requiring a water decal under clear coating would help make the production of misleading “DOT” symbols substantially more difficult. The agency believes that the fabrication of water decals for application under clear coating can only be done by a limited number of printing vendors who require a set-up charge that is usually over $1,000 for even the most simplistic design. Affixing the water decal would also require a hydration and dehydration (wetting and drying) process, while affixing a counterfeit “DOT” symbol currently requires merely the attachment of a sticker using some type of adhesive. The process would not be burdensome for manufacturers because they use this same process to add designs to the helmet. NHTSA believes that incorporating this approach would cost manufacturers between one and two cents per helmet, but invites comment on the issue.

NHTSA acknowledges that there are some disadvantages to the use of a water decal. While production of misleading “DOT” symbols would become more expensive, it would not necessarily become cost prohibitive. Currently, the required “DOT” symbol can be locally fabricated in sheets of 50 stickers for the price of about one dollar. If many label manufacturers grouped together to amortize the set-up charges for water decals, they might reach a similar cost acceptable threshold.

Another potential disadvantage is that clear coating does not adhere to leather shells. However, NHTSA is not aware of any leather-shell motorcycle helmet on the market that has been certified as complying with FMVSS No. 218. If a manufacturer develops and produces a leather-shell helmet that meets the performance requirements of FMVSS No. 218, we would consider amending the standard to provide a more appropriate alternative labeling method for leather-shell helmets, such as molding or embossing. The agency specifically invites comment on this issue.

As noted above, Standard No. 218 requires that the manufacturer label each helmet permanently and legibly with the manufacturer's name or identification, precise model designation, size, month, and year of manufacture. The manufacturer must also permanently label each helmet with the “DOT” symbol, which constitutes the manufacturer's certification that the helmet conforms to the applicable FMVSSs.

NHTSA proposes to require that some of this information be placed on the label bearing the “DOT” symbol since it would make counterfeiting of the certification label more difficult and helmet use law enforcement easier. Manufacturers would be required to include the manufacturer's name and/or brand name and the helmet model designation on the label above the “DOT” symbol. FMVSS No. 218 paragraph S5.6.1 already provides that “[e]ach helmet shall be labeled permanently and legibly, in a manner such that the label(s) can be read easily without removing padding or other permanent part, with the following: (a) Manufacturer's name or identification; (b) precise model designation; (c) size; and (d) month and year of manufacture.” While S5.6.1 requires a label with this information, this label is often placed on the inside of the helmet. The proposed certification labeling requirement would then let state law enforcement officials see this information on the outside of the helmet, without having to first ask a motorcyclist to remove a helmet. With the exception of the addition of the word “certified” to the certification label, no additional information is being added to the helmet as a whole.

Requiring the inclusion of the helmet manufacturer's name and/or brand name and precise model designation on the certification label would force counterfeiters either to fabricate manufacturer names or to use existing trademarks, thereby infringing upon them. The manufacturer whose trademark has been infringed could take action against the counterfeiter under trademark law. Should the counterfeiter use a false manufacturer name and/or brand, law enforcement officials familiar with motorcycle helmets may be able to identify these counterfeit labels. NHTSA believes that adding this information to the certification label would cost manufacturers approximately one cent per helmet, but invites comment on the issue.

As for disadvantages, the agency recognizes that counterfeiting is still possible under this approach. Also, depending on the length of the name, it may be more difficult for some manufacturers to apply their name above the “DOT” symbol. 19 The agency specifically requests public comment regarding a requirement to place the manufacturer name and/or brand name and model designation on the label and regarding the location in which that information should be placed on the label. NHTSA is particularly interested in obtaining views as to whether placing the proposed information on the label would best serve the purpose of reducing counterfeit labels and the false or misleading certifications of helmets.

NHTSA also proposes requiring the word “certified” in a horizontally centered position under the “DOT” symbol. The advantage to this approach is that it would clearly distinguish certified helmets from uncertified helmets bearing a label that merely bears the letters “DOT.” It also enhances the possibility of taking legal action against responsible parties under the Vehicle Safety Act, 49 U.S.C. 30115 or other applicable Federal or state laws. If the word “certified” were included on a label, those persons either producing, selling, or applying such misleading labels could not plausibly claim that “DOT” meant “Doing Our Thing” and not “Department of Transportation.” Their intent to mislead would be undeniable.

The NPRM proposes a minimum height for the lettering and numbering of .09 inch (.24 cm), but no limit on the choice of font. 20 To be consistent with the rest of the standard, NHTSA proposes using English and metric units for the height requirement rather than a minimum point font. 21 Nine hundredths of an inch (.24 cm) is the minimum height NHTSA currently requires for lettering on motor vehicle certification labels. 22 The agency is unaware of any need to change this size and believes it provides legibility for a law enforcement officer who has stopped a motorcycle rider and wishes to determine whether the rider is using a helmet certified to FMVSS No. 218.

While the requirement to place some of the information on the certification label would make it necessary to use a larger label, NHTSA believes that this would increase the cost of compliance only slightly. Currently, the only requirement for the certification label is that the “DOT” symbol be placed on it. Since the symbol has a required minimum size of 3/8 -inch (1 cm), that requirement effectively defines the minimum size of current labels. However, an examination of several certification labels  23 showed that they were somewhat larger due to the area around the lettering. Under the new requirements, some information currently placed on another label will be required to be placed on certification label, thereby increasing the size of the latter label. Depending on the length of the manufacturer's name (and/or brand name) and model, the labels could become substantially larger than their current size. However, we do not expect the increased size of the label to contribute substantially to the cost or difficulty of adding the water decal. Additionally, as we noted above, the manufacturer's name and model designation are already required to be marked on the helmet in an unspecified location under S5.6.1 of the standard. Thus, the cost of using a larger certification label should be offset by the opportunity to reduce the size of the separate label on which the information was previously placed.

The agency considered a variety of other alternatives when developing the proposals to upgrade the certification labeling requirements. 24 While we have not chosen to include these alternatives in the proposed regulatory text, we solicit public comment on whether any of them should be included in the final rule.

NHTSA also considered requiring manufacturers to sew the “DOT” symbol Into the motorcycle helmet chinstrap. Manufacturers that endorsed this approach in their responses to the survey suggested sewing a “DOT” symbol into the chinstrap every two to three inches. This task could be easily performed in the original helmet production. The sewn-in symbol would also be difficult for counterfeiters to falsify in the field because it would require removing the chinstrap from the helmet and then replacing it either by a stitching and/or riveting method. NHTSA has no indication that all motorcycle helmet chinstraps are riveted. However, several manufacturers indicated that they believe that riveting is the only method used to secure the chinstrap assembly to the helmet shell, regardless of whether or not the helmet complies with FMVSS No. 218.

Law enforcement officers, however, stated that they would have difficulty seeing a “DOT” symbol sewn into a motorcycle helmet chinstrap (if, for example, the “DOT” symbol were on the inside of strap or near the wearer's chin). Further, the sewn “DOT” symbol could make the chinstrap stiffer in the area of the stitching. Those areas might be more likely to slip under load if one of them were engaging the double D-rings. 25 Because of these possible problems, NHTSA tentatively concluded not to pursue this approach.

Another approach NHTSA considered was requiring manufacturers to mold a permanent “DOT” symbol into the motorcycle helmet shell during the manufacturing process. This would enhance compliance and enforcement actions against counterfeiters because a novelty helmet, in order to comply, the “DOT” symbol would have to be molded into the novelty helmet at the time of manufacture.

Several drawbacks, however, persuaded NHTSA to decide tentatively against the molding or embossing approach. First, NHTSA believes that this method might be too much of an economic burden for manufacturers. Second, NHTSA was concerned because the manufacturers said that sharp radii, which would exist at the interface between the molded surface of the shell and the raised or recessed letters of the “DOT” symbol, would cause production problems in the molding and finishing processes, leading to higher manufacturing costs. According to the manufacturers, the molding or embossing process would cause some helmets to be malformed, and raise scrappage rates from about 1 percent to about 5 percent for plastic constructed helmets, and from about 1 percent to 15 percent for fiberglass constructed helmets. Problems would likely range from purely aesthetic malformations to significant structural issues. Accordingly, NHTSA tentatively concluded that molding or embossing would not be a cost effective approach to prevent counterfeiting.

Using a hologram “DOT” symbol would make counterfeiting more difficult, and it would also permit each manufacturer to select its own design. A hologram would, however, be much more expensive than water decals or the “DOT” stickers currently being used. Based on its understanding of the market, NHTSA estimates that “DOT” holograms would cost manufacturers about 70 cents or more per helmet. NHTSA tentatively concluded that this approach could impose too much of an economic burden upon manufacturers, especially considering the fact that other effective methods to reduce counterfeiting are available that impose a lower burden on manufacturers.

The section of the current standard dealing with the placement of the certification label, S5.6.1(e), states that the label must be placed on the outer surface of the helmet, centered laterally with the horizontal centerline of the symbol, and located a minimum of 1 1/8 inches (2.9 cm) and a maximum of 1 3/8 inches (3.5 cm) from the bottom edge of the posterior portion of the helmet. NHTSA has found however, based on past investigations, that a substantial portion of helmets tested failed to comply with the requirements of S5.6.1(e). 26 The agency's review found that many of the non-compliant helmets have edge rolls, 27 and that the manufacturers of these helmets had placed the DOT symbol above the edge roll at a point that allowed complete label-to-shell contact. Further, the agency found that the helmets met all other labeling requirements.

NHTSA recognizes that, for these helmets, placing the label in the location required by the current standard (on the edge roll rather than on the flat surface above the edge roll) may make the “DOT” symbol non-permanent. In the past, NHTSA's policy in cases in which the label is placed in a location not permitted by S5.6.1, in order to avoid the edge roll and achieve complete label-to-shell contact, has been merely to tell the manufacturer to correct the problem in future production. However, in this rulemaking, NHTSA is proposing to adjust the standard to allow the placement of the label in a slightly wider range of locations. NHTSA believes that this will continue to require that manufacturers place the label in a location visible to law enforcement personnel, yet ensure that the label is permanently attached to the helmet.

Based upon the intent of the standard and the agency's analysis, NHTSA is proposing to increase the maximum distance from the edge of the helmet to the horizontal centerline of the label from 1 3/8 inches (3.5 cm) to 3 inches (7.6 cm), and lower the minimum distance from 1 1/8 inches (2.6 cm) to 1 inch (2.5 cm). In arriving at these values, NHTSA recognized that the intent in specifying the location of the “DOT” symbol in the standard was to ensure visibility of the label to law enforcement personnel, as well as making sure that the symbol is permanent. Therefore, NHTSA undertook an analysis to determine whether or not the maximum and minimum distances could be adjusted to allow additional flexibility with this portion of the standard without detriment to law enforcement efforts.

In order to determine the maximum and minimum distances from the edge of the helmet that a label could be placed and still remain visible, the agency analyzed a “worst case” helmet design. This design is a low profile helmet, where the rear area of the helmet has a minimal flat surface area to apply a label. The agency found that at distances above three inches (7.6 cm) from the edge of the worst case helmet, the visibility of the symbol began to be reduced due to the curvature of the helmet. Similarly, the agency found that the “DOT” symbol could be lowered to a minimum of one inch (2.5 cm) from the edge and still be visible to law enforcement personnel, whereas distances below one inch resulted in obscured visibility. Based on these examinations, the agency tentatively determined that allowing a minimum distance of one inch and a maximum of three inches from the bottom edge of the helmet will provide motorcycle helmet manufacturers with the flexibility to place the “DOT” symbol at a location that ensures complete label-to-shell contact on the back of the motorcycle helmet, while keeping the symbol in a location to facilitate law enforcement.

NHTSA is also proposing to amend FMVSS No. 218 S5.6.1(c) to read “Discrete size or discrete size range” instead of “Size.” The reason for this is to eliminate enforcement problems that arise when helmets are labeled only with a generic size specification (e.g., Small, Medium, or Large). Enforceability problems can arise because while S6.1 specifies which headform is used to test helmets with a particular “designated discrete size or size range,”  28 a helmet's generic size may not correspond to the same size ranges that the agency uses to determine which headform to use for testing. To ensure that this issue does not cause problems in the future, the agency is proposing to require the label to specify the “discrete size” of the helmet. The agency is further proposing to define “discrete size” as meaning “a numerical value that corresponds to the diameter of an equivalent (+/−.25 inch or +/−.64 cm) circle.” These minor revisions should result in little to no added cost to the manufacturers since a size label is already required by the standard. Further, these revisions would not preclude manufacturers from continuing also to include generic size labels on their helmets if they wish to do so.

When we make a finding that a petition presents substantial information to indicate that listing, delisting, or reclassifying a species may be warranted, we are required to promptly commence a review of the status of the species. To ensure that the status review is complete and based on the best available scientific and commercial information, we are soliciting information concerning the status of the marbled murrelet. We request information from the public, other concerned governmental agencies, Native American tribes, the scientific community, agricultural and forestry groups, conservation groups, industry, or any other interested parties concerning the status of the marbled murrelet, including but not limited to information on:

(1) Discreteness and significance of the marbled murrelet in California, Oregon, and Washington in light of our distinct population segment (DPS) policy (61 FR 4722; February 7, 1996).

(2) Discreteness, significance, and status of other portions of the marbled murrelet's range.

(3) Differences or similarities in regulatory protection for marbled murrelets in the United States and Canada.

(4) The status, distribution, or population trends of the marbled murrelet throughout all or significant portions of its range.

(5) Ongoing conservation measures for the species and its habitat.

(6) Threats to the marbled murrelet and its habitat throughout all or a significant portion of its range.

Please note that submissions merely stating support for or opposition to the action under consideration without providing supporting information, although noted, will not be considered in making a determination, as section 4(b)(1)(A) of the Act (16 U.S.C. 1531 et seq. ) directs that a determination as to whether any species is a threatened or endangered species must be made “solely on the basis of the best scientific and commercial data available.” At the conclusion of the status review, we will issue the 12-month finding on the petition, as provided in section 4(b)(3)(B) of the Act. We will base our 12-month finding on a review of the best scientific and commercial data available, including all relevant information received in response to this 90-day finding. Concurrent with our 12-month finding, we may also propose changes to the status of the marbled murrelet rangewide, within DPSs, or within significant portions of its range.

You may submit your information concerning this finding by one of the methods listed in the ADDRESSES section. We will not consider submissions sent by e-mail or fax, or to an address not listed in the ADDRESSES section.

If you submit information via http://www.regulations.gov , your entire submission—including your personal identifying information—will be posted on the Web site. If your submission is made via hardcopy that includes personal identifying information, you may request at the top of your document that we withhold this information from public review. However, we cannot guarantee that we will be able to do so. We will post all hardcopy submissions on http://www.regulations.gov .

Information and materials we receive, as well as supporting documentation we used in preparing this finding, will be available for public inspection on http://www.regulations.gov , or by appointment, during normal business hours, at the U.S. Fish and Wildlife Service, Western Washington Fish and Wildlife Office (see FOR FURTHER INFORMATION CONTACT ).

Section 4(b)(3)(A) of the Act requires that we make a finding on whether a petition to list, delist, or reclassify a species presents substantial scientific or commercial information indicating that the petitioned action may be warranted. We are to base this finding on information provided in the petition, supporting information submitted with the petition, and information otherwise available in our files at the time we make the determination. To the maximum extent practicable, we are to make this finding within 90 days of our receipt of the petition and publish our notice of the finding promptly in the Federal Register .

Our process for making a 90-day finding under section 4(b)(3)(A) of the Act and our regulations in the Code of Federal Regulations (CFR) at 50 CFR 424.14(b) is limited to a determination of whether the information in a petition meets the “substantial scientific or commercial information” threshold. Our regulations provide a standard for determining what constitutes substantial information with regard to a 90-day petition finding: “that amount of information that would lead a reasonable person to believe that the measure proposed in the petition may be warranted” (50 CFR 424.14(b)). In making this finding, we consider whether the petition: (1) Clearly indicates the administrative action recommended; (2) contains a detailed narrative justification for the recommended measure, describing, based on available information, past and present numbers and distribution of the species and any threats faced by the species; (3) provides information regarding the status of the species over all or a significant portion of its range; and (4) is accompanied by appropriate supporting documentation in the form of bibliographic references, reprints of pertinent publications, copies of reports or letters from authorities, and maps (50 CFR 424.14(b)(2)). If we find that the petition presents substantial scientific or commercial information, we are required to promptly commence a review of the status of the species and publish the results of that status review in a 12-month finding.

The factors for listing, delisting, or reclassifying species are described at 50 CFR 424.11. We may delist a species only if the best scientific and commercial data available substantiate that it is neither endangered nor threatened. Delisting may be warranted as a result of: (1) Extinction; (2) recovery; or (3) a determination that the original data used for classification of the species as endangered or threatened were in error.

On May 28, 2008, we received a petition from the American Forest Resource Council; the Carpenters Industrial Council of Douglas County, Oregon; and Ron Stuntzner requesting that we delist the California/Oregon/Washington distinct population segment (DPS) of marbled murrelet ( Brachyramphus marmoratus ). The petition clearly identified itself as a petition and included the identification information for the petitioners, as required in 50 CFR 424.14(a). The petitioners claim that the currently listed entity (the marbled murrelet in California, Oregon, and Washington) is not a discrete entity based on biological considerations or differences in regulatory mechanisms across an international boundary, and therefore is not listable as a DPS under the Act. In support of their petition they cite the Service's 5-year review of the marbled murrelet (USFWS 2004; available at: http://www.fws.gov/pacific/ecoservices/endangered/recovery/5yearcomplete.html ), which found that the currently listed population of the marbled murrelet was not discrete. The petitioners also cite information contained in a U.S. Geological Survey (USGS) report commissioned by the Service on the status and trends of the marbled murrelet in Alaska and British Columbia (Piatt et al. 2007). The USGS report also included information on the marbled murrelet in California, Oregon, and Washington.

In response to the May 28, 2008, petition, we sent a letter to the petitioners dated June 11, 2008, acknowledging receipt of the petition. This notice constitutes our 90-day finding on the May 28, 2008, petition to delist the California/Oregon/Washington DPS of the marbled murrelet.

The marbled murrelet is a small seabird of the Alcidae family. The species' breeding range extends from Bristol Bay, Alaska, south to northern Monterey Bay in central California. Birds winter throughout the breeding range (McShane et al. 2004, pp. 3-7) and also occur in small numbers off the coast of southern California (McShane et al. 2004, pp. 3-12).

Marbled murrelets spend most of their lives in the marine environment; however, they have been found occasionally on rivers and inland lakes (Carter and Sealy 1986, p. 473). In addition to foraging, marbled murrelets also aggregate, sleep, preen, and copulate on the water.

Throughout the forested portion of their breeding range, marbled murrelet nesting habitat use is positively associated with the presence and abundance of mature and old-growth forests, large core areas of old-growth, low amounts of edge and fragmentation, proximity to the marine environment, and increasing forest age and height (McShane et al. 2004, pp. 4-39; Binford et al. 1975, pp. 315-316; Hamer and Nelson 1995, pp. 72-75; Ralph et al. 1995, p. 4). In the northern portion of their breeding range (Alaska, British Columbia, and Washington) some marbled murrelets lay their eggs on bare talus slopes or mossy cliff edges (Piatt et al. 2007, p. 2; DeGrange 1996, pp. 21-30; Bradley and Cooke 2001, p. 53; Bloxton and Raphael 2008, p. 7).

Additional information on the biology and distribution of the marbled murrelet within the continental United States is available in the original listing document (57 FR 45328; October 1, 1992) and in our 5-year status review (USFWS 2004) (both available online at http://ecos.fws.gov/speciesProfile/SpeciesReport.do?spcode=B08C ). Information commissioned by the Service on the status and trends of the species in Alaska and British Columbia (Piatt et al. 2007) is available online from the U.S. Geological Survey at http://pubs.usgs.gov/of/2006/1387/pdf/ofr20061387.pdf .

Section 3(15) of the Act defines a “species” to include “* * * any subspecies of fish or wildlife or plants, and any distinct population segment of any species of vertebrate fish or wildlife which interbreeds when mature.” The National Marine Fisheries Service (NMFS) and the Service published a joint policy defining the phrase “distinct population segment” on February 7, 1996 (61 FR 4722) (referred to as “DPS policy” in the remainder of this document). According to the DPS policy, two elements must be satisfied in order for a population segment to qualify as a DPS: discreteness of the population segment in relation to the remainder of the species and significance of the population segment to the species. If a population segment qualifies as a DPS, the conservation status of that DPS is evaluated to determine whether it is threatened or endangered.

A population segment of a vertebrate species may be considered discrete if it satisfies either one of the following conditions: (1) It is markedly separated from other populations of the same taxon as a consequence of physical, physiological, ecological, or behavioral factors; or (2) it is delimited by international governmental boundaries within which differences in control of exploitation, management of habitat, conservation status, or regulatory mechanisms exist that are significant in light of section 4(a)(1)(D) of the Act.

If a population is found to be discrete then it is evaluated for significance under the DPS policy on the basis of its importance to the taxon to which it belongs. This consideration may include, but is not limited to, the following: (1) Persistence of the discrete population segment in an ecological setting unusual or unique to the taxon, (2) evidence that loss of the discrete population segment would result in a significant gap in the range of a taxon, (3) evidence that the population represents the only surviving natural occurrence of a taxon that may be more abundant elsewhere as an introduced population outside of its historical range, or (4) evidence that the population differs markedly from other populations of the species in its genetic characteristics.

If a population segment is discrete and significant (i.e., it is a DPS) its evaluation for endangered or threatened status is based on the Act's definitions of those terms and a review of the factors listed in section 4(a) of the Act. According to our DPS policy, it may be appropriate to assign different classifications to different DPSs of the same vertebrate taxon.

We have reviewed the petition and literature cited in the petition, and evaluated that information to determine whether the sources cited support the claims made in the petition. We also reviewed reliable information that was readily available in our files to clarify and verify information in the petition. Based on our evaluation of the information and the criteria specified in 50 CFR 424.14(b)(2), we find the petition presents substantial information indicating that the California, Oregon, and Washington population of the marbled murrelet may not be discrete, and therefore may not meet the criteria for a DPS. As such, we find that the petitioned action may be warranted. The petitioners have essentially reiterated the Service's own conclusion based on our 5-year review; thus we agree that a status review is warranted.

The Service completed a 5-year review of the marbled murrelet's status under the Act on September 1, 2004. That review found that the currently listed entity did not satisfy the discreteness prong of the DPS policy, and therefore was not a valid DPS. The review based this conclusion on data indicating there were no marked physical, physiological, ecological, or behavioral differences at the international border, and a determination that there were no significant differences between the legal protection provided to the species under Canada's Species at Risk Act and that provided under the Endangered Species Act in the United States.

The Service now believes that the discreteness analysis in the 5-year review was flawed, because it compared current levels of legal protection across the international border, rather than levels of protection that would exist if the marbled murrelet were not listed in the United States. The Service believes that the latter approach is more rational in the context of a 5-year review, because it analyzes discreteness in the same manner as the Service would in an initial listing determination. Nonetheless, because the 2004 5-year review did conclude that the population was not a valid DPS, and because the Service has not formally revisited that conclusion since then, a reasonable person could conclude that the petitioned action may be warranted.

It is important to note that the “substantial information” standard for a 90-day finding is in contrast to the Act's “best scientific and commercial data” standard that applies to a 12-month finding as to whether a petitioned action is warranted. A 90-day finding is not a status assessment of the species and does not constitute a status review under the Act. Our final determination as to whether a petitioned action is warranted is not made until we have completed a thorough status review of the species, which is conducted following a 90-day finding that finds that a petition presents substantial scientific or commercial information indicating that the petitioned action may be warranted (“substantial 90-day finding”). Because the Act's standards for 90-day and 12-month findings are different, as described above, a substantial 90-day finding does not necessarily mean that the 12-month finding will find that the petitioned action is warranted.

With this substantial 90-day finding we are initiating a rangewide status review of the species, and, once it is completed, we will make a finding on whether delisting the California, Oregon, and Washington population of the marbled murrelet is warranted. Our status review will also consider whether alternative DPS configurations are warranted or whether any additional changes to the status of the species throughout its range or within significant portions of the species' range are warranted.

Because our next 5-year status review will be due around the time our 12-month finding is due, and because the 12-month finding and 5-year status review serve a similar purpose (i.e., to determine the appropriate classification of a species under the Act), the results of our 12-month finding will be adopted for our 5-year status review.

This finding fulfills the Service's obligation under 16 U.S.C. 1533(b)(3)(A) and its implementing regulations at 50 CFR 424.14(b). It also fulfills our obligation to publish a notice in the Federal Register announcing our active review of the status of the marbled murrelet in accordance with 50 CFR 424.21.

A complete list of all references cited is available upon request from the Western Washington Fish and Wildlife Office (see FOR FURTHER INFORMATION CONTACT above).

The primary authors of this document are staff members of the Western Washington Fish and Wildlife Office (see FOR FURTHER INFORMATION CONTACT above).