57314 Federal Register / Vol. 73, No. 192 / Thursday, October 2, 2008 / Proposed Rules 

(1) The symbol ‘‘DOT’’, horizontally 

centered on the label, in letters at 

least.38 inch (1.0 cm) high. 

(2) The word ‘‘CERTIFIED,’’ 

horizontally centered beneath the 

symbol DOT, in letters at least .09 

inches (.23 cm) high. 

(3) The manufacturer’s name and/or 

brand, horizontally centered above the 

symbol DOT, in letters and/or numerals 

at least .09 inch (.23 cm) high. 

(4) The precise model designation, 

horizontally centered above the symbol 

DOT, in letters and/or numerals at least 

.09 inch (.23 cm) high. 

(5) All symbols, letters and numerals 

shall be in a color that contrasts with 

the background of the label. 

(b) Other information. No 

information, other than the information 

specified in subparagraph (a), shall 

appear on the label. 

(c) Location. The label shall appear on 

the outer surface of the helmet and be 

placed so that it is centered laterally 

with the horizontal centerline of the 

DOT symbol located a minimum of 1 

inch (2.5 cm) and a maximum of 3 

inches (7.6 cm) from the bottom edge of 

the posterior portion of the helmet. 

(d) Clear coating. Clear coating shall 

cover the label, including all of the 

required content, and the outer surface 

of the helmet. 

* * * * * 

S6.4.1 Immediately before 

conducting the testing sequence 

specified in S7, condition each test 

helmet in accordance with any one of 

the following procedures: 

(a) Ambient conditions. Expose to 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 a 

minimum of 12 hours. 

(b) Low temperature. Expose to any 

temperature from 5 °F to and including 

23 °F (from ¥15 °C to and including ¥5 

°C) for a minimum of 12 hours. 

(c) High temperature. Expose to any 

temperature from 113 °F to and 

including 131 °F (from 45 °C to and 

including 55 °C) for a minimum of 12 

hours. 

(d) Water immersion. Immerse in 

water at any temperature from 61 °F to 

and including 79 °F (from 16 °C to and 

including 26 °C) for a minimum of 12 

hours. 

* * * * * 

S7.1.2 Each helmet is impacted at 

four sites with two successive impacts 

at each site. For each site, the location 

where the helmet contacts the center of 

the anvil on the second impact shall not 

be greater than .075 inch (1.9 cm) from 

the location where the helmet contacts 

the center of the anvil on the first 

impact. Two of these sites are impacted 

upon a flat steel anvil and two upon a 

hemispherical steel anvil as specified in 

S7.1.10 and S7.1.11. The impact sites 

are at any point on the area above the 

test line described in paragraph S6.2.3, 

and separated by a distance not less 

than one-sixth of the maximum 

circumference of the helmet in the test 

area. 

* * * * * 

S7.1.4(a) The guided free fall drop 

height for the helmet and test headform 

combination onto the hemispherical 

anvil shall be such that the impact 

speed is any speed from 15.7 ft/s to and 

including 18.4 ft/s (from 4.8 m/s to and 

including 5.6 m/s). 

(b) The guided free fall drop height for 

the helmet and test headform 

combination onto the flat anvil shall be 

such that the impact speed is 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). 

* * * * * 

S7.1.9 The acceleration transducer is 

mounted at the center of gravity of the 

test headform with the sensitive axis 

aligned to within 5° of vertical when the 

test headform assembly is in the data 

impact position. The acceleration data 

channel complies with the SAE 

recommended practice J211 MAR 95, 

‘‘Instrumentation for Impact Test—Part 

1—Electronic Instrumentation.’’ 

* * * * * 

S7.3.1 The retention system test is 

conducted by applying a quasi-static 

tensile load at any rate from 0.4 to and 

including 1.2 inch/min (from 1.0 to and 

including 3.0 cm/min) to the retention 

assembly of a complete helmet, which is 

mounted, as described in S6.3, on a 

stationary test headform as shown in 

Figure 4, and by measuring the 

movement of the adjustable portion of 

the retention system test device under 

tension. 

S7.3.2 The retention system test 

device consists of both an adjustable 

loading mechanism by which a quasistatic tensile load is applied at any rate 

from 0.4 to and including 1.2 inch/min 

(from 1.0 to and including 3.0 cm/min) 

to the helmet retention assembly and a 

means for holding the test headform and 

helmet stationary. The retention 

assembly is fasted around two freely 

moving rollers, both of which have a 0.5 

inch (1.3 cm) diameter and a 3-inch (7.6 

cm) center-to-center separation, and 

which are mounted on the adjustable 

portion of the tensile loading device 

(Figure 4). The helmet is fixed on the 

test headform as necessary to ensure 

that it does not move during the 

application of the test loads to retention 

assembly. 

* * * * * 

Issued: September 26, 2008. 

Stephen R. Kratzke, 

Associate Administrator for Rulemaking. 

[FR Doc. E8–23187 Filed 9–29–08; 11:15 am] 

BILLING CODE 4910–59–P 

DEPARTMENT OF THE INTERIOR 

Fish and Wildlife Service 

50 CFR Part 17 

[FWS–R1–ES–2008–0095; 92220–1113– 

0000–C5] 

Endangered and Threatened Wildlife 

and Plants; 90-Day Finding on a 

Petition To Remove the California, 

Oregon, and Washington Population of 

the Marbled Murrelet (Brachyramphus 

marmoratus) From the List of 

Endangered and Threatened Wildlife 

AGENCY: Fish and Wildlife Service, 

Interior. 

ACTION: Notice of 90-day petition 

finding and initiation of status review. 

SUMMARY: We, the U.S. Fish and 

Wildlife Service (Service), announce a 

90-day finding on a petition to remove 

the California, Oregon, and Washington 

population of the marbled murrelet 

(Brachyramphus marmoratus) from the 

Federal List of Endangered and 

Threatened Wildlife (List) under the 

Endangered Species Act of 1973, as 

amended (Act). We find that the petition 

presents substantial information 

indicating that the petitioned action 

may be warranted. Therefore, with the 

publication of this notice, we are 

initiating a status review of the marbled 

murrelet, which will also serve as our 

5-year status review for the species. 

Concurrent with making our 12-month 

finding on the petition and conducting 

a 5-year status review, we intend to 

review the rangewide status of the 

species, and if necessary, the 

configuration and status of any distinct 

population segments. To ensure a 

comprehensive review, we are soliciting 

scientific and commercial data and 

other information on the marbled 

murrelet relevant to its listing status 

under the Act. At the conclusion of our 

status review, we will issue a 12-month 

finding on the petition. 

DATES: We made the finding announced 

in this document on October 2, 2008. To 

allow us adequate time to conduct this 

review, we request that we receive 

information on or before December 1, 

2008. 

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Federal Register / Vol. 73, No. 192 / Thursday, October 2, 2008 / Proposed Rules 57315 

ADDRESSES: You may submit 

information by one of the following 

methods: 

• Federal eRulemaking Portal: http:// 

www.regulations.gov. Follow the 

instructions for submitting comments. 

• U.S. mail or hand-delivery: Public 

Comments Processing, Attn: FWS–R1– 

ES–2008–0095, Division of Policy and 

Directives Management, U.S. Fish and 

Wildlife Service, 4401 N. Fairfax Drive, 

Suite 222, Arlington, VA 22203. 

We will not accept e-mail or faxes. We 

will post all information received at 

http://www.regulations.gov. This 

generally means that we will post any 

personal information you provide us 

(see the Information Solicited section 

below for more details). 

FOR FURTHER INFORMATION CONTACT: Ken 

Berg, Manager, Western Washington 

Fish and Wildlife Office, U.S. Fish and 

Wildlife Service, 510 Desmond Drive 

SE., Suite 102, Lacey, WA 98503; 

telephone 360–753–6039; facsimile at 

360–753–9405. Persons who use a 

telecommunications device for the deaf 

(TDD) may call the Federal Information 

Relay Service at 800–877–8339. 

SUPPLEMENTARY INFORMATION: 

Information Solicited 

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). 

Background 

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. 

Petition 

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 

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57316 Federal Register / Vol. 73, No. 192 / Thursday, October 2, 2008 / Proposed Rules 

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. 

Species Information 

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. 

Distinct Population Segment Policy 

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. 

Finding 

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 

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Federal Register / Vol. 73, No. 192 / Thursday, October 2, 2008 / Proposed Rules 57317 

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. 

References Cited 

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). 

Author 

The primary authors of this document 

are staff members of the Western 

Washington Fish and Wildlife Office 

(see FOR FURTHER INFORMATION CONTACT

above). 

Authority: The authority for this action is 

the Endangered Species Act of 1973, as 

amended (16 U.S.C. 1531 et seq.). 

Dated: September 15, 2008. 

H. Dale Hall, 

Director, Fish and Wildlife Service. 

[FR Doc. E8–22735 Filed 10–1–08; 8:45 am] 

BILLING CODE 4310–55–P 

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