5726 Federal Register / Vol. 74, No. 19 / Friday, January 30, 2009 / Notices 

single body of uniform Federal 

regulations promotes safety (including 

security) in the transportation of 

hazardous materials. More than thirty 

years ago, when it was considering the 

HMTA, the Senate Commerce 

Committee ‘‘endorse[d] the principle of 

preemption in order to preclude a 

multiplicity of State and local 

regulations and the potential for varying 

as well as conflicting regulations in the 

area of hazardous materials 

transportation.’’ S. Rep. No. 1102, 93rd 

Cong. 2nd Sess. 37 (1974). When 

Congress expanded the preemption 

provisions in 1990, it specifically found: 

(3) Many States and localities have enacted 

laws and regulations which vary from 

Federal laws and regulations pertaining to 

the transportation of hazardous materials, 

thereby creating the potential for 

unreasonable hazards in other jurisdictions 

and confounding shippers and carriers which 

attempt to comply with multiple and 

conflicting registration, permitting, routing, 

notification, and other regulatory 

requirements, 

(4) Because of the potential risks to life, 

property, and the environment posed by 

unintentional releases of hazardous 

materials, consistency in laws and 

regulations governing the transportation of 

hazardous materials is necessary and 

desirable, 

(5) In order to achieve greater uniformity 

and to promote the public health, welfare, 

and safety at all levels, Federal standards for 

regulating the transportation of hazardous 

materials in intrastate, interstate, and foreign 

commerce are necessary and desirable. 

Public Law 101–615 § 2, 104 Stat. 

3244. (In 1994, Congress revised, 

codified and enacted the HMTA 

‘‘without substantive change,’’ at 49 

U.S.C. Chapter 51. Pub. L. 103–272, 108 

Stat. 745 (July 5, 1994).) A United States 

Court of Appeals has found uniformity 

was the ‘‘linchpin’’ in the design of the 

Federal laws governing the 

transportation of hazardous materials. 

Colorado Pub. Util. Comm’n v. Harmon, 

951 F.2d 1571, 1575 (10th Cir. 1991). 

III. Preemption Determinations 

Under 49 U.S.C. 5125(d)(1), any 

person (including a State, political 

subdivision of a State, or Indian tribe) 

directly affected by a requirement of a 

State, political subdivision or tribe may 

apply to the Secretary of Transportation 

for a determination whether the 

requirement is preempted. The 

Secretary of Transportation has 

delegated authority to PHMSA to make 

determinations of preemption, except 

for those concerning highway routing 

(which have been delegated to the 

Federal Motor Carrier Safety 

Administration). 49 CFR 1.53(b). 

Section 5125(d)(1) requires notice of 

an application for a preemption 

determination to be published in the 

Federal Register. Following the receipt 

and consideration of written comments, 

PHMSA publishes its determination in 

the Federal Register. See 49 CFR 

107.209(c). A short period of time is 

allowed for filing of petitions for 

reconsideration. 49 CFR 107.211. A 

petition for judicial review of a final 

preemption determination must be filed 

in the United States Court of Appeals 

for the District of Columbia or in the 

Court of Appeals for the United States 

for the circuit in which the petitioner 

resides or has its principal place of 

business, within 60 days after the 

determination becomes final. 49 U.S.C. 

5127(a). 

Preemption determinations do not 

address issues of preemption arising 

under the Commerce Clause, the Fifth 

Amendment or other provisions of the 

Constitution, or statutes other than the 

Federal hazardous material 

transportation law unless it is necessary 

to do so in order to determine whether 

a requirement is authorized by another 

Federal law, or whether a fee is ‘‘fair’’ 

within the meaning of 49 U.S.C. 

5125(f)(1). A state, local or Indian tribe 

requirement is not authorized by 

another Federal law merely because it is 

not preempted by another Federal 

statute. Colorado Pub. Util. Comm’n v. 

Harmon, above, 951 F.2d at 1581 n.10. 

In making preemption determinations 

under 49 U.S.C. 5125(d), PHMSA is 

guided by the principles and policies set 

forth in Executive Order No. 13132, 

entitled ‘‘Federalism.’’ 64 FR 43255 

(Aug. 10, 1999). Section 4(a) of that 

Executive Order authorizes preemption 

of State laws only when a statute 

contains an express preemption 

provision, there is other clear evidence 

Congress intended to preempt state law, 

or the exercise of state authority directly 

conflicts with the exercise of Federal 

authority. Section 5125 contains express 

preemption provisions, which PHMSA 

has implemented through its 

regulations. 

IV. Public Comments 

All comments should be directed to 

whether 49 U.S.C. 5125 preempts the 

Elders’ common law tort claims against 

AMTROL, Inc. in their lawsuit in the 

Circuit Court of the City of St. Louis, 

Missouri and in the claims filed in the 

United States Bankruptcy Court for the 

District of Delaware. Comments should 

specifically address the preemption 

criteria discussed in Part II above, 

including: 

(1) The meaning of a State 

‘‘requirement’’ in 49 U.S.C. 5125 and 

whether that term must be construed to 

include State common law tort claims, 

in light of the Supreme Court’s holding 

in Riegel v. Medtronic, ll U.S. ll, 

128 S.Ct. 999, 1007 (2008), ‘‘that 

common-law causes of action for 

negligence and strict liability do impose 

‘requirement[s].’ ’’ 

(2) Whether common law tort claims 

relating to the design and marking or 

labeling of a DOT specification 39 

cylinder by the cylinder’s manufacturer 

are ‘‘about’’ the designing, 

manufacturing, or marking of ‘‘a 

package, container, or packaging 

component that is represented, marked, 

certified, or sold as qualified for use in 

transporting hazardous material in 

commerce.’’ 

(3) Whether and how common law 

tort claims relating to the design and 

marking or labeling of a DOT 

specification 39 cylinder by the 

cylinder’s manufacturer affect 

transportation of the cylinder when 

filled with a compressed gas. 

(4) The manner in which the Elders’ 

decedent was using the DOT 

specification 39 cylinder which 

ruptured, including (a) the identity of 

the owner of this cylinder; (b) the date 

on which this cylinder was last refilled 

and who refilled it; and (c) whether this 

cylinder was permanently located at the 

site of the rupture or whether the 

decedent had transported this cylinder 

to the location where he was ‘‘preparing 

to use the cylinder to fill a refrigerator 

with coolant,’’ according to the April 1, 

2008 memorandum opinion of the 

Bankruptcy Court. 

Issued in Washington, DC, on January 15, 

2009. 

David E. Kunz, 

Chief Counsel. 

[FR Doc. E9–1993 Filed 1–29–09; 8:45 am] 

BILLING CODE 4910–60–P 

DEPARTMENT OF TRANSPORTATION 

Surface Transportation Board 

[STB Finance Docket No. 35214] 

Shawnee Terminal Railroad Co.— 

Corporate Family Exemption— 

Alabama Railroad Co., and Alabama & 

Florida Railway Co., Inc 

Shawnee Terminal Railroad Co. 

(STR), Alabama Railroad Co. (ALAB), 

and Alabama & Florida Railway Co., Inc. 

(A&F), have jointly filed a verified 

notice of exemption under 49 CFR 

1180.2(d)(3) for a transaction within a 

corporate family. The transaction 

involves the consolidation of ALAB, 

A&F, and STR, with STR as the 

surviving corporate entity. Under an 

agreement and plan of consolidation, 

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Federal Register / Vol. 74, No. 19 / Friday, January 30, 2009 / Notices 5727 

STR will own all of the assets of ALAB 

and A&F, and STR will be responsible 

for all debts, liabilities, and obligations 

of ALAB and A&F. 

The transaction is expected to be 

consummated on or after February 15, 

2009 (30 days after the exemption was 

filed). 

STR, ALAB, and A&F are affiliated 

Class III rail carriers, all of which are 

controlled by noncarrier holding 

company, Pioneer Railcorp (Pioneer). 

STR operates approximately 2.5 miles of 

rail line in Illinois. ALAB operates 

approximately 60 miles of rail line in 

Alabama. A&F operates approximately 

43 miles of rail line in Alabama. 

The purpose of the transaction is to 

simplify Pioneer’s corporate structure 

and reduce overhead costs and 

duplication by eliminating two 

corporations while retaining the same 

assets to serve customers. The 

transaction will also streamline 

accounting functions within the Pioneer 

corporate family. Although ALAB and 

A&F will cease to exist as separate 

corporate entities, STR will operate the 

respective rail properties under the 

trade name the Alabama Railroad, while 

retaining the ALAB and A&F reporting 

marks assigned by the Association of 

American Railroads. 

This is a transaction within a 

corporate family of the type exempted 

from prior review and approval under 

49 CFR 1180.2(d)(3). The parties state 

that the transaction will not result in 

adverse changes in service levels, 

significant operational changes, or 

changes in the competitive balance with 

carriers outside the Pioneer corporate 

family. 

Under 49 U.S.C. 10502(g), the Board 

may not use its exemption authority to 

relieve a rail carrier of its statutory 

obligation to protect the interests of is 

employees. Section 11326(c), however, 

does not provide for labor protection for 

transactions under sections 11324 and 

11325 that involve only Class III rail 

carriers. Accordingly, the Board may not 

impose labor protective conditions here, 

because all of the carriers involved are 

Class III rail carriers. 

If the notice contains false or 

misleading information, the exemption 

is void ab initio. Petitions to revoke the 

exemption under 49 U.S.C. 10502(d) 

may be filed at any time. The filing of 

a petition to revoke will not 

automatically stay the transaction. 

Petitions for stay will be due no later 

than February 6, 2009 (at least 7 days 

before the effective date of the 

exemption). 

An original and 10 copies of all 

pleadings, referring to STB Finance 

Docket No. 35214, must be filed with 

the Surface Transportation Board, 395 E 

Street, SW., Washington, DC 20423– 

0001. In addition, one copy of each 

pleading must be served on applicants’ 

representatives, Robert A. Wimbish, 

2401 Pennsylvania Ave., NW., Suite 

300, Washington, DC 20037, and Daniel 

A. LaKemper, 1318 S. Johanson Road, 

Peoria, IL 61607. 

Board decisions and notices are 

available on our Web site at http:// 

www.stb.dot.gov. 

Decided: January 22, 2009. 

By the Board, David M. Konschnik, 

Director, Office of Proceedings. 

Jeffrey Herzig, 

Clearance Clerk. 

[FR Doc. E9–1843 Filed 1–29–09; 8:45 am] 

BILLING CODE 4915–01–P 

DEPARTMENT OF TRANSPORTATION 

Surface Transportation Board 

[STB Ex Parte No. 646 (Sub–No. 2)] 

Simplified Standards for Rail Rate 

Cases—Taxes in Revenue Shortfall 

Allocation Method 

AGENCY: Surface Transportation Board. 

ACTION: Notice of decision. 

SUMMARY: By a decision served on 

January 30, 2009, the Board directed the 

Association of American Railroads 

(AAR), and permitted other parties, to 

file supplemental evidence so that the 

Board has a full record on which to base 

its methodology to calculate a railroadspecific average state tax rate for use in 

the Revenue Shortfall Allocation 

Method (RSAM). 

DATES: AAR is directed to file 

supplemental evidence by February 19, 

2009. Any interested person may reply 

by March 11, 2009. AAR’s rebuttal is 

due March 25, 2009. 

FOR FURTHER INFORMATION CONTACT: 

Timothy J. Strafford, (202) 245–0356. 

[Assistance for the hearing impaired is 

available through the Federal 

Information Relay Service (FIRS) at 1– 

800–877–8339.] 

SUPPLEMENTARY INFORMATION: The Board 

recently found that the failure to 

include state and federal taxes in RSAM 

calculations was material error. The 

Board concluded that the use of the 

statutory federal tax rate, combined with 

a railroad-specific weighted average 

state tax rate, best approximated the 

marginal taxes that the carrier would 

pay on the incremental revenue 

hypothesized by RSAM. 

The decision served on January 30, 

2009, directed AAR to submit the 

evidence and calculations necessary to 

establish carrier-specific average state 

tax rates for each Class I railroad, 

including state corporate income tax 

rates and the number of miles operated 

by each carrier in each state it operates 

in for each of the years 2002–2007, by 

February 19, 2009. Any interested 

person may reply by March 11, 2009. 

AAR’s rebuttal is due March 25, 2009. 

Once there is resolution to any disputes 

over how to calculate the carrierspecific state tax rates, the Board will 

publish the new RSAM figures. 

Additional information is contained 

in the Board’s decision. A copy of the 

Board’s decision is available for 

inspection or copying at the Board’s 

Public Docket Room, Room 131, 395 E 

Street, SW., Washington, DC 20423– 

0001, and is posted on the Board’s Web 

site, http://www.stb.dot.gov. 

This action will not significantly 

affect either the quality of the human 

environment or the conservation of 

energy resources. 

Decided: January 23, 2008. 

By the Board, Chairman Nottingham, Vice 

Chairman Mulvey, and Commissioner 

Buttrey. 

Jeffrey Herzig, 

Clearance Clerk. 

[FR Doc. E9–2056 Filed 1–29–09; 8:45 am] 

BILLING CODE 4915–01–P 

DEPARTMENT OF VETERANS 

AFFAIRS 

[OMB Control No. 2900–0074] 

Agency Information Collection 

(Request for Change of Program or 

Place of Training) Activities Under 

OMB Review 

AGENCY: Veterans Benefits 

Administration, Department of Veterans 

Affairs. 

ACTION: Notice. 

SUMMARY: In compliance with the 

Paperwork Reduction Act (PRA) of 1995 

(44 U.S.C. 3501–3521), this notice 

announces that the Veterans Benefits 

Administration (VBA), Department of 

Veterans Affairs, will submit the 

collection of information abstracted 

below to the Office of Management and 

Budget (OMB) for review and comment. 

The PRA submission describes the 

nature of the information collection and 

its expected cost and burden; it includes 

the actual data collection instrument. 

DATE: Comments must be submitted on 

or before March 2, 2009. 

ADDRESSES: Submit written comments 

on the collection of information through 

http://www.Regulations.gov or to VA’s 

OMB Desk Officer, OMB Human 

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