Federal Register / Vol. 74, No. 19 / Friday, January 30, 2009 / Notices 5723 

Intended Use: ‘‘Carrying up to 6 

passengers, sailing instruction, and 

advertising on sails & hull.’’ 

Geographic Region: ‘‘New York 

Harbor, Hudson and East Rivers, and 

sailing areas in close proximity.’’ 

Privacy Act 

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). 

Dated: January 22, 2009. 

By Order of the Maritime Administrator. 

Leonard Sutter, 

Secretary, Maritime Administration. 

[FR Doc. E9–1992 Filed 1–29–09; 8:45 am] 

BILLING CODE 4910–81–P 

DEPARTMENT OF TRANSPORTATION 

Pipeline and Hazardous Materials 

Safety Administration 

[Docket No. PHMSA–2009–0017 (PDA– 

34(R)] 

Common Law Tort Claims Concerning 

Design and Marking of DOT 

Specification 39 Compressed Gas 

Cylinders 

AGENCY: Pipeline and Hazardous 

Materials Safety Administration 

(PHMSA), DOT. 

ACTION: Public notice and invitation to 

comment. 

SUMMARY: Interested parties are invited 

to comment on an application by 

AMTROL, Inc., for an administrative 

determination as to whether Federal 

hazardous material transportation law 

preempts State common law tort claims 

alleging that the manufacturer of DOT 

specification 39 compressed gas 

cylinders should have designed the 

cylinders to resist rusting over time and/ 

or provided additional warnings of the 

potential rusting over time, beyond 

requirements in the Hazardous 

Materials Regulations (HMR) for the 

manufacture, marking, and labeling of 

these cylinders. 

DATES: Comments received on or before 

March 16, 2009, and rebuttal comments 

received on or before April 30, 2009, 

will be considered before an 

administrative determination is issued 

by PHMSA’s Chief Counsel. Rebuttal 

comments may discuss only those 

issues raised by comments received 

during the initial comment period and 

may not discuss new issues. 

ADDRESSES: The application and all 

comments received may be reviewed in 

the Docket Operations Facility (M–30), 

U.S. Department of Transportation, 

West Building Ground Floor, Room 

W12–140, 1200 New Jersey Avenue, SE., 

Washington, DC 20590. The application 

and all comments are available on the 

U.S. Government Regulations.gov Web 

site: http://www.regulations.gov. 

Comments must refer to Docket No. 

PHMSA–2009–0017 and may be 

submitted to the docket in writing or 

electronically. Mail or hand deliver 

three copies of each written comment to 

the above address. If you wish to receive 

confirmation of receipt of your 

comments, include a self-addressed, 

stamped postcard. To submit comments 

electronically, log onto the U.S. 

Government Regulations.gov Web site: 

http://www.regulations.gov. Use the 

Search Documents section of the home 

page and follow the instructions for 

submitting comments. 

A copy of each comment must also be 

sent to (1) Stephen J. Maassen, Esq., 

Hoagland, Fitzgerald, Smith & Pranaitis, 

P.O. Box 130, Alton, IL 62002, counsel 

for Amtrol, Inc., and (2) Rex Carr, Esq., 

The Rex Carr Law Firm, LLC, 412 

Missouri Avenue, East St. Louis, IL 

62201–3016, counsel for survivors and 

next of kin to Kenneth Elder, Jr. A 

certification that a copy has been sent to 

these persons must also be included 

with the comment. (The following 

format is suggested: ‘‘I certify that 

copies of this comment have been sent 

to Mr. Maassen and Mr. Carr at the 

addresses specified in the Federal 

Register.’’) 

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 a comment 

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 (70 FR 

19477–78), or you may visit http:// 

www.dot.gov. 

A subject matter index of hazardous 

materials preemption cases, including a 

listing of all inconsistency rulings and 

preemption determinations, is available 

through the home page of PHMSA’s 

Office of Chief Counsel, at http:// 

phmsa.dot.gov/legal. A paper copy of 

the index will be provided at no cost 

upon request to Mr. Hilder, at the 

address and telephone number set forth 

in FOR FURTHER INFORMATION CONTACT

below. 

FOR FURTHER INFORMATION CONTACT: 

Frazer C. Hilder, Office of Chief Counsel 

(PHC–10), Pipeline and Hazardous 

Materials Safety Administration, U.S. 

Department of Transportation, 1200 

New Jersey Avenue, SE., Washington, 

DC 20590; telephone No. 202–366–4400; 

facsimile No. 202–366–7041. 

SUPPLEMENTARY INFORMATION: 

I. Application for a Preemption 

Determination 

AMTROL, Inc. has applied for a 

determination that Federal hazardous 

material transportation law, 49 U.S.C. 

5101 et seq., preempts State common 

law tort claims relating to the design 

and marking or labeling of DOT 

specification 39 compressed gas 

cylinders. AMTROL contends that these 

common law tort claims impose 

requirements that are not substantively 

the same as requirements in the HMR 

for the design and marking or labeling 

of a cylinder that has been marked and 

certified as qualified for use in 

transporting hazardous material. 

In its original application dated June 

26, 2007, AMTROL stated that it was a 

defendant in a products liability 

lawsuit, Elder v. AMTROL, Inc., et al., 

No. 042–08718, brought in the Circuit 

Court of the City of St. Louis, Missouri. 

According to AMTROL, a DOT 

specification 39 cylinder manufactured 

by AMTROL in 1995 had ruptured ‘‘on 

January 24, 2003, when Plaintiffs’’ 

decedent placed the rusted cylinder 

under 170 degree water.’’ With its 

application, AMTROL provided a copy 

of the transcript of a deposition at 

which the Elders’ expert witness 

testified (at p. 60) that ‘‘the bottom of 

the tank ruptured * * * as a result of 

the thinned and rusted area on the 

bottom of the tank.’’ This witness 

testified (at pp. 63 and 64) that the 

cylinder ‘‘could be better designed to 

prevent rusting and corrosion and 

include warnings’’ and ‘‘at a minimum 

I would say there needs to be warnings 

for rust,’’ even though he acknowledged 

(at p. 68) that the cylinder complied 

with the specification ‘‘as nearly as I can 

tell.’’ 

The Elders’ expert witness also took 

the position (at p. 69) that the 

specification requirements in the HMR 

deal[ ] with the transportation of the 

container. [They do] not deal specifically 

with the use of the container after it’s already 

in the hands of a technician. It’s intended to 

be used for the transportation of the 

container with a hazardous material. So just 

because it meets this particular regulation 

doesn’t mean it is necessarily safe, 

reasonably safe for its intended use. 

In response to a question seeking his 

opinion of ‘‘what should be done * * * 

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5724 Federal Register / Vol. 74, No. 19 / Friday, January 30, 2009 / Notices 

to design this cylinder to account for 

corrosion,’’ the witness replied (at pp. 

77–78): 

If you know where your product has been 

used, Florida versus, say Arizona, you can 

determine what the corrosion rate is for these 

various parts of the country. And it might 

vary from a tenth of a millimeter per year or 

it could be a quarter of a millimeter per year 

for a rusting or corrosion rate. And therefore 

if you determine these areas of sale, then you 

might combine that with what you expect in 

terms of how long the cylinder is in the 

hands of someone whether it’s six months or 

a year, or two years, or in this case nine 

years. You could anticipate what your 

corrosion rate is and whether you needed to 

make that wall thickness one millimeter, one 

and a half, or two millimeters or whether you 

wanted to use a different paint or protect the 

paint that’s on there in some manner. So 

there’s a variety of things that can be done 

and considered depending on how and who 

the cylinder is sold to. 

AMTROL cited PHMSA’s prior 

decisions in Inconsistency Ruling (IR) 

Nos. 7–15, 49 FR 46632 (Nov. 27, 1984), 

and Preemption Determination (PD) No. 

2, 58 FR 11176 (Feb. 23, 1993). It 

specifically referred to the discussion in 

the general preamble to IRs 7–15 that, in 

the areas of packaging design and 

construction, and the marking and 

labeling of packages, ‘‘the need for 

national uniformity is so crucial and the 

scope of Federal regulation is so 

pervasive that it is difficult to envision 

any situation where State or local 

regulation would not present an 

obstacle to the accomplishment and 

execution of the HMTA and the 

regulations issued thereunder.’’ 49 FR at 

64433. 

In a responding letter dated July 12, 

2007, the Elders’ counsel opposed 

AMTROL’s application and stated that 

‘‘the thrust of plaintiffs’’ position [is] 

that the specification required by DOT 

dealt with and was required to deal with 

a cylinder that was qualified for use in 

transporting hazardous material’’ but 

The journey had long ended, years before 

the technician put the contents of the 

cylinder to use. He was not using the 

cylinder in a transportation mode; he was 

simply using the cylinder as an end-user on 

the job after its journey had ceased. The 

regulation in question was not intended to 

cover any use of the cylinder after it had been 

transported in interstate commerce. The use 

to which a cylinder might be put by the 

technicians using them are outside the 

purview of the regulations. [A] State common 

law requirement that the products being used 

on the job be safe for their intended use does 

not interfere with the DOT regulation. The 

state common law does not seek to impose 

its requirement where the cylinder in 

question clearly, at the time of its 

manufacture and transportation, complied 

with the DOT specifications. 

The Elders’ counsel asked PHMSA to 

find that the Federal hazardous material 

transportation law and the HMR ‘‘do not 

preempt the opinions pertaining to socalled covered areas of 49 USCA § 5125, 

with regard to labeling and design of 

specification DOT 39 non-refillable 

cylinders.’’ 

In a September 11, 2007 letter to 

AMTROL’s counsel, PHMSA’s Assistant 

Chief Counsel for Hazardous Materials 

Safety Law noted that the State of 

Missouri had not yet ‘‘adopted a 

requirement for the cylinder 

manufacturer to take these additional 

actions [in the Elders’ common law 

claims], either by law regulation, or 

judicial decision’’ and, accordingly, ‘‘[i]t 

would be premature for the Chief 

Counsel to make a determination 

whether a potential requirement 

affecting the transportation of hazardous 

material, which has not yet been 

adopted or come into effect, would be 

preempted.’’ However, this letter also 

discussed the adoption of DOT 

specification 39 into the HMR in 1971, 

including the specific requirements that 

the cylinder ‘‘must be shipped in strong 

outside packagings’’ that ‘‘provide 

protection for the complete cylinder’’ 

and must be marked (1) ‘‘NRC’’ for 

‘‘non-reusable container’’ and (2) with 

the statement that ‘‘Federal law forbids 

transportation if refilled’’ plus a 

statement of the maximum civil and 

criminal penalties applicable at the date 

of manufacture. These marking 

requirements are presently set forth at 

49 CFR 178.65(i)(2). 

PHMSA’s Assistant Chief Counsel 

also referred to the consideration that, 

because the DOT specification 39 

cylinder was nonreusable, it would not 

be ‘‘subject to cyclic stresses resulting 

from refilling’’ (quoting from the 1970 

notice of proposed rulemaking, 35 FR 

18879). He stated that ‘‘specification 39 

cylinders have always been intended for 

a single use; there has never been any 

intent that these cylinders have the 

strength or durability of cylinders 

manufactured to other specifications 

which are authorized for repeated 

refillings over many years and subject to 

periodic requalification through 

inspection and pressure testing.’’ He 

also stated that ‘‘[r]equirements affecting 

the design, manufacturing, and marking 

of a cylinder (or other packaging) 

marked as meeting a DOT specification 

must be distinguished from 

requirements affecting the use of that 

cylinder or other packaging.’’ He quoted 

the discussion in the preamble to 

PHMSA’s rulemaking on the 

‘‘Applicability of the Hazardous 

Materials Regulations for Loading, 

Unloading, and Storage,’’ 70 FR 20018, 

20024–25 (Apr. 15, 2005), that: 

DOT specification packagings, such as 

* * * cylinders, are subject to DOT 

regulation at all times that the packaging is 

marked to indicate that it conforms to the 

applicable specification requirements [which 

means that,] [u]nder the Federal hazmat law, 

a non-Federal entity may impose 

requirements on DOT specification 

packagings only if those requirements are 

substantively the same as the DOT 

requirements. 

PHMSA’s Assistant Chief Counsel 

stated that the agency 

would have a concern with any State law, 

regulation, or judicial decision that imposed 

additional manufacturing and marking 

requirements on any DOT specification 

packaging, including a specification 39 

cylinder. It would be impractical and 

burdensome for a manufacturer of these 

cylinders to have to vary their design, 

manufacturing process, and markings to 

accommodate additional and possibly 

conflicting requirements that varied from 

State to State—especially requirements for 

additional wording that indicates or implies 

that the cylinder is suitable for refilling with 

a hazardous material and continued use over 

many years, in conflict with the specific 

markings required by the HMR. These 

required markings are part of the safety 

requirements in the DOT specification for 

these cylinders and must not be 

compromised. 

He concluded by stating that he 

‘‘express[ed] no opinion on the 

responsibility or liability of any person 

who loads, stores, or unloads a DOT 

specification 39 cylinder, or any other 

DOT specification packaging, that no 

longer meets the requirements of the 

DOT specification, when that packaging 

is no longer in transportation in 

commerce. 

In a September 11, 2008 letter, 

AMTROL renewed its application for a 

determination whether Federal 

hazardous material transportation law 

preempts the Elders’ product liability 

claims ‘‘based on allegations of defect 

with regard to ‘covered subjects’ of 

labeling and design of [DOT] 

specification cylinders.’’ AMTROL 

stated that it is now in a Chapter 11 

bankruptcy proceeding pending in the 

United States Bankruptcy Court for the 

District of Delaware, In Re Amtrol 

Holdings, Inc., Case No. 06–11446, in 

which the Elders have filed claims 

based on the same theories as 

previously alleged in their Missouri 

action. 

AMTROL explained that the 

bankruptcy judge has found that the 

Elders’ claims are not preempted by 49 

U.S.C. 5125, so that there is now a 

‘‘judicial decision imposing additional 

manufacturing and marking 

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Federal Register / Vol. 74, No. 19 / Friday, January 30, 2009 / Notices 5725 

1Subparagraph (E) was editorially revised in Sec. 

7122(a) of the Hazardous Materials Transportation 

Safety and Security Reauthorization Act of 2005, 

which is Title VII of the Safe, Accountable, 

Flexible, Efficient Transportation Equity Act: A 

Legacy for Users (SAFETEA–LU), Public Law 109– 

59, 119. Stat. 1891 (Aug. 10, 2005). Technical 

corrections to cross-references in subsections (d), 

(e), and (g) were made in Public Law 110–244, Sec. 

302(b), 122 Stat. 1618 (June 6, 2008). 

2Additional standards apply to preemption of 

non-Federal requirements on highway routes over 

which hazardous materials may or may not be 

transported and fees related to transporting 

hazardous material. See 49 U.S.C. 5125(c) and (f). 

See also 49 CFR 171.1(f) which explains that a 

‘‘facility at which functions regulated under the 

HMR are performed may be subject to applicable 

laws and regulations of state and local governments 

and Indian tribes.’’ 

requirements’’ on DOT specification 39 

cylinders, and ‘‘the matter is ripe for a 

determination of whether the Plaintiffs’’ 

Claims now pending in the Bankruptcy 

Court’’ are preempted. AMTROL stated 

that the Bankruptcy Court ‘‘failed to 

follow the directive of the DOT, set out 

in the [Assistant Chief Counsel’s] 

September 11 letter * * * [which] made 

it clear that if a lawsuit ruling imposed 

additional manufacturing and [marking] 

requirements in one state or local 

jurisdiction, it would be preempted.’’ It 

also stated that ‘‘[e]nforcement of the 

state requirement would mean that 

specification 39 non-reusable cylinders 

would no longer be governed and 

controlled by specifications set out by 

Department of Transportation 

Regulations at 49 CFR 178.65, and that 

AMTROL, Inc. would be subject to 

potential lawsuit[s] even under 

circumstances where, as here, it had 

complied with all such regulations.’’ 

AMTROL advised that the order of the 

Bankruptcy Court denying AMTROL’s 

objection to the Elders’ claims is 

currently on appeal to the United States 

District Court for the District of 

Delaware, and it has provided copies of 

the transcript of the hearing before the 

bankruptcy judge on March 26, 2008, 

the Bankruptcy Court’s April 1, 2008 

memorandum opinion, AMTROL’ss 

notice of appeal, and the Elders’ notice 

of appeal from the Bankruptcy Court’s 

April 1, 2008 order with regard to other 

issues. 

In a September 17, 2008 response, 

Counsel for the Elders stated that the 

Bankruptcy Court ‘‘cannot under any 

circumstances make law for the State of 

Missouri’’ but is ‘‘required to interpret 

the law of the State of Missouri where 

the death took place when ruling on 

issues appropriately within its 

jurisdiction.’’ He stated that the 

Bankruptcy Court 

reviewed the law and found that preemption 

did not apply ‘‘because the HMTA applied to 

transportation, not end use.’’ (Memorandum 

Opinion, p. 10). It pointed out examples 

showing that Congress intended to regulate 

transportation, not use. It did not impose any 

additional manufacturing and working 

requirements on a DOT 39 cylinder. It 

concluded: ‘‘The DOT declined to opine and, 

consistent with the court’s conclusion, 

distinguished between use and 

transportation.’’ (Memorandum Opinion, p. 

12). 

The order of that court in no way adopts 

new requirements affecting the transportation 

in interstate commerce. 

The following materials are available 

in the public docket of this proceeding: 

—AMTROL’s original June 26, 2007 

application including a copy of the 

transcript of the November 17, 2006 

deposition of the Elders’ expert 

witness; 

—the Elders’ July 12, 2007 response to 

AMTROL’s application; 

—the September 11, 2007 letter of 

PHMSA’s Assistant Chief Counsel for 

Hazardous Materials Safety Law; 

—DOT’s December 11, 1970 notice of 

proposed rulemaking, 35 FR 18879, 

and August 24, 1971 final rule, 36 FR 

16579, ‘‘Cylinder Specifications’’; 

—the transcript of the March 26, 2008 

hearing in the Bankruptcy Court; 

—the Bankruptcy Court’s April 1, 2008 

memorandum opinion and order; 

—AMTROL’s April 11, 2008 Notice of 

Appeal from the Bankruptcy Court’s 

April 1, 2008 order and April 21, 2008 

Designation of the Record and 

Statement of Issues to be Presented; 

—the Elders’ Notice of Appeal from the 

Bankruptcy Court’s April 1, 2008 

order; 

—AMTROL’s September 11, 2008 

reapplication; 

—the Elders’ September 17, 2008 

response to AMTROL’s reapplication; 

and 

—AMTROL’s October 3, 2008 reply 

letter. 

II. Federal Preemption 

Section 5125 of 49 U.S.C. contains 

express preemption provisions relevant 

to this proceeding. As amended by 

Section 1711(b) of the Homeland 

Security Act of 2002 (Pub. L. 107–296, 

116 Stat. 2320), 49 U.S.C. 5125(a) 

provides that a requirement of a state, 

political subdivision of a state, or Indian 

tribe is preempted—unless the nonFederal requirement is authorized by 

another Federal law or DOT grants a 

waiver of preemption under § 5125(e)— 

if 

(1) Complying with a requirement of the 

State, political subdivision, or tribe and a 

requirement of this chapter, a regulation 

prescribed under this chapter, or a hazardous 

materials transportation security regulation 

or directive issued by the Secretary of 

Homeland Security is not possible; or 

(2) The requirement of the State, political 

subdivision, or tribe, as applied or enforced, 

is an obstacle to accomplishing and carrying 

out this chapter, a regulation prescribed 

under this chapter, or a hazardous materials 

transportation security regulation or directive 

issued by the Secretary of Homeland 

Security. 

These two paragraphs set forth the 

‘‘dual compliance’’ and ‘‘obstacle’’ 

criteria that PHMSA’s predecessor 

agency, the Research and Special 

Programs Administration (RSPA), had 

applied in issuing inconsistency rulings 

(IRs) prior to 1990, under the original 

preemption provision in the Hazardous 

Materials Transportation Act (HMTA). 

Public Law 93–633 § 112(a), 88 Stat. 

2161 (1975). The dual compliance and 

obstacle criteria are based on U.S. 

Supreme Court decisions on 

preemption. Hines v. Davidowitz, 312 

U.S. 52 (1941); Florida Lime & Avocado 

Growers, Inc. v. Paul, 373 U.S. 132 

(1963); Ray v. Atlantic Richfield, Inc., 

435 U.S. 151 (1978). 

Subsection (b)(1) of 49 U.S.C. 5125 

provides that a non-Federal requirement 

concerning any of the following subjects 

is preempted—unless authorized by 

another Federal law or DOT grants a 

waiver of preemption—when the nonFederal requirement is not 

‘‘substantively the same as’’ a provision 

of Federal hazardous material 

transportation law, a regulation 

prescribed under that law, or a 

hazardous materials security regulation 

or directive issued by the Department of 

Homeland Security: 

(A) The designation, description, and 

classification of hazardous material. 

(B) The packing, repacking, handling, 

labeling, marking, and placarding of 

hazardous material. 

(C) The preparation, execution, and use of 

shipping documents related to hazardous 

material and requirements related to the 

number, contents, and placement of those 

documents. 

(D) The written notification, recording, and 

reporting of the unintentional release in 

transportation of hazardous material. 

(E) The designing, manufacturing, 

fabricating, inspecting, marking, maintaining, 

reconditioning, repairing, or testing a 

package, container, or packaging component 

that is represented, marked, certified, or sold 

as qualified for use in transporting hazardous 

material.1

To be ‘‘substantively the same,’’ the 

non-Federal requirement must conform 

‘‘in every significant respect to the 

Federal requirement. Editorial and other 

similar de minimis changes are 

permitted.’’ 49 CFR 107.202(d).2

The 2002 amendments and 2005 

reenactment of the preemption 

provisions in 49 U.S.C. 5125 reaffirmed 

Congress’s long-standing view that a 

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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, 

mstockstill on PROD1PC66 with NOTICES