
[Federal Register Volume 77, Number 128 (Tuesday, July 3, 2012)]
[Notices]
[Pages 39567-39571]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-16240]


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DEPARTMENT OF TRANSPORTATION

Pipeline and Hazardous Materials Safety Administration

[Docket No. PHMSA-2009-0017 (PD-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: Notice of administrative determination of preemption.

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    Applicable Federal Requirements: Federal hazardous material 
transportation law, 49 U.S.C. 5101 et seq., and the Hazardous Materials 
Regulations (HMR), 49 CFR parts 171-180.
    Modes Affected: All transportation modes.
SUMMARY: Federal hazardous material transportation law preempts a 
private cause of action which seeks to create or establish a State 
common law requirement applicable to the design, manufacture, or 
marking of a packaging, container, or packaging component that is 
represented, marked, certified, or sold as qualified for use in 
transporting hazardous material in commerce when that State common law 
requirement would not be substantively the same as the requirements in 
the HMR. Federal hazardous material transportation law does not preempt 
a tort claim that a packaging, container, or packaging component that 
is represented, marked, certified, or sold as qualified for use in 
transporting hazardous material failed to meet the design, 
manufacturing, or marking requirements in the HMR or that a person who 
offered a hazardous material for transportation in commerce or 
transported a hazardous material in commerce failed to comply with 
applicable requirements in the HMR.

FOR FURTHER INFORMATION CONTACT: Frazer C. Hilder, Office of Chief 
Counsel, Pipeline and Hazardous Materials Safety Administration, U.S. 
Department of Transportation, 1200 New Jersey Avenue SE., Washington, 
DC 20590-0001 (Tel. No. 202-366-4400).

SUPPLEMENTARY INFORMATION:

I. Application

    AMTROL, Inc. has applied to PHMSA for an administrative 
determination whether the Federal hazardous

[[Page 39568]]

materials transportation law \1\ preempts State common law tort claims 
that the manufacturer of a DOT specification 39 compressed gas cylinder 
should have designed the cylinder to resist rusting and/or marked or 
labeled the cylinder with warnings of the potential hazard of rusting 
over time.
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    \1\ The Federal hazardous material transportation law currently 
codified at 49 U.S.C. 5101 et seq. is often referred to by the 
acronym ``HMTA'' for the Hazardous Materials Transportation Act, 
Public Law 93-633, 88 Stat. 2156, enacted January 3, 1975. Prior to 
codification in 1994 (Pub. L. 103-272, 108 Stat. 745 (July 5, 
1994)), the HMTA was set forth at 49 App. U.S.C.A. 1801 et seq.
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    A DOT specification 39 cylinder is a non-reusable (non-refillable) 
seamless, welded, or brazed cylinder made of steel or aluminum (having 
certain specified characteristics), with size limitations (depending on 
the service pressure of the cylinder) and requirements for 
manufacturing, minimum thickness of the cylinder wall, openings and 
attachments on the head of the cylinder, and pressure and flattening 
testing. 49 CFR 178.65. Subsection 178.65(i) provides that the cylinder 
must be marked with certain information \2\ including the specification 
number, service and test pressure, date of manufacture and a 
registration number identifying the manufacturer, and:
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    \2\ In this determination, the word ``marking'' is used to refer 
to the information required to be marked on a DOT specification 39 
cylinder under 49 CFR 178.65(i)--to distinguish this marking from a 
hazard class warning label (e.g., NONFLAMMABLE GAS) and a product 
sticker or label that may contain the proper shipping name and UN 
identification number required to be marked on the filled cylinder 
by a person who offers the filled cylinder for transportation in 
commerce. See 49 CFR 172.301 et seq. and 172.400 et seq.

--``NRC'' for ``non-reusable container,'' and
--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.

    On January 30, 2009, PHMSA published a notice in the Federal 
Register inviting interested persons to comment on AMTROL's 
application. 74 FR 5723. As discussed in this notice, a products 
liability lawsuit had been brought against AMTROL and other defendants 
by the survivors and next of kin of Kenneth Elder (the ``Elders'') who 
died on January 24, 2003, when a rusted DOT specification 39 cylinder 
ruptured after Mr. Elder placed the cylinder in 179 degree water.\3\
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    \3\ The Elders' claims against AMTROL are presently pending as a 
claim in bankruptcy in the U.S. Court of Appeals for the Third 
Circuit which has issued a stay pending PHMSA's determination. In re 
Amtrol Holdings, Inc. v. Kenneth Elder, No. 10-3273.
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    In response to AMTROL's application and the January 30, 2009 
Federal Register notice, comments were submitted by AMTROL, the Elders, 
Thomas Wilson (a retired hazmat shipper who occasionally acts as a 
consultant), and the Gases and Welding Distributors Association, Inc. 
(GAWDA).\4\
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    \4\ GAWDA describes itself as ``a national trade association 
representing the interests of some 600 distributors of compressed 
and cryogenic gases and related supplies and equipment in the United 
States and Canada,'' some of which ``fill, store, handle and 
transport gases in DOT-39 compressed gas cylinders.''
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II. Federal Preemption

    A United States Court of Appeals has found that 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). Section 5125 of Title 49 
U.S.C. contains express preemption provisions. As amended by Section 
1711(b) of the Homeland Security Act of 2002 (Pub. L. 107-296, 116 
Stat. 2320),\5\ Sec.  5125(a) provides that a requirement of a State, 
political subdivision of a State, or Indian tribe is preempted--unless 
the non-Federal requirement is authorized by another Federal law or DOT 
grants a waiver of preemption under Sec.  5125(e)--if
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    \5\ Section 1711 of the Homeland Security Act of 2002 added the 
words ``including security'' to the applicability provisions in 49 
U.S.C. 5103(b)(1) and the preemption provisions in Sec.  5125(a) and 
(b)(1). Otherwise, the 1994 codification of Title 49 and subsequent 
editorial revisions and technical corrections have not made any 
substantive changes to these provisions since amendment of the 
original HMTA in 1990. See 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), Pub. L. 
109-59, 119 Stat. 1891 (Aug. 10, 2005), and Public Law 110-244 Sec.  
302(b), 122 Stat. 1618 (June 6, 2008).

    (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.\6\
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    \6\ These two paragraphs set forth the ``dual compliance'' and 
``obstacle'' criteria which 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 further 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 non-Federal 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: \7\
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    \7\ 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). Additional 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).

    (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.

    The Supreme Court has found ``that common-law causes of action for 
negligence and strict liability do impose `requirement[s]' '' that may 
be subject to preemption by Federal laws. Riegel v. Medtronic, 552 U.S. 
312, 323, 128 S.Ct. 999, 1007 (2008). The Supreme Court has also 
specifically recognized the authority in 49 U.S.C. 5125 for DOT ``to 
decide whether a state or local statute that conflicts with the 
regulation of hazardous [materials] transportation is pre-empted.'' 
Wyeth v. Levine, 555 U.S. 555, 129 S.Ct. 1187, 1201 n.9 (2009).
    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).

[[Page 39569]]

    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).
    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)), and 
the President's May 20, 2009 memorandum on ``Preemption'' (74 FR 24693 
(May 22, 2009)). 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. The President's May 
20, 2009 memorandum sets forth the policy ``that preemption of State 
law by executive departments and agencies should be undertaken only 
with full consideration of the legitimate prerogatives of the States 
and with a sufficient legal basis for preemption.'' Section 5125 
contains express preemption provisions, which PHMSA has implemented 
through its regulations and which PHMSA applies in making 
administrative preemption determinations.

III. Discussion

A. Summary of Comments

    AMTROL asserts that the Elders' common law tort claims are 
preempted because they could create design, manufacturing, and marking 
and labeling requirements for DOT specification cylinders that are not 
substantively the same as the requirements in 49 CFR 178.65. In its 
original application, it stated that ``[a]pplication of the state court 
requirement would undercut'' the ``need for national uniformity'' in 
requirements for the packaging of hazardous materials, as discussed in 
PHMSA's determinations in Inconsistency Rulings Nos. 7-15, 49 FR 36632, 
36633 (Nov. 22, 1984). AMTROL also stated that, ``as presented by the 
[Elders'] common law claims, the only issue has to do with requirements 
for labeling and design of a specification 39 cylinder'' which ``are 
not `substantively the same' as the requirements'' in the HMR and, 
``[c]onsequently, such `requirements' are preempted.''
    The Elders frame the issue in terms of whether the design, 
manufacturing, and marking requirements for a DOT specification 39 
cylinder apply to a cylinder that was being ``used.'' The Elders 
acknowledge ``that the cylinder in question, as designed and 
manufactured, complies with all of the specifications set forth in 49 
CFR 178.65 * * * and complies with all the labels and warnings required 
by the DOT specification.'' However, they assert that ``warnings should 
be utilized to protect the end user,'' because ``the manufacturer knew 
or should have known that the cylinders could rust.'' \8\
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    \8\ The Elders provided three samples of ``warnings utilized in 
the past by manufacturers [that] state: `Overheating, pressurizing, 
or rusting can cause cylinder to burst, resulting in serious 
personal injury or death.' ''
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    The Elders stated that the technician 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 ended.'' Accordingly, they assert that 
``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.'' 
\9\
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    \9\ The Elders also cited and quoted from cases which they 
contend ``are applicable'' or ``nearly on all fours with the present 
case.'' However, some of these cases appear to have involved an 
injury from a hazardous material that was not packaged or handled in 
complete compliance with requirements in the HMR. In other cases, 
the hazardous material was a consumer item purchased for personal 
use and subject to regulations of the Consumer Product Safety 
Commission.
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    Mr. Wilson stated that ``the common law tort claim appears to be 
about design and labeling of the compressed gas cylinder as it relates 
to consumer use--not as it relates to use of the cylinder in 
transporting hazardous materials in commerce.'' However, he also noted 
``that end-users may re-transport hazmat during their daily routine,'' 
acknowledging implicitly that the HMR applied to Mr. Elder's 
transportation of the cylinder from his shop to his customer's 
location.
    According to GAWDA, the critical inquiry is ``whether Congress 
intended to preempt certain specific types of claims,'' and an 
``[a]nalysis of this question must begin, as the Supreme Court has 
stated, with determining Congressional intent'' (citing Altria Group, 
Inc. v. Good, 129 S.Ct. 398, 543 (2008)). It rejected the Elders' 
position that State requirements covering ``end use'' are not preempted 
by 49 U.S.C. 5125 and stated:

    Clearly, it is immaterial whether the cylinder in question was 
at its final destination or how long it had been there, if it was 
marked indicating it was a DOT-39 cylinder; it was by definition 
subject to DOT regulation. Therefore, any state requirements of 
additional manufacturing specifications or packaging warnings must 
affect the ``transportation'' of the cylinder and are, therefore, 
preempted by HMTA.

B. Analysis

    Federal hazardous material transportation law explicitly provides 
that the HMR apply to the design, manufacture, and marking of 
packagings (such as cylinders) that are ``represented, marked, 
certified, or sold as qualified for use in transporting hazardous 
material in commerce.'' 49 U.S.C. 5103(b)(1)(A)(iii), (b)(1)(E). In its 
October 30, 2003 final rule, on the ``Applicability of the Hazardous 
Materials Regulations to Loading, Unloading, and Storage,'' PHMSA 
explained that ``[p]ackaging integrity is critical to safe 
transportation of hazardous materials, and

uniformity of packaging requirements assures the safe and efficient 
movement of hazardous materials across state lines and international 
boundaries. Thus, consistent with the preemption provisions of 
Federal hazmat law, the Secretary's regulatory jurisdiction in this 
area must preempt state and local law.

68 FR 61906, 61908. PHMSA continued by explaining that ``because a 
packaging that is used for storage one day may be used for 
transportation the next, it is critical to transportation safety that 
packagings represented as meeting DOT or UN specifications in fact do 
so.'' Id. Accordingly, ``[i]f a packaging shows evidence that its 
effectiveness as a container may be substantially reduced or if the 
packaging has been subjected to conditions or operating practices that 
could reduce its effectiveness, it must be inspected and repaired, in 
accordance with applicable requirements, before it

[[Page 39570]]

can be filled and offered for transportation. Id.\10\
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    \10\ See, e.g., 49 CFR 173.301(a)(2): ``A cylinder that has a 
crack or leak, is bulged, has a defective valve or a leaking or 
defective pressure relief device, or bears evidence of physical 
abuse, fire or heat damage, or detrimental rusting or corrosion, may 
not be filled and offered for transportation.''
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    In this final rule, PHMSA relocated to 49 CFR 171.2(g) and revised 
without making any substantive change to the wording of former Sec.  
171.2(c) (Oct. 1, 2003 ed.) to read:

    No person may represent, mark, certify, sell, or offer a 
packaging or container as meeting the requirements of this 
subchapter governing its use in the transportation of a hazardous 
material in commerce unless the packaging or container is 
manufactured, fabricated, marked, maintained, reconditioned, 
repaired, and retested in accordance with the applicable 
requirements of this subchapter * * * The requirements of this 
paragraph apply whether or not the packaging or container is used or 
to be used for the transportation of a hazardous material.

    These provisions in the HMR and the ``substantively the same as'' 
preemption standard added to the law in 1990 carry out the finding of 
the House of Representatives Committee on Energy and Commerce that 
there is ``a compelling need for standardized requirements relating to 
certain areas of the transportation of hazardous materials. Conflicting 
Federal, State and local requirements pose potentially serious threats 
to the safe transportation of hazardous materials.'' H. Rept. 101-444, 
part 1, pp 33-34 (Apr. 3, 1990). In particular, ``[u]niform 
requirements for designing, manufacturing, and testing such containers 
and packages will enhance the safe transportation of hazardous 
materials by allowing for ease of identification, familiarity with 
characteristics of packages and containers and consistency in systems 
designed to handle such hazardous materials.'' Id. at 35.
    It is not necessary to determine whether the DOT specification 39 
cylinder was in ``transportation'' when it failed, because the HMR 
applied to AMTROL when it designed, manufactured, and marked the 
cylinder ``as qualified for use in transporting hazardous material in 
commerce.'' 49 U.S.C. 5103(b)(1)(A)(iii). The Elders' contention that 
the design, manufacture, and marking requirements in 49 CFR 178.65 do 
not ``cover [Mr. Elder's] use of the cylinder'' is beside the point, as 
is its position that the ``use'' to which the cylinder might be put is 
``outside the purview'' of that section of the HMR. Rather, the 
``substantively the same as'' preemption provision in 49 U.S.C. 
5125(b)(1)(E) must govern the ``adequacy of the cylinder'' at all times 
that it is ``represented, marked, certified, or sold as qualified for 
use in transporting hazardous material in commerce,'' and not just the 
period in time ``when it was used to transport hazardous material,'' as 
the Elders contend.
    The U.S. Court of Appeals for the Third Circuit reached the same 
conclusion in Roth v. Norfalco LLC, 651 F.3d 367, 379-80 (2011). In 
this case, the Court affirmed a summary judgment in favor of the 
manufacturer of a rail tank car from which sulfuric acid had sprayed 
when the tank car was being unloaded by an employee of the consignee of 
the shipment and stated:

    Here, the statute and its applicability could not be more clear. 
Roth seeks to impose a tank car design requirement. Section 
5125(b)(1) expressly preempts any common law requirement ``about'' 
the design of a ``package, container, or packaging component * * * 
qualified for use in transporting hazardous materials in commerce.'' 
* * * It is irrelevant what Roth was doing at the precise moment of 
his injury * * * The tank car is, at all times, a container 
qualified for use in transporting hazardous materials. The proposed 
design requirement is expressly preempted.

    It should be noted that the preemption provision in 49 U.S.C. 
5125(b)(1)(E) would not insulate a person who improperly, and in 
violation of the HMR, offers or transports a hazardous material in a 
packaging ``that is represented, marked, certified, or sold as 
qualified for use in transporting hazardous material in commerce.'' Nor 
would there be preemption of a common law tort action for damages when 
the packaging does not, in fact, meet the applicable design and 
manufacturing specification in the HMR.\11\
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    \11\ Moreover, the Consumer Product Safety Commission (CPSC) has 
the authority to require ``that a consumer product be marked with or 
accompanied by clear and adequate warnings or instructions, or 
requirements respecting the form of warnings or instructions.'' 15 
U.S.C. 2056(a).
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    Under the plain language of the Federal hazardous material 
transportation law, requirements in the HMR govern the design, 
manufacture, and 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.'' 49 U.S.C. 
5103(b)(1)(A)(iii), 49 CFR 171.1(a). Any State requirement, including a 
State's common law, on the ``designing, manufacturing, [or] marking * * 
* a package, container, or packaging component that is represented, 
marked, certified, or sold as qualified for use in transporting 
hazardous material in commerce'' is preempted unless it is 
``substantively the same as'' the requirements in the HMR. 49 U.S.C. 
5125(b)(1)(E). The Elders have not pointed to, and PHMSA is not aware 
of, any other Federal law that would authorize the common law tort 
claims asserted by the Elders that the manufacturer of a DOT 
specification 39 compressed gas cylinder should have designed the 
cylinder (or any component thereof) in a different manner than--or 
marked or labeled the cylinder with any information beyond that 
required by--49 CFR 178.65.

IV. Ruling

    Federal hazardous material transportation law preempts a private 
cause of action which seeks to create or establish a State common law 
requirement applicable to the design, manufacture, or marking of a 
packaging, container, or packaging component that is represented, 
marked, certified, or sold as qualified for use in transporting 
hazardous material in commerce when that State common law requirement 
would not be substantively the same as the requirements in the HMR. 
Federal hazardous material transportation law does not preempt tort 
claims that the packaging or packaging component failed to meet the 
design, manufacturing, or marking requirements in the HMR or that a 
person who offered a hazardous material for transportation in commerce 
or transported a hazardous material in commerce failed to comply with 
applicable requirements in the HMR.

V. Petition for Reconsideration/Judicial Review

    In accordance with 49 CFR 107.211(a), any person aggrieved by this 
decision may file a petition for reconsideration within 20 days of 
publication of this decision in the Federal Register. 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).
    This decision will become PHMSA's final decision 20 days after 
publication in the Federal Register if no petition for reconsideration 
is filed within that time. The filing of a petition for reconsideration 
is not a prerequisite to seeking judicial review of this decision under 
49 U.S.C. 5127(a).

[[Page 39571]]

    If a petition for reconsideration is filed within 20 days of 
publication in the Federal Register, the action by PHMSA's Chief 
Counsel on the petition for reconsideration will be PHMSA's final 
action. 49 CFR 107.211(d).

    Issued in Washington, DC, on June 26, 2012.
Vanessa L. Allen Sutherland,
Chief Counsel.
[FR Doc. 2012-16240 Filed 7-2-12; 8:45 am]
BILLING CODE 4910-60-P


