[Federal Register Volume 74, Number 14 (Friday, January 23, 2009)]
[Notices]
[Pages 4287-4291]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-1419]


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DEPARTMENT OF TRANSPORTATION

Pipeline and Hazardous Materials Safety Administration

[Docket No. RSPA-00-8026 (PD-26(R))]


Massachusetts' Definitions of Hazardous Materials

AGENCY: Pipeline and Hazardous Materials Safety Administration (PHMSA), 
DOT.

ACTION: Notice of administrative determination of preemption.

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    Applicant: Boston and Maine Corporation (Boston and Maine).
    Local Laws Affected: Massachusetts General Laws (M.G.L.) chapter 21 
E, section 2 (ch. 21 E); and chapter 21 K, section 1 (ch. 21 K).
    Applicable Federal Requirements: The Federal Hazardous Material 
Transportation Law (Federal Hazmat Law), 49 U.S.C. 5101 et seq., and 
the Hazardous Materials Regulations (HMR), 49 CFR parts 171-180.
    Modes Affected: Rail and Highway.

SUMMARY: The Federal Hazmat Law does not preempt the definitions of 
``hazardous material'' in M.G.L. chs. 21 E and 21 K. As applied and 
enforced, the challenged provisions of Massachusetts' laws are not an 
``obstacle'' to accomplishing and carrying out the Federal Hazmat Law, 
the HMR, or a hazardous materials transportation security regulation or 
directive issued by the Secretary of Homeland Security. Because a 
regulated entity may comply with the State and Federal requirements at 
the same time the Massachusetts' laws are not preempted under the 
``dual compliance'' test. These definitions and State requirements also 
do not concern any of the five subject areas in which State Authority 
is expressly preempted by the Federal Hazmat Law, and State enforcement 
of these laws does not otherwise frustrate Congressional intent.

FOR FURTHER INFORMATION CONTACT: Thomas D. Seymour, Office of Chief 
Counsel, Pipeline and Hazardous Materials Safety Administration, (202) 
366-4400, U.S. Department of Transportation, 1200 New Jersey Avenue, 
SE., Room E26-322, Washington, DC 20590; e-mail: [email protected].

SUPPLEMENTARY INFORMATION:

I. Issues Under Consideration

    In this determination, PHMSA considers the definitions of 
``hazardous material'' as contained in M.G.L. chs. 21 E and 21 K. 
Chapter 21 E and entitled ``Massachusetts Oil and Hazardous Materials 
Release Prevention and Response Act'' to be parallel with the Federal 
Comprehensive Environmental Response, Compensation and Liability Act, 
42 U.S.C. 9601 et seq. (``CERCLA'' or ``Superfund law''). Chapter 21 K, 
``Mitigation of Hazardous Materials,'' governs the State's emergency 
mitigation response to a release, or threat of release, of materials 
determined by the state to pose a risk of contamination to the local 
environment. This statute authorizes the Massachusetts Department of 
Fire Services to deploy personnel and equipment for emergency 
mitigation response caused by a release, or threat of release, of 
materials determined to be a potential environment contaminant. Chapter 
21 K also provides for the dispatch of trained personnel to evaluate a 
potential risk of contamination to the environment.
    Both M.G.L. chs. 21 E and 21 K use the term ``hazardous material'' 
to refer to substances triggering the laws' requirements. Under Chapter 
21 E a ``hazardous material'' is defined as:

    A material including but not limited to, any material, in 
whatever form, which because of its quantity, concentration, 
chemical, corrosive, flammable, reactive, toxic, infectious or 
radioactive characteristics, either separately or in combination 
with any substance or substances, constitutes a present or potential 
threat to human health, safety, welfare, or to the environment, when 
improperly stored, treated, transported, disposed of, used, or 
otherwise managed.

Chapter 21 K contains the same definition except that it expressly 
identifies ``oil'' as a hazardous material.

II. Background

A. Summary of Facts

    On June 27, 1999, six railcars from a Boston and Maine train 
derailed in the Charlemont, MA area, causing an unidentified material 
to leak into the ground and nearby Deerfield River. The Charlemont Fire 
Department responded to the incident and, when it could not identify 
the material, called the Massachusetts Hazardous Material Response 
Team. When the Response team identified the material, and determined it 
did not pose a risk to the environment, the team abandoned further 
cleanup efforts and turned the scene over to Boston and Maine's 
personnel.
    Massachusetts later presented an invoice to Boston and Maine for 
the cost of the response and the discontinued cleanup. Boston and Maine 
objected and sought relief through state administrative procedures. 
Subsequently, Boston and Maine filed a complaint in Massachusetts 
Superior Court for Middlesex County, alleging errors in law associated 
with the Massachusetts Department of Fire Services' assessment of the 
response costs. While the State civil action was pending, Boston and 
Maine filed the present request for an Administrative determination of 
preemption. (The petition was filed with the Research and Special 
Programs Administration (RSPA) the predecessor of the Pipeline and 
Hazardous Materials Safety Administration (PHMSA)). For ease of 
reading, this publication will refer to PHMSA in describing the 
agency's conduct during this proceeding.

[[Page 4288]]

B. Application for Preemption

    Boston and Maine applied for a determination of preemption, 
contending the Federal Hazmat Law preempts the definitions of 
``hazardous material'' contained in M.G.L. chs. 21 E and 21 K. Boston 
and Maine makes three arguments for preemption: (1) The definitions of 
``hazardous material'' in the Massachusetts laws are not substantively 
the same as those in the Federal Hazmat Law; (2) the definitions pose 
an obstacle to the uniform regulation of transportation; and (3) by 
passing 49 U.S.C. 5125(b), Congress intended the Federal Hazmat Law to 
encompass all aspects of a response to a release or threat of release 
of a hazardous material while in transportation.
    On November 16, 2000, PHMSA published a Notice in the Federal 
Register inviting interested parties to comment on the application (65 
FR 69365). In response to requests from Massachusetts, and to give the 
parties an opportunity to research and analyze the issues, PHMSA twice 
extended the time for public comment (65 FR 79458 (Dec. 19, 2000), 66 
FR 8845 (Feb. 2, 2001)).

C. Federal Preemption

    In the absence of a waiver of preemption by DOT (49 U.S.C. 5125(e)) 
or a grant of specific authority in another Federal law, the Federal 
Hazmat Law preempts a requirement of a State, political subdivision of 
a State, or Indian tribe if:

    (1) Complying with a requirement of the State, political 
subdivision or tribe and a requirement of this chapter or a 
regulation issued 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 
Indian tribe, as applied or enforced, is an obstacle to 
accomplishing and carrying out this chapter or a regulation 
prescribed under this chapter or a hazardous materials 
transportation security regulation or directive issued by the 
Secretary of Homeland Security (49 U.S.C. 5125(a)).

The two paragraphs in 49 U.S.C. 5125(a) set forth the ``dual 
compliance'' and ``obstacle'' tests. Prior to the 1990 codification of 
these two tests, PHMSA applied the tests when issuing inconsistency 
rulings under the original preemption provisions in the Hazardous 
Materials Transportation Act (HMTA) (Pub. L. 93-633, 112(a), 88 Stat. 
2161 (1975)). The two tests evolved from U.S. Supreme Court decisions 
(See 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)).
    PHMSA also has preemption authority under a ``substantively the 
same'' test (49 U.S.C. 5125(b)(1)). A non-Federal requirement 
concerning any of the subjects listed in 49 U.S.C. 5125(b)(1), which is 
not ``substantively the same as'' a provision of the Federal Hazmat Law 
or a regulation prescribed under that law, or a hazardous materials 
transportation security regulation or directive issued by the Secretary 
of Homeland Security, is preempted unless the non-Federal requirement 
is authorized by another Federal law or DOT grants a waiver of 
preemption. Section 5125(b)(1) of 49 U.S.C. lists the following 
categories:

    (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; and
    (E) The design, manufacturing, fabricating, marking, 
maintenance, reconditioning, repairing, or testing of a packaging or 
a container represented, marked, certified, or sold as qualified for 
use in transporting hazardous material.

    These areas ``are critical both to the safe transportation of 
hazardous materials and the free flow of commerce,'' and any non-
Federal law or requirement falling within one of these areas creates an 
obstacle if the non-Federal requirement is substantively different (PD-
23 (RF); Morrisville, PA, Requirements for Transportation of 
``Dangerous Waste,'' Decision on Petition for Reconsideration, 67 FR 
2948, 2949 (Jan. 22, 2002), internal quotes omitted). The non-Federal 
requirement must ``conform in every significant respect to the Federal 
requirement to be considered substantively the same. Editorial and 
other similar de minimis changes are permitted'' (49 C.F.R. 
107.202(d)).
    The preemption provisions in 49 U.S.C. 5125 are intended to promote 
the safe movement of goods in interstate commerce by ``preclude[ing] 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 amending the HMTA in 1990, Congress specifically found:

    (1) 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,
    (2) 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,
    (3) 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 (Pub. L. 101-615, 2, 104 Stat. 3244).

    Uniformity is the ``linchpin'' in the design of the HMTA, including 
the 1990 amendments expanding the original preemption provisions 
(Colorado Pub. Util. Comm'n v. Harmon, 951 F.2d 1571, 1575 (10th Cir. 
1991)). (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)).
    Any person directly affected by a non-Federal law or regulation may 
apply to the Secretary of Transportation for a determination whether a 
State, local or tribal requirement is preempted (49 U.S.C. 5125(d)(1)). 
The Secretary of Transportation delegated to PHMSA the authority to 
make determinations of preemption concerning hazardous materials 
transportation issues, except for issues concerning highway routing, 
which the Secretary delegated to the Federal Motor Carrier Safety 
Administration (49 CFR 1.53(b) and 1.73(d)(2)).
    PHMSA Preemption determinations do not address issues of preemption 
arising under the Commerce Clause, the Fifth Amendment or other 
provisions of the Constitution. Preemption determinations issued by 
PHMSA also do not address questions arising under other Federal 
statutes unless it becomes necessary to determine whether the 
requirement questioned in the preemption request is authorized or 
required by another Federal law.
    In making preemption determinations, PHMSA is guided by the 
principles of Federalism and the policies set forth in Executive Order 
No. 13132 (64 FR 43255 (August 10, 1999)). PHMSA may preempt a State 
law only if a Federal statute contains an express preemption provision, 
there is other clear evidence that Congress intended to

[[Page 4289]]

preempt State law, or the exercise of State authority directly 
conflicts with the exercise of Federal authority. The Federal Hazmat 
Law contains an express preemption provision at section 5125, and PHMSA 
implemented this provision through its regulations.
    PHMSA must publish a notice of an application for a preemption 
determination in the Federal Register (49 U.S.C. 5125(d)(1)). Following 
the receipt and consideration of written comments, PHMSA must publish 
its determination in the Federal Register (49 CFR 107.209(d) and 
107.211(d)).

D. Summary of Comments to Application for Preemption

    Nufarm, Inc (Nufarm), and the National Tank Truck Carriers, Inc. 
(NTTC) provided comments in support of Boston and Maine's application 
(RSPA-2000-8026-8 and RSPA-2000-8026-10 respectively). Nufarm and NTTC 
urge PHMSA to declare the Massachusetts provisions preempted on the 
ground that the definitions in question are not substantively the same 
as the definition found in the Federal Hazmat Law.
    PHMSA received comments in opposition to Boston and Maine's 
application from: (1) The Massachusetts Attorney General (AG), on 
behalf of (a) The Commonwealth of Massachusetts, (b) Massachusetts 
Department of Fire Services, and (c) Department of Environmental 
Protection; (2) the State of New York (Department of Environmental 
Conservation and the Attorney General); (3) the Fire Chief for Devens, 
Massachusetts; (4) the Fire Chiefs' Association of Massachusetts, Inc.; 
(5) the State of Vermont; (6) the State of Connecticut; and (7) the 
Massachusetts Public Interest Group (MASSPRG).
    The Massachusetts AG argues the intention of Congress in passing 
the Federal Hazmat Law was not to preempt the entire field of a State's 
emergency response necessitated by the threat of environmental 
contamination. Accordingly, the AG argues, the State laws in question 
do not frustrate, and are not an obstacle to, the accomplishment of the 
goals of the Federal Hazmat Law or the regulations promulgated 
thereunder.
    Likewise, the AG asserts that PHMSA should not find that the 
Federal Hazmat Law preempts State requirements under the dual-
compliance test, because a person may simultaneously comply with both 
the Federal and non-Federal laws and regulations. MASSPRG agrees with 
the Commonwealth's dual-compliance argument (RSPA-2000-8026-12).
    In the alternative, the AG challenges the applicability of the 
preemption standards. The AG contends that the Federal Hazmat Law has 
no application to the subjects addressed in M.G.L. Chs. 21 E and 21 K, 
because once a release occurs, the materials are no longer in 
transportation (See also letters from MASSPRG, The State of New York 
(RSPA-2000-8026-14); Deven's Fire Chief (RSPA-2000-80226-15) and the 
Fire Chiefs' Association of Massachusetts (RSPA-2000-8026-16)).
    Lastly, the AG argues preemption is not appropriate because other 
Federal laws, such as CERCLA and Superfund Amendments and 
Reauthorization Act (SARA), title III, require States to respond to 
releases of potentially hazardous materials or environmental 
contaminants. The existence of such laws, the AG argues, shows Congress 
did not intend for the Federal Hazmat Law to apply to emergency 
response situations.

III. Discussion

A. ``Substantively the Same'' Test

    In the Federal Hazmat Law, Congress provided for express preemption 
of a non-Federal requirement ``about * * * the designation, 
description, and classification of hazardous materials'' not 
``substantively the same'' as the provisions of Title 49, Chapter 51 of 
the United States Code (49 U.S.C. 5125(b)). In order to fully evaluate 
Boston and Maine's claim, PHMSA must look at the goals and objectives 
of the Federal Hazmat Law and the State laws in question. When 
reviewing the goals and objectives of these laws, PHMSA ``start[s] with 
the assumption that the historic police powers of the States were not 
to be superseded by the Federal [Hazmat Law] unless that was the clear 
and manifest purpose of Congress'' Rice v. Santa Fe Elevator Corp., 331 
U.S. 218, 230 (1947). Physical cleanup after a release of a material is 
traditionally a police power of the State (Inconsistency Ruling No. 2; 
State of Rhode Island Rules and Regulations Governing the 
Transportation of Liquefied Natural Gas and Liquefied Propane Gas 
Intended To Be Used by a Public Utility (44 FR 75566, 75568, Dec. 20, 
1979)).
    The purpose of the Federal Hazmat Law is to ``provide adequate 
protection against the risk to life and property inherent in the 
transportation of hazardous materials in commerce'' (49 U.S.C. 
5103(b)). Massachusetts General Law ch. 21 K is intended to provide for 
the quick, efficient, and effective cleanup of releases of 
environmental contaminants and the evaluation of threats of releases of 
materials possibly posing a threat to the environment. It provides the 
mechanism by which the State or private individuals may seek recompense 
for the costs of response and cleanup caused by a release of certain 
materials into the environment. The focus of ch. 21 K is environmental 
protection, not the transportation of hazardous materials.
    Massachusetts General Law ch. 21 E focuses on the State response 
to, and cleanup of, a release of environmental contaminants and, to 
that end, requires the identification of materials that may contaminate 
the local environment. This statute allows proper state authorities to 
determine which materials cause, or might cause, a contamination to the 
local environment if released. The Federal Hazmat Law requires the DOT 
to also identify materials that pose a risk to the environment. 
However, in contrast to the Massachusetts laws, the Federal Hazmat Law 
endeavors to ensure that materials are transported without release. 
With a primary focus on preventing a release, the Federal Hazmat Law 
serves a more limited environmental role after a release that 
necessitates a cleanup or mediation. For example, if a release of a 
hazardous material occurs during transportation, the Federal Hazmat 
Law, through the HMR, ensures that first responders receive adequate 
information concerning the materials listed in the HMR, and it also 
requires the reporting of release information to the appropriate 
authorities.
    The Massachusetts laws do not directly or indirectly affect or 
conflict with the transportation of hazardous materials or with 
transportation in general. The State's use of the term ``hazardous 
material'' to describe materials that may contaminate the local 
environment does not bring it into conflict with Federal law and is not 
a basis for preemption.
    Given the distinct purposes served by the Federal Hazmat Law and 
the State laws, the lack of direct or indirect effect or conflict 
between them, and the States' traditional police powers in matters 
involving environmental protection, the Massachusetts laws are not 
preempted under 49 U.S.C. 5125(b). Accordingly, we need not address the 
question of whether a material remains in transportation after a 
release has occurred.

B. Obstacle Test

    In applying the ``obstacle'' test, we consider any and all 
requirements imposed by the HMR, including those governing packaging; 
the marking and labeling of packages; and the reporting of a release 
occurring during

[[Page 4290]]

transportation. We next consider whether the non-Federal requirement 
``as applied and enforced'' stands in the way of compliance with, or 
enforcement of, the Federal Hazmat Law.
    The State laws currently under consideration provide authority to 
respond to a release or threat of release of materials that 
Massachusetts found to pose a risk to the soil, water, or environment 
of Massachusetts. These laws also allow for the cleanup of contaminants 
and the recovery of the cleanup and response costs. No evidence in the 
record suggests that ch. 21 E or 21 K, as applied and enforced, 
interferes with accomplishing the packaging, marking, labeling, 
reporting, or any other provision of the HMR. Neither Boston and Maine, 
nor any commenter, has alleged or shown Massachusetts to be applying or 
enforcing either ch. 21 E or 21 K in a manner imposing different or 
additional requirements on a carrier, or any other persons subject to 
the HMR. Accordingly, M.G.L. chs. 21 E and 21 K are not preempted by 
the Federal Hazmat Law by operation of the ``obstacle'' test.

C. Dual Compliance Test

    For similar reasons, we do not find M.G.L. chs. 21 E or 21 K 
preempted under the ``dual compliance'' test. Nothing in those laws, 
including the subject definitions, affects either: (1) The manner in 
which a shipper must package, label, or mark a hazardous material for 
transportation; (2) the duties of a carrier when it accepts a shipment 
of hazardous materials complying with the HMR; or (3) a carrier's 
obligation to report a release of a material determined by the 
Secretary of Transportation to be a ``hazardous material.'' Therefore, 
the facts presented in this matter show a person can simultaneously 
comply with the requirements of the Federal Hazmat Law and the State 
laws.

D. Intent of Congress

    Finally, we consider the contention of Boston and Maine that the 
Massachusetts laws fall within a regulatory field that Congress 
intended would be exclusively reserved to PHMSA. We conclude to the 
contrary. On matters concerning the physical response and cleanup of 
contamination, Congress left room for States and localities to exercise 
their traditional authority.
    PHMSA enters this field in limited respects, imposing certain 
requirements related to the release of designated hazardous materials 
in or in connection with transportation. Other Federal agencies 
regulate aspects of releases or threats of releases of hazardous 
materials and any other materials posing a risk to the environment. 
Congress granted the Environmental Protection Agency (EPA), and 
Occupational Safety and Health Administration (OSHA) authority to 
regulate aspects of the response to a release or threat of release of 
hazardous materials. Furthermore, States have retained their 
traditional authority relating to the release or threat of release of 
materials occurring within State borders.
    Under the Federal Hazmat Law, PHMSA promulgates regulations 
requiring a person offering hazardous materials for transportation to 
provide carriers with certain emergency response information to 
accompany the hazardous materials while in transportation. The 
mandatory information includes: (1) Information regarding the materials 
present in the shipment, (2) what hazards the materials may present, 
(3) how to treat the materials, (4) preliminary first aid measures, and 
(5) how to avoid risk of injury. This information is conveyed by the 
placarding of the transport vehicle, the marking and labeling of the 
packaging, and the content of shipping papers. PHMSA also regulates 
incident reporting and recording, prescribing when, how, and to whom 
reports must be made of hazardous materials releases occurring during 
transportation.
    PHMSA has long recognized that the actual physical response and 
cleanup after a release of materials during transportation is a local 
responsibility. In Inconsistency Ruling No. 2; State of Rhode Island 
Rules and Regulations Governing the Transportation of Liquefied Natural 
Gas and Liquefied Propane Gas Intended To Be Used by a Public Utility 
(44 FR 75566, Dec. 20, 1979), PHMSA identified subjects as to which the 
need for national uniformity is so crucial and the scope of the HMTA 
(now Federal Hazmat Law) is so pervasive that State or local 
regulations would present obstacles to the HMTA. PHMSA also identified 
subjects as to which the Federal Hazmat Law and HMR did not (and still 
do not) apply. Specifically, PHMSA stated:

    Despite the dominant role that Congress contemplated for the 
Departmental standards, there are certain aspects of hazardous 
materials transportation that are not amenable to effective 
nationwide regulation. One example is safety hazards that are 
peculiar to a local area. * * * Another example is emergency 
response activity. Although the Federal Government can regulate in 
order to avert situations where emergency response is necessary, and 
can aid in local and State planning and preparing, when an accident 
does occur, response is, of necessity, a local responsibility (44 FR 
at 75568).

    The HMR also prescribe requirements for written notification, 
recording, and reporting after a release of a material the Secretary of 
Transportation has deemed poses ``an unreasonable risk to health and 
safety or property'' when the material is in transportation or in 
storage incidental to its movement in transportation. The Secretary of 
Transportation lists these materials in 49 CFR 172.101. Even as to 
those materials, the Federal Hazmat Law does not authorize PHMSA to 
regulate the cleanup, assessment, remediation, evaluation of releases 
of such materials, or to seek reimbursement for the costs caused by a 
release of such materials.
    In short, in the area of response and cleanup of materials released 
during transportation, the Federal Hazmat Law does not provide PHMSA 
authority that ``is so pervasive as to make reasonable the inference 
that Congress left no room for the state to supplement it.'' 
Accordingly, we do not find that the Massachusetts laws regulate a 
field reserved to PHMSA by Federal law and are not otherwise persuaded 
that in adopting the Federal Hazmat Law, Congress intended to preempt 
laws such as the Massachusetts laws under consideration here.

V. Ruling

    The Federal Hazmat Law does not preempt Massachusetts' definitions 
of hazardous materials contained in M.G.L., Ch. 21 E, section 2 and Ch. 
21 K, section 1 because these definitions relate solely to 
environmental response and cleanup requirements. The State requirements 
as applied and enforced are not an obstacle to accomplishing and 
carrying any provision of the Federal Hazmat Law, the HMR, or a 
transportation security regulation or directive issued by the Secretary 
of Homeland Security and do not concern any of the five subject areas 
reserved to federal jurisdiction under 49 U.S.C. 5125(b) or 49 CFR 
171.202(a).

VI. Petition for Reconsideration/Judicial Review

    This determination is a final agency action upon publication in the 
Federal Register (49 CFR 107.209(c), as amended at 71 FR 30067 [May 25, 
2006]), except with respect to a person who files a timely petition for 
reconsideration. In accordance with 49 CFR 107.211(a) (as amended at 71 
FR 30068 [May 25, 2006]), a person aggrieved by this determination may 
file a petition for reconsideration within 20 days of publication of 
this

[[Page 4291]]

determination in the Federal Register. The filing of a petition for 
reconsideration is not a prerequisite to seeking judicial review under 
49 U.S.C. 5127(a).
    A person who is adversely affected or aggrieved by a preemption 
determination may file a petition for judicial review of that 
determination 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).

    Issued in Washington, DC on this 15th day of January, 2009.
David E. Kunz,
Chief Counsel.
 [FR Doc. E9-1419 Filed 1-22-09; 8:45 am]
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