[Federal Register Volume 77, Number 128 (Tuesday, July 3, 2012)]
[Notices]
[Pages 39567-39571]
From the Federal Register Online via the Government Publishing 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