[Federal Register Volume 91, Number 6 (Friday, January 9, 2026)]
[Notices]
[Pages 1029-1032]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2026-00232]
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DEPARTMENT OF TRANSPORTATION
Pipeline and Hazardous Materials Safety Administration
[Docket No. PHMSA-2025-0776; PDA-41(R)]
Hazardous Materials: California's Reusability Requirement for
Propane Cylinders
AGENCY: Pipeline and Hazardous Materials Safety Administration (PHMSA),
DOT.
[[Page 1030]]
ACTION: Public notice and invitation to comment.
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SUMMARY: Interested parties are invited to comment on an application by
Worthington Enterprises, Inc. for an administrative determination as to
whether Federal hazardous material transportation law preempts the
State of California's law requiring that propane cylinders sold or
offered for sale in California must be refillable or reusable.
DATES: Comments received on or before February 9, 2026 and rebuttal
comments received on or before March 10, 2026 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: Worthington Enterprises, Inc.'s 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
website: http://www.regulations.gov.
Comments must refer to Docket No. PHMSA-2025-0776 and may be
submitted by any of the following methods:
Federal eRulemaking Portal: Go to http://www.regulations.gov. Follow the online instructions for submitting
comments.
Fax: 1-202-493-2251.
Mail: 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.
Hand Delivery: 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, between 9:00 a.m. and
5:00 p.m., Monday through Friday, except Federal holidays.
A copy of each comment must also be sent to (1) Joseph B. Hayek,
President and Chief Executive Officer, Worthington Enterprises, Inc.,
200 West Old Wilson Bridge Road, Columbus, OH 43085; and (2) Rob Bonta,
Attorney General, The State of California, Office of the Attorney
General, 1300 ``I'' Street, Sacramento, CA 95814-2919. 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. Hayek and Mr. Bonta 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 (65 FR 19477-78), or you may visit http://www.regulations.gov.
A subject matter index of hazardous materials preemption cases,
including a listing of all inconsistency rulings and preemption
determinations, is available through PHMSA's home page at http://phmsa.dot.gov. From the home page, click on ``Regulations and
Compliance,'' then on ``Preemption Determinations'' located on the
right side of the page. A paper copy of the index will be provided at
no cost upon request to Mr. Horsley, at the address and telephone
number set forth in the FOR FURTHER INFORMATION CONTACT section below.
FOR FURTHER INFORMATION CONTACT: Adam Horsley, 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
Worthington Enterprises, Inc. has applied for a determination
whether the Federal hazardous material transportation law (HMTA), 49
U.S.C. 5101 et seq., preempts the State of California's requirements
regarding the sale of propane cylinders, as codified in California
Public Resources Code, Cal. Pub. Res. Code Sec. Sec. 42395-42395.2.
Specifically, Worthington alleges that the law bans the sale of non-
reusable and non-fillable propane cylinders of certain sizes, such as
those manufactured by Worthington. On or after January 1, 2028, only
reusable or refillable propane cylinders shall be sold or offered for
sale in California, meaning cylinders that are explicitly designed and
marketed to be utilized multiple times for the same product, designed
for durability to function properly in its original condition for
multiple uses, and supported by adequate infrastructure to ensure the
cylinders can be conveniently and safely reused or refilled multiple
times.\1\ There are exceptions, including cylinders that are
customarily designed for use in the construction industry and have a
capacity of less than 15 ounces of fuel; cylinders that have an overall
product height-to-width ratio of 3.55 to 1 or greater; and cylinders
that are offered to a state or local government agency for purchase
pursuant to the U.S. General Services Administrations' State and Local
Disaster Purchasing Program or its successor.\2\
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\1\ Cal. Pub. Res. Code Sec. Sec. 42395, 42395.1.
\2\ Cal. Pub. Res. Code Sec. 42395.
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Worthington presents two main arguments for why it believes
California's law should be preempted. First, Worthington asserts that
the HMTA preempts that law's requirement that all propane cylinders of
certain sizes be reusable or refillable as not substantively the same
as the HMTA or the Hazardous Materials Regulations (HMR) because it is
about ``the designing, manufacturing, . . . [or] maintaining'' a
``container'' used for the transportation of hazardous materials, given
that propane is classified as a hazardous material under the HMR and
California's reusability requirement imposes additional requirements on
how cylinders containing propane must be designed and prohibits designs
that are authorized by the HMR. Worthington argues that California's
law mandates that propane cylinders must be ``explicitly designed'' to
be used multiple times. Further, Worthington asserts the law requires
propane cylinders to be manufactured in such a way to be durable enough
to withstand ``multiple uses.'' Worthington contends this reusability
requirement is not substantively the same as the HMTA or HMR because it
prohibits single-use cylinder designs expressly authorized by the HMR.
Last, Worthington asserts California's propane cylinder reusability
requirement is preempted because it is ``an obstacle to accomplishing
and carrying out'' the HMTA. Specifically, Worthington argues
California's law undermines uniformity in hazardous material regulation
by imposing requirements only applicable in California, creates an
economic burden on cylinder manufacturers, and undermines the HMTA's
safety objectives by taking propane cylinders with a proven safety
record off the market.
In summary, Worthington contends California's law requiring that
propane cylinders sold or offered for sale in California must be
refillable or reusable should be preempted because:
[[Page 1031]]
It is not substantively the same as federal regulations
governing the design, manufacture, and maintenance of cylinders used in
transportation of hazardous materials; and
It is an obstacle to the federal hazardous material
transportation legal and regulatory regime.
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. 2319), 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 non-
Federal requirement is authorized by another Federal law or DOT grants
a waiver of preemption under section 5125(e)--if (1) complying with the
non-Federal requirement and the Federal requirement is not possible; or
(2) the non-Federal requirement, as applied and enforced, is an
obstacle to accomplishing and carrying out the Federal requirement.
These two sentences set forth the ``dual compliance'' and
``obstacle'' criteria that PHMSA's predecessor agency, the Research and
Special Programs Administration, had applied in issuing inconsistency
rulings prior to 1990, under the original preemption provision in the
Hazardous Materials Transportation Act (HMTA). Public Law 93-633 Sec.
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 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. The five subject areas include: the designation, description,
and classification of hazardous material; the packing, repacking,
handling, labeling, marking, and placarding of hazardous material; the
preparation, execution, and use of shipping documents related to
hazardous material and requirements related to the number, contents,
and placement of those documents; the written notification, recording,
and reporting of the unintentional release in transportation of
hazardous material and other written hazardous materials transportation
incident reporting involving State or local emergency responders in the
initial response to the incident; and 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 in commerce.
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).\3\
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\3\ 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). 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.''
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The 2002 amendments and 2005 reenactment of the preemption
provisions in 49 U.S.C. 5125 reaffirmed Congress's long-standing view
that a single body of uniform Federal regulations promotes safety
(including security) in the transportation of hazardous materials. More
than fifty 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 that 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. And 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. Therefore, 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.\4\
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\4\ Public Law 101-615 Sec. 2, 104 Stat. 3244. (In 1994,
Congress revised, codified and enacted the HMTA ``without
substantive change,'' at 49 U.S.C. Chapter 51. Public Law 103-272,
108 Stat. 745 (July 5, 1994).).
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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 1.97(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
[[Page 1032]]
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.
IV. Public Comments
All comments should be directed to whether 49 U.S.C. 5125 preempts
the State of California's law requiring that propane cylinders sold or
offered for sale in California must be refillable or reusable. Comments
should specifically address the preemption criteria discussed in Part
II above.
Issued in Washington, DC, on January 6, 2026.
Keith J. Coyle,
Chief Counsel.
[FR Doc. 2026-00232 Filed 1-8-26; 8:45 am]
BILLING CODE 4910-60-P