[Federal Register Volume 76, Number 92 (Thursday, May 12, 2011)]
[Rules and Regulations]
[Pages 27613-27614]
[FR Doc No: 2011-11438]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R09-OAR-2010-0906; FRL-9278-9]

Revisions to the California State Implementation Plan, California
Air Resources Board--Consumer Products

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is finalizing approval of revisions to the California Air
Resources Board portion of the California State Implementation Plan
(SIP). These revisions were proposed in the Federal Register on
November 16, 2010 and concern volatile organic compound (VOC) emissions
from consumer products. We are approving a State rule that regulates
these emission sources under the Clean Air Act as amended in 1990 (CAA
or the Act).

DATES: Effective Date: This rule is effective on June 13, 2011.

ADDRESSES: EPA has established docket number EPA-R09-OAR-2010-0906 for
this action. The index to the docket is available electronically at
www.regulations.gov and in hard copy at EPA Region IX, 75 Hawthorne
Street, San Francisco, California. While all documents in the docket
are listed in the index, some information may be publicly available
only at the hard copy location (e.g., copyrighted material), and some
may not be publicly available in either location (e.g., CBI). To
inspect the hard copy materials, please schedule an appointment during
normal business hours with the contact listed in the FOR FURTHER
INFORMATION CONTACT section.

FOR FURTHER INFORMATION CONTACT: Stanley Tong, EPA Region IX, (415)
947-4122<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION: Throughout this document, ``we,'' ``us'' and
``our'' refer to EPA.

Table of Contents

I. Proposed Action
II. Public Comments and EPA Responses
III. EPA Action
IV. Statutory and Executive Order Reviews

I. Proposed Action

    On November 16, 2010 (75 FR 69910), EPA proposed to approve the
following rule into the California SIP.

----------------------------------------------------------------------------------------------------------------
                  Regulation                            Regulation title              Amended        Submitted
----------------------------------------------------------------------------------------------------------------
California Code of Regulations, Title 17,       Article 2--Consumer Products....        05/05/09        02/16/10
 Division 3, Chapter 1, Subchapter 8.5--
 Consumer Products.
----------------------------------------------------------------------------------------------------------------

    We proposed to approve this rule because we determined that it
complies with the relevant CAA requirements. Our proposed action
contains more information on the rule and our evaluation.

II. Public Comments and EPA Responses

    EPA's proposed action provided a 30-day public comment period.
During this period, we received one comment from the general public
regarding cap and trade regulations. The submitted comment is not
germane to this action as amendments to California's Consumer Products
regulation deal with limiting the VOC content of products and does not
deal with cap and trade programs.

III. EPA Action

    No comments were submitted that change our assessment that the
submitted rule complies with the relevant CAA requirements. Therefore,
as authorized in section 110(k)(3) of the Act, EPA is fully approving
this rule into the California SIP.

IV. Statutory and Executive Order Reviews

    Under the Clean Air Act, the Administrator is required to approve a
SIP submission that complies with the provisions of the Act and
applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a).
Thus, in reviewing SIP submissions, EPA's role is to approve State
choices, provided that they meet the criteria of the Clean Air Act.
Accordingly, this action merely approves State law as meeting Federal
requirements and does not impose additional requirements beyond those
imposed by State law. For that reason, this action:
     Is not a ``significant regulatory action'' subject to
review by the Office of Management and Budget under Executive Order
12866 (58 FR 51735, October 4, 1993);
     Does not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Is certified as not having a significant economic impact
on a substantial number of small entities under the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.);
     Does not contain any unfunded mandate or significantly or
uniquely affect small governments, as described in the Unfunded
Mandates Reform Act of 1995 (Pub. L. 104-4);
     Does not have Federalism implications as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Is not an economically significant regulatory action based
on health or safety risks subject to Executive Order 13045 (62 FR
19885, April 23, 1997);
     Is not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Is not subject to requirements of Section 12(d) of the
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272
note) because application of those requirements would be inconsistent
with the Clean Air Act; and
     Does not interfere with Executive Order 12898 (59 FR 7629
(Feb. 16, 1994)) because EPA lacks the discretionary authority to
address environmental justice in this rulemaking.

In addition, this rule does not have tribal implications as specified
by Executive Order 13175 (65 FR 67249, November 9, 2000), because the
SIP is not approved to apply in Indian country located in the State,
and EPA notes that it will not impose substantial direct costs on
tribal governments or preempt tribal law.

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. EPA will submit a report containing this action and
other required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. A major rule

cannot take effect until 60 days after it is published in the Federal
Register. This action is not a ``major rule'' as defined by 5 U.S.C.
804(2).
    Under section 307(b)(1) of the Clean Air Act, petitions for
judicial review of this action must be filed in the United States Court
of Appeals for the appropriate circuit by July 11, 2011. Filing a
petition for reconsideration by the Administrator of this final rule
does not affect the finality of this action for the purposes of
judicial review nor does it extend the time within which a petition for
judicial review may be filed, and shall not postpone the effectiveness
of such rule or action. This action may not be challenged later in
proceedings to enforce its requirements (see section 307(b)(2)).

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by
reference, Intergovernmental relations, Ozone, Reporting and
recordkeeping requirements, Volatile organic compounds.

    Dated: January 28, 2011.
Jared Blumenfeld,
Regional Administrator, Region IX.

    Part 52, Chapter I, Title 40 of the Code of Federal Regulations is
amended as follows:

PART 52--[AMENDED]

0
1. The authority citation for Part 52 continues to read as follows:

    Authority: 42 U.S.C. 7401 et seq.

Subpart F--California

0
2. Section 52.220 is amended by adding paragraph (c)(383) to read as
follows:

Sec.  52.220  Identification of plan.

* * * * *
    (c) * * *
    (383) New and amended regulations were submitted on February 16,
2010, by the Governor's designee.
    (i) Incorporation by Reference.
    (A) California Air Resources Board.
    (1) Executive Order R-08-016, dated May 5, 2009.
    (2) ``Final Regulation Order, Regulation for Reducing Emissions
from Consumer Products,'' California Code of Regulations, Title 17
(Public Health), Division 3 (Air Resources), Chapter 1 (Air Resources
Board), Subchapter 8.5 (Consumer Products), Article 2 (Consumer
Products), amendment filed 6-18-2009, operative 7-18-2009.
* * * * *
[FR Doc. 2011-11438 Filed 5-11-11; 8:45 am]
BILLING CODE 6560-50-P


[Federal Register: January 30, 2009 (Volume 74, Number 19)]
[Notices]
[Page 5723-5726]
[DOCID:fr30ja09-121]

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DEPARTMENT OF TRANSPORTATION

Pipeline and Hazardous Materials Safety Administration

[Docket No. PHMSA-2009-0017 (PDA-34(R)]

Common Law Tort Claims Concerning Design and Marking of DOT
Specification 39 Compressed Gas Cylinders

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

ACTION: Public notice and invitation to comment.

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SUMMARY: Interested parties are invited to comment on an application by
AMTROL, Inc., for an administrative determination as to whether Federal
hazardous material transportation law preempts State common law tort
claims alleging that the manufacturer of DOT specification 39
compressed gas cylinders should have designed the cylinders to resist
rusting over time and/or provided additional warnings of the potential
rusting over time, beyond requirements in the Hazardous Materials
Regulations (HMR) for the manufacture, marking, and labeling of these
cylinders.

DATES: Comments received on or before March 16, 2009, and rebuttal
comments received on or before April 30, 2009, will be considered
before an administrative determination is issued by PHMSA's Chief
Counsel. Rebuttal comments may discuss only those issues raised by
comments received during the initial comment period and may not discuss
new issues.

ADDRESSES: The application and all comments received may be reviewed in
the Docket Operations Facility (M-30), U.S. Department of
Transportation, West Building Ground Floor, Room W12-140, 1200 New
Jersey Avenue, SE., Washington, DC 20590. The application and all
comments are available on the U.S. Government Regulations.gov Web site:
http://www.regulations.gov.
    Comments must refer to Docket No. PHMSA-2009-0017 and may be
submitted to the docket in writing or electronically. Mail or hand
deliver three copies of each written comment to the above address. If
you wish to receive confirmation of receipt of your comments, include a
self-addressed, stamped postcard. To submit comments electronically,
log onto the U.S. Government Regulations.gov Web site: http://
www.regulations.gov. Use the Search Documents section of the home page
and follow the instructions for submitting comments.
    A copy of each comment must also be sent to (1) Stephen J. Maassen,
Esq., Hoagland, Fitzgerald, Smith & Pranaitis, P.O. Box 130, Alton, IL
62002, counsel for Amtrol, Inc., and (2) Rex Carr, Esq., The Rex Carr
Law Firm, LLC, 412 Missouri Avenue, East St. Louis, IL 62201-3016,
counsel for survivors and next of kin to Kenneth Elder, Jr. A
certification that a copy has been sent to these persons must also be
included with the comment. (The following format is suggested: ``I
certify that copies of this comment have been sent to Mr. Maassen and
Mr. Carr at the addresses specified in the Federal Register.'')
    Anyone is able to search the electronic form of all comments
received into any of our dockets by the name of the individual
submitting the comment (or signing a comment submitted on behalf of an
association, business, labor union, etc.). You may review DOT's
complete Privacy Act Statement in the Federal Register published on
April 11, 2000 (70 FR 19477-78), or you may visit http://www.dot.gov.
    A subject matter index of hazardous materials preemption cases,
including a listing of all inconsistency rulings and preemption
determinations, is available through the home page of PHMSA's Office of
Chief Counsel, at http://phmsa.dot.gov/legal. A paper copy of the index
will be provided at no cost upon request to Mr. Hilder, at the address
and telephone number set forth in FOR FURTHER INFORMATION CONTACT
below.

FOR FURTHER INFORMATION CONTACT: Frazer C. Hilder, Office of Chief
Counsel (PHC-10), Pipeline and Hazardous Materials Safety
Administration, U.S. Department of Transportation, 1200 New Jersey
Avenue, SE., Washington, DC 20590; telephone No.<PHONE_NUMBER>;
facsimile No.<PHONE_NUMBER>.

SUPPLEMENTARY INFORMATION:

I. Application for a Preemption Determination

    AMTROL, Inc. has applied for a determination that Federal hazardous
material transportation law, 49 U.S.C. 5101 et seq., preempts State
common law tort claims relating to the design and marking or labeling
of DOT specification 39 compressed gas cylinders. AMTROL contends that
these common law tort claims impose requirements that are not
substantively the same as requirements in the HMR for the design and
marking or labeling of a cylinder that has been marked and certified as
qualified for use in transporting hazardous material.
    In its original application dated June 26, 2007, AMTROL stated that
it was a defendant in a products liability lawsuit, Elder v. AMTROL,
Inc., et al., No. 042-08718, brought in the Circuit Court of the City
of St. Louis, Missouri. According to AMTROL, a DOT specification 39
cylinder manufactured by AMTROL in 1995 had ruptured ``on January 24,
2003, when Plaintiffs'' decedent placed the rusted cylinder under 170
degree water.'' With its application, AMTROL provided a copy of the
transcript of a deposition at which the Elders' expert witness
testified (at p. 60) that ``the bottom of the tank ruptured * * * as a
result of the thinned and rusted area on the bottom of the tank.'' This
witness testified (at pp. 63 and 64) that the cylinder ``could be
better designed to prevent rusting and corrosion and include warnings''
and ``at a minimum I would say there needs to be warnings for rust,''
even though he acknowledged (at p. 68) that the cylinder complied with
the specification ``as nearly as I can tell.''
    The Elders' expert witness also took the position (at p. 69) that
the specification requirements in the HMR

deal[ ] with the transportation of the container. [They do] not deal
specifically with the use of the container after it's already in the
hands of a technician. It's intended to be used for the
transportation of the container with a hazardous material. So just
because it meets this particular regulation doesn't mean it is
necessarily safe, reasonably safe for its intended use.

In response to a question seeking his opinion of ``what should be done
* * *

to design this cylinder to account for corrosion,'' the witness replied
(at pp. 77-78):

    If you know where your product has been used, Florida versus,
say Arizona, you can determine what the corrosion rate is for these
various parts of the country. And it might vary from a tenth of a
millimeter per year or it could be a quarter of a millimeter per
year for a rusting or corrosion rate. And therefore if you determine
these areas of sale, then you might combine that with what you
expect in terms of how long the cylinder is in the hands of someone
whether it's six months or a year, or two years, or in this case
nine years. You could anticipate what your corrosion rate is and
whether you needed to make that wall thickness one millimeter, one
and a half, or two millimeters or whether you wanted to use a
different paint or protect the paint that's on there in some manner.
So there's a variety of things that can be done and considered
depending on how and who the cylinder is sold to.

    AMTROL cited PHMSA's prior decisions in Inconsistency Ruling (IR)
Nos. 7-15, 49 FR 46632 (Nov. 27, 1984), and Preemption Determination
(PD) No. 2, 58 FR 11176 (Feb. 23, 1993). It specifically referred to
the discussion in the general preamble to IRs 7-15 that, in the areas
of packaging design and construction, and the marking and labeling of
packages, ``the need for national uniformity is so crucial and the
scope of Federal regulation is so pervasive that it is difficult to
envision any situation where State or local regulation would not
present an obstacle to the accomplishment and execution of the HMTA and
the regulations issued thereunder.'' 49 FR at 64433.
    In a responding letter dated July 12, 2007, the Elders' counsel
opposed AMTROL's application and stated that ``the thrust of
plaintiffs'' position [is] that the specification required by DOT dealt
with and was required to deal with a cylinder that was qualified for
use in transporting hazardous material'' but

    The journey had long ended, years before the technician put the
contents of the cylinder to use. He was not using the cylinder in a
transportation mode; he was simply using the cylinder as an end-user
on the job after its journey had ceased. The regulation in question
was not intended to cover any use of the cylinder after it had been
transported in interstate commerce. The use to which a cylinder
might be put by the technicians using them are outside the purview
of the regulations. [A] State common law requirement that the
products being used on the job be safe for their intended use does
not interfere with the DOT regulation. The state common law does not
seek to impose its requirement where the cylinder in question
clearly, at the time of its manufacture and transportation, complied
with the DOT specifications.

    The Elders' counsel asked PHMSA to find that the Federal hazardous
material transportation law and the HMR ``do not preempt the opinions
pertaining to so-called covered areas of 49 USCA Sec.  5125, with
regard to labeling and design of specification DOT 39 non-refillable
cylinders.''
    In a September 11, 2007 letter to AMTROL's counsel, PHMSA's
Assistant Chief Counsel for Hazardous Materials Safety Law noted that
the State of Missouri had not yet ``adopted a requirement for the
cylinder manufacturer to take these additional actions [in the Elders'
common law claims], either by law regulation, or judicial decision''
and, accordingly, ``[i]t would be premature for the Chief Counsel to
make a determination whether a potential requirement affecting the
transportation of hazardous material, which has not yet been adopted or
come into effect, would be preempted.'' However, this letter also
discussed the adoption of DOT specification 39 into the HMR in 1971,
including the specific requirements that the cylinder ``must be shipped
in strong outside packagings'' that ``provide protection for the
complete cylinder'' and must be marked (1) ``NRC'' for ``non-reusable
container'' and (2) with the statement that ``Federal law forbids
transportation if refilled'' plus a statement of the maximum civil and
criminal penalties applicable at the date of manufacture. These marking
requirements are presently set forth at 49 CFR 178.65(i)(2).
    PHMSA's Assistant Chief Counsel also referred to the consideration
that, because the DOT specification 39 cylinder was nonreusable, it
would not be ``subject to cyclic stresses resulting from refilling''
(quoting from the 1970 notice of proposed rulemaking, 35 FR 18879). He
stated that ``specification 39 cylinders have always been intended for
a single use; there has never been any intent that these cylinders have
the strength or durability of cylinders manufactured to other
specifications which are authorized for repeated refillings over many
years and subject to periodic requalification through inspection and
pressure testing.'' He also stated that ``[r]equirements affecting the
design, manufacturing, and marking of a cylinder (or other packaging)
marked as meeting a DOT specification must be distinguished from
requirements affecting the use of that cylinder or other packaging.''
He quoted the discussion in the preamble to PHMSA's rulemaking on the
``Applicability of the Hazardous Materials Regulations for Loading,
Unloading, and Storage,'' 70 FR 20018, 20024-25 (Apr. 15, 2005), that:

    DOT specification packagings, such as * * * cylinders, are
subject to DOT regulation at all times that the packaging is marked
to indicate that it conforms to the applicable specification
requirements [which means that,] [u]nder the Federal hazmat law, a
non-Federal entity may impose requirements on DOT specification
packagings only if those requirements are substantively the same as
the DOT requirements.

    PHMSA's Assistant Chief Counsel stated that the agency

would have a concern with any State law, regulation, or judicial
decision that imposed additional manufacturing and marking
requirements on any DOT specification packaging, including a
specification 39 cylinder. It would be impractical and burdensome
for a manufacturer of these cylinders to have to vary their design,
manufacturing process, and markings to accommodate additional and
possibly conflicting requirements that varied from State to State--
especially requirements for additional wording that indicates or
implies that the cylinder is suitable for refilling with a hazardous
material and continued use over many years, in conflict with the
specific markings required by the HMR. These required markings are
part of the safety requirements in the DOT specification for these
cylinders and must not be compromised.

    He concluded by stating that he ``express[ed] no opinion on the
responsibility or liability of any person who loads, stores, or unloads
a DOT specification 39 cylinder, or any other DOT specification
packaging, that no longer meets the requirements of the DOT
specification, when that packaging is no longer in transportation in
commerce.
    In a September 11, 2008 letter, AMTROL renewed its application for
a determination whether Federal hazardous material transportation law
preempts the Elders' product liability claims ``based on allegations of
defect with regard to `covered subjects' of labeling and design of
[DOT] specification cylinders.'' AMTROL stated that it is now in a
Chapter 11 bankruptcy proceeding pending in the United States
Bankruptcy Court for the District of Delaware, In Re Amtrol Holdings,
Inc., Case No. 06-11446, in which the Elders have filed claims based on
the same theories as previously alleged in their Missouri action.
    AMTROL explained that the bankruptcy judge has found that the
Elders' claims are not preempted by 49 U.S.C. 5125, so that there is
now a ``judicial decision imposing additional manufacturing and marking

requirements'' on DOT specification 39 cylinders, and ``the matter is
ripe for a determination of whether the Plaintiffs'' Claims now pending
in the Bankruptcy Court'' are preempted. AMTROL stated that the
Bankruptcy Court ``failed to follow the directive of the DOT, set out
in the [Assistant Chief Counsel's] September 11 letter * * * [which]
made it clear that if a lawsuit ruling imposed additional manufacturing
and [marking] requirements in one state or local jurisdiction, it would
be preempted.'' It also stated that ``[e]nforcement of the state
requirement would mean that specification 39 non-reusable cylinders
would no longer be governed and controlled by specifications set out by
Department of Transportation Regulations at 49 CFR 178.65, and that
AMTROL, Inc. would be subject to potential lawsuit[s] even under
circumstances where, as here, it had complied with all such
regulations.''
    AMTROL advised that the order of the Bankruptcy Court denying
AMTROL's objection to the Elders' claims is currently on appeal to the
United States District Court for the District of Delaware, and it has
provided copies of the transcript of the hearing before the bankruptcy
judge on March 26, 2008, the Bankruptcy Court's April 1, 2008
memorandum opinion, AMTROL'ss notice of appeal, and the Elders' notice
of appeal from the Bankruptcy Court's April 1, 2008 order with regard
to other issues.
    In a September 17, 2008 response, Counsel for the Elders stated
that the Bankruptcy Court ``cannot under any circumstances make law for
the State of Missouri'' but is ``required to interpret the law of the
State of Missouri where the death took place when ruling on issues
appropriately within its jurisdiction.'' He stated that the Bankruptcy
Court

reviewed the law and found that preemption did not apply ``because
the HMTA applied to transportation, not end use.'' (Memorandum
Opinion, p. 10). It pointed out examples showing that Congress
intended to regulate transportation, not use. It did not impose any
additional manufacturing and working requirements on a DOT 39
cylinder. It concluded: ``The DOT declined to opine and, consistent
with the court's conclusion, distinguished between use and
transportation.'' (Memorandum Opinion, p. 12).
    The order of that court in no way adopts new requirements
affecting the transportation in interstate commerce.

    The following materials are available in the public docket of this
proceeding:

--AMTROL's original June 26, 2007 application including a copy of the
transcript of the November 17, 2006 deposition of the Elders' expert
witness;
--the Elders' July 12, 2007 response to AMTROL's application;
--the September 11, 2007 letter of PHMSA's Assistant Chief Counsel for
Hazardous Materials Safety Law;
--DOT's December 11, 1970 notice of proposed rulemaking, 35 FR 18879,
and August 24, 1971 final rule, 36 FR 16579, ``Cylinder
Specifications'';
--the transcript of the March 26, 2008 hearing in the Bankruptcy Court;
--the Bankruptcy Court's April 1, 2008 memorandum opinion and order;
--AMTROL's April 11, 2008 Notice of Appeal from the Bankruptcy Court's
April 1, 2008 order and April 21, 2008 Designation of the Record and
Statement of Issues to be Presented;
--the Elders' Notice of Appeal from the Bankruptcy Court's April 1,
2008 order;
--AMTROL's September 11, 2008 reapplication;
--the Elders' September 17, 2008 response to AMTROL's reapplication;
and
--AMTROL's October 3, 2008 reply letter.

II. Federal Preemption

    Section 5125 of 49 U.S.C. contains express preemption provisions
relevant to this proceeding. As amended by Section 1711(b) of the
Homeland Security Act of 2002 (Pub. L. 107-296, 116 Stat. 2320), 49
U.S.C. 5125(a) provides that a requirement of a state, political
subdivision of a state, or Indian tribe is preempted--unless the non-
Federal requirement is authorized by another Federal law or DOT grants
a waiver of preemption under Sec.  5125(e)--if

    (1) Complying with a requirement of the State, political
subdivision, or tribe and a requirement of this chapter, a
regulation prescribed under this chapter, or a hazardous materials
transportation security regulation or directive issued by the
Secretary of Homeland Security is not possible; or
    (2) The requirement of the State, political subdivision, or
tribe, as applied or enforced, is an obstacle to accomplishing and
carrying out this chapter, a regulation prescribed under this
chapter, or a hazardous materials transportation security regulation
or directive issued by the Secretary of Homeland Security.

    These two paragraphs set forth the ``dual compliance'' and
``obstacle'' criteria that PHMSA's predecessor agency, the Research and
Special Programs Administration (RSPA), had applied in issuing
inconsistency rulings (IRs) prior to 1990, under the original
preemption provision in the Hazardous Materials Transportation Act
(HMTA). Public Law 93-633 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:

    (A) The designation, description, and classification of
hazardous material.
    (B) The packing, repacking, handling, labeling, marking, and
placarding of hazardous material.
    (C) The preparation, execution, and use of shipping documents
related to hazardous material and requirements related to the
number, contents, and placement of those documents.
    (D) The written notification, recording, and reporting of the
unintentional release in transportation of hazardous material.
    (E) The designing, manufacturing, fabricating, inspecting,
marking, maintaining, reconditioning, repairing, or testing a
package, container, or packaging component that is represented,
marked, certified, or sold as qualified for use in transporting
hazardous material.\1\
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    \1\ Subparagraph (E) was editorially revised in Sec. 7122(a) of
the Hazardous Materials Transportation Safety and Security
Reauthorization Act of 2005, which is Title VII of the Safe,
Accountable, Flexible, Efficient Transportation Equity Act: A Legacy
for Users (SAFETEA-LU), Public Law 109-59, 119. Stat. 1891 (Aug. 10,
2005). Technical corrections to cross-references in subsections (d),
(e), and (g) were made in Public Law 110-244, Sec. 302(b), 122 Stat.
1618 (June 6, 2008).

To be ``substantively the same,'' the non-Federal requirement must
conform ``in every significant respect to the Federal requirement.
Editorial and other similar de minimis changes are permitted.'' 49 CFR
107.202(d).\2\
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    \2\ 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
thirty years ago, when it was considering the HMTA, the Senate Commerce
Committee ``endorse[d] the principle of preemption in order to preclude
a multiplicity of State and local regulations and the potential for
varying as well as conflicting regulations in the area of hazardous
materials transportation.'' S. Rep. No. 1102, 93rd Cong. 2nd Sess. 37
(1974). When Congress expanded the preemption provisions in 1990, it
---------------------------------------------------------------------------
specifically found:

    (3) Many States and localities have enacted laws and regulations
which vary from Federal laws and regulations pertaining to the
transportation of hazardous materials, thereby creating the
potential for unreasonable hazards in other jurisdictions and
confounding shippers and carriers which attempt to comply with
multiple and conflicting registration, permitting, routing,
notification, and other regulatory requirements,
    (4) Because of the potential risks to life, property, and the
environment posed by unintentional releases of hazardous materials,
consistency in laws and regulations governing the transportation of
hazardous materials is necessary and desirable,
    (5) In order to achieve greater uniformity and to promote the
public health, welfare, and safety at all levels, Federal standards
for regulating the transportation of hazardous materials in
intrastate, interstate, and foreign commerce are necessary and
desirable.

    Public Law 101-615 Sec.  2, 104 Stat. 3244. (In 1994, Congress
revised, codified and enacted the HMTA ``without substantive change,''
at 49 U.S.C. Chapter 51. Pub. L. 103-272, 108 Stat. 745 (July 5,
1994).) A United States Court of Appeals has found uniformity was the
``linchpin'' in the design of the Federal laws governing the
transportation of hazardous materials. Colorado Pub. Util. Comm'n v.
Harmon, 951 F.2d 1571, 1575 (10th Cir. 1991).

III. Preemption Determinations

    Under 49 U.S.C. 5125(d)(1), any person (including a State,
political subdivision of a State, or Indian tribe) directly affected by
a requirement of a State, political subdivision or tribe may apply to
the Secretary of Transportation for a determination whether the
requirement is preempted. The Secretary of Transportation has delegated
authority to PHMSA to make determinations of preemption, except for
those concerning highway routing (which have been delegated to the
Federal Motor Carrier Safety Administration). 49 CFR 1.53(b).
    Section 5125(d)(1) requires notice of an application for a
preemption determination to be published in the Federal Register.
Following the receipt and consideration of written comments, PHMSA
publishes its determination in the Federal Register. See 49 CFR
107.209(c). A short period of time is allowed for filing of petitions
for reconsideration. 49 CFR 107.211. A petition for judicial review of
a final preemption determination must be filed in the United States
Court of Appeals for the District of Columbia or in the Court of
Appeals for the United States for the circuit in which the petitioner
resides or has its principal place of business, within 60 days after
the determination becomes final. 49 U.S.C. 5127(a).
    Preemption determinations do not address issues of preemption
arising under the Commerce Clause, the Fifth Amendment or other
provisions of the Constitution, or statutes other than the Federal
hazardous material transportation law unless it is necessary to do so
in order to determine whether a requirement is authorized by another
Federal law, or whether a fee is ``fair'' within the meaning of 49
U.S.C. 5125(f)(1). A state, local or Indian tribe requirement is not
authorized by another Federal law merely because it is not preempted by
another Federal statute. Colorado Pub. Util. Comm'n v. Harmon, above,
951 F.2d at 1581 n.10.
    In making preemption determinations under 49 U.S.C. 5125(d), PHMSA
is guided by the principles and policies set forth in Executive Order
No. 13132, entitled ``Federalism.'' 64 FR 43255 (Aug. 10, 1999).
Section 4(a) of that Executive Order authorizes preemption of State
laws only when a statute contains an express preemption provision,
there is other clear evidence Congress intended to preempt state law,
or the exercise of state authority directly conflicts with the exercise
of Federal authority. Section 5125 contains express preemption
provisions, which PHMSA has implemented through its regulations.

IV. Public Comments

    All comments should be directed to whether 49 U.S.C. 5125 preempts
the Elders' common law tort claims against AMTROL, Inc. in their
lawsuit in the Circuit Court of the City of St. Louis, Missouri and in
the claims filed in the United States Bankruptcy Court for the District
of Delaware. Comments should specifically address the preemption
criteria discussed in Part II above, including:
    (1) The meaning of a State ``requirement'' in 49 U.S.C. 5125 and
whether that term must be construed to include State common law tort
claims, in light of the Supreme Court's holding in Riegel v. Medtronic,
---- U.S. ---- , 128 S.Ct. 999, 1007 (2008), ``that common-law causes
of action for negligence and strict liability do impose
`requirement[s].' ''
    (2) Whether common law tort claims relating to the design and
marking or labeling of a DOT specification 39 cylinder by the
cylinder's manufacturer are ``about'' the designing, manufacturing, or
marking of ``a package, container, or packaging component that is
represented, marked, certified, or sold as qualified for use in
transporting hazardous material in commerce.''
    (3) Whether and how common law tort claims relating to the design
and marking or labeling of a DOT specification 39 cylinder by the
cylinder's manufacturer affect transportation of the cylinder when
filled with a compressed gas.
    (4) The manner in which the Elders' decedent was using the DOT
specification 39 cylinder which ruptured, including (a) the identity of
the owner of this cylinder; (b) the date on which this cylinder was
last refilled and who refilled it; and (c) whether this cylinder was
permanently located at the site of the rupture or whether the decedent
had transported this cylinder to the location where he was ``preparing
to use the cylinder to fill a refrigerator with coolant,'' according to
the April 1, 2008 memorandum opinion of the Bankruptcy Court.

    Issued in Washington, DC, on January 15, 2009.
David E. Kunz,
Chief Counsel.
[FR Doc. E9-1993 Filed 1-29-09; 8:45 am]

BILLING CODE 4910-60-P