Notice2026-00231
Hazardous Materials: Notice of Preemption Application From Exxon Mobil Corporation and Invitation for Public Comments
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Published
January 9, 2026
Issuing agencies
Transportation DepartmentPipeline and Hazardous Materials Safety Administration
Abstract
Interested parties are invited to comment on an application submitted to PHMSA by the Exxon Mobil Corporation for an administrative determination as to whether the Federal hazardous material transportation laws preempt certain common law tort claims regarding the marking, employee training, loading and unloading, and hazardous material classification for gasoline transported by cargo tank motor vehicle.
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<title>Federal Register, Volume 91 Issue 6 (Friday, January 9, 2026)</title>
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[Federal Register Volume 91, Number 6 (Friday, January 9, 2026)]
[Notices]
[Pages 1032-1034]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2026-00231]
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DEPARTMENT OF TRANSPORTATION
Pipeline and Hazardous Materials Safety Administration
[Docket No. PHMSA-2025-0777; PDA-42(R)]
Hazardous Materials: Notice of Preemption Application From Exxon
Mobil Corporation and Invitation for Public Comments
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
submitted to PHMSA by the Exxon Mobil Corporation for an administrative
determination as to whether the Federal hazardous material
transportation laws preempt certain common law tort claims regarding
the marking, employee training, loading and unloading, and hazardous
material classification for gasoline transported by cargo tank motor
vehicle.
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. Any
rebuttal comments may only discuss issues raised by comments received
during the initial comment period.
ADDRESSES: Interested parties may review the application and all
comments received 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 received are available on the U.S. Government
<a href="http://Regulations.gov">Regulations.gov</a> website at <a href="http://www.regulations.gov">http://www.regulations.gov</a>.
Comments must refer to Docket No. PHMSA-2025-0777 and may be
submitted by any of the following methods:
<bullet> Federal eRulemaking Portal: Go to <a href="http://www.regulations.gov">http://www.regulations.gov</a>. Follow the online instructions for submitting
comments.
<bullet> Fax: 1-202-493-2251.
<bullet> 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.
<bullet> 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.
Commenters must send a copy of their comment to the individuals
listed below. Commenters must include a certification that a copy of
the comment has been sent to these persons:
<bullet> Ilana H. Eisenstein, Counsel for Exxon Mobil Corporation,
DLA Piper LLP, 1650 Market Street, Suite 5000, Philadelphia, PA 19103.
<bullet> The Honorable Bruce J. Kaplan, Civil Presiding Judge,
Middlesex County Courthouse, 56 Paterson Street, New Brunswick, NJ
08901.
<bullet> Andrew J. Dupont, The Curtis Center, Suite 720 East, 601
Walnut Street, Philadelphia, PA 19106.
<bullet> Jeffrey Kluger, McGivney, Kluger, Clark & Intoccia, P.C.,
290 W Mt. Pleasant Ave., Suite 4200, Livingston, NJ 07039.
In accordance with 5 U.S.C. 553(c), DOT solicits comments from the
public to inform its processes. DOT posts these comments, without edit,
including any personal information the commenter provides, to <a href="https://www.regulations.gov">https://www.regulations.gov</a>, as described in the system of records notice,
which can be reviewed at <a href="https://www.dot.gov/privacy">https://www.dot.gov/privacy</a>.
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 <a href="http://phmsa.dot.gov">http://phmsa.dot.gov</a>. From the home page, click on ``Regulations and
Compliance,'' then on ``Preemption Determinations'' located on the
right side of the page. A copy of the index will be provided at no cost
upon request to Mr. Patrick Doyle, at the address and telephone number
set forth in the FOR FURTHER INFORMATION CONTACT section below.
FOR FURTHER INFORMATION CONTACT: Patrick Doyle, Office of Chief
Counsel, Pipeline and Hazardous Materials Safety Administration, U.S.
Department of Transportation, 1200 New Jersey Avenue SE, Washington, DC
20590; Telephone No. 202-366-4400.
SUPPLEMENTARY INFORMATION:
I. Application for a Preemption Determination
The Exxon Mobil Corporation (``Exxon'') has applied for an
administrative determination as to whether the Federal hazardous
material transportation law (HMTA) preempts certain state common law
tort claims against it regarding the marking, employee training,
loading and unloading, and hazardous material classification for
gasoline transported by cargo tank motor vehicle (CMTV).\1\ Exxon's
application for a preemption determination originated from common law
tort claims brought against it in a New Jersey state court by a former
driver whose duties included driving a CMTV and filling it with
gasoline at an Exxon facility.\2\ The tort claims focus on an assertion
that the benzene in gasoline causes an unreasonably high risk of cancer
for hazardous materials employees who transport it. The New Jersey
state court denied the Defendants'
[[Page 1033]]
motion for summary judgment on June 24, 2025, in which Exxon claimed
the state common law tort claims are preempted by federal law.\3\ Exxon
now asks PHMSA to consider questions similar to what it presented to
the New Jersey state court.
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\1\ The HMTA is codified at 49 U.S.C. 5101 et seq.
\2\ PHMSA will file Exxon's application in the Federal Register
docket applicable to this notice.
\3\ The New Jersey state court opinion is included as Exhibit 1
to Exxon's Application a Preemption Determination (the
``Application''). PHMSA will also add this opinion to the Federal
Register docket. The case is captioned Singh, et. al v. Exxon Mobil
Corp., et. al, and is filed in the Superior Court of New Jersey in
Middlesex County with Docket No. MID-L-004215-22.
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In its preemption application filed with PHMSA, Exxon presents four
main arguments for why it believes Federal law preempts the state
common law tort claims against it. First, Exxon argues the HMTA
preempts the tort claims because they would impose on Exxon a duty to
mark gasoline containers and shipping papers with warnings regarding
gasoline's benzene content. Exxon argues these markings or warnings
specific to the benzene content of gasoline would not be
``substantively the same'' as the marking and shipping paper
requirements already in the Hazardous Materials Regulations (HMR).\4\
In addition to the argument that these requirements are preempted
because they are not substantively the same as the Federal
requirements, Exxon also argues that complying with the state
requirements would impose an obstacle to complying with the Federal
requirements in the HMR.
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\4\ 49 U.S.C. 5101(b)(1)(B) and (C).
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Second, Exxon argues the HMR's training requirements for hazardous
materials employees preempt the state common law tort claims because
the duty to train contemplated in the tort claims are not substantively
the same as the Federal requirements.\5\ Specifically, Exxon
characterizes the HMR as requiring that a ``hazmat employee has
knowledge of hazmat and the HMR, and can perform assigned hazmat
functions property.'' \6\ Exxon argues any state common law duty to
warn hazardous materials employees about the dangers of the materials
being transported, such as any cancer risk from exposure benzene, are
preempted because the HMTA covers ``packing, repacking, handling,
labeling, marking, and placarding,'' which Exxon argues includes the
HMR's requirement that hazardous materials employees train their
employees.\7\ Related to this argument, 49 CFR 172 subpart H contains
requirements for employers to ensure that ``each of its hazmat
employees is trained in accordance with the requirements prescribed in
this subpart,'' which include ``measures to protect the employee from
the hazards associated with hazardous materials to which they may be
exposed in the workplace, including specific measures the hazmat
employer has implemented to protect employees from exposure.'' As part
of this argument, Exxon makes the separate but related factual
assertion that the tort claimant did not work for Exxon but rather for
a separate transportation company.
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\5\ 49 U.S.C. 5125(b).
\6\ Application at 31.
\7\ 49 U.S.C. 5125(b)(1)(A).
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Third, the tort claimant argues the loading arm used to transfer
gasoline at the Exxon facility into the CMTV was defectively designed.
Exxon argues the HMTA's preemption provisions apply to the ``packing''
and ``handling'' of hazardous materials and the tort claimant seeks to
impose a duty that is not ``substantively the same'' as the HMR
provisions pertaining to the loading, unloading, or storage incidental
to movement of hazardous materials.\8\ In addition, Exxon notes the HMR
explicitly pertains to ``loading incidental to movement,'' which for
bulk packaging is defined in the HMR as follows, ``loading incidental
to movement is filling the packaging with a hazardous material for the
purpose of transporting it when performed by carrier personnel or in
the presence of carrier personnel . . .'' \9\
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\8\ 49 CFR 171.1(c).
\9\ 49 CFR 171.1(c)(2).
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Fourth, Exxon argues the tort claims at issue would impose a duty
for gasoline producers to redesign their product to remove benzene.
Exxon argues that not only is it scientifically impossible to redesign
gasoline to remove benzene, but that any such state law requirement
would also be preempted because it would not be the substantively the
same as the current HMR requirements for the classification of
hazardous materials. Exxon notes that gasoline is currently classified
as a Class 3 flammable liquid and the tort claimant's arguments would
require gasoline to be reclassified as a Class 6.1 poisonous material.
Overall, Exxon asserts the impact of finding these tort claims are
not preempted would lead to a ``patchwork of state regulations that
would make it impossible to label and ship gasoline in interstate
commerce.'' \10\ To highlight this potential impact, Exxon notes the
Plaintiff in the New Jersey case has brought similar cases against in
Pennsylvania and New York, and that another plaintiff has brought
similar claims in Louisiana. Therefore, in summary, Exxon asks that
PHMSA issue an administrative determination finding that the HMTA
preempts the tort claims against it regarding the marking, employee
training, loading and unloading, and hazardous material classification
for gasoline transported by CMTV.
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\10\ Application at 5.
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II. Federal Preemption
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).\11\ The dual compliance and obstacle criteria are based on
U.S. Supreme Court decisions on preemption.\12\
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\11\ Public Law 93-633 Sec. 112(a), 88 Stat. 2161 (1975).
\12\ Hines v. Davidowitz, 312 U.S. 52 (1941); Florida Lime &
Avocado Grower v. Paul, 373 U.S. 132 (1963); Ray v. Atlantic
Richfield, 435 U.S. 151 (1978).
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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. 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.'' \13\
[[Page 1034]]
The five subject areas include: (1) the designation, description, and
classification of hazardous material; (2) the packing, repacking,
handling, labeling, marking, and placarding of hazardous material; (3)
the preparation, execution, and use of shipping documents related to
hazardous material and requirements related to the number, contents,
and placement of those documents; (4) 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 (5) 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.
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\13\ 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). 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.'' \14\ When Congress expanded the
preemption provisions in 1990, it specifically found 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, 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.\15\ 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.\16\
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\14\ S. Rep. No. 1102, 93rd Cong. 2nd Sess. 37 (1974).
\15\ 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)).
\16\ Colorado Pub. Util. Comm'n v. Harmon, 951 F.2d 1571, 1575
(10th Cir. 1991).
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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).\17\
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\17\ 49 CFR 1.97(b).
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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.\18\ A short period
of time is allowed for filing of petitions for reconsideration.\19\ 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.\20\
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\18\ See 49 CFR 107.209(c).
\19\ 49 CFR 107.211.
\20\ 49 U.S.C. 5127(a).
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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
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.\21\
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\21\ Colorado Pub. Util. Comm'n, 951 F.2d at 1581 n.10.
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In making preemption determinations under 49 U.S.C. 5125(d), PHMSA
will consider the principles and policies set forth in Executive Order
(E.O.) 13132, entitled Federalism (64 FR 43255 (Aug. 10, 1999)), and
the May 20, 2009 Presidential Memorandum on Preemption (74 FR 24693
(May 22, 2009)). Section 4(a) of E.O. 13132 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. Similarly, the May 20, 2009
Presidential 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.''
IV. Public Comments
All comments should be directed to whether 49 U.S.C. 5125 preempts
state common law tort claims regarding the marking, hazardous material
employee training, loading and unloading, and hazardous material
classification for gasoline transported by cargo tank motor vehicle.
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. 2026-00231 Filed 1-8-26; 8:45 am]
BILLING CODE 4910-60-P
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</html>Indexed from Federal Register on January 9, 2026.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.