Notice2026-18382
Hazardous Materials: Notice of Administrative Determination of Preemption for Common Law Tort Claims Concerning the Transportation of Gasoline
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
September 9, 2026
Issuing agencies
Transportation DepartmentPipeline and Hazardous Materials Safety Administration
Abstract
The Exxon Mobil Corporation (Exxon) seeks a determination that Federal law preempts State common law claims brought against it in New Jersey concerning the safe transportation of gasoline in commerce. PHMSA is issuing a final administrative determination concluding that the State common law tort claims presented by Exxon are preempted. Each of these duties, if imposed, would present an obstacle to compliance with the Federal regulatory framework essential for the safe transportation of gasoline. In addition, any claims about covered subjects, such as the marking, loading and unloading, and classification of gasoline that are not substantively the same as the applicable HMR provisions are preempted.
Full Text
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<title>Federal Register, Volume 91 Issue 173 (Wednesday, September 9, 2026)</title>
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[Federal Register Volume 91, Number 173 (Wednesday, September 9, 2026)]
[Notices]
[Pages 57439-57446]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2026-18382]
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DEPARTMENT OF TRANSPORTATION
Pipeline and Hazardous Materials Safety Administration
[Preemption Determination No. PD-42(R); Docket No. PHMSA-2025-0777]
Hazardous Materials: Notice of Administrative Determination of
Preemption for Common Law Tort Claims Concerning the Transportation of
Gasoline
AGENCY: Pipeline and Hazardous Materials Safety Administration (PHMSA),
DOT.
ACTION: Notice of administrative determination of preemption.
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SUMMARY: The Exxon Mobil Corporation (Exxon) seeks a determination that
[[Page 57440]]
Federal law preempts State common law claims brought against it in New
Jersey concerning the safe transportation of gasoline in commerce.
PHMSA is issuing a final administrative determination concluding that
the State common law tort claims presented by Exxon are preempted. Each
of these duties, if imposed, would present an obstacle to compliance
with the Federal regulatory framework essential for the safe
transportation of gasoline. In addition, any claims about covered
subjects, such as the marking, loading and unloading, and
classification of gasoline that are not substantively the same as the
applicable HMR provisions are preempted.
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
The Exxon Mobil Corporation (``Exxon'') has applied for an
administrative determination as to whether the Federal Hazardous
Material Transportation Act (HMTA) preempts certain State common law
tort claims against it concerning the marking, employee training,
loading and unloading, and hazardous material classification for
gasoline transported by cargo tank motor vehicle (CTMV).\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 CTMV 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.\3\ The New Jersey
State court denied the Defendants' motion for summary judgment on June
24, 2025, in which Exxon claimed the State common law tort claims are
preempted by Federal law.\4\ In its application, Exxon also notes that
lawsuits utilizing similar common law theories have already been
brought in other States.\5\ Accordingly, PHMSA has accepted this
application to provide a definitive assessment of the preemptive scope
of the HMTA and its implementing regulations as applied to these common
law claims.
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\1\ The HMTA is codified at 49 U.S.C. 5101 et seq.
\2\ PHMSA has filed Exxon's application (``the Application'') in
the Federal Register docket applicable to this notice.
\3\ Application at 2-3.
\4\ The New Jersey State court opinion is included as Exhibit 1
to the Application, which is located 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.
\5\ Application at 9-10.
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II. Federal Preemption Standards
The HMTA and its amendments reflect Congress's clear intent to
create a uniform Federal regulatory scheme that preempts State and
local regulations varying from federally mandated hazardous materials
transportation standards. Pursuant to 49 U.S.C. 5125(a), 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,
applied in issuing inconsistency rulings prior to 1990 under the
original preemption provision in the HMTA.\6\ The dual compliance and
obstacle criteria are based on U.S. Supreme Court decisions on
preemption.\7\
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\6\ Public Law 93-633 Sec. 112(a), 88 Stat. 2161 (1975).
\7\ 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.
Only editorial and other similar de minimis changes are permitted.''
\8\ 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 of 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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\8\ 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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Congress has long held the 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.'' \9\ When Congress expanded the preemption provisions
in 1990, it specifically found that ``many States and localities have
enacted laws and regulations that 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 that attempt to
comply with multiple and conflicting registration, permitting, routing,
notification, and other regulatory requirements.'' \10\ 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
[[Page 57441]]
desirable.'' \11\ Therefore, to ``achieve greater uniformity and to
promote the public health, welfare, and safety at all levels,''
Congress found that ``Federal standards for regulating the
transportation of hazardous materials in intrastate, interstate, and
foreign commerce are necessary and desirable.'' \12\ A United States
Court of Appeals has found that uniformity is the ``linchpin'' in the
design of the Federal laws governing the transportation of hazardous
materials.\13\
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\9\ S. Rep. No. 1102, 93rd Cong. 2nd Sess. 37 (1974).
\10\ Public Law 101-615, 2, 104 Stat. 3244, 3245 (1990).
\11\ Id. (Congress' findings also stated that ``the movement of
hazardous materials in commerce is necessary and desirable to
maintain economic vitality and meet consumer demands, and shall be
conducted in a safe and efficient manner.'').
\12\ 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)).
\13\ Colorado Pub. Util. Comm'n v. Harmon, 951 F.2d 1571, 1575
(10th Cir. 1991).
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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 as to 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).\14\
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\14\ 49 CFR 1.97(b).
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III. Summary of Public Comments
PHMSA published a public notice and invitation to comment in the
Federal Register on January 9, 2026 (Docket No. PHMSA-2025-0777).\15\
PHMSA subsequently published a notice on February 10, 2026, extending
the initial comment period to March 10, 2026, and the rebuttal comment
period to March 23, 2026.\16\ Interested parties were directed to
review the application and submit comments via the <a href="http://regulations.gov">regulations.gov</a>
website.
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\15\ 91 FR 1032 (Jan. 9, 2026).
\16\ 91 FR 5988 (Feb. 10, 2026).
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The docket received a total of 32 comments, revealing significantly
divided sentiment among stakeholders. The commenters largely coalesced
into those in favor of preempting the State common law tort claims, and
those opposed. The bullets below summarize the distribution of major
commenters:
<bullet> In favor of preemption are industry associations such as
the American Petroleum Institute, National Association of
Manufacturers, U.S. Chamber of Commerce, Western States Petroleum
Association, and Energy Marketers of America, alongside the State
Attorneys General of Montana, Alaska, Alabama, Arkansas, Florida,
Georgia, Iowa, Indiana, Kentucky, Louisiana, Nebraska, North Dakota,
Oklahoma, South Carolina, South Dakota, Utah, and West Virginia.
<bullet> Opposed to preemption are advocacy groups including the
American Association for Justice (formerly known as the Association of
Trial Lawyers of America) and Earthjustice on behalf of the Truckers'
Movement for Justice, as well as the State Attorneys General of Rhode
Island, New Jersey, Connecticut, Delaware, Maine, New York, and Nevada.
A. Commenters Supporting Preemption
An alliance of State Attorneys General led by the State of Montana,
alongside several industry associations, submitted extensive comments
strongly supporting a finding of preemption. These industry and State
supporters argued that allowing individual State juries to dictate
hazardous materials transportation rules through localized tort claims
creates redundant oversight and severely disrupts the safety of the
national supply chain. Supporters argued that without strict
preemption, energy suppliers would be forced to navigate a fragmented
landscape of State requirements governing gasoline markings, employee
training, and loading operations. They argued this fragmentation would
destroy the safe operational interchangeability of CTMV fleets and
effectively cripple the safe interstate transportation of a critical
commodity, precisely the scenario Congress intended the HMTA to
prevent.\17\
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\17\ See, e.g., American Fuel & Petrochemical Manufacturers and
the Western States Petroleum Association, Comment, Docket ID PHMSA-
2025-0777-0027 at 3 (Mar. 24, 2026) (``We have a strong interest in
ensuring that PHMSA maintains clear federal uniform regulations
governing hazardous material transportation and prevents the
emergence of a patchwork of inconsistent, liability-driven
standards. Such inconsistency undermines regulatory predictability,
disrupts interstate commerce, and impairs the nationwide uniformity
Congress intended when delegating preemption authority to PHMSA.'').
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B. Commenters Opposing Preemption
Conversely, an opposing alliance of State Attorneys General, led by
States such as New York and New Jersey, along with environmental and
labor advocacy groups, argued against preemption. Their primary
contention was that States hold sovereign interests in preserving their
historic police powers, and that State common law duties are a
necessary mechanism to protect worker safety. The State Attorneys
General argued these historic police powers are not preempted by the
HMTA because in fields that States have traditionally occupied, which
they claim includes worker safety, Courts should start with an
assumption that these historic powers cannot be preempted absent the
``clear and manifest'' purpose of Congress.\18\ Opponents also raised
procedural and constitutional arguments, suggesting that a finding of
preemption by PHMSA creates a ``separation of powers'' issue by
improperly sitting in judgment of the New Jersey State court, and
invoked the Loper Bright doctrine to suggest agency overreach.
Furthermore, the several State Attorneys General attempted to frame the
issue broadly as ``toxic tort'' litigation, to include references that
presumably attempt to compare the gasoline refining and transportation
industries to the tobacco, opioid, and asbestos industries.\19\ As part
of the ``toxic tort'' argument, the State Attorneys General argue cases
such as the one at hand are necessary to ``reveal internal scientific
information held by corporations'' and to put ``corporate actors on
notice of emerging threats posed by their products and workplaces.''
\20\
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\18\ Attorneys General of New York, et al., Comment, Docket ID
PHMSA-2025-0777-0025 at 2 (Mar. 23, 2026). The State Attorneys
general rely on Wyeth v. Levine, 555 U.S. 555, 565 (quoting
Medtronic, Inc. v. Lohr, 518 U.S. 470, 485 (1996) and Rice v. Santa
Fe Elevator Corp., 331 U.S. 218, 230 (1947).
\19\ Docket ID PHMSA-2025-0777-0025 at 4 (Mar. 23, 2026).
\20\ Id.
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IV. Analysis of Ruling Using the Application of Federal Preemption
Standards
The State common law tort claims advanced against Exxon seek to
impose a slate of new regulatory safety duties governing the marking of
CTMVs and shipping papers, the training of hazmat personnel, the design
of loading and unloading equipment, and the hazard classification of
gasoline. Preemption doctrine under the Supremacy Clause requires
Federal law to supersede conflicting State laws, particularly when
Congress uses express preemption to manifest clearly its intent to
preempt and regulate comprehensively in a field like hazardous
materials transportation.
1. Application of Judicial Precedent
A. State Common Law Duties Are ``Requirements'' That Can Be Preempted
The United States Supreme Court has held that statutory preemption
provisions apply equally to State
[[Page 57442]]
common law duties as they do to legislative State statutes, allowing
State tort claims to be considered as ``requirements'' under the
preemption analysis.\21\ The threat of substantial tort liability
effectively regulates entity behavior much like a direct State mandate,
and consequently, courts must often rigorously evaluate these common
law claims against preemption doctrines to preserve the primacy of
Federal regulatory safety frameworks.
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\21\ Cipollone v. Liggett Grp., Inc., 505 U.S. 504, 521 (1992)
(``The phrase `[n]o requirement or prohibition' sweeps broadly and
suggests no distinction between positive enactments and common law;
to the contrary, those words easily encompass obligations that take
the form of common-law rules.''); Riegel v. Medtronic, Inc., 552
U.S. 312, 324 (2008) (``Absent other indication, reference to a
State's `requirements' includes its common-law duties.'').
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B. Product Marking and Labeling Provisions
The Supreme Court very recently dealt with preemption principles in
Monsanto Company v. John L. Durnell, decided on June 25, 2026.\22\ In
addition to making it clear that State common laws are requirements
that can be preempted by Federal law, the Monsanto ruling is also
highly informative to the issues presented here because it considered
whether a State can add markings to a product label different from or
in addition to the safety-focused marking and labeling required by
Federal law.\23\ In Monsanto, the Court addressed whether the Federal
Insecticide, Fungicide, and Rodenticide Act (FIFRA) preempted a State
common law failure-to-warn claim brought by a plaintiff alleging that
exposure to a glyphosate-based herbicide caused his non-Hodgkin's
lymphoma.\24\ The plaintiff asserted that the manufacturer should have
included a cancer warning on the product's label.\25\ The Supreme Court
firmly rejected the plaintiff's argument, holding that FIFRA expressly
preempts State-law failure-to-warn claims because such claims would
compel the manufacturer to add cancer warnings to its labels, thereby
imposing a requirement ``in addition to or different from'' those
mandated by the Environmental Protection Agency (EPA).\26\ The Monsanto
ruling offers Courts a blueprint for evaluating preemption claims when
State-imposed hazard communication rules conflict with established
Federal regulatory systems. FIFRA, which was at issue in Monsanto, and
the Federal Food, Drug, and Cosmetic Act both use the ``in addition to
or different from'' language in clauses related to uniformity.\27\
PHMSA believes that the ``substantively the same'' test for covered
subjects in the HMTA is analogous to that language because Congress was
trying to achieve the same result--uniform nationwide regulations on a
particular topic.\28\
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\22\ Monsanto Co. v. Durnell, 146 S. Ct. 2001 (2026). The Court
stated that ``Failure-to-warn claims, like Durnell's claim here,
`are premised on common-law rules that qualify' as labeling
requirements because those `rules set a standard for a product's
labeling.''' Id. at 9 (citing Bates v. Dow Agrosciences LLC, 544
U.S. 431, 446 (2005)).
\23\ The Monsanto court relied heavily on its prior precedent in
Riegel v. Medtronic, Inc., 552 U.S. 312 (2008). In Riegel, the Court
analyzed the express preemption clause of the Medical Device
Amendments (MDA), which utilizes language similar to both FIFRA and
the HMTA. The Court concluded that the Food and Drug
Administration's (FDA) premarket approval of medical devices imposed
Federal ``requirements,'' and thus, the FDA's approval preempted
State common law claims for negligence and strict liability that
were premised on additional or contrary safety requirements.
\24\ Id. at 1-2.
\25\ Id.
\26\ Id.
\27\ 7 U.S.C. 136v(b); 21 U.S.C. 360k(a)(1). The Federal Food,
Drug, and Cosmetic Act's language is substantively identical to that
of FIFRA, but uses the terms in a different order. See id.
(``different from, or in addition to'').
\28\ 49 U.S.C. 5125(b)(1).
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In Monsanto, the Supreme Court emphasized that aside from tort
claims, the public already has a direct administrative avenue to
address pesticide safety concerns, which is not unlike the process in
which PHMSA considers petitions for rulemaking from the public
regarding hazardous material marking, labeling, and classification.\29\
The Court noted that, if third parties wish to bring new information to
the EPA's attention, or if they believe the agency has overlooked
relevant data, they are ``free to petition EPA to modify, suspend, or
cancel a pesticide's registration.'' \30\ This right to petition
explicitly includes asking the EPA to require a labeling change if new
safety concerns arise.\31\ Furthermore, if the EPA refuses to act on
such a petition, citizens are not left without recourse; they may seek
judicial review of the agency's decision.\32\ The Court contrasted this
forward-looking administrative process with State tort claims,
reasoning that petitioning the EPA is fundamentally different from
``seeking to retroactively penalize a manufacturer for doing what it
was legally required to do at the time.'' \33\
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\29\ See Id. at 21; 49 CFR 106.95.
\30\ Monsanto at 21 (citing 40 CFR 154.10).
\31\ Id. at 21 n.10.
\32\ Id. at 21 (citing 7 U.S.C. 136n(a), 136d(h)). Similar to
EPA, petitioners may appeal a PHMSA decision to deny a petition for
rulemaking pursuant to 49 CFR 106.110(b) and 106.115(b) within 30
days of receiving PHMSA's notice of denial.
\33\ Id. at 21 n.10.
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C. Judicial Interpretation of the Scope of HMTA Preemption
Federal appellate courts have had numerous occasions to consider
how broadly the scope of HMTA preemption should be interpreted. In
Buono v. Tyco Fire Products, the United States Court of Appeals for the
Second Circuit evaluated tort claims involving the transportation of
hazardous materials.\34\ The court broadly interpreted the statutory
language, emphasizing that ``[t]he HMTA expressly preempts nonfederal
laws `about' certain subjects related to the transportation of
hazardous materials in commerce.'' \35\ The Second Circuit decisively
concluded that the plaintiff's common-law claims were preempted because
they ``would impose duties beyond the HMTA and associated
regulations,'' meaning they could not possibly be deemed
``substantively the same.'' \36\
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\34\ 78 F.4th 490 (2d Cir. 2023).
\35\ Id. at 493.
\36\ Id.
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Likewise, the United States Court of Appeals for the Third Circuit
delivered an expansive reading of HMTA preemption in Roth v.
Norfalco.\37\ Addressing common law claims regarding the design of rail
tank cars, the Third Circuit stressed the breadth of the preemption
provision: ``It is obvious from the face of the statute that Sec.
5125(b)(1) expressly preempts non-federal requirements that relate to,
or are `about,'' the five subject areas set forth in Sec.
5125(b)(1)(A)-(E).'' \38\ The Third Circuit further elaborated that
section 5125(b)(1) is a remarkably broad provision that ``preempts all
non-federal laws, regulations, orders, or requirements that are `not
substantively the same as' corresponding federal regulations,'' leaving
``little, if any, room for non-federal regulation.'' \39\ The Third
Circuit aptly noted that, unlike other Federal statutes, there is
nothing in the HMTA to indicate that Congress wished to carve out State
tort claims, confirming a robust preemption provision that commands
national uniformity.\40\
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\37\ 651 F.3d 367 (3d Cir. 2011).
\38\ Id. at 375.
\39\ Id. at 375, 379.
\40\ Id. at 378-9.
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2. Application of Agency Precedent
PHMSA has consistently interpreted and applied the preemption
provisions of the HMTA through a robust body of past administrative
determinations and rulemaking actions. These precedents establish an
enduring agency policy that the HMR must serve as the definitive,
exclusive standard for hazardous
[[Page 57443]]
materials transportation safety in commerce. This precedent guides the
agency's evaluation of the present matter.
In Preemption Determination 34 (PD-34(R)), stemming from a petition
from Amtrol, Inc., PHMSA evaluated State common law tort claims
alleging that DOT Specification 39 compressed gas cylinders were
defectively designed due to a propensity for rusting, and that the
manufacturer failed to mark the cylinders with warnings regarding this
potential hazard.\41\ PHMSA issued a determination concluding that the
HMTA preempts private causes of action seeking to establish State
common law requirements applicable to the design, manufacture, or
marking of a packaging represented as qualified for use in transporting
hazardous materials.\42\ PHMSA found that such common law duties were
expressly preempted because they concerned covered subjects and would
create requirements which are not substantively the same as the
stringent requirements in the HMR.\43\
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\41\ 77 FR 39567 (Jul. 3, 2012).
\42\ 77 FR at 39570.
\43\ Id.
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In Preemption Determination 40 (PD-40(R)), regarding the State of
Washington's Crude Oil by Rail Volatility Requirements, PHMSA reviewed
a State legislative statute that prohibited facilities from loading or
unloading crude oil into or from rail tank cars unless the oil
exhibited a vapor pressure of less than nine pounds per square inch
(psi).\44\ PHMSA determined that the Washington State law was preempted
under multiple, independent theories. First, the vapor pressure
requirement constituted a scheme for classifying a hazardous material
that was not substantively the same as the HMR.\45\ Second, the
restriction on loading and unloading constituted a handling requirement
that was not substantively the same as the HMR.\46\ Finally, PHMSA
determined that the vapor pressure requirement acted as a profound
obstacle to accomplishing and carrying out the HMTA because it
disrupted the unified Federal scheme and effectively forced rerouting
or modal shifts that undermined overall transportation safety.\47\
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\44\ 85 FR 29511 (May 15, 2020).
\45\ 85 FR at 29528.
\46\ Id.
\47\ 85 FR at 29527, 29528.
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In Preemption Determination 19 (PD-19(R)), PHMSA determined the
HMTA preempted specific marking and recordkeeping requirements
promulgated by the New York State Department of Environmental
Conservation (NYSDEC) for gasoline transport vehicles.\48\
Specifically, PHMSA preempted State regulations requiring transport
vehicles to display a distinct ``NYS DEC'' marking to indicate
successful vapor-tightness testing, maintain a copy of the most recent
pressure-vacuum test results directly on the vehicle, and retain
pressure-vacuum test and repair records for a designated period.\49\
PHMSA reasoned that these State-level mandates were preempted because
they failed the statutory ``substantively the same'' test for covered
subjects; because ultimately, the NYSDEC provisions imposed distinct
duties that were not substantively the same as the HMR.\50\
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\48\ 74 FR 4291 (Jan. 23, 2009).
\49\ Id. at 4296.
\50\ Id.
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The structural boundaries of PHMSA's exclusive authority were most
comprehensively mapped in the HM-223 Rulemaking (Applicability of the
Hazardous Materials Regulations to Loading, Unloading, and Storage).
Through the Final Rule \51\ and the subsequent Response to Appeals,\52\
PHMSA codified the precise scope of ``pre-transportation'' and
``transportation'' functions subject to Federal preemption. In this
rulemaking, PHMSA underscored its exclusive institutional competence,
explicitly noting that ``the Secretary of Transportation, through the
DOT operating administrations, has developed a special expertise that
makes the Department uniquely qualified to play the primary Federal
regulatory role in the protection of workers who operate motor
vehicles, trains, aircraft, and vessels used to transport hazardous
materials.'' \53\
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\51\ 68 FR 61906 (Oct. 30, 2003).
\52\ 70 FR 20018 (Apr. 15, 2005).
\53\ 68 FR at 61927.
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In the HM-223 Final Rule, PHMSA clarified that ``[t] he HMR are not
minimum requirements that other jurisdictions may exceed if local
conditions warrant; rather, the HMR are national standards and must be
uniformly applied across jurisdictional lines.'' \54\ Therefore, the
preemption provisions clearly and effectively preclude State, local,
and Tribal governments from regulating pre-transportation and
transportation functions in a manner that differs from the Federal
requirements, to include by failing the ``substantively the same'' test
or by acting as an obstacle to HMR compliance.
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\54\ Id. at 61923.
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Crucially, HM-223 made clear that ``all loading, unloading, and
storage functions performed by a carrier in the course of transporting
a hazardous material in commerce would be subject to the HMR.'' \55\
PHMSA also established that the loading and unloading of bulk
packagings--such as CTMVs transferring gasoline--are inherently
regulated Federal transportation functions. The rule defined ``loading
incidental to movement'' for a bulk packaging as ``the filling of the
packaging with a hazardous material by carrier personnel or in the
presence of carrier personnel for the purpose of transporting it.''
\56\ Although PHMSA acknowledged that the Occupational Safety and
Health Administration (OSHA) shares concurrent jurisdiction regarding
general facility worker-safety aspects, PHMSA maintains its authority
over the safety of the transportation function itself.\57\ The two
agencies both regulate the safe loading and unloading of hazardous
materials, but with different areas of focus, e.g., workplace safety
versus transportation safety. PHMSA is focused on the risks inherent to
the transportation of hazardous materials in commerce.\58\ PHMSA
regulates how those risks are classified, contained, and communicated
(e.g., how a material is determined to be hazardous, how its packaging
must be filled and closed, and what markings, labels, and accompanying
hazard communication are required).\59\ As articulated in the
rulemaking, a primary goal was eliminating uncertainty for the
regulated public to facilitate compliance and enhance hazardous
materials safety across the Nation.\60\
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\55\ Id. at 61914.
\56\ Id. at 61910.
\57\ Id. at 61926-28.
\58\ 49 U.S.C. 5101.
\59\ 49 CFR 171.1.
\60\ Id. at 61935.
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3. Topic-by-Topic Analysis
A detailed, topic-by-topic analysis establishes that these claims
each act as obstacles to the execution of Federal safety law, and, with
the exception of the training claims, also constitute direct regulation
of covered subjects that fail the ``substantively the same'' test.\61\
The application of Supreme Court and agency precedent, along with
demonstrated congressional intent,
[[Page 57444]]
make clear that each of the claims at issue are preempted.\62\
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\61\ Employee training claims are evaluated and preempted under
the Obstacle Test, as training is not per se one of the five
enumerated covered subjects, though it is pervasively regulated
under the HMR.
\62\ When applying Monsanto and Riegel, just as the EPA and FDA
determine the adequacy of hazard warnings and device safety, PHMSA
exclusively determines the adequacy of hazard communication,
classification, and handling protocols for hazardous materials. See
also Cipollone, 505 at 521 (recognizing that State common law
damages actions can impose ``requirements or prohibitions'' that are
preempted by Federal statute).
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A. Container Marking and Shipping Papers
The State tort claims seek to impose a localized State-level legal
duty upon Exxon to mark gasoline containers, CTMVs, and associated
shipping papers with warnings regarding the product's benzene content
and associated cancer risks.
This proposed common law duty is expressly preempted. The HMR
already provides an exhaustive, globally harmonized, and highly
standardized hazard communication system codified in 49 CFR part 172.
This system dictates precisely what warnings, placards, labels, and
shipping descriptions must accompany a shipment of a Class 3 flammable
liquid like gasoline. A State common law duty mandating the addition of
a benzene-specific cancer warning creates a supplementary marking
requirement that is not ``substantively the same'' as the HMR.
Therefore, it is preempted under the ``substantively the same'' test
for covered subjects (49 U.S.C. 5125(b)(1)(B) and (C)), which expressly
preempts non-Federal requirements concerning the marking of hazardous
material and the preparation and content of shipping documents.
Furthermore, this requirement independently fails the obstacle
test. The primary purpose of a uniform national hazard communication
standard is to provide immediate, universally recognized indicators to
first responders in the event of an emergency. Imposing varied, State-
by-State warning requirements dilutes the safety efficacy of these
immediate hazard indicators, creating confusion at the scene of an
incident. If responders are forced to parse through supplementary
State-mandated cancer warnings while attempting to mitigate a flammable
liquid spill, the delay directly poses an obstacle to complying with
the Federal standardized scheme, thereby jeopardizing safety.
Regarding hazard communication, Earthjustice, representing the
Truckers Movement for Justice, argues that the claims made by Mr. Singh
in New Jersey State court are outside the regulatory scope of the HMTA
and HMR. The State Attorneys General, led by New York and other
commenters, make similar arguments.\63\ PHMSA disagrees.\64\ To the
extent Mr. Singh's claims involve hazard communications regulated by
PHMSA, such as container marking and the requirements for shipping
papers, these are clearly covered subjects and State common law cannot
impose requirements that are not substantially the same. In making this
assertion, Earthjustice appears to conflate the requirements for safety
data sheets and shipping papers, only the latter of which are part of
PHMSA's system of hazard communications. Furthermore, any attempt to
add additional warnings to PHMSA's standardized hazard communications
would present obstacles to the Federal system and are therefore still
independently preempted.
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\63\ See. e.g., American Association for Justice (formerly the
Association of Trial Lawyers of America), Comment, Docket ID PHMSA-
2025-0777-0014 at 8 (Feb. 10, 2026).
\64\ Earthjustice, Comment, Docket ID PHMSA-2025-0777-0013 (Feb.
9, 2026).
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B. Hazardous Materials Employee Training
The tort claimants allege that Exxon breached a State common law
duty by failing to train and specifically warn a hazmat employee about
the long-term cancer dangers resulting from benzene exposure during
transportation operations.
This proposed duty is preempted because it creates an obstacle to
compliance with 49 CFR part 172, subpart H, which establishes
standardized Federal training requirements designed to ensure the
safety and competency of all hazmat employees nationwide.\65\ Specific
State-imposed duties may frustrate compliance with the requirements in
the HMR. For instance, the HMR is written in a manner that centers on
requirements for a ``hazmat employer'' to train its ``hazmat
employees.'' \66\ The facts presented in the Exxon petition at issue
would require a hazmat employer to provide training to a driver who
works for a third party and is therefore not one of its hazmat
employees. GPA Midstream points out in its comment that such a duty
would present an obstacle to compliance with the HMR because it would
frustrate and effectively undermine these well-established definitions
and training requirements.\67\ GPA Midstream argues this duty would
lead to a complicated patchwork of training requirements for offerors
and carriers to navigate, particularly when those entities transport
across State lines.\68\
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\65\ See Preemption Determination No. PD-7(R), 60 FR 10419 (Feb.
24, 1995) (PHMSA's predecessor agency found that certain
certification requirements that Maryland attempted to impose on
drivers loading or unloading oil were preempted as training
requirements).
\66\ 49 CFR 171.8; 49 CFR 172.702(a) (``A hazmat employer shall
ensure that each of its hazmat employees is trained in accordance
with the requirements prescribed in this subpart.'').
\67\ GPA Midstream, Comment, Docket ID PHMSA-2025-0777-0034 at 7
(Apr. 21, 2026).
\68\ Id.
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In addition, these training requirements already contain a
requirement that employees receive training concerning ``. . . measures
to protect the employee from the hazards associated with hazardous
materials to which they may be exposed in the work place, including
specific measures the hazmat employer has implemented to protect
employees from exposure. . . .'' \69\ Subjecting national carriers to
overlapping, State-by-State regulatory regimes that conflict with the
these requirements would burden the unified Federal safety culture
intended by Congress and poses a direct obstacle to implementing the
HMR efficiently and safely across the gasoline supply chain.\70\
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\69\ 49 CFR 172.704(a)(3)(ii).
\70\ See also
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Several commenters oppose PHMSA finding that State common law
claims regarding hazardous materials employee training are
preempted.\71\ Obelisk Tech Systems accurately points out that the HMR
only prescribes ``minimum training requirements'' and that for motor
vehicle drivers ``a State may impose more stringent training
requirements.'' Nonetheless, the same provision makes clear the States
may only do so if those requirements ``do not conflict with the
training requirements in this subpart and in part 177 of this
subchapter [Carriage by Public Highway]'' and ``apply only to drivers
domiciled in that State.'' \72\ Also, PHMSA notes that, while hazardous
material employee training is not one of the covered subjects in 49
U.S.C. 5125, State common law duties regarding training would still be
preempted to the extent such requirements present obstacles to
compliance with the Federal requirements in subpart H. PHMSA agrees
that gasoline transportation by CTMV often requires frequent crossing
of State lines, meaning that a State could jeopardize the Federal
system of safe transportation by creating a patchwork of training
requirements that can vary from driver to driver, and
[[Page 57445]]
between various offerors and carriers.\73\ Therefore, PHMSA finds that
a State common law imposed training requirement that is an obstacle to,
or otherwise conflicts with, the Federal requirements in the HMR must
be preempted.
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\71\ See, e.g., Obelisk Tech Systems, Inc., Comment, Docket ID
PHMSA-2025-0777-0020 (Mar. 10, 2026).
\72\ 49 CFR 172.701.
\73\ See. e.g., Energy Marketers of America, Comment, Docket ID
PHMSA-2025-0777-0009 at 3 (``EMA members operate in an industry
where fuel shipments routinely cross multiple state lines, often
traveling through numerous jurisdictions in a single delivery route.
Uniform HMR standards for marking, training, loading, and
classification are critical to ensuring safety, regulatory
compliance, and operational efficiency (emphasis added).''
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C. Loading and Unloading Equipment Design
The State tort claims are premised on a design defect theory,
alleging that the loading arms utilized at Exxon bulk facilities to
transfer gasoline into CTMVs are defectively designed because they fail
to capture trace benzene vapors effectively during the transfer
process.
This claim is expressly preempted under both the ``substantively
the same'' test for covered subjects and the obstacle test. As defined
comprehensively in the HM-223 rulemaking, the loading and unloading of
bulk packagings by or in the presence of carrier personnel are
regulated transportation functions (``loading incidental to
movement''). The HMR already contains highly detailed specifications
governing the design, construction, qualification, and operational
tolerances of cargo tanks and their associated appurtenances, piping,
and valving.\74\
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\74\ 49 CFR 178.320.
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Several commenters oppose preemption because they argue certain
tasks or locations are outside the scope of the HMTA. For example,
Earthjustice argues that certain locations are ``outside the Act's
reach--including the gates where Mr. Singh entered the terminal, the
office where Mr. Singh picked up shipping papers, the permanent storage
tanks where Exxon stored its petroleum fuels, and the loading rack
where Mr. Singh picked up those fuels.'' \75\ This is incorrect. The
reach of the HMTA, and in turn the HMR, extends to fourteen listed pre-
transportation functions, regardless of whether an item at issue, such
as a loading arm, is actually moveable. A State court judgment finding
a federally compliant loading or unloading connection ``defective''
under State common law imposes a new localized safety requirement. This
constitutes a requirement concerning the designing, manufacturing, and
fabricating of a packaging component (49 U.S.C. 5125(b)(1)(E)) that is
not substantively the same as the HMR provisions for covered subjects
and would therefore be preempted. Moreover, forcing operators to
retrofit loading equipment to satisfy disparate State jury verdicts
presents a substantial obstacle to the safe, uniform transportation of
gasoline in interstate commerce.
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\75\ See, e.g., Earthjustice, Comment, Docket ID PHMSA-2025-
0777-0013 at 6 (Feb. 9, 2026); see also Locks Law Firm, Comment,
Docket ID PHMSA-2025-0777-0015 at 10 (Feb. 9, 2026).
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D. Hazardous Material Classification
Finally, Exxon states the tort claimants' demands would require
that gasoline producers redesign their product--specifically removing
all trace benzene--to render the product ``safe'' under State tort
standards.
The Federal hazard classification system lies at the very heart of
the HMR and any attempts to undermine it are expressly preempted.\76\
Under the HMR, and in alignment with international standards, gasoline
is classified as a Class 3 flammable liquid. In the event any State
common law duty would require Exxon to change the classification of
gasoline in a way that is different from the classification required by
the HMR, such a mandate would frustrate Federal authority. This State
common law duty could result in an improper re-classification scheme
that is not substantively the same as current HMR classification
requirements, which would directly violate 49 U.S.C. 5125(b)(1)(A).
Furthermore, allowing State judiciaries to require deviation from the
HMR's classification scheme would fail the obstacle test entirely.
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\76\ Contrary to several commenters' assertions, there is no
``separation of powers'' issue present in this proceeding. See,
e.g., Attorneys General of New York, et al., Comment, Docket ID
PHMSA-2025-0777-0025 (Mar. 23, 2026). PHMSA does not purport to act
as an appellate court sitting in judgment of a State court's
interlocutory decision. However, PHMSA is statutorily authorized
under 49 U.S.C. 5125(d)(1) to issue expert determinations on the
preemptive scope of the HMTA and its own regulations, providing
necessary guidance and the agency's interpretation of congressional
intent. Similarly, invocations of the Loper Bright doctrine are
misplaced and outside the scope of this administrative
determination, as this proceeding involves the straightforward
application of an express statutory preemption clause, not deference
to agency interpretation of ambiguous statutory text.
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Exxon asserts that a State common law duty demanding physical
product redesign is effectively a backdoor attempt to force a
manufacturer to treat a standard Class 3 flammable liquid as a Class
6.1 poisonous material. As noted earlier in the discussion of the
Monsanto case, any member of the public, to include the tort claimants
at issue here, are able to petition PHMSA to make changes to the
HMR.\77\ The claimants could bring such a petition to seek the
reclassification of gasoline, or to make any other of the changes they
seek to obtain via tort litigation. PHMSA receives petitions on a
routine basis and already has a proven process to consider such
petitions in a manner that ensures the HMR responds to public concerns
while maintaining the highest levels of hazardous materials
transportation safety.\78\
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\77\ 49 CFR 106.95.
\78\ See, e.g., 85 FR 75680 (Nov. 25, 2020) (Rulemaking in which
PHMSA responded to 24 petitions for rulemaking submitted by the
regulated community between February 2015 and March 2018).
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Several comments, such as those provided by the several State
Attorneys General led by New York, cite to the benzene content in
gasoline and attempt to reframe this proceeding as generalized ``toxic
tort'' litigation. Similarly, the commenters in opposition to
preemption claim there is a general presumption against preemption
regarding historic State police powers.\79\ The Supreme Court has
unequivocally settled this issue: ``when a federal law contains an
express preemption clause, we focus on the plain wording of the clause,
which necessarily contains the best evidence of Congress' preemptive
intent.'' \80\ The HMTA contains a robust, express preemption clause,
neutralizing any generalized presumption in favor of State sovereignty
in this highly regulated arena.\81\ In addition, the State Attorneys
General led by New York cite to certain historic police powers that are
actually fields that have been long occupied by the Federal government.
The Federal government has long been charged with maintaining systems
to move hazardous materials in commerce safely.\82\ The State Attorneys
General led by New York also argue these historic police powers include
the power to prevent air and water pollution, which have also been long
[[Page 57446]]
occupied by the Federal government and its regulators.\83\
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\79\ Attorneys General of New York, et al., at 2-3.
\80\ Chamber of Com. of U.S. v. Whiting, 563 U.S. 582, 594
(2011) (quoting CSX Transp., Inc. v. Easterwood, 507 U.S. 658, 664,
(1993)); see also Puerto Rico v. Franklin Cal. Tax-Free Tr., 579
U.S. 115, 125 (2016) (stating that the Court does not invoke any
presumption against pre-emption when a statute contains an express-
preemption clause).
\81\ In addition, GPA Midstream notes that neither New Jersey
nor any of the opposing States have requested an HMTA waiver in this
matter, and therefore argues that PHMSA should reject any federalism
concerns until a State attempts to use this mechanism. GPA
Midstream, Comment, Docket ID PHMSA-2025-0777-0034) at 3 (Apr. 22,
2026).
\82\ Cf. Transportation of Explosives Act, Public Law 60-174, 35
Stat. 554 (1908) (establishing a comprehensive Federal framework for
regulating the transportation of explosives in interstate and
foreign commerce).
\83\ See, e.g., Rivers and Harbors Appropriation Act of 1899,
ch. 425, Sec. 13, 30 Stat. 1121, 1152 (1899) (Commonly referred to
as the ``Refuse Act,'' Section 13 is one of the oldest environmental
statutes in American law and prohibits the discharge of any refuse
matter into navigable waters of the United States or their
tributaries).
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V. Ruling
For the reasons set forth herein, PHMSA determines that the HMTA
and HMR wholly preempt State common law tort claims that are about the
marking, employee training, loading and unloading, and hazardous
material classification for gasoline transported in commerce by cargo
tank motor vehicle.
PHMSA reaffirms that 49 U.S.C. 5125(a) and (b) contain independent
bases for preemption. The State common law duties at issue would each
impose an obstacle to the comprehensive Federal regulatory scheme and
threaten the safety of the entire national gasoline transportation
chain, and separately, certain claims are also preempted because they
present ``non Federal requirements'' that are not ``substantively the
same'' as the Federal requirements.
Consequently, the HMR provides the exclusive regulatory framework
for the subjects addressed in this determination, barring the
imposition of frustrating, contradictory, or duplicative State-specific
common law duties.
VI. Petitions for Reconsideration/Judicial Review
In accordance with 49 CFR 107.211, any person aggrieved by this
administrative determination may formally file a petition for
reconsideration. The petition for reconsideration must be filed within
20 days of the publication of this determination in the Federal
Register.
Any person who is adversely affected or aggrieved by this
administrative determination may seek judicial review under 49 U.S.C.
5127(a) in an appropriate United States Court of Appeals within 60 days
after publication of this determination in the Federal Register. 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).
Issued in Washington, DC, on September 4, 2026.
Keith J. Coyle,
Chief Counsel.
[FR Doc. 2026-18382 Filed 9-8-26; 8:45 am]
BILLING CODE 4910-60-P
</pre></body>
</html>Indexed from Federal Register on September 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.