Notice2026-18501
Hazardous Materials: California's Reusability Mandate for Propane Cylinders
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 10, 2026
Issuing agencies
Transportation DepartmentPipeline and Hazardous Materials Safety Administration
Abstract
The Federal Hazardous Materials Transportation Act (HMTA), 49 U.S.C. 5101 et seq., preempts California's reusability mandate for propane cylinders in California Public Resources Code, Sections 42395- 42395.2. The reusability mandate imposes localized design and manufacturing requirements on a container that is represented, marked, certified, or sold as qualified for use in the transportation of a hazardous material--specifically, propane--that are not substantively the same as the requirements in the HMR. The reusability mandate is also an obstacle to accomplishing and carrying out the HMTA. By banning a federally authorized, safety-compliant packaging based on localized waste management preferences, California creates a fragmented regulatory patchwork that undermines the primacy and uniformity of the Federal transportation safety framework.
Full Text
<html>
<head>
<title>Federal Register, Volume 91 Issue 174 (Thursday, September 10, 2026)</title>
</head>
<body><pre>
[Federal Register Volume 91, Number 174 (Thursday, September 10, 2026)]
[Notices]
[Pages 57684-57693]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2026-18501]
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
Pipeline and Hazardous Materials Safety Administration
[Docket No. PHMSA-2025-0776; PD-41(R)]
Hazardous Materials: California's Reusability Mandate for Propane
Cylinders
AGENCY: Pipeline and Hazardous Materials Safety Administration (PHMSA),
DOT.
ACTION: Notice of administrative determination of preemption.
-----------------------------------------------------------------------
SUMMARY: The Federal Hazardous Materials Transportation Act (HMTA), 49
U.S.C. 5101 et seq., preempts California's reusability mandate for
propane cylinders in California Public Resources Code, Sections 42395-
42395.2. The reusability mandate imposes localized design and
manufacturing requirements on a container that is represented, marked,
certified, or sold as qualified for use in the transportation of a
hazardous material--specifically, propane--that are not substantively
the same as the requirements in the HMR. The reusability mandate is
also an obstacle to accomplishing and carrying out the HMTA. By banning
a federally authorized, safety-compliant packaging based on localized
waste management preferences, California creates a fragmented
regulatory patchwork that undermines the primacy and uniformity of the
Federal transportation safety framework.
FOR FURTHER INFORMATION CONTACT: Samantha Vrscak, 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; Facsimile No. 202-366-7041.
SUPPLEMENTARY INFORMATION:
I. Background
Worthington Enterprises, Inc. (Worthington) applied for a
determination as to whether the HMTA, 49 U.S.C. 5101 et seq., and the
Hazardous Materials Regulations (HMR), 49 CFR parts 171-80, preempts a
new reusability mandate for propane cylinders in California Public
Resources Code, Cal. Pub. Res. Code Sec. Sec. 42395-42395.2. The
reusability mandate generally provides that, on or after January 1,
2028, all propane cylinders sold or offered for sale in California must
be reusable or refillable. The reusability mandate does not apply to
cylinders customarily designed for use in the construction industry
with a capacity of less than 15 ounces, to cylinders with an overall
product height-to-width ratio of 3.55 to 1 or greater, or to cylinders
offered to a State or local government agency for purchase pursuant to
the U.S. General Services Administration's State and Local Disaster
Purchasing Program or its successor. See Cal. Pub. Res. Code Sec. Sec.
42395-42395.1.
Worthington designs and manufactures certain non-reusable and non-
refillable propane cylinders that are subject to the California
reusability mandate. These cylinders are also subject to the
requirements in the HMR for specification 39 non-reusable (non-
refillable) cylinders (DOT-39 cylinders).\1\ A cylinder is a type of
[[Page 57685]]
``packaging'' or ``container'' regulated under the HMR.\2\ Section
178.65 of the HMR prescribes detailed design and manufacturing
requirements for the non-reusable and non-refillable DOT-39 cylinders
that are the subject of this preemption determination. DOT-39 cylinders
are also authorized packagings that can be used to transport propane, a
Division 2.1 flammable gas, in commerce.\3\
---------------------------------------------------------------------------
\1\ Under the HMR, a DOT-39 cylinder is a non-reusable and non-
refillable seamless, welded, or brazed cylinder made of steel or
aluminum with size limitations dependent on the service pressure and
requirements for manufacturing, cylinder wall thickness, openings
and attachments on the cylinder head, and pressure and flattening
testing. See 49 CFR 178.65. Subsection 178.65(i) requires specific
markings on the cylinder, such as the specification number, service
and test pressure, the registration number of the manufacturer, date
of manufacture, ``NRC'' for ``non-reusable container,'' and the
statement, ``Federal law forbids transportation if refilled'' with a
statement of the maximum civil and criminal penalties applicable at
the date of manufacture.
\2\ See 49 U.S.C. 5103(b)(1)(A)(iii); 49 CFR 171.8
(``packaging'' is defined as ``a receptacle and any other components
or materials necessary for the receptacle to perform its containment
function in conformance with the minimum packing requirements of
[the HMR]'' and ``package'' is defined as ``a packaging plus its
contents''); 49 CFR 178.35 (general requirements for DOT
specification cylinders); 49 CFR 178.65 (requirements for DOT-39
non-reusable (non-refillable) cylinders).
\3\ See 49 CFR 172.101 (Hazardous Materials Table); 49 CFR
173.301(a)(1) (general requirements for shipment of compressed gases
and other hazardous materials in cylinders; includes DOT-39
cylinders as an authorized packaging for compressed gases); and
Sec. 173.304 (requirements for filling of cylinders with liquefied
compressed gases).
---------------------------------------------------------------------------
Citing the Federal preemption provision in the HMTA, Worthington
filed an application on August 18, 2025 asking PHMSA to issue an
administrative determination that the California reusability mandate is
unlawful for two reasons: (1) because it is not substantively the same
as Federal regulations governing the design, manufacture, and
maintenance of cylinders used in transportation of hazardous materials;
and (2) because it is an obstacle to the Federal hazardous material
transportation legal and regulatory regime.
PHMSA published notice of Worthington's application in the Federal
Register on January 9, 2026 (Docket No. PHMSA-2025-0776) and invited
interested parties to submit comments.\4\ The initial comment period
closed on February 9, 2026, followed by a rebuttal comment period that
remained open until March 10, 2026. PHMSA received a total of seventeen
comments, including a Congressional letter, in response to the notice.
These comments are summarized in Part IV below.
---------------------------------------------------------------------------
\4\ 91 FR 1029 (Jan. 9, 2026).
---------------------------------------------------------------------------
II. Preemption Under Federal Hazardous Material Transportation Law
The HMTA contains an express preemption provision in 49 U.S.C.
5125. That provision is intended to ensure uniformity in the regulation
of hazardous materials transportation.\5\ Section 5125(a) authorizes
two forms of preemption that have long been recognized under Federal
law. The first is commonly known as dual compliance preemption. The
second is commonly known as obstacle preemption.\6\ In addition,
Section 5125(b)(1) preempts State laws about certain subjects that are
not ``substantively the same'' as Federal law.
---------------------------------------------------------------------------
\5\ S. Rep. No. 1192, 93rd Cong. 2nd Sess. 37 (1974) (stating
that 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'');
Colorado Pub. Util. Comm'n v. Harmon, 951 F.2d 1571, 1575 (10th Cir.
1991) (characterizing uniformity as the ``linchpin'' in the design
of the Federal laws governing the transportation of hazardous
materials).
\6\ See Hines v. Davidowitz, 312 U.S. 52 (1941); Florida Lime &
Avocado Growers, Inc. v. Paul, 373 U.S. 132 (1963); Ray v. Atlantic
Richfield Co., 435 U.S. 151 (1978).
---------------------------------------------------------------------------
Dual Compliance and Obstacle Preemption
Section 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 the U.S
Department of Transportation (Department or DOT) grants a waiver of
preemption under Section 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.
Covered Subject Preemption
Section 5125(b)(1) further provides that a non-Federal requirement
concerning any of the following subjects is preempted--unless
authorized by another Federal law or DOT grants a waiver of
preemption--when the non-Federal requirement is not ``substantively the
same'' as a provision of Federal hazardous material transportation law,
a regulation prescribed under that law, or a hazardous materials
security regulation or directive issued by the Department of Homeland
Security:
(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 and
other written hazardous materials transportation incident reporting
involving State or local emergency responders in the initial
response to the incident.
(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 in commerce.\7\
---------------------------------------------------------------------------
\7\ To be ``substantively the same,'' the non-Federal
requirement must conform ``in every significant respect to the
Federal requirement. Editorial and other similar de minimis changes
are permitted.'' 49 CFR 107.202(d).
---------------------------------------------------------------------------
Administrative Preemption Determinations
The HMTA allows any person (including a State, political
subdivision of a State, or Indian tribe) directly affected by a
requirement of a State, political subdivision or Indian tribe to apply
to the Secretary of Transportation for an administrative preemption
determination.\8\ The Secretary of Transportation has delegated his
authority to make such determinations to PHMSA, except with respect to
matters concerning highway routing (which have been delegated to the
Federal Motor Carrier Safety Administration).\9\ Alternatively, a
person may seek a judicial decision on preemption from a court of
competent jurisdiction.\10\ However, once an application is filed with
PHMSA, an applicant may not seek judicial relief with respect to the
same, or substantially the same issue, until the agency has taken final
action on the application or 180 days after filing the application.\11\
---------------------------------------------------------------------------
\8\ 49 U.S.C. 5125(d)(1).
\9\ 49 CFR 1.97(b).
\10\ 49 U.S.C. 5125(d)(3).
\11\ 49 U.S.C. 5125(d)(1); 49 CFR 107.203(d).
---------------------------------------------------------------------------
Section 5125(d)(1) requires the Secretary to publish notice of an
application for a preemption determination in the Federal Register.
Following the receipt and consideration
[[Page 57686]]
of written comments, PHMSA publishes its determination in the Federal
Register.\12\
---------------------------------------------------------------------------
\12\ 49 CFR 107.209(c).
---------------------------------------------------------------------------
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 (E.O. 13132) and the President's May 20, 2009 Memorandum on
Preemption.\13\ 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. Here, Section 5125 contains express
preemption provisions. The President's May 20, 2009 Memorandum sets
forth the policy ``that preemption of State law by executive
departments and agencies should be undertaken only with full
consideration of the legitimate prerogatives of the States and with a
sufficient legal basis for preemption.'' \14\
---------------------------------------------------------------------------
\13\ E.O. 13132, Federalism, 64 FR 43255 (Aug. 10, 1999);
Memorandum on Preemption, 74 FR 24693 (May 22, 2009).
\14\ 74 FR at 24693.
---------------------------------------------------------------------------
III. The California Reusability Mandate for Propane Cylinders
As enacted by Section 42395.1 of the California Public Resources
Code, ``[o]n or after January 1, 2028, only reusable or refillable
propane cylinders shall be sold or offered for sale in [California].''
\15\ Section 42395(a) of the California Public Resources Code provides
that:
---------------------------------------------------------------------------
\15\ Cal. Pub. Res. Code Sec. 42395.1.
For the purposes of this chapter, ``reusable'' or ``refillable''
or ``reuse'' or ``refill,'' in regard to propane cylinders means a
cylinder that satisfies all of the following:
(1) Explicitly designed and marketed to be utilized multiple
times for the same product.
(2) Designed for durability to function properly in its original
condition for multiple uses.
(3) Supported by adequate infrastructure to ensure the cylinders
can be conveniently and safety reused for multiple cycles.
Section 42395(b) further states that ``[f]or the purposes of this
chapter, `propane cylinder' does not include any of the following:
(1) Cylinders that are customarily designed for use in the
construction industry and when full, contain less than 15 ounces of
fuel, whether filled solely with propane or not.
(2) Cylinders that have an overall product height-to-width of
3.55 to 1 or greater.
(3) Cylinders that are offered to a State or local government
purchasing agency pursuant to the United States General Services
Administration's State and Local Disaster Purchasing Program, or a
successor program.
The State Department of Resources Recycling and Recovery is
required to ``adopt regulations to implement [the law] with an
effective date of January 1, 2028.'' \16\
---------------------------------------------------------------------------
\16\ Cal. Pub. Res. Code Sec. 42395.2. See also 2024 Cal.
Legis. Serv. Ch. 466 (S.B. 1280).
---------------------------------------------------------------------------
IV. Public Comments
PHMSA received a total of seventeen comments responding to
Worthington's application for an administrative preemption
determination on the California reusability mandate for propane
cylinders. Nine commenters expressed their support for the application,
and eight commenters expressed their opposition. Additional information
about the comments is provided below.
A. Comments Supporting Preemption
Goal and Purpose of HMTA
Nearly all commenters in favor of preemption argue that
California's reusability mandate for propane cylinders obstructs the
purpose of the HMTA. The National Propane Gas Association (NPGA), a
national trade organization representing the propane industry, states
that the California reusability mandate would disrupt national
uniformity and undermine safety.\17\ Noting that the purpose of the
HMTA is to create one set of rules for transportation, safety,
equipment, and operations, NPGA observes that differing State
requirements for propane cylinders undermine that purpose by creating a
patchwork of manufacturing and safety standards.\18\ NPGA further
states that the refillable propane cylinders required by the California
reusability mandate do not yet have an established safety and
operational record comparable to DOT-39 cylinders.\19\
---------------------------------------------------------------------------
\17\ National Propane Gas Association (NPGA), Comment, Docket ID
PHMSA-2025-0776-0004 (Feb. 6, 2026).
\18\ Id. at 2.
\19\ Id. at 1.
---------------------------------------------------------------------------
Cleveland-Cliffs Inc., a producer of flat-rolled steel in North
America and a supplier of steel used by U.S. manufacturers of non-
reusable propane cylinders, argues that the California reusability
mandate undermines national standards for the use and regulation of
propane cylinders that have been established through industry guidance
and practice.\20\ Cleveland-Cliffs notes that the HMR explicitly allow
non-refillable propane cylinders, and echoes NPGA's claim that the
California reusability mandate requires the use of refillable propane
cylinders that do not have the same established safety and operations
record as DOT-39 cylinders.\21\
---------------------------------------------------------------------------
\20\ Cleveland-Cliffs Inc., Comment, Docket ID PHMSA-2025-0776-
0009 (Feb. 6, 2026).
\21\ See id.
---------------------------------------------------------------------------
A group of nonprofit organizations dedicated to wildlife
conservation (collectively known as Wildlife Conservation
Organizations) argue that DOT-39 propane cylinders are the national
standard ``because they are safe, convenient, and affordable,''
particularly for outdoor recreationists.\22\ The Wildlife Conservation
Organizations further state that imposing a State-specific design
requirement ``disrupts national uniformity, increases safety hazard
potential, and places burdens on commerce,'' frustrating the purpose of
a uniform regulatory framework as intended by the HMTA.\23\ The
Wildlife Conservation Organizations note that ``[m]any of their members
recreate in multiple states,'' and that the requirements in the
California reusability mandate ``w[ould] create confusion and practical
compliance challenges'' for the rest of the country.\24\
---------------------------------------------------------------------------
\22\ Wildlife Conservation Organizations, Comment, Docket ID
PHMSA-2025-0776-0001 at 1 (Feb. 9, 2026).
\23\ Id. at 2.
\24\ Id.
---------------------------------------------------------------------------
The Attorneys General of Kansas and Ohio argue that ``[t]he [HMTA]
ensures safe packaging and transportation of hazardous materials.''
\25\ The State Attorneys General emphasize that ``uniformity and
certainty matter'' because ``packaging, transporting, and using
compressed gas is dangerous.'' \26\ They argue that the California
reusability mandate is an obstacle to promoting the HMTA's objectives
of promoting safety and minimizing burdens on commerce by prohibiting
``the sale of safe, tried-and-true propane cylinders.'' \27\ The State
Attorneys General assert that reusable or refillable cylinders can be
dangerous for untrained consumers who may inadvertently overfill the
cylinders, use worn or damaged cylinders, cause leaks, or transport
cylinders unsafely.\28\ They argue that it is important for consumers,
including those from out of State, to ``have the opportunity to buy
safe and reliable single-use cylinder[s].'' \29\ They also argue
manufacturers will be forced
[[Page 57687]]
to ``shift significant resources'' to continue operating in the market,
which will drive up costs and cause further economic harm.\30\ The
International Association of Machinists and Aerospace Workers Union
(IAM), District 10, also emphasize that the California reusability
mandate presents an obstacle to maintaining compliance with the
national hazmat transportation regulatory scheme.\31\ Requiring a
unique product to be used in California places an unreasonable burden
on commerce.
---------------------------------------------------------------------------
\25\ Attorneys General of Kansas & Ohio, Comment, Docket ID
PHMSA-2025-0776-0008 at 1 (Feb. 6, 2026).
\26\ Id.
\27\ Id. at 2.
\28\ Id.
\29\ Id.
\30\ Id.
\31\ International Association of Machinists and Aerospace
Workers (IAM), District 10, Comment, Docket ID PHMSA-2025-0776-0010
at 1 (Jan. 21, 2026).
---------------------------------------------------------------------------
Not Substantively the Same
The Attorneys General of Kansas and Ohio argue that the California
reusability mandate must be preempted because it is about the designing
and manufacturing of propane cylinders and requires that the cylinders
at issue be designed and manufactured to California's specifications,
i.e., the cylinders must be reusable or refillable.\32\ By having its
own design and manufacturing requirements, the California reusability
mandate is in conflict with 49 U.S.C. 5125(b)(1)(E). IAM, District 10,
also claims the California reusability mandate is preempted as
pertaining to a covered subject area, i.e., the designing,
manufacturing, and fabricating of a container used to transport
hazardous materials, and requiring a different cylinder design than one
authorized by the HMTA to be sold or offered for sale in
California.\33\ The Wildlife Conservation Organizations similarly argue
that California is imposing a State-specific design mandate that is not
substantially the same as Federal requirements.\34\ They note that
California is mandating a different product design than what is
otherwise allowed in every other State.\35\
---------------------------------------------------------------------------
\32\ Attorneys General of Kansas & Ohio, Comment, Docket ID
PHMSA-2025-0776-0008 at 2.
\33\ IAM, District 10, Comment, Docket ID PHMSA-2025-0776-0010
at 1.
\34\ Wildlife Conservation Organizations, Comment, Docket ID
PHMSA-2025-0776-0001 at 1.
\35\ Id.
---------------------------------------------------------------------------
Economic Burdens
Several commenters argue that the California reusability mandate
would impose unreasonable economic burdens on commerce. In a joint
comment, the State Attorneys General of Kansas and Ohio note that
single-use cylinders have been manufactured in Kansas for decades and
that Ohio-based Worthington Enterprises is the only American
manufacturer of DOT-39 cylinders.\36\ They argue that the California
reusability mandate threatens jobs, impedes commerce, creates confusion
for manufacturers and for retailers, and undermines affordability and
safety for all consumers.\37\ Relatedly, NPGA claims that compliance
with a patchwork of different State requirements would be costly and
confusing for propane companies operating interstate.\38\
---------------------------------------------------------------------------
\36\ Attorneys General of Kansas & Ohio, Comment, Docket ID
PHMSA-2025-0776-0008 at 1.
\37\ Id.
\38\ NPGA, Comment, Docket ID PHMSA-2025-0776-0004 at 2.
---------------------------------------------------------------------------
Cleveland-Cliffs notes that the current market for non-reusable
propane cylinders is served entirely by domestically produced steel,
whereas refillable cylinders are currently made overseas with foreign
materials, raising both economic and safety concerns.\39\ IAM, District
10, a union representing workers in a manufacturing facility where non-
refillable propane cylinders are produced, notes that 255 workers are
employed at that facility.\40\ They argue that if California's ban on
nonreusable cylinders goes into effect, it will reduce consumer demand
for those products and likely reduce the need for those jobs.\41\ In
addition, the Wildlife Conservation Organizations argue that from a
consumer standpoint, reusable or refillable cylinder alternatives can
impose significantly higher costs and may require users to transport
larger tanks or travel long distances to locate a refill retailer,
placing significant burdens on backcountry and remote-use
activities.\42\
---------------------------------------------------------------------------
\39\ Cleveland-Cliffs Inc., Comment, Docket ID PHMSA-2025-0776-
0009.
\40\ IAM, District 10, Comment, Docket ID PHMSA-2025-0776-0010
at 1.
\41\ Id.
\42\ Wildlife Conservation Organizations, Comment, Docket ID
PHMSA-2025-0776-0001 at 1.
---------------------------------------------------------------------------
B. Comments Opposing Preemption
Regulates Waste Management, Not Hazmat Transportation
Most of the comments opposing preemption emphasize that the
California reusability mandate relates to waste management and public
safety, matters falling within the reach of the State's traditional
police powers. Solid Waste Association of North America (SWANA), an
advocacy organization focused on the advancement of solid waste
management to resource management, argues that the reusability
requirement advances waste management worker and facility safety and
reduces the amount of waste and disposal costs associated with single-
use cylinders.\43\ SWANA elaborates that improperly discarded propane
cylinders are a safety risk.\44\ Single-use cylinders that enter
collection vehicles or processing facilities ``can retain residual gas
or pressure and may explode when compacted, crushed, or otherwise
handled during normal waste management operations.'' \45\ SWANA asserts
that such incidents endanger workers and increase costs on local
governments and waste management facility operators through insurance,
maintenance, and repairs.\46\ SWANA cites a September 23, 2024 press
release from California State Senator John Laird, author of California
Senate Bill 1280 (SB 1280), from which Cal. Pub. Res. Code Sec. Sec.
42395-42395.2 is codified.\47\ In the press release, Senator Laird
explained the law was enacted for a ``cleaner and safer California,''
due to the burden of improperly disposed cylinders on park systems,
beaches, waste management facilities, and local governments.\48\
---------------------------------------------------------------------------
\43\ Solid Waste Association of North America (SWANA), Comment,
Docket ID PHMSA-2025-0776-0005 at 2 (Feb. 9, 2026).
\44\ Id.
\45\ Id. at 3.
\46\ Id.
\47\ Id. at 2.
\48\ Id.
---------------------------------------------------------------------------
The California Product Stewardship Council (CPSC) and Rural County
Representatives of California (RCRC), in a joint comment, argue that
the California reusability mandate is a waste management law that falls
within the State's traditional police powers.\49\ Citing to the
President's May 20, 2009 Memorandum on Preemption and E.O. No. 13132,
CPSC and RCRC argue that PHMSA should limit the impact its preemption
determination would have on California's exercise of its police powers
to address issues outside the scope of the HMTA, i.e., waste
management, product stewardship, and environmental protection.\50\
Echoing arguments made by SWANA, CPSC and RCRC state that the
California reusability mandate addresses waste management challenges
associated with single-use propane cylinders, primarily the disposal of
single-use cylinders that are landfilled or illegally dumped and rarely
properly recycled due to residual gas and infrastructure gaps, and that
are known to cause fires, explosions, and injuries at waste handling
facilities.\51\
[[Page 57688]]
They argue that California enacted the reusability mandate after
legislative findings showing the risks to sanitation workers and
firefighters, the ineffectiveness of voluntary recycling programs, and
the lack of Federal action addressing the harms associated with
improper disposal of non-reusable propane cylinders.\52\ CPSC and RCRC
urge PHMSA to consider California's legitimate interests in addressing
a waste management problem and avoid a preemption determination
undermining California's ``legitimate exercise of its police powers.''
\53\
---------------------------------------------------------------------------
\49\ Cal. Prod. Stewardship Council (CPSC) & Rural Cnty.
Representatives of Cal. (RCRC), Comment, Docket ID PHMSA-2025-0776-
0012 at 1 (Feb. 6, 2026).
\50\ Id. at 1-2.
\51\ Id. at 2.
\52\ Id. at 3.
\53\ Id. at 4.
---------------------------------------------------------------------------
Does Not Present an Obstacle to the HMTA
The majority of commenters opposing preemption argue that the
California reusability mandate does not present an obstacle to carrying
out the HMTA. SWANA argues California's reusability requirement is not
an obstacle so long as the refillable cylinders meet DOT standards.\54\
SWANA notes that there is precedent for the use of refillable propane
cylinders, such as 20-pound refillable cylinders used for
barbeques.\55\ SWANA also argues that ``other states have laws that
support refillable cylinders, such as Connecticut's [Extended Producer
Responsibility] law for gas cylinders (Public Act No. 24-133),'' though
does not elaborate in what manner Connecticut had done so.\56\
---------------------------------------------------------------------------
\54\ SWANA, Comment, Docket ID PHMSA-2025-0776-0005 at 2.
\55\ Id.
\56\ Id.
---------------------------------------------------------------------------
CPSC and RCRC argue that the California reusability mandate does
not create an obstacle to Federal laws regarding the transportation of
hazardous materials, specifying that the law does not prohibit propane
use, does not interfere with Federal transportation or handling
requirements, and does not require the redesign of cylinders already
compliant with Federal law.\57\ They assert that DOT-39 cylinders may
still be transported in commerce in California for sale to consumers in
other States, thus ``avoiding any impact on interstate commerce.'' \58\
Special Waste Associates (SWA), who provides consulting services to
local and State governments about managing household hazardous waste,
asserts that the California reusability mandate is not an obstacle to
the HMTA because other manufacturers have sold small refillable propane
cylinders for consumer use.\59\ SWA further asserts that Worthington
has the ability to manufacture refillable one-pound propane cylinders
and has simply ``chosen not to do so.'' \60\
---------------------------------------------------------------------------
\57\ CPSC & RCRC, Comment, Docket ID PHMSA-2025-0776-0012 at 2-
3.
\58\ Id. at 3.
\59\ Special Waste Associates (SWA), Comment, Docket ID PHMSA-
2025-0776-0011 at 2 (Feb. 9, 2026).
\60\ Id.
---------------------------------------------------------------------------
Does Not Pertain to a Covered Subject
The majority of the commenters opposed to preemption also argue
that the California reusability mandate does not pertain to a covered
subject and therefore is not required to be ``substantively the same
as'' a provision of the HMTA or the HMR. SWANA claims that the
``substantively the same'' provision relates to transportation, and
that the California reusability mandate ``does not speak to the
transportation of . . . cylinders.'' \61\ CPSC and RCRC argue SB 1280
is not a safety standard regulating the design, manufacture,
fabrication, inspection, marking, maintenance, reconditioning,
repairing, or testing of packagings or containers that are represented,
marked, certified, or sold as qualified for use in transporting
hazmat.\62\ They also argue that the California reusability mandate
does not impose new design specifications or transportation
requirements on propane cylinders or prohibits the use of propane.\63\
Instead, they claim that the reusability mandate relies upon cylinder
specifications already established by DOT; specifically, the DOT 4BA
specification for reusable and refillable welded or brazed steel
cylinders.\64\ They argue that even if the California reusability
mandate relates to the design, manufacture, or fabrication of
containers used to transport hazmat, its ``implicit reliance'' on the
DOT 4BA cylinder specification means that it is complementary to, and
thus ``substantively the same as,'' Federal hazardous material
transportation law and regulations.\65\
---------------------------------------------------------------------------
\61\ SWANA, Comment, Docket ID PHMSA-2025-0776-0005 at 2.
\62\ CPSC & RCRC, Comment, Docket ID PHMSA-2025-0776-0012 at 1.
\63\ Id.
\64\ Id.
\65\ Id.
---------------------------------------------------------------------------
SWA further argues California's law is not preempted because
propane cylinders are not a ``packaging'' under the HMR.\66\ SWA claims
the one-pound cylinders are instead the ``product being contained in
the packaging,'' and that the box used to ship the cylinder was the
``packaging.'' \67\ SWA further asserts the outer packaging must
conform with the HMR's packaging requirements, ``not the materials
inside the packaging.'' \68\
---------------------------------------------------------------------------
\66\ SWA, Comment, Docket ID PHMSA-2025-0776-0011 at 2.
\67\ Id.
\68\ Id.
---------------------------------------------------------------------------
Dual Compliance Is Possible
CPSC and RCRC argue that the California reusability mandate does
not make compliance with both State and Federal law impossible, and
noted that reusable DOT 4BA cylinders would be permitted.\69\ They also
argue that the reusability mandate does not prohibit the manufacturing
of single-use cylinders; it merely prohibits their sale to consumers in
California.\70\
---------------------------------------------------------------------------
\69\ CPSC & RCRC, Comment, Docket ID PHMSA-2025-0776-0012 at 2-
3.
\70\ Id.
---------------------------------------------------------------------------
C. Rebuttal Comments
Rebuttal Comments in Support of Preemption
The rebuttal comments in favor of preemption largely echo those
submitted during the initial comment period. In a joint letter,
Representatives Troy Balderson, Ron Estes, and Tony Wied express
concern that the California reusability mandate threatens manufacturing
jobs in their States and argue that domestic manufacturers of cylinders
rely on a uniform regulatory framework to produce safe cylinders.\71\
They note that millions of Americans use non-refillable propane
cylinders in emergency situations and for outdoor activities.\72\ They
argue the California reusability mandate reduces safety by creating a
haphazard and inconsistent regulatory environment, noting that DOT-39
cylinders are the national standard for portable fuel and have been
rigorously designed and tested.\73\
---------------------------------------------------------------------------
\71\ Reps. Balderson, Estes, & Wied, Comment, Docket ID PHMSA-
2025-0776-0015 (Feb. 27, 2026).
\72\ Id. at 1.
\73\ Id. at 1-2.
---------------------------------------------------------------------------
California Grocers Association (CGA), a nonprofit statewide trade
association for the grocery and retail industry in California, agrees
that the California reusability mandate is an obstacle to maintaining
compliance with a uniform scheme of Federal regulation meant to promote
safety and will impose an unreasonable burden on commerce.\74\ CGA
estimates that managing a California-specific distribution for propane
cylinders would cost California grocers millions of dollars.\75\ CGA
also argues the California reusability mandate should be preempted
under the covered subject provision in the HMTA,
[[Page 57689]]
because the HMR authorizes non-refillable propane cylinders, and the
reusability mandate will prevent its members from transporting non-
refillable propane cylinders to consumers despite being ``available to
all other consumers in the U.S.'' \76\
---------------------------------------------------------------------------
\74\ California Grocers Association (CGA), Comment, Docket ID
PHMSA-2025-0776-0014 (Feb. 19, 2026).
\75\ Id. at 1.
\76\ Id. at 2.
---------------------------------------------------------------------------
James Hunter Poole, Executive Chairman and Chief Executive Officer
of Obelisk Tech Systems, Inc., argues the California reusability
mandate should be preempted on economic grounds because imposing
disproportionate burdens on small propane cylinder manufacturers as
well as consumers in rural households, who rely on single-use propane
cylinders as a primary emergency energy source in natural
disasters.\77\ Mr. Poole reasons that small rural propane distributors
would be forced to increase costs as a result of California pulling out
of the market, and that fragmenting the national market would reduce
availability during natural disasters.\78\ Mr. Poole asserts the
California reusability mandate will obstruct the HMTA's purpose of
national uniformity.\79\ He elaborates that a manufacturer supplying
propane cylinders must either manufacture two different cylinder types,
one for California and one for the rest of the country, ``creating
exactly the non-uniform patchwork the HMTA was designed to prevent.''
\80\ Alternatively, those manufacturers must redesign their product
lines to meet California's requirements, imposing California's policy
preferences on the entire market.\81\ In response to previous
commenters, Mr. Poole notes that while California's concern about waste
and disposable are legitimate environmental objectives, they are not
hazardous materials transportation safety objectives.\82\
---------------------------------------------------------------------------
\77\ Obelisk Tech Systems, Inc., Comment, Docket ID PHMSA-2025-
0776-0016 at Doc. 9, 11, & 12 (Mar. 10, 2026).
\78\ Id.
\79\ Id. at Doc. 9.
\80\ Id.
\81\ Id.
\82\ Id. at Doc. 10.
---------------------------------------------------------------------------
Worthington, in its rebuttal, agrees with commenters expressing
support for preemption and argues that those comments confirm that
preemption is both legally appropriate and in the public interest by
ensuring the free flow of commerce, preserving jobs, advancing safety,
and protecting consumer choice and affordability.\83\ Worthington
argues that opposition commenters cannot support their view because the
California reusability mandate clearly imposes design requirements and
HMTA preemption encompasses restrictions on containers holding hazmat,
such as cylinders, not just the outer packaging or the transportation
of hazmat.\84\ Worthington asserts that the California reusability
mandate is ``not complementary to the uniform regulatory scheme'' and
that the federalism concerns raised by other commenters do not apply
because there is no presumption against preemption where the statute
contains an express preemption clause, such as in the HMTA.\85\
---------------------------------------------------------------------------
\83\ Worthington Enterprises, Inc., Comment, Docket ID PHMSA-
2025-0776-0018 at 1 (Mar. 10, 2026).
\84\ Id. at 2.
\85\ Id.
---------------------------------------------------------------------------
Worthington reiterates that the HMTA preempts California's non-
reusable cylinder ban because it pertains to an enumerated subject
matter in 49 U.S.C. 5125(b)(1) and 49 CFR 107.202(a)(5)--specifically,
the designing, manufacturing, fabricating, etc. of a packaging,
container, or packaging component--and is not substantively the same as
the Federal requirements.\86\ Contrary to the assertions of CPSC and
RCRC, Worthington argues that the California reusability mandate
imposes design specifications on propane cylinders, as it defines
cylinders that are reusable or refillable as those ``explicitly
designed and marketed to be utilized multiple times for the same
product.'' \87\ Worthington further argues that CPSC and RCRC
misunderstand the HMTA's preemption provision in stating that the
reusability mandate does not regulate the design or manufacture of
propane cylinders because it does not prohibit propane use and does not
impose specific requirements as to cylinder pressure, valves, or
materials.\88\ Worthington states that a law prohibiting propane use
has no bearing on whether it imposes a propane cylinder design
requirement, and a regulation imposing a legal duty of reusability
imposes a design requirement because it bars the selection of a
federally approved cylinder design.\89\
---------------------------------------------------------------------------
\86\ Id.
\87\ Id. at 3 (quoting Cal. Pub. Res. Code Sec. 42395).
\88\ Id.
\89\ Id.
---------------------------------------------------------------------------
Worthington further argues that HMTA preemption is not limited to
outer ``packaging,'' as suggested by some of the commenters, because it
is about the design or manufacture of a package, container, or
packaging component used for transporting hazmat, and that DOT-39
cylinders are containers with specific regulatory requirements.\90\
Rejecting CAW and SWANA's assertions that preemption only applies to
State requirements related to transportation, Worthington claims the
covered subject provision about designing and manufacturing containers
does not require a particular connection to transportation, only that
such containers are qualified for use in transporting hazmat, which
includes DOT-39 cylinders.\91\ Worthington further asserts that
California's reusability mandate is not complementary to Federal law
because mandating a specific cylinder design to the exclusion of others
``is not substantively the same as a provision permitting that design
among other designs,'' as there is no Federal provision requiring
cylinders to be reusable such as DOT 4BA cylinders.\92\
---------------------------------------------------------------------------
\90\ Id. at 3-5.
\91\ Id.
\92\ Id. at 6-7.
---------------------------------------------------------------------------
Worthington emphasizes that California's reusability mandate
creates an obstacle to the HMTA and HMR's objectives to ``promote
uniformity of hazmat regulation, safety, and cost-effective commerce.''
\93\ Further, preemption is in the public interest because it would
promote uniform regulatory standards that are safer, ensure consumer
choice and affordability, and promote American jobs and industry.\94\
Worthington expresses skepticism that waste management and
environmental concerns would be addressed by the reusability mandate,
claiming that enhanced recycling programs and infrastructure are more
appropriate methods.\95\ Worthington reasons that consumers have
indicated a preference for nonreusable cylinders for affordability and
convenience.\96\ If forced to buy a reusable or refillable cylinder,
consumers are just as likely to purchase a new one instead of refilling
an existing one.\97\
---------------------------------------------------------------------------
\93\ Id. at 5.
\94\ Id. at 7-8.
\95\ Id. at 8.
\96\ Id.
\97\ Id.
---------------------------------------------------------------------------
Worthington notes consumers have expressed discomfort with
refillable options, citing to a presentation at the 2025 U.S. Product
Stewardship Forum in which Little Kamper, a company operating a
cylinder exchange program, reported at most a 60 percent exchange rate
at their best performing retail location.\98\ Worthington further
argues that California's reusability mandate disregards safety because
DOT-39 cylinders have to meet certain regulatory standards and testing,
whereas reusable one-pound cylinders
[[Page 57690]]
on the market encourage untrained consumers to refill using unregulated
fill kits.\99\ Worthington states that banning a safe type of cylinder
does not promote safety in the waste stream because every type of
propane cylinder bears the same risks, and the safety threat to
consumers refilling cylinders themselves and not requalifying cylinders
at appropriate intervals outweighs the risks to safety in the waste
stream.\100\
---------------------------------------------------------------------------
\98\ Id.
\99\ Id. at 9.
\100\ Id.
---------------------------------------------------------------------------
Rebuttal Comments Opposed to Preemption
The rebuttal comments opposed to preemption mostly reiterate points
made during the initial comment period. Californians Against Waste
(CAW), a statewide nonprofit organization representing local
governments, waste management professionals and recyclers, and
environmental advocates, emphasizes that the reusability mandate is a
waste prevention and product stewardship statute that falls within
California's traditional police powers.\101\ CAW asserts the mandate
addresses the sale of a product that is uniquely hazardous once
discarded, posing an explosion and fire risk in waste management
operations.\102\ It argues Congress had preserved State authority in
the areas of waste prevention, product stewardship, and post-consumer
safety and that nothing in the HMTA ``evidences an intent to displace
State action addressing downstream environmental and infrastructure
harms.'' \103\ CAW also asserts California's reusability requirement
does not present an obstacle to the HMTA because the reusability
requirement did not interfere with the HMTA's safety objectives or
undermine national uniformity, did not restrict the transportation of
propane, prohibit authorized cylinder designs from being shipped in
interstate commerce, or impose conflicting operational requirements on
carriers.\104\ CAW reiterates SWA's claim that the one-pound propane
cylinders are ``the product'' and not packaging as regulated under the
HMR, and that the outer packaging is regulated by PHMSA as a packaging,
not the cylinders themselves.\105\
---------------------------------------------------------------------------
\101\ Californians Against Waste (CAW), Comment, Docket ID
PHMSA-2025-0776-0013 at 1 (Feb. 9, 2026).
\102\ Id.
\103\ Id. at 2.
\104\ Id.
\105\ Id.
---------------------------------------------------------------------------
Billy Puk, a former hazmat and waste regulator and an illegal waste
dumping investigator in California, similarly argues that it is within
California's traditional police powers to manage waste and public
safety.\106\ Mr. Puk claims that improper propane cylinder disposal is
a crisis, with only 25 percent of such cylinders recovered through
household hazardous waste programs and are instead regularly commingled
with municipal waste, where they can cause flash fires and explosions
from being compacted or at waste facilities.\107\ He asserts SB 1280 is
not preempted as an obstacle to the HMTA because numerous manufacturers
already produce DOT specification one-pound refillable cylinders, and
that California should be permitted to choose between existing
federally approved cylinders ``to solve a local waste and safety
crisis.'' \108\
---------------------------------------------------------------------------
\106\ Billy Puk, Comment, Docket ID PHMSA-2025-0776-0017 at 1
(Mar. 10, 2026).
\107\ Id. at 1-2.
\108\ Id. at 4.
---------------------------------------------------------------------------
The Attorney General of California, in rebuttal, argues the
California reusability mandate protects public safety, particularly
workers in municipal waste and recycling facilities from the dangers of
improperly disposed propane cylinders, and thus falls within
California's traditional police powers and is entitled to a presumption
against preemption.\109\ Referencing SWANA's comment, the California
Attorney General notes that, while California State law requires
propane cylinders to be disposed of as hazardous waste, an estimated
three to four million end up in municipal landfills not certified to
receive hazardous waste, and those cylinders contain residual gas and
may explode when damaged or crushed during disposal or recycling.\110\
The California Attorney General further asserts that, even when
properly disposed, the processes required for safe handling of non-
refillable propane cylinders impose significant costs on local
facilities, and the reusability mandate addresses these safety and cost
issues.\111\ The California Attorney General also argues that, in all
preemption cases, it is presumed that the ``historic police powers of
the State'' are not supplanted by Federal law ``unless that was the
clear and manifest purpose of Congress.'' \112\ The California Attorney
General asserts that because a primary purpose in enacting SB 1280 was
to protect landfill workers, PHMSA should ``incorporate the presumption
against a finding of preemption'' for California's propane cylinder
reusability mandate as falling within California's historic police
powers.\113\
---------------------------------------------------------------------------
\109\ Attorney General of California, Comment, Docket ID PHMSA-
2025-0776-0019 at 1 (Mar. 10, 2026).
\110\ Id. at 2.
\111\ Id. at 3.
\112\ Id. at 4 (quoting Wyeth v. Levine, 555 U.S. 555, 565
(2009)).
\113\ Id.
---------------------------------------------------------------------------
The California Attorney General rejects the contention that the
reusability mandate is not substantively the same as comparable Federal
requirements.\114\ Assuming that cylinders are a ``package'' under the
HMTA, and therefore that any State requirement regarding their
``designing, manufacturing, fabricating. . . . or testing'' must be
substantively the same, the California Attorney General asserts there
are no requirements in the California mandate that are not
substantively the same as those under the HMR.\115\ The California
Attorney General states that the HMR specifies cylinder designs in 49
CFR part 178, which includes non-refillable cylinders, but the
regulations do not prohibit the design of refillable or reusable
cylinders.\116\ Rather, the HMR provides that cylinders may be designed
for repeated use.\117\ The California Attorney General notes that DOT-
4BA reusable cylinders are authorized for propane and that there are
numerous one-pound reusable cylinder options for sale as well as refill
kits at major retailers.\118\
---------------------------------------------------------------------------
\114\ Id. at 5.
\115\ Id
\116\ Id.
\117\ Id.
\118\ Id.
---------------------------------------------------------------------------
The California Attorney General further argues there is no
preemption under the obstacle test because the reusability mandate does
not present an obstacle to accomplishing and carrying out the HMTA or
the HMR.\119\ The California Attorney General elaborates that the
HMTA's purpose is to promote safety in hazardous materials
transportation through uniform regulation, and that the reusability
mandate does not create an obstacle to that purpose, but rather
furthers an interest in safety by reducing the number of improperly
disposed propane cylinders in municipal landfills.\120\ The California
Attorney General argues that, while some commenters raised concerns
about the effect of the mandate on jobs, commerce, and consumer costs,
none of those concerns relate to the safe transportation of
hazmat.\121\ The California Attorney General also argues there is no
preemption under the dual compliance test because the HMR authorizes
reusable cylinders and does not require propane cylinders to be
[[Page 57691]]
nonreusable, and thus it is not impossible to comply with both the
reusability mandate and the HMR.\122\
---------------------------------------------------------------------------
\119\ Id. at 6.
\120\ Id.
\121\ Id.
\122\ Id.
---------------------------------------------------------------------------
V. Discussion
PHMSA finds that California's reusability mandate for propane
cylinders is preempted. The mandate concerns the ``designing,
manufacturing, fabricating, inspecting, marking, [or] maintaining'' of
a packaging or container used in the transportation of hazardous
materials in commerce and is not ``substantively the same'' as the
Federal regulations. In addition, California's reusability mandate is
also an obstacle to accomplishing and carrying out the HMTA and the
HMR. Accordingly, the reusability mandate is preempted under 49 U.S.C.
5125(a)(2) and (b)(1)(E).
A. Covered Subject Preemption
Section 5125(b)(1) generally provides that a non-Federal
requirement concerning certain covered subjects is preempted if that
non-Federal requirement is not ``substantively the same'' as a
regulation prescribed in the HMR.\123\ The California reusability
mandate falls squarely within the reach of this provision for two
reasons. First, the mandate is a non-Federal requirement that relates
to a covered subject, i.e., the designing, manufacturing, fabricating,
inspecting, marking, and maintaining of propane cylinders, which are
packagings or containers qualified for use in transporting hazardous
materials in commerce. Second, the mandate imposes non-Federal
requirements on propane cylinders that are not substantively the same
as the requirements in the HMR, which expressly authorize DOT-39
cylinders to be designed and manufactured as single-use, i.e., as
``non-reusable (non-refillable),'' packagings or containers. The
California reusability mandate is therefore preempted under section
5125(b)(1)(E).
---------------------------------------------------------------------------
\123\ 49 U.S.C. 5125(b)(1)(E).
---------------------------------------------------------------------------
At to the first issue, the California reusability mandate clearly
relates to a covered subject. The HMR prescribes detailed requirements
for the design and manufacture of specification cylinders generally and
DOT-39 specification cylinders specifically.\124\ The general
requirements for specification cylinders include provisions for
construction and fabrication standards, safety device standards,
marking requirements, and certification and inspection requirements.
Moreover, the specific requirements for DOT-39 cylinders include
provisions for size, service pressure, and test pressure; authorized
materials; manufacturing standards; minimum wall thickness standards;
openings and attachments; testing and inspection requirements; and
required markings.\125\
---------------------------------------------------------------------------
\125\ See 49 CFR 178.65.
---------------------------------------------------------------------------
Of particular significance for the issues presented here, the HMR
expressly authorizes DOT-39 cylinders to be designed, manufactured, and
fabricated as non-reusable (non-refillable) propane cylinders. That is
confirmed by the general requirements in the HMR for specification
cylinders, which have a specific provision for inspecting non-
refillable cylinders,\126\ and by the specific requirements in the HMR
for ``Specification 39 non-refillable (non-reusable) cylinders.'' \127\
Indeed, the latter requirements expressly forbid the use of refillable
DOT-39 cylinders and require that such cylinders be marked with the
following statement: ``Federal law forbids transportation if refilled-
penalty up to $500,000 fine and 5 years imprisonment (49 U.S.C.
5124).'' \128\
---------------------------------------------------------------------------
\126\ 49 CFR 178.35(c)(3).
\127\ 49 CFR 178.65 (italics added).
\128\ 49 CFR 178.65(i)(2)(ii) & (i)(2)(viii).
---------------------------------------------------------------------------
As to the second issue, the California reusability mandate clearly
imposes requirements that are not substantively the same as the HMR.
The HMR expressly authorizes the design, manufacture, and fabrication
of non-refillable (non-reusable) cylinders as packagings or containers
qualified for use in transporting propane in commerce. The HMR also
expressly forbids the use in transportation of DOT-39 cylinders that
are refilled with propane. The California reusability mandate is not
substantively the same as these requirements; indeed, it is in direct
conflict with them. Further, the mandate imposes additional inspection,
marking, and maintenance requirements, given that DOT-39 cylinder have
different inspection and marking requirements from refillable
cylinders, and reusable cylinders must be requalified at specific
intervals for continued use.\129\ As such, the mandate is preempted
under the covered subject provision in Section 5125(b)(1)(E).
---------------------------------------------------------------------------
\129\ See 49 CFR 178.35(c)(3) (inspection requirements for DOT-
39 cylinders); Sec. 178.65(i)(2)(viii) (marking requirements for
DOT-39 cylinders); see also Sec. 180.205 (general requirements for
requalification of specification cylinders).
---------------------------------------------------------------------------
The contrary arguments presented by the commenters are
unpersuasive. As a threshold matter, the preemption provision in the
HMTA is not limited to State requirements directly relating to the
transportation of packagings or containers for hazardous materials. The
provision applies to a packaging or container qualified for the use in
transporting hazardous materials, regardless of whether it is in
``transportation.'' \130\ Nor does the California reusability mandate
enjoy a presumption against preemption as a waste management statute
enacted pursuant to the State's traditional police powers. There is no
presumption against preemption when a statute contains an express
preemption clause, such as in the HMTA.\131\
---------------------------------------------------------------------------
\130\ Applicability of the Hazardous Materials Regulations to
Loading, Unloading, and Storage, 68 FR 61906, 61908 (Oct. 30, 2003).
In this final rule, PHMSA emphasized that the DOT or UN
specification markings on packagings qualified for use in
transportation of hazardous materials in commerce ``certify that the
packaging has been designed, tested, and maintained in conformance
with all applicable HMR requirements,'' and that the requirements of
the HMR apply regardless of ``whether or not [the packaging] is in
transportation in commerce at any particular time.'' See also Roth
v. Norfalco LLC, 651 F.3d. 367, 379-80 (3d Cir. 2011) (finding
Section 5125(b)(1) ``expressly preempts'' differing requirements
about the ``design'' of a tank car qualified for use in transporting
hazardous materials even when the tank car was not in transportation
under the HMTA or HMR).
\131\ See Buono v. Tyco Fire Products, LP, 78 F.4th 490, 495 (2d
Cir. 2023) (citing Puerto Rico v. Franklin Cal. Tax-Free Tr., 579
U.S. 115, 125 (2016)). In Buono, the Second Circuit Court of Appeals
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.''
Id. at 493.
---------------------------------------------------------------------------
Section 5125(b)(1) of the HMTA is an express preemption clause
``because it `expressly directs that State law be ousted' if certain
conditions are satisfied.'' \132\ As noted by the Third Circuit in
Roth, Section 5125(b)(1) is ``an expansive preemption provision,'' and
there was ``nothing in the HTMA'' to indicate Congress did not intend
to preempt State requirements about the covered subjects listed
within.\133\ Rather, the HMTA's preemption provision was ``the linchpin
of Congress' efforts to impose nationwide regulatory uniformity.''
\134\ Congress's
[[Page 57692]]
preemptive intent of the HMTA is obvious from the plain language of
Section 5125(b)(1), as well as in the Federal hazardous materials
transportation law's legislative history.\135\
---------------------------------------------------------------------------
\132\ Id. at 496 (citing Association of Int'l Auto. Mfrs. v.
Abrams, 84 F.3d 602, 607 (2d. Cir. 1996)). The ``plain wording of
the clause'' is the ``best evidence of Congress' preemptive
intent.'' Id. at 495 (citing Chamber of Com. of U.S. v. Whiting, 563
U.S. 582, 594 (2011)).
\133\ Roth, 651 F.3d at 376, 378-80. 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).'' Id. at 375.
\134\ Id. at 378 (citing Harmon, 951 F.2d at 1581). Cf. Monsanto
Company v. Durnell, 146 S. Ct. 2001, 2009-12 (2026) (holding that
the Federal Insecticide, Fungicide, and Rodenticide Act (FIRFA)'s
preemption clause entitled ``Uniformity'' expressly preempted State-
law labeling requirements, such as cancer warning labels not
required by EPA, that were different from the Federal labeling
requirements under FIRFA based on the ``textually stated objective
of'' uniformity in labeling in FIRFA's preemption clause).
\135\ See Public Law 101-615, 104 Stat. 3244, 3247-49 (1990);
H.R. Rep. No. 101-444, pt. 1, at 33-35 (1990). In amending the HMTA
in 1990, the House of Representatives Committee on Energy and
Commerce found ``there is a compelling need for standardized
requirements relating to certain areas of the transportation of
hazardous materials. Conflicting Federal, State, and local
requirements pose potentially serious threats to the safe
transportation of hazardous materials.'' H.R. Rep. No. 101-444, pt.
1, at 33-34. The Committee specified that one such area concerned
the ``[d]esign, manufacturing, marking, maintenance, reconditioning,
repairing, or testing of hazardous materials packaging,'' noting
that ``[c]onflicting requirements'' may reduce the effectiveness of
such packagings and impose ``needless economic burdens.'' Id. at 35.
As a result of the Committee's findings that uniformity in the
``designing, manufacturing, and testing'' of hazardous materials
packages and containers ``will enhance the safe transportation of
hazardous materials,'' Congress amended the Federal hazardous
materials transportation law to include the ``substantively the
same'' preemption standard. See Public Law 101-615, 104 Stat. at
3247-49.
---------------------------------------------------------------------------
California's Attorney General asserts that the reusability
requirement for propane cylinders is substantively the same as the HMR,
specifying that the HMR does not prohibit the design of refillable or
reusable cylinders, and that other DOT specification cylinders that are
refillable or reusable, such as DOT 4BA cylinders, have been authorized
for transporting propane. PHMSA disagrees with this assertion. While
the HMR does permit the design of refillable or reusable cylinders, it
also expressly permits single-use, non-refillable cylinders. California
seeks to impose design and manufacturing requirements, namely that they
must be reusable and refillable, for all propane cylinders offered for
sale with few exceptions, which is not substantively the same as the
HMR. On its face, California's mandate may only reasonably be
interpreted to impose design and manufacturing requirements on
packagings or containers, particularly, DOT-39 cylinders, that are
qualified for use in transporting hazmat in commerce.\136\
---------------------------------------------------------------------------
\136\ As explained supra, the HMR authorize DOT-39 cylinders as
qualified packagings for use in the transportation of propane in
commerce. See 49 CFR 173.301(a).
---------------------------------------------------------------------------
In conclusion, a non-Federal requirement is not ``substantively the
same'' unless it ``conforms in every significant aspect to the Federal
requirement.'' \137\ Accordingly, California's law imposes additional,
different requirements regarding the design and manufacture of
cylinders qualified for use in the transportation of propane, a
hazardous material. Thus, California's reusability requirement for
propane cylinders is preempted under 49 U.S.C. 5125(b)(1)(E).
---------------------------------------------------------------------------
\137\ 49 CFR 107.202(d).
---------------------------------------------------------------------------
B. Obstacle Preemption
Section 5125(a)(2) generally provides that a non-Federal
requirement is preempted if complying with that requirement ``is an
obstacle to accomplishing and carrying out'' the HMTA or ``a regulation
prescribed under'' the HMTA.\138\ California's reusability mandate is a
non-Federal requirement that satisfies the obstacle criteria laid out
in this provision. It is therefore preempted under 49 U.S.C.
5125(a)(2).
---------------------------------------------------------------------------
\138\ 49 U.S.C. 5125(a)(2).
---------------------------------------------------------------------------
In enacting the HMTA, Congress made findings relating to the
transportation of hazardous materials and the importance of uniform
regulations governing hazmat transportation.\139\ Congress noted many
States and localities had enacted laws and regulations that varied from
Federal law relating to hazmat transportation, creating the potential
for unreasonable hazards in other jurisdictions and confusion for
shippers and carriers attempting to comply with multiple and
conflicting regulatory requirements.\140\ Further, because of the
potential risks associated with unintentional releases of hazardous
materials, Congress found that consistency in laws and regulations
governing hazmat transportation was ``necessary and desirable,'' and
that Federal standards regulating hazmat transportation in intrastate,
interstate, and foreign commerce were necessary to ``achieve greater
uniformity and to promote the public health, welfare, and safety at all
levels.'' \141\
---------------------------------------------------------------------------
\139\ Harmon, 951 F.2d at 1580.
\140\ Id. (citing Pub. L. 101-615, 104 Stat. at 3245).
\141\ Id.
---------------------------------------------------------------------------
As previously noted, a non-Federal requirement is preempted if it
is an obstacle to accomplishing the ``goals and purposes'' of the
HMTA.\142\ And the HMTA's goal of regulatory uniformity in the
transportation of hazardous materials is undermined when State and
local governments impose requirements that conflict with activities
that are otherwise authorized under Federal law, such as by
functionally banning the use of DOT-39 cylinders for propane. State and
local requirements that restrict or delay the transportation of
hazardous materials in accordance with Federal requirements are
inconsistent with the HMTA and the HMR.\143\
---------------------------------------------------------------------------
\142\ Id.
\143\ See Southern Pac. Transp. Co. v. Public Service Comm'n of
Nevada, 909 F.2d 352, 358 (9th Cir. 1990) (finding additional State
shipping documentation and permitting requirements for hazmat
transportation created a ``separate regulatory regime'' that
frustrated Congress's goal of regulatory uniformity and were both
burdensome and redundant). Further, such hazmat transportation is
presumptively safe, and additional State or local requirements on
areas covered by Federal law or regulation ``are neither necessary
nor appropriate.'' See Preemption Determination No. PD-40(R), FR
29511, 29526 (May 15, 2020). See generally, Preemption Determination
No. PD-6(R), 59 FR 6186 (Feb. 9, 1994); Preemption Determination No.
PD-7(R), 59 FR 28913 (June 3, 1994), decision on appeal, 60 FR 10419
(Feb. 24, 1995); Inconsistency Ruling (IR)-8, 49 FR 46637 (Nov. 27,
1984), decision on appeal, 52 FR 13000 (Apr. 20, 1987); IR-19, 52 FR
24404 (June 30, 1987), decision on appeal, 53 FR 11600, affirmed in
IR-19(A) and Southern Pac. Transp. Co., 909 F.2d 352 (reversing
No.CV-N-86-444-BRT (D. Nev. 1988)).
---------------------------------------------------------------------------
PHMSA has prescribed extensive regulations governing the safe
transportation of hazardous materials, including propane, as well as
the specifications of packagings authorized for use in the
transportation of propane, along with requirements for the safe use and
maintenance of those packagings. Each type of cylinder authorized for
hazmat transportation has specific design, manufacturing, testing, and
maintenance requirements that ensure it is safe for use, including DOT-
39 cylinders. Specification 39 cylinders are subject to strict
manufacturing standards and must undergo rigorous testing in order to
be qualified for use in transporting hazardous materials.\144\
Moreover, the DOT-39 cylinder has been an approved DOT cylinder
specification for the transportation of propane for years. PHMSA
continually reviews and updates requirements for DOT-39 cylinders,
along with all other types of approved hazmat packagings, through
rulemakings, and has done so as recently as 2020.\145\ In short, PHMSA
has established a comprehensive regulatory scheme addressing the safety
of DOT-39 cylinders and their suitability in transporting hazardous
materials such as propane. A State requirement forbidding the sale of
such authorized hazardous materials packagings is an obstacle to the
accomplishment and execution of the objectives of the HMTA and HMR.
---------------------------------------------------------------------------
\144\ See 49 CFR 178.65.
\145\ See Miscellaneous Amendments Pertaining to DOT-
Specification Cylinders, 85 FR 85380 (Dec. 28, 2020).
---------------------------------------------------------------------------
Accordingly, California's reusability mandate for propane cylinders
undermines the HMTA's goal and purpose of uniformity and is the type of
patchwork State requirement Congress
[[Page 57693]]
sought to avoid through the HMTA. California's mandate sets a precedent
for other jurisdictions to ban or place impermissible restrictions on
approved hazmat packagings under the guise of waste management. These
conflicting requirements would undermine the Federal regulatory scheme
of hazardous materials transportation uniformity and create confusion
and uncertainty for manufacturers and offerors of such packagings and
the hazmat contained therein. Allowing one State to ban the sale of
non-reusable or non-refillable propane cylinders would impose an
unreasonable burden on manufacturers and shippers by requiring them to
redesign their product to meet a specific State's requirements, or pull
out of that market entirely. It would also impose an unreasonable
burden on consumers by removing a safe and affordable option for
transporting propane.
More importantly, California's reusability mandate would more than
likely have the unintended effect of creating additional safety hazards
for consumers, further frustrating the intent of the HMTA and HMR.
Filling cylinders with propane, a flammable gas, poses a safety risk,
and that risk is increased if untrained consumers attempt to refill
these propane cylinders themselves. The refillable cylinders, such as
the DOT 4BA cylinders, touted by those opposed to preemption must also
be inspected and retested at regular intervals to qualify for
reuse.\146\ Though some consumers may timely reinspect and retest their
smaller propane cylinders, it is likely that many would keep using
their cylinders past the requalifying date, creating an additional
safety hazard. And while proponents of California's law insist the
reusability requirement would keep smaller propane cylinders from being
disposed of improperly at waste management facilities or landfills,
reusable propane cylinders may still be discarded improperly, creating
the same risks from improper disposal that California's law purports to
solve.
---------------------------------------------------------------------------
\146\ See 49 CFR 180.209.
---------------------------------------------------------------------------
For these reasons, PHMSA finds California's reusability mandate for
most propane cylinders is an obstacle to carrying out the HMTA and
HMR's goal of uniformity in the regulation of hazardous materials and
impedes the transportation of hazardous materials. The mandate is
therefore preempted under 49 U.S.C. 5125(a)(2).
VI. Ruling
PHMSA finds that California's reusability mandate for propane
cylinders is a non-Federal requirement relating to a covered subject
that is not substantively the same as the requirements in the HMR.
PHMSA further finds that California's reusability mandate is an
obstacle to accomplishing and carrying out the HMTA and HMR.
Accordingly, California's reusability mandate for propane cylinders is
preempted under 49 U.S.C. 5125(b)(1)(E) and (a)(2).
VII. Petition for Reconsideration/Judicial Review
In accordance with 49 CFR 107.211(a), any person aggrieved by this
determination may file a petition for reconsideration. The petition for
reconsideration must be filed within 20 days of publication of this
determination in the Federal Register. If a petition for
reconsideration is filed within 20 days of publication in the Federal
Register, the decision by PHMSA's Chief Counsel on the petition for
reconsideration becomes PHMSA's final agency action with respect to the
person requesting reconsideration.\147\
---------------------------------------------------------------------------
\147\ See 49 CFR 107.211(d).
---------------------------------------------------------------------------
If a person does not request reconsideration in a timely fashion,
then this determination is PHMSA's final agency action as to that
person, as of the date of publication 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) by filing a petition for review in an appropriate United States
Court of Appeals within 60 days after publication of this determination
in the Federal Register.\148\ 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).
---------------------------------------------------------------------------
\148\ See 49 U.S.C. 5127(a).
Issued in Washington, DC, on September 7, 2026.
Keith J. Coyle,
Chief Counsel.
[FR Doc. 2026-18501 Filed 9-9-26; 8:45 am]
BILLING CODE 4910-60-P
</pre></body>
</html>Indexed from Federal Register on September 10, 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.