[Federal Register Volume 74, Number 19 (Friday, January 30, 2009)]
[Notices]
[Pages 5723-5726]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-1993]


-----------------------------------------------------------------------

DEPARTMENT OF TRANSPORTATION

Pipeline and Hazardous Materials Safety Administration

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


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

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

ACTION: Public notice and invitation to comment.

-----------------------------------------------------------------------

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

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

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

FOR FURTHER INFORMATION CONTACT: Frazer C. Hilder, Office of Chief 
Counsel (PHC-10), Pipeline and Hazardous Materials Safety 
Administration, U.S. Department of Transportation, 1200 New Jersey 
Avenue, SE., Washington, DC 20590; telephone No. 202-366-4400; 
facsimile No. 202-366-7041.

SUPPLEMENTARY INFORMATION:

I. Application for a Preemption Determination

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

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

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

[[Page 5724]]

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

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

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

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

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

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

    PHMSA's Assistant Chief Counsel stated that the agency

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

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

[[Page 5725]]

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

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

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

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

II. Federal Preemption

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

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

    These two paragraphs set forth the ``dual compliance'' and 
``obstacle'' criteria that PHMSA's predecessor agency, the Research and 
Special Programs Administration (RSPA), had applied in issuing 
inconsistency rulings (IRs) prior to 1990, under the original 
preemption provision in the Hazardous Materials Transportation Act 
(HMTA). Public Law 93-633 Sec.  112(a), 88 Stat. 2161 (1975). The dual 
compliance and obstacle criteria are based on U.S. Supreme Court 
decisions on preemption. Hines v. Davidowitz, 312 U.S. 52 (1941); 
Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132 (1963); Ray 
v. Atlantic Richfield, Inc., 435 U.S. 151 (1978).
    Subsection (b)(1) of 49 U.S.C. 5125 provides that a non-Federal 
requirement concerning any of the following subjects is preempted--
unless authorized by another Federal law or DOT grants a waiver of 
preemption--when the non-Federal requirement is not ``substantively the 
same as'' a provision of Federal hazardous material transportation law, 
a regulation prescribed under that law, or a hazardous materials 
security regulation or directive issued by the Department of Homeland 
Security:

    (A) The designation, description, and classification of 
hazardous material.
    (B) The packing, repacking, handling, labeling, marking, and 
placarding of hazardous material.
    (C) The preparation, execution, and use of shipping documents 
related to hazardous material and requirements related to the 
number, contents, and placement of those documents.
    (D) The written notification, recording, and reporting of the 
unintentional release in transportation of hazardous material.
    (E) The designing, manufacturing, fabricating, inspecting, 
marking, maintaining, reconditioning, repairing, or testing a 
package, container, or packaging component that is represented, 
marked, certified, or sold as qualified for use in transporting 
hazardous material.\1\
---------------------------------------------------------------------------

    \1\ Subparagraph (E) was editorially revised in Sec. 7122(a) of 
the Hazardous Materials Transportation Safety and Security 
Reauthorization Act of 2005, which is Title VII of the Safe, 
Accountable, Flexible, Efficient Transportation Equity Act: A Legacy 
for Users (SAFETEA-LU), Public Law 109-59, 119. Stat. 1891 (Aug. 10, 
2005). Technical corrections to cross-references in subsections (d), 
(e), and (g) were made in Public Law 110-244, Sec. 302(b), 122 Stat. 
1618 (June 6, 2008).

To be ``substantively the same,'' the non-Federal requirement must 
conform ``in every significant respect to the Federal requirement. 
Editorial and other similar de minimis changes are permitted.'' 49 CFR 
107.202(d).\2\
---------------------------------------------------------------------------

    \2\ Additional standards apply to preemption of non-Federal 
requirements on highway routes over which hazardous materials may or 
may not be transported and fees related to transporting hazardous 
material. See 49 U.S.C. 5125(c) and (f). See also 49 CFR 171.1(f) 
which explains that a ``facility at which functions regulated under 
the HMR are performed may be subject to applicable laws and 
regulations of state and local governments and Indian tribes.''
---------------------------------------------------------------------------

    The 2002 amendments and 2005 reenactment of the preemption 
provisions in 49 U.S.C. 5125 reaffirmed Congress's long-standing view 
that a

[[Page 5726]]

single body of uniform Federal regulations promotes safety (including 
security) in the transportation of hazardous materials. More than 
thirty years ago, when it was considering the HMTA, the Senate Commerce 
Committee ``endorse[d] the principle of preemption in order to preclude 
a multiplicity of State and local regulations and the potential for 
varying as well as conflicting regulations in the area of hazardous 
materials transportation.'' S. Rep. No. 1102, 93rd Cong. 2nd Sess. 37 
(1974). When Congress expanded the preemption provisions in 1990, it 
---------------------------------------------------------------------------
specifically found:

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

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

III. Preemption Determinations

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

IV. Public Comments

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

    Issued in Washington, DC, on January 15, 2009.
David E. Kunz,
Chief Counsel.
[FR Doc. E9-1993 Filed 1-29-09; 8:45 am]
BILLING CODE 4910-60-P