Franklin Buono, Plaintiff-Appellant v. Tyco Fire Products, LP, Defendant-Appellee* On Appeal from the United States District Court for the Southern District of New York Franklin Buono was severely injured at work when a tank filled with compressed air exploded. Buono brought common-law claims for strict liability and negligence against Tyco Fire Products, LP (“Tyco”), which sold the tank to Buono’s employer. Tyco moved for summary judgment, arguing that Buono’s claims are preempted under the Hazardous Materials Transportation Act of 1975 (“HMTA”), 49 U.S.C. §5125(b)(1). The district court (Halpern, J.) held that the claims are preempted and granted Tyco summary judgment. We agree. The HMTA expressly preempts nonfederal laws “about” certain subjects related to the transportation of hazardous materials in commerce. As relevant here, the HMTA preempts state laws that are (1) “about…the…marking” of a “container…that is represented, marked, certified, or sold as qualified for use in transporting hazardous material in commerce,” and (2) “not substantively the same as a provision” of the HMTA or a regulation promulgated thereunder. 49 U.S.C. §5125(b)(1). Both requirements are satisfied here. First, the tank was “marked…as qualified for use in transporting hazardous material,” and Buono’s common-law claims are “about” the “marking” of Tyco’s tank. Second, Buono’s common-law claims cannot be deemed “substantively the same” because they would impose duties beyond the HMTA and associated regulations. The HMTA thus expressly preempts Buono’s common-law claims, and the judgment of the district court is AFFIRMED. MICHAEL PARK, C.J. Franklin Buono was severely injured at work when a tank filled with compressed air exploded. Buono brought common-law claims for strict liability and negligence against Tyco Fire Products, LP (“Tyco”), which sold the tank to Buono’s employer. Tyco moved for summary judgment, arguing that Buono’s claims are preempted under the Hazardous Materials Transportation Act of 1975 (“HMTA”), 49 U.S.C. §5125(b)(1). The district court (Halpern, J.) held that the claims are preempted and granted Tyco summary judgment. We agree. The HMTA expressly preempts nonfederal laws “about” certain subjects related to the transportation of hazardous materials in commerce. As relevant here, the HMTA preempts state laws that are (1) “about…the…marking” of a “container…that is represented, marked, certified, or sold as qualified for use in transporting hazardous material in commerce,” and (2) “not substantively the same as a provision” of the HMTA or a regulation promulgated thereunder. 49 U.S.C. §5125(b)(1). Both requirements are satisfied here. First, the tank was “marked…as qualified for use in transporting hazardous material,” and Buono’s common-law claims are “about” the “marking” of Tyco’s tank. Second, Buono’s common-law claims cannot be deemed “substantively the same” because they would impose duties beyond the HMTA and associated regulations. The HMTA thus expressly preempts Buono’s common-law claims, and we affirm the judgment of the district court. I. BACKGROUND A. Factual Background In early 2016, Franklin Buono started working at Oprandy’s Fire & Safety Inc. (“Oprandy’s”) in Middletown, New York. Oprandy’s “services, inspects, and repairs fire extinguishers, compressed air tanks, and fire suppression systems.” Joint App’x at A-36. Several weeks after starting at Oprandy’s, Buono agreed to help his coworker Chris Foust test a “Kitchen Knight” firesuppression system, which was developed by a subsidiary of Tyco. The Kitchen Knight system consists of spray nozzles connected to a cylinder containing a pressurized wet chemical agent. When activated, the system releases the agent through the nozzles to suppress a fire. To test the integrity of the Kitchen Knight system, a servicer may conduct a “balloon test.” Id. at A-38. This involves replacing the cylinder with a “test tank” containing compressed air and attaching balloons to the nozzles. Then the servicer releases the compressed air through the system. If the balloon expands, then “the servicer knows that the pipes are intact.” Id. If not, then the fire-suppression system has malfunctioned. The test tank Foust and Buono used was a DOT type 4BW steel cylinder, which was marked with the text “DOT 4BW 225 M453.”1 Id. at A-49; see 49 C.F.R. §178.61. The test tank was manufactured by Worthington Industries and sold to Tyco, which in turn sold it through a subsidiary to Oprandy’s as a safety accessory for its Kitchen Knight system. As is its practice, Tyco did not fill the test tank with compressed air before shipping it to Oprandy’s, so Foust hooked it up to another system to fill it with compressed air. Buono checked if the tank’s pressure gauge moved and listened for air entering the tank. But he did not see the gauge moving or hear any noise, so he assumed no air was entering. While Foust was “tinkering” with the tank, he “had to push down on the valve on [top] of the cylinder with a screwdriver and then turn the valve on the long metal piece to let the air in.” Joint App’x at A-47 to -48. The test tank then ruptured, and shrapnel hit several fire extinguishers, causing a “huge explosion,” in which Buono lost one of his legs. Id. at A-142 to -143. B. Procedural Background Buono filed a complaint in New York state court against numerous Defendants, including Tyco, seeking damages. Buono raised New York common-law claims for negligence based on manufacturing or design defect, breach of warranty, and strict products liability. Defendants removed the action to federal court under 28 U.S.C. §1441(b) based on diversity jurisdiction. In an amended complaint, Buono realleged the same common-law claims and added a negligence claim based on failure to warn. Following pretrial conferences and the beginning of discovery, the parties stipulated to the dismissal without prejudice of claims and crossclaims against two Defendants but not the claims against Tyco. Tyco then filed a third-party complaint against Buono’s former employer Oprandy’s, seeking defense, indemnification, and contribution. After discovery, Tyco moved for summary judgment, principally arguing that the HMTA preempts Buono’s common-law claims. At oral argument on Tyco’s motion, Buono voluntarily dismissed with prejudice his claims against Tyco for breach of warranty and negligence based on design or manufacturing defect. Buono’s only remaining claims against Tyco are for strict products liability and negligence based on failure to warn. The district court granted Tyco’s motion for summary judgment and dismissed the complaint, holding that §5125(b)(1)(E) “unambiguously preempts any New York common law duties.” Special App’x at SPA-7. First, it stated that there was “no dispute that the tank was qualified for use in transporting hazardous material in commerce under federal law” and that Buono’s claims were “about” an enumerated subject. Id. at SPA-8. Second, it found that Buono’s common-law claims for “negligent failure to warn” and “strict liability based on a failure to warn” would “impose upon Defendant…duties beyond those required by federal law.” Id. Buono timely appealed. II. DISCUSSION Buono contends that the HMTA does not preempt his commonlaw claims. He argues: (1) 49 U.S.C. §5125(b)(1)(E) does not encompass “labeling” claims, and (2) 49 U.S.C. §5125(b)(1) applies only if a defendant is actually subject to the HMTA or associated regulations. Under Buono’s reading, Tyco may not raise a preemption defense because its conduct at issue here was not covered by the HMTA. We disagree. Our inquiry begins and ends with the text of 49 U.S.C. §5125(b)(1)(E), which expressly preempts Buono’s claims. A. Legal Standards Under the Supremacy Clause, “the Laws of the United States” made “in Pursuance” of the Constitution “shall be the supreme Law of the Land…[the] Laws of any State to the Contrary notwithstanding.” U.S. Const. art. VI, cl. 2. A corollary of the Supremacy Clause is the doctrine of preemption, under which Congress may “exercise its constitutionally delegated authority to set aside the laws of a State.” Barnett Bank of Marion Cnty., N.A. v. Nelson, 517 U.S. 25, 30 (1996). When federal law preempts nonfederal law, “the Supremacy Clause requires courts to follow federal, not state, law.” Id.; see Gibbons v. Ogden, 22 U.S. (9 Wheat) 1, 82 (1824) (“[T]he act of Congress…is supreme; and the law of the State, though enacted in the exercise of powers not controverted, must yield to it.”). In other words, the preempted law is “ousted.” Ass’n of Int’l Auto. Mfrs. v. Abrams, 84 F.3d 602, 607 (2d Cir. 1996); see also Jones v. Rath Packing Co., 430 U.S. 519, 525 (1977) (“[W]hen Congress has unmistakably ordained that its enactments alone are to regulate a part of commerce, state laws regulating that aspect of commerce must fall.” (cleaned up)). Preemption is “a matter of statutory interpretation,” Cantero v. Bank of Am., N.A., 49 F.4th 121, 130 (2d Cir. 2022), and we must “ascertain the intent of Congress,” Cal. Fed. Sav. & Loan Ass’n v. Guerra, 479 U.S. 272, 280 (1987). Although “the categories of preemption are not rigidly distinct,” Crosby v. Nat’l Foreign Trade Council, 530 U.S. 363, 372 n.6 (2000) (cleaned up), we have recognized that preemption generally comes in one of three forms: (1) express preemption, where Congress has expressly preempted local law; (2) field preemption, where Congress has legislated so comprehensively that federal law occupies an entire field of regulation and leaves no room for state law; and (3) conflict preemption, where local law conflicts with federal law such that it is impossible for a party to comply with both or the local law is an obstacle to the achievement of federal objectives. Figueroa v. Foster, 864 F.3d 222, 227-28 (2d Cir. 2017) (cleaned up); see Guerra, 479 U.S. at 280-81. As relevant here, when “a federal law contains an express preemption clause, we focus on the plain wording of the clause, which necessarily contains the best evidence of Congress’ preemptive intent.” Chamber of Com. of U.S. v. Whiting, 563 U.S. 582, 594 (2011) (cleaned up); accord In re WTC Disaster Site, 414 F.3d 352, 372 (2d Cir. 2005). We “do not invoke any presumption against pre-emption” when a statute contains an express-preemption clause. Puerto Rico v. Franklin Cal. Tax-Free Tr., 579 U.S. 115, 125 (2016). But if “a federal law contains an express pre-emption clause, it does not immediately end the inquiry because the question of the substance and scope of Congress’ displacement of state law still remains.” Altria Grp., Inc. v. Good, 555 U.S. 70, 76 (2008). “We review de novo the grant of summary judgment on the preemption question.” Liberty Mut. Ins. Co. v. Donegan, 746 F.3d 497, 502-03 (2d Cir. 2014). B. Analysis The question presented is whether 49 U.S.C. §5125(b)(1)(E) preempts Buono’s common-law claims for strict liability and negligence. We begin “with the language of the statute itself, and that is also where the inquiry should end, for the statute’s language is plain.” Franklin Cal. Tax-Free Tr., 579 U.S. at 125 (cleaned up). 1. Express Preemption Under the HMTA Congress enacted the HMTA in 1975 to “protect the Nation adequately against the risks to life and property which are inherent in the transportation of hazardous materials in commerce.” Pub L. No. 93-633, §102, 88 Stat. 2156, 2156, (1975) (codified as amended at 49 U.S.C. §5101). To that end, the HMTA authorizes the Secretary of Transportation to designate materials as hazardous and to prescribe appropriate Hazardous Materials Regulations (“HMR”), 49 C.F.R. §§100-185. See 88 Stat. at 2156-57 (codified as amended at 49 U.S.C. §5103). To promote regulatory uniformity, the HMTA contains several distinct preemption provisions that displace nonfederal laws about hazardous-materials transportation. See 49 U.S.C. §5125. At issue is §5125(b)(1), which provides that state law “about any of the following subjects, that is not substantively the same as a provision 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 preempted.” It then lists the following five subjects: (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. 49 U.S.C. §5125(b)(1). Section 5125(b)(1) is an express-preemption clause because it “expressly directs that state law be ousted” if certain conditions are satisfied. Ass’n of Int’l Auto. Mfrs., 84 F.3d at 607; accord Roth v. Norfalco LLC, 651 F.3d 367, 375 (3d Cir. 2011). In interpreting this provision, we “identify the domain expressly pre-empted.” Cipollone v. Liggett Grp., Inc., 505 U.S. 504, 517 (1992). Section 5125(b)(1) contains two requirements for preemption. First, there is a subject-matter requirement — the nonfederal law must be “about” one of the subjects enumerated in §5125(b)(1)(A)-(E). At issue here is §5125(b)(1)(E), which encompasses “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.” Second, there is a substantive-similarity requirement — the nonfederal law must not be “substantively the same as a provision” of the HMTA or an associated regulation. 49 U.S.C. §5125(b)(1). 2. Express Preemption of Buono’s Claims Buono’s common-law claims for strict liability and negligence satisfy both requirements for preemption under §5125(b)(1)(E). a. Subject-Matter Requirement Buono concedes that “the tank was qualified for use in transporting hazardous material in commerce under federal law,” as it retained DOT markings at all relevant times. See Special App’x at SPA-4 to -5 & n.4, SPA-8; Appellant’s Br. at 24. The only remaining question under §5125(b)(1)’s subject-matter requirement is whether Buono’s claims are “about” any of the enumerated subjects — namely, “the designing, manufacturing, fabricating, inspecting, marking, maintaining, reconditioning, repairing, or testing a package, container or packaging component.” 49 U.S.C. §5125(b)(1)(E). To answer this, we look to the “gravamen” of Buono’s complaint, looking past any attempt at artful pleading and instead focusing on whether the claims involve the preempted subjects.2 See Kurns v. R.R. Friction Prods. Corp., 565 U.S. 625, 635 (2012). Buono has two claims — negligence and strict liability — and both are “about” subjects included in §5125(b)(1)(E). First, the negligence claim concerns the “marking” of “a package, container, or packaging component.” 49 U.S.C. §5125(b)(1)(E). The complaint alleges: [T]he defendants had a duty to warn the general public…that the…cylinder tank in question could not be operated in a reasonably foreseeable manner without causing substantial harm and resulting injury to plaintiff, including the risk that the tank would explode.…[D]efendants failed in their duty to warn that foreseeable use of the…cylinder tank would cause substantial harm and resulting injury, including the risk that the tank would explode.…[T]he failure to warn by defendants directly and proximately caused substantial injury to plaintiff. Am. Compl.
