Buono v. Tyco Fire Prods., LP

22-754
Buono v. Tyco Fire Prods., LP
United States Court of Appeals
for the Second Circuit
August Term 2022
Argued: May 25, 2023
Decided: August 24, 2023
No. 22-754
F RANKLIN B UONO ,
Plaintiff-Appellant,
v.
TYCO F IRE PRODUCTS , LP,
Defendant-Appellee.*
On Appeal from the United States District Court
for the Southern District of New York
Before: WESLEY , PARK, and PÉREZ , Circuit Judges.
Franklin Buono was severely injured at work when a tank filled
with compressed air exploded. Buono brought common-law claims
* The Clerk of Court is respectfully directed to correct the caption
accordingly.

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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.
MARIE D US AULT (Kenneth Fromson, on the brief),
Finkelstein & Partners, LLP, Newburgh, NY, for Plaintiff-
Appellant Franklin Buono.

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JAMES K IRKPATRICK (Daniel Whiteley, on the brief),
Williams & Connolly LLP, Washington, DC, for
Defendant-Appellee Tyco Fire Products, LP.
PARK, Circuit Judge:
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

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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” fire-
suppression 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
1 The parties agree that the marking indicates that the tank was
manufactured in compliance with U.S. Department of Transportation
requirements for the transportation of hazardous materials in commerce.

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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 cross-
claims 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.

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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 common-
law 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.

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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

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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

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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

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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

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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
2 Buono advances so-called “labeling” claims, but as discussed infra,
we look to the allegations in Buono’s complaint to determine what claims
are raised, not how Buono has styled those claims on appeal.

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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. ¶¶ 232-234. The negligence claim is thus based on
Tyco’s alleged failure to warn about the dangers of the test tank,
specifically the danger of overfilling. See Restatement (Third) of
Torts: Products Liability (“Restatement”) § 2(c) (Am. L. Inst. 1997) (A
product is defective “when the foreseeable risks of harm posed by the
product could have been reduced or avoided by the provision of
reasonable instructions or warnings by the seller or other
distributor, . . . and the omission of the instructions or warnings
renders the product not reasonably safe.”); Mulhall v. Hannafin, 45
A.D.3d 55, 58 (1st Dep’t 2007) (“To succeed on their failure-to-warn
claim, plaintiffs were required to prove that the product did not
contain adequate warnings and that the inadequacy of those
warnings was the proximate cause of the injuries. . . . [A]
manufacturer’s duty is to warn only of those dangers it knows of or
are reasonably foreseeable.”).

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The word “marking” in § 5125(b)(1)(E) encompasses Buono’s
failure-to-warn claim. The ordinary meaning of a “marking” is a
“letter, character, symbol, etc.; a system of notation,” Marking, Oxford
English Dictionary (2023), or an “arrangement, pattern, or disposition
of marks,” Marking, Merriam-Webster Dictionary (2023). Under the
ordinary meaning, a “marking” would encompass written
“notations” or “symbols” on the exterior of a “container” warning
about known dangers. More specifically here, the HMTA governs
the highly regulated transportation of hazardous materials and, in the
HMR, the Department of Transportation has defined a “marking” as
a “descriptive name, identification number, instructions, cautions,
weight, specification, or UN marks, or combinations thereof . . . on
outer packagings of hazardous materials.” 49 C.F.R. § 171.8
(emphasis added). “Cautions” plainly encompass warnings.
The DOT has adopted a similar interpretation of “marking”
that encompasses warnings about dangerous uses of cylinders,
including overfilling. In 2020, the Pipeline and Hazardous Materials
Safety Administration (“PHMSA”), a DOT agency, adopted a rule
imposing certain “marking” requirements on DOT 4B, 4BA, 4BW, and
4E cylinders related to “tare weight/mass weight and water capacity.”
See Hazardous Materials: Miscellaneous Amendments Pertaining to
DOT-Specification Cylinders, 85 Fed. Reg. 85380, 85393 (Dec. 28,
2020). PHMSA adopted “this marking requirement” to “prevent[]
overfilling incidents, which can result in explosions and fatalities.”
Id. In addition, DOT and PHMSA have issued guidance providing
examples of HMTA “markings,” including “DANGER” above skull
and crossbones, “HOT,” “OVERPACK,” and “INHALATION
HAZARD.” See Pipeline & Hazardous Materials Safety Admin.,
U.S. Dep’t of Transp., Hazardous Materials Markings, Labeling and

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Placarding Guide 1 (June 3, 2021) (“Guide”) [https://perma.cc/VB7D-
BV86]. A “marking” thus encompasses “instructions or warnings”
about the potential dangers of a cylinder, including the danger of
overfilling. Restatement § 2(c); see Kurns, 565 U.S. at 634-35.
We conclude that Buono’s negligence claim based on Tyco’s
failure to warn is “about” the “marking” of a hazardous-materials
package, container, or packaging component and is under “the
exclusive domain of the HMTA.” Roth, 651 F.3d at 377. Buono’s
negligence claim thus satisfies § 5125(b)(1)(E)’s subject-matter
requirement.
Second, Buono’s strict-liability claim is also about the
“marking” of “a package, container, or packaging component. 49
U.S.C. § 5125(b)(1)(E). Before the district court, “the parties
appear[ed] to construe” this claim “solely on th[e] basis” of a “failure
to warn,” Special App’x at SPA-2 n.2, and the district court deemed
any design-defect theory to be abandoned. Id. Construing the
strict-liability claim as being based on a failure to warn, which Buono
does not protest on appeal, his claim would concern a “marking”
under § 5125(b)(1)(E) as explained above. Buono’s strict-liability
claim is thus “about” “marking” under § 5125(b)(1)(E), satisfying the
subject-matter requirement.
We reject Buono’s arguments to the contrary. He argues that
the omission of “labeling” under § 5125(b)(1)(E) implies that his
claims are not preempted for substantially the same reasons. Buono
relies on the textual difference between § 5125(b)(1)(E), which
preempts nonfederal claims about “marking” a “package, container,
or packaging component . . . transporting hazardous material in
commerce,” and § 5125(b)(1)(B), which preempts nonfederal claims

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about “labeling” and “marking” of “hazardous material.” Buono
reasons that the omission of “labeling” in § 5125(b)(1)(E) implies that
any claims about the labeling of a container are thus not preempted
under that provision. These arguments fail.
First, the “gravamen” of Buono’s complaint alleges failure-to-
warn claims within the meaning of “marking” under 49 U.S.C.
§ 5125(b)(1)(E). Although Buono characterizes his complaint as
raising “labeling” claims, we look to the essence of his complaint as
pled. See Kurns, 565 U.S. at 635.
Second, Buono’s argument by negative implication is
unpersuasive. We have noted that “[w]here there is such an express
clause defining a law’s preemptive reach, application of the
interpretive principle of expressio unius est exclusio alterius may
warrant the conclusion that Congress did not intend to preempt
matters beyond the clause’s explicit scope. . . . [P]reemption is
restricted to the terms of that provision.” Ass’n of Int’l Auto. Mfrs.,
84 F.3d at 607. Buono notes that § 5125(b)(1)(B) includes “labeling”
and “marking,” while § 5125(b)(1)(E) includes only “marking,” from
which he infers that Congress intended to omit “labeling” claims from
§ 5125(b)(1)(E)’s preemptive scope and to differentiate “labeling” and
“marking.” But this is irrelevant because his common-law claims
are not about “labeling.”
The ordinary meaning of a “label” is “a slip (as of paper or
cloth) inscribed and affixed to something for identification or
description” that is “written or printed . . . to furnish identification or
other information.” Label, Merriam-Webster Dictionary (2023).
The technical meaning of “label” is also narrow, identifying the
specific contents of a container, packaging, or the like. The

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Department of Transportation has observed that a label may
“indicate” that a “package” “contains a hazardous material.” 49
C.F.R. § 171.8; see also Common Law Tort Claims Concerning Design
and Marking of DOT Specification 39 Compressed Gas Cylinders, 77
Fed. Reg. 39567, 39568 n.2 (July 3, 2012) (noting a “hazard class
warning label” may be placed on a “filled cylinder” to indicate the
presence of, for example, “nonflammable gas” (capitalization
altered)). The Department of Transportation has also provided
examples of “labels” in guidance, including “Class 2” labels for
“Gases” or “Class 3” labels for “Flammable Liquid.” See Guide,
supra at 14, at 2.
Buono’s negligence and strict-liability claims do not relate to
Tyco’s failure to warn about the contents (or anticipated future
contents) of the test tank. Rather, Buono alleges that Tyco “failed in
[its] duty to warn that foreseeable use of the . . . cylinder tank would
cause substantial harm and resulting harm, including that the risk the
tank would explode.” Am. Compl. ¶ 233 (emphasis added). Even
accepting § 5125(b)(1)’s negative inference, Buono’s claims are not
“about” Tyco’s alleged failure to label the contents of the test tank but
rather about its alleged failure to warn users about the dangers of
overfilling.
b. Substantive-Similarity Requirement
Buono’s common-law claims are based on state laws that are
not “substantively the same” as federal requirements under the
HMTA and HMR. 49 U.S.C. § 5125(b)(1). As an initial matter,
Buono’s common-law claims are nonfederal “requirement[s] of a
State” within the meaning of 49 U.S.C. § 5125(b)(1). See Riegel v.
Medtronic, Inc., 552 U.S. 312, 324 (2008) (“[A] provision pre-empting

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state ‘requirements’ pre-empt[s] common-law duties.”). The HMR
defines “substantively the same” to mean that “the non-Federal
requirement conforms in every significant respect to the Federal
requirement. Editorial and other similar de minimis changes are
permitted.” 49 C.F.R. § 107.202(d); see Roth, 651 F.3d at 377
(adopting the HMR’s interpretation of “substantively the same”).
Buono does not allege what, if any, provision of the HMTA or
HMR is “substantively the same” as his common-law claims. In any
event, those claims would impose conditions beyond federal law, so
they are not “substantively the same.” Specifically, a civil violation
of the HMTA or HMR must be committed “knowingly,” 49 U.S.C.
§ 5123(a), and a criminal violation must be committed “knowingly,”
“willfully,” or “recklessly,” id. § 5124(a). In contrast, Buono’s
common-law claims for negligence and strict liability based on Tyco’s
alleged failure to warn require a less culpable mental state and thus
sweep more broadly than federal law. See, e.g., Rastelli v. Goodyear
Tire & Rubber Co., 79 N.Y.2d 289, 297 (1992) (“[A] plaintiff may recover
in strict products liability or negligence when a manufacturer fails to
provide adequate warnings regarding the use of its product. A
manufacturer has a duty to warn against latent dangers resulting
from foreseeable uses of its products of which it knew or should have
known.” (citations omitted)).
3. Application of Substantive Requirements
Buono advances an additional argument against preemption.
He contends that Tyco is not subject to the substantive provisions of
the HMTA and HMR, so the HMTA’s “preemptive clauses do not
cover this matter.” Appellant’s Br. at 28. This argument is
unpersuasive.

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The HMR contains “manufacturing” and “transportation-
function” regulations, and Buono contends neither set of regulations
applies labeling requirements to Tyco. First, although Tyco engaged
in a “manufacturing” function by marking the test tank as qualified
to transport hazardous materials, the manufacturing regulations “do
not regulate the matter of labeling.” Id. at 31. From this, Buono
concludes that § 5125(b)(1)(E) does not preempt his “labeling” claim.
Second, “labeling” is covered under the “transportation-function”
regulations, but Tyco did not engage in any “pretransportation or
transportation function.” Id. at 32. Even if “labeling claims” are
preempted under § 5125(b)(1)(B), “Tyco’s use of the test tank as
manufacture[r]/seller did not subject it to HMR labeling regulations,”
meaning Buono’s “labeling claims are not preempted.” Id. at 47.
Third, under 49 C.F.R. § 173.29, the HMR “does not regulate the
matter of labeling of empty packagings,” and a qualifying empty
package is removed “from the HMTA’s sphere and preemption
provision.” Id. at 51, 54. We reject these arguments.
First, Buono’s argument cannot be squared with the HMTA’s
text. Preemption under 49 U.S.C. § 5125(b)(1) does not depend on
whether the HMTA or HMR actually regulates the defendant’s
specific conduct at a given time. As long as the subject-matter and
substantive-similarity requirements are satisfied, a nonfederal claim
is expressly preempted. Section 5125(b)(1)(E) contains no hint that
preemption depends on whether a container is in transport or
contains hazardous materials at a specific time.3
3 Indeed, when Congress intends for preemption to depend on
federal substantive requirements, it knows how to do so. For example, the
HMTA’s conflict-preemption provision requires courts to identify whether

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In rejecting Buono’s interpretation, we join the only other
circuit court to rule on the issue. The Third Circuit has similarly
declined to imply a predicate requirement for HMTA preemption that
the HMTA or HMR actually regulate a defendant’s particular
conduct. In Roth, the plaintiff was injured while “unload[ing] a tank
car of sulfuric acid,” and he sued in federal court raising common-law
design-defect claims. 651 F.3d at 373. Like Buono, Roth argued
that the HMTA did not apply because, as the employee of a consignee,
his “act of unloading” a “hazardous material that has reached its final
destination” was not “‘transport’ in ‘commerce’” under the HMR.
Id. at 379. The Third Circuit rejected Roth’s interpretation as
“creative but wrong.” Id. “Roth forgets that we need not look
beyond the text of a statute unless its meaning is ambiguous,” and
§ 5125(b)(1)’s requirements for preemption “could not be more clear.”
Id. “It is irrelevant what Roth was doing at the precise moment of
his injury” because it “cannot be the case that the comprehensive
design requirements erected by the HMTA cease to govern simply
because the tank car was emptied of its contents days after its
delivery.” Id. at 380. Here too, we need not look beyond
§ 5125(b)(1)(E)’s text to hold that Buono’s claims are expressly
preempted.4
a nonfederal requirement would be irreconcilable or “an obstacle” to
compliance with “a regulation prescribed under” the HMTA or associated
regulation. 49 U.S.C. § 5125(a).
4 Although 49 U.S.C. § 5125(b)(1) is unambiguous, we note that the
PHMSA’s interpretation of § 5125(b)(1) is consistent with our approach.
First, in an adjudication, the PHMSA adopted Roth’s interpretation.
Plaintiffs brought common-law products-liability claims against defendant
AMTROL, arguing that the HMTA did not preempt their common-law
claims because “the technician was not using the cylinder in a

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Second, Buono conflates express preemption with substantive
federal liability. The doctrine of preemption tells courts the source
of law to apply. See Barnett Bank, 517 U.S. at 30 (“Did Congress, in
enacting the Federal Statute, intend to exercise its constitutionally
delegated authority to set aside the laws of a State? If so, the
Supremacy Clause requires courts to follow federal, not state, law.”).
When federal law expressly preempts nonfederal law, the nonfederal
law and any claims thereunder are ousted. See Ass’n of Int’l Auto.
Mfrs., 84 F.3d at 607 (noting an express-preemption clause “expressly
directs that state law be ousted to some degree from a certain field”).
A successful express-preemption defense under the HMTA
thus ensures that a court does not impose certain nonfederal duties on
the defendant, but express preemption does not depend on whether
transportation mode; he was simply using the cylinder as an end-user on
the job after its journey had ended.” 77 Fed. Reg. at 39569. Invoking the
Third Circuit’s decision in Roth, the PHMSA found the plaintiff’s
interpretation of § 5125(b)(1) “beside the point.” Id. at 39570. The
“‘substantively the same as’ preemption provision in 49 U.S.C.
§ 5125(b)(1)(E) must govern the ‘adequacy of the cylinder’ at all times that
it is ‘represented, marked, certified, or sold as qualified for use in
transporting hazardous material in commerce,’ and not just the period in
time ‘when it was used to transport hazardous material.’” Id.
Second, in promulgating a rule clarifying the applicability of the
HMR to “loading, unloading, and storage” of hazardous materials, the
PHMSA rejected another argument like Buono’s. See Applicability of the
Hazardous Materials Regulations to Loading, Unloading, and Storage, 70
Fed. Reg. 20018, 20024-25 (Apr. 15, 2005) (DOT “requirements apply at all
times that the rail tank car is marked to indicate that it complies with DOT
specification requirements, whether the car is empty or loaded,” and “a
non-Federal entity may impose requirements on DOT specification
packagings only if those requirements are substantively the same as the
DOT requirements.”).

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Congress or an agency has imposed federal duties on the defendant.
Here, Tyco does not need to show that it is or may be held liable under
the HMTA or HMR before raising an express-preemption defense
under the HMTA. We conclude that the HMTA preempts Buono’s
claims, meaning his common-law claims are ousted, and federal law
provides the source of law. Buono does not raise any federal claims,
so we do not consider whether Tyco engaged in a “manufacturing”
or “transportation” function or is subject to the empty-packaging
provision.
III. CONCLUSION
For the foregoing reasons, the district court correctly held that
Buono’s common-law claims are preempted under the HMTA. The
judgment of the district court is thus affirmed.

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