[Federal Register: April 25, 2006 (Volume 71, Number 79)]
[Rules and Regulations]               
[Page 23869-23871]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr25ap06-7]                         


[[Page 23869]]

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DEPARTMENT OF TRANSPORTATION

Pipeline and Hazardous Materials Safety Administration

49 CFR Parts 171, 172, and 173

[Docket No. RSPA-2004-18795 (HM-237)]
RIN 2137-AD88

 
Hazardous Materials: Requirements for Lighters and Lighter 
Refills

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

ACTION: Final rule; response to appeals; correction.

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SUMMARY: On January 23, 2006, PHMSA published a final rule entitled 
``Requirements for Lighters and Lighter Refills'' that amended 
requirements in the Hazardous Materials Regulations pertaining to the 
examination, testing, certification, and transportation of lighters and 
lighter refills. In response to appeals submitted by persons affected 
by the final rule, this final rule amends requirements applicable to 
the transportation of lighter refills and allows for immediate 
voluntary compliance with certain provisions.

DATES: Effective Date: The effective date of this final rule is January 
1, 2007.
    Voluntary compliance: Except for paragraphs (a), (b)(1), (b)(3), 
(b)(4), and (d) in Sec.  173.308, voluntary compliance with the final 
rule amending 49 CFR parts 171, 172, and 173 published at 71 FR 3418 on 
January 23, 2006, and with this final rule is authorized as of April 
25, 2006.

FOR FURTHER INFORMATION CONTACT: Michael G. Stevens or Kurt Eichenlaub, 
Office of Hazardous Materials Standards, Pipeline and Hazardous 
Materials Safety Administration, U.S. Department of Transportation, 
telephone (202) 366-8553.

SUPPLEMENTARY INFORMATION:

I. Background

    On January 23, 2006, the Pipeline and Hazardous Materials Safety 
Administration (PHMSA, we) adopted a final rule specifying requirements 
for the examination, testing, certification, and transportation of 
lighters and lighter refills. Specifically, the final rule amended the 
Hazardous Materials Regulations (HMR; 49 CFR parts 171 through 180) to:
    a. Adopt requirements for the design, capacity, and pressure 
capability of lighters that are generally consistent with definitions 
in the American Society for Testing and Materials (ASTM), Standard 
Consumer Safety Specification for Lighters (ASTM F-400);
    b. Revise approval procedures to permit lighter designs to be 
examined, tested, and assigned a unique identification number by a 
qualified person authorized by PHMSA; and
    c. Revise packaging and transportation requirements for lighters 
and lighter refills that are generally consistent with international 
standards.

The final rule will be effective January 1, 2007.

II. Appeals of the Final Rule

    We received four appeals to the final rule from the Lighter 
Association, Zippo Manufacturing Company (Zippo), Ronson Consumer 
Products Corporation (Ronson), and Ms. Andrea C. Sassa, Esq. (Sassa). 
The Lighter Association, Zippo, and Ronson express concern about the 
provisions of the final rule applicable to the transportation of 
lighter refills. Sassa requests us to permit voluntary compliance with 
the provisions of the final rule in advance of the effective date. 
These appeals are discussed in detail below.

A. Lighter Refills

    Currently, the Hazardous Materials Table (HMT) in Sec.  172.101 of 
the HMR lists ``Lighters or lighter refills'' as a single entry and 
refers shippers and transporters to Special Provision N10 and 
Sec. Sec.  173.21 and 173.308 for packing requirements. However, 
neither Special Provision N10 nor Sec. Sec.  173.21 and 173.308 include 
specific packaging requirements for lighter refills. These sections of 
the HMR set forth requirements applicable to lighters only. Thus, no 
provisions of the HMR establish transportation requirements specific to 
lighter refills.
    In letters of interpretation issued over the past several years, we 
have advised persons offering lighter refills for transportation to use 
the HMT entry applicable to the fuel contained in the lighter refill--
typically butane--to determine applicable packaging requirements. The 
HMT entry for butane refers shippers and transporters to Special 
Provision 19 and Sec.  173.304 for packaging requirements. In addition, 
the HMT entry refers to Sec.  173.306 for exceptions applicable to the 
shipment of butane; no exceptions apply to the transportation of 
``lighters and lighter refills.''
    Section 173.306 permits a limited quantity of butane or other 
flammable gas (not more than 4 fluid ounces) to be renamed ``consumer 
commodity'' and reclassed as ORM-D material. ORM-D shipments are 
excepted from specification packaging requirements and, for other than 
air transportation, from shipping paper and labeling requirements.
    One goal of the HM-237 rulemaking was to develop transportation 
requirements specific to lighter refills. To this end, in the NPRM we 
proposed a separate entry in the HMT for ``lighter refills containing 
flammable gas exceeding 4 fluid ounces capacity.'' We inadvertently 
omitted a separate HMT entry for ``lighter refills containing flammable 
gas not exceeding 4 fluid ounces capacity,'' but added a new paragraph 
(h) to Sec.  173.306 to specify requirements for lighter refills not 
exceeding 4 fluid ounces. The provisions proposed in this paragraph 
were identical to provisions for lighter refills in the UN 
Recommendations for the Transport of Dangerous Goods, the International 
Civil Aviation Organization's Technical Instructions for the Safe 
Transport of Dangerous Goods by Air (ICAO Technical Instructions), and 
the International Maritime Dangerous Goods Code (IMDG Code).
    The NPRM proposal for lighter refills included an exception for 
shipments transported by highway, but did not include limited quantity 
or consumer commodity exceptions. Indeed, the preamble discussion on 
lighter refills stated that, under the NPRM, ``regardless of 
transportation mode, lighter refills [would not be] eligible for the 
exceptions under the ORM-D hazard class and [could] not be renamed 
`Consumer commodity.' '' The preamble did not specifically address the 
option that currently permits shippers to utilize consumer commodity 
exceptions applicable to shipments of butane nor did the proposed 
regulatory text specifically prohibit lighter refills from taking 
advantage of limited quantity and consumer commodity exceptions.
    The Lighter Association was the only commenter to address the 
consumer commodity exception in its comments to the NPRM. The Lighter 
Association comments on lighter refills specifically address the 
exception provided in the NPRM for highway shipments and its view that 
the packaging proposed for this exception was unnecessarily rigorous. 
In support of this view, the Lighter Association noted that ``lighter 
refills under 4 fluid ounces have been treated as ORM-D for over thirty 
years. To the best of our knowledge, there have not been any safety 
incidents with the transportation of any size lighter refills * * *'' 
The Association did not specifically address our proposal to prohibit 
lighter refills from taking advantage of the consumer commodity 
exception. In the final rule, we modified

[[Page 23870]]

the NPRM provisions applicable to the highway exception for lighter 
refills to accommodate the Lighter Association comments. No other 
commenters addressed the proposal in the NPRM applicable to consumer 
commodity exceptions for lighter refills.
    In the final rule, we added the entry to the HMT for ``lighter 
refills containing flammable gas not exceeding 4 fluid ounces'' that 
had been inadvertently omitted from the NPRM. In addition, we amended 
Sec.  173.306(a)(1) to clarify, consistent with the NPRM proposal, that 
lighter refills may not utilize limited quantity or consumer commodity 
exceptions. However, in the preamble to the final rule we did not 
include a detailed discussion of these changes to the NPRM.
    The Lighter Association, Zippo, and Ronson suggest that the changes 
in the final rule eliminated the limited quantity and consumer 
commodity exceptions that had been utilized by shippers of lighter 
refills without providing adequate notice and opportunity for comment. 
The appeals are based on our clarifying amendments to Sec.  
173.306(a)(1), which was not proposed in the NPRM. Zippo suggests that 
``PHSMA [sought] to bring these changes about in a process that was not 
open and transparent. This major change was not in the Proposed Rule as 
published for public comment. Rather it was slipped in by an almost 
hidden amendment to 49 CFR Part 173.306(a)(1) in the Final Rule.'' In 
addition, the Lighter Association is concerned that neither the NPRM 
nor the final rule includes an explanation of why the change is needed. 
``PHMSA provides no evidence that there have been safety issues 
associated with the transportation of lighter refills.'' The Lighter 
Association suggests that elimination of the limited quantity and 
consumer commodity exceptions for lighter refills ``causes great 
economic harm to at least three significant lighter companies in this 
country and thousands of smaller businesses.''
    Upon review, we believe the discussion in the preamble to the NPRM 
provided sufficient notice of our intention to prohibit shippers of 
lighter refills from utilizing limited quantity and consumer commodity 
exceptions. However, we did not provide notice that the limited 
quantity and consumer commodity exceptions authorized for 
transportation of butane and other flammable gases would no longer be 
available for lighter refill shipments. Further, appellants have 
highlighted potential economic impacts of this provision on the 
regulated community that were not considered in the development of the 
final rule. Therefore, we are granting the appeals submitted by the 
Lighter Association, Zippo, and Ronson by correcting the final rule to 
permit shippers to continue to utilize limited quantity and consumer 
commodity exceptions for shipments of lighter refills when in 
containers with a capacity of 4 fluid ounces (7.22 cubic inches) or 
less. We note in this regard, however, that neither the ICAO Technical 
Instructions nor the IMDG Code provide limited quantity or consumer 
commodity exceptions for lighter refills. Therefore, the exceptions we 
are providing in the HMR for lighter refills would not be acceptable 
for aircraft or vessel shipments under international standards. In 
addition, lighter refills with a capacity greater than 4 fluid ounces 
(7.22 cubic inches) must be described as the gas contained therein and 
packaged in an authorized specification container regardless of 
transportation mode.

B. Voluntary Compliance

    The effective date of the January 23, 2006 final rule is January 1, 
2007. This provides almost a full year for the industry to implement 
the new program and procedures for the testing and examination of 
lighter designs. However, the final rule contains several amendments 
providing regulatory relief that are currently authorized only under 
the terms of a special permit granted by PHMSA. The Sassa appeal 
relates to one such special permit (DOT-SP 14273) that would no longer 
be needed if the final rule were in effect. We are aware of additional 
special permits that would also be affected, but to date we have not 
received any requests for relief. Sassa requests that offerors and 
transporters be permitted to voluntarily comply with the provisions of 
the HM-237 final rule.
    There are significant portions of the new examination, testing, 
marking, and record retention procedures for which immediate voluntary 
compliance will not be possible. For example, there are no laboratories 
currently approved by PHMSA to test and examine lighter designs under 
the procedures adopted in the final rule. We anticipate that a number 
of entities will consider examining and testing lighter designs in the 
near future. However, until additional laboratories are authorized to 
examine and test lighter designs, those portions of Sec.  173.308 
related to lighter design, examination, testing, marking, and record 
retention will not be effective until January 1, 2007. In response to 
the Sassa appeal we are authorizing immediate voluntary compliance with 
all other provisions of the HM-237 final rule, including:
     Procedures for submitting lighter design samples to an 
authorized examination and testing facility prescribed in Sec.  
173.308(b)(2);
     Inner and outer packaging requirements prescribed in Sec.  
173.308(c); and
     Exceptions for the private, common, or contract carriage 
of lighters prescribed in Sec.  173.308(e)(1) and (e)(2).

III. Regulatory Analyses and Notices

A. Statutory/Legal Authority for This Rulemaking

    This final rule is published under authority of Federal hazardous 
materials transportation law (Federal hazmat law; 49 U.S.C. 5101 et 
seq.). Section 5103(b) of Federal hazmat law authorizes the Secretary 
of Transportation to prescribe regulations for the safe transportation, 
including security, of hazardous material in intrastate, interstate, 
and foreign commerce. In accordance with Sec.  5103(a) of Federal 
hazmat law, the Secretary is authorized to designate a material or a 
group or class of materials as hazardous when transportation of that 
material in commerce may pose an unreasonable risk to health and 
safety, or property. A lighter fueled by a flammable gas or a flammable 
liquid is a hazardous material for purposes of regulation under Federal 
hazmat law and the HMR.

B. Executive Order 12866 and DOT Regulatory Policies and Procedures

    This final rule is not a significant regulatory action under 
section 3(f) of Executive Order 12866 and, therefore, was not formally 
reviewed by the Office of Management and Budget. This final rule is not 
a significant rule under the Regulatory Policies and Procedures of the 
Department of Transportation (44 FR 11034).
    This final rule will not impose increased compliance costs on the 
regulated industry. The corrections we are making to the January 23, 
2006 final rule will provide regulatory relief to persons offering 
lighters and lighter refills for transportation in commerce by 
reinstituting limited quantity and consumer commodity exceptions for 
lighter refills and permitting immediate voluntary compliance with 
certain provisions of the final rule. Overall, this final rule will 
reduce the compliance burden on the regulated industry without 
compromising transportation safety.

C. Executive Order 13132

    This final rule has been analyzed in accordance with the principles 
and criteria contained in Executive Order

[[Page 23871]]

13132 (``Federalism''). This final rule would preempt State, local, and 
Indian tribe requirements but does not propose any regulation that has 
substantial direct effects on the States, the relationship between the 
national government and the States, or the distribution of power and 
responsibilities among the various levels of government. Therefore, the 
consultation and funding requirements of Executive Order 13132 do not 
apply.
    The Federal hazardous materials transportation law, 49 U.S.C. 5101-
5127, contains an express preemption provision (49 U.S.C. 5125 (b)) 
that preempts State, local, and Indian tribe requirements on certain 
covered subjects. Covered subjects are:
    (i) The designation, description, and classification of hazardous 
materials;
    (ii) The packing, repacking, handling, labeling, marking, and 
placarding of hazardous materials;
    (iii) The preparation, execution, and use of shipping documents 
related to hazardous materials and requirements related to the number, 
contents, and placement of those documents;
    (iv) The written notification, recording, and reporting of the 
unintentional release in transportation of hazardous material; or
    (v) The design, manufacture, fabrication, marking, maintenance, 
recondition, repair, or testing of a packaging or container 
represented, marked, certified, or sold as qualified for use in 
transporting hazardous material.
    This final rule addresses covered subject items (i), (ii), (iii), 
and (v) above and preempts State, local, and Indian tribe requirements 
not meeting the ``substantively the same'' standard. This final rule is 
necessary to update, clarify, and provide relief from regulatory 
requirements.
    Federal hazardous materials transportation law provides at section 
5125(b)(2) that, if DOT issues a regulation concerning any of the 
covered subjects, DOT must determine and publish in the Federal 
Register the effective date of Federal preemption. The effective date 
may not be earlier than the 90th day following the date of issuance of 
the final rule and not later than two years after the date of issuance. 
PHMSA has determined that the effective date of Federal preemption for 
these requirements will be 1 year from the date of publication of a 
final rule in the Federal Register.

D. Executive Order 13175

    This final rule has been analyzed in accordance with the principles 
and criteria contained in Executive Order 13175 (``Consultation and 
Coordination with Indian Tribal Governments''). Because this final rule 
does not have tribal implications and does not impose substantial 
direct compliance costs, the funding and consultation requirements of 
Executive Order 13175 do not apply.

E. Regulatory Flexibility Act, Executive Order 13272, and DOT 
Regulatory Policies and Procedures

    The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) requires an 
agency to review regulations to assess their impact on small entities 
unless the agency determines that a rule is not expected to have a 
significant impact on a substantial number of small entities. This 
final rule will not impose increased compliance costs on the regulated 
industry. The revisions we are making to the January 23, 2007 final 
rule will provide regulatory relief to persons offering lighters and 
lighter refills for transportation in commerce by reinstituting limited 
quantity and consumer commodity exceptions for lighter refills and 
permitting immediate voluntary compliance with certain provisions of 
the final rule. Therefore, I certify that this rule will not have a 
significant economic impact on a substantial number of small entities.
    This final rule has been developed in accordance with Executive 
Order 13272 (``Proper Consideration of Small Entities in Agency 
Rulemaking'') and DOT's procedures and policies to promote compliance 
with the Regulatory Flexibility Act to ensure that potential impacts of 
draft rules on small entities are properly considered.

F. Paperwork Reduction Act

    PHMSA currently has an approved information collection under Office 
of Management and Budget (OMB) Control Number 2137-0557, ``Approvals 
for Hazardous Materials,'' with an expiration date of June 30, 2007. 
This final rule imposes no new information collection and recordkeeping 
requirements.

G. Regulation Identifier Number (RIN)

    A regulation identifier number (RIN) is assigned to each regulatory 
action listed in the Unified Agenda of Federal Regulations. The 
Regulatory Information Service Center publishes the Unified Agenda in 
April and October of each year. The RIN number contained in the heading 
of this document can be used to cross-reference this action with the 
Unified Agenda.

H. Unfunded Mandates Reform Act

    This final rule does not impose unfunded mandates under the 
Unfunded Mandates Reform Act of 1995. It will not result in costs of 
$120.7 million or more, in the aggregate, to any of the following: 
State, local, or Native American tribal governments, or the private 
sector.

I. Privacy Act

    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 the comment, if 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 (Volume 65, Number 70; pages 19477-78) or you may visit 
http://dms.dot.gov.


List of Subjects in 49 CFR Part 173

    Hazardous materials transportation, Packaging and containers, 
Radioactive materials, Reporting and recordkeeping requirements, 
Uranium.

0
In consideration of the foregoing, we are making the following 
correction to rule FR Doc. 06-464, published on January 23, 2006 (71 FR 
3418):


Sec.  173.306  [Corrected]

0
1. On page 3427, in the middle column, correct amendatory instruction 
12.a. to read ``a. In paragraph (a)(1), in the last sentence, the 
wording ``paragraph (h)'' is removed and the wording ``paragraph (i)'' 
is added in its place.''

    Issued in Washington, DC on April 10, 2006 under authority 
delegated in 49 CFR part 1.
Brigham A. McCown,
Acting Administrator.
[FR Doc. 06-3834 Filed 4-24-06; 8:45 am]

BILLING CODE 4910-60-M