[Federal Register Volume 88, Number 209 (Tuesday, October 31, 2023)]
[Rules and Regulations]
[Pages 74342-74347]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-23655]
[[Page 74342]]
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CONSUMER PRODUCT SAFETY COMMISSION
16 CFR Part 1461
[Docket No. CPSC-2022-0017]
Portable Fuel Container Safety Act Regulation
AGENCY: Consumer Product Safety Commission.
ACTION: Direct final rule.
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SUMMARY: The Portable Fuel Container Safety Act of 2020 (PFCSA)
provides that the Consumer Product Safety Commission (Commission) must
promulgate a rule to require flame mitigation devices in portable fuel
containers that impede the propagation of flame into the container,
unless the Commission determines that there is a voluntary standard for
flame mitigation devices that achieves the same result. In January
2023, the Commission published in the Federal Register a notice of its
determinations under the PFCSA that three such voluntary standards
collectively apply to all known classes of portable fuel containers.
Pursuant to the PFCSA, therefore, the requirements of the three
voluntary standards are treated as a consumer product safety rule under
the Consumer Product Safety Act (CPSA). ASTM then notified the
Commission that one standard had been revised. The Commission evaluated
the revised standard and found that the revisions carry out the
purposes of the PFCSA. Accordingly the revisions will be incorporated
into the mandatory standard for portable fuel containers. This direct
final rule creates a new part codifying the incorporation by reference
of this revised standard and the other two voluntary standards that are
mandatory under the PFCSA.
DATES: The rule is effective on December 9, 2023, unless CPSC receives
a significant adverse comment by November 30, 2023. If CPSC receives
such a comment, it will publish in the Federal Register a notice
withdrawing this direct final rule before its effective date. The
incorporation by reference of the publication listed in this rule is
approved by the Director of the Federal Register as of December 9,
2023.
ADDRESSES: You can submit comments, identified by Docket No. CPSC-2022-
0017, by any of the following methods:
Electronic Submissions: Submit electronic comments to the Federal
eRulemaking Portal at: www.regulations.gov. Follow the instructions for
submitting comments. Do not submit through this website: confidential
business information, trade secret information, or other sensitive or
protected information that you do not want to be available to the
public. CPSC typically does not accept comments submitted by electronic
mail (email), except as described below.
Mail/Hand Delivery/Courier/Confidential Written Submissions: CPSC
encourages you to submit electronic comments by using the Federal
eRulemaking Portal. You may, however, submit comments by mail, hand
delivery, or courier to: Office of the Secretary, Consumer Product
Safety Commission, 4330 East-West Highway, Bethesda, MD 20814;
telephone: (301) 504-7479.
Instructions: All submissions must include the agency name and
docket number. CPSC may post all comments without change, including any
personal identifiers, contact information, or other personal
information provided, to: www.regulations.gov. If you wish to submit
confidential business information, trade secret information, or other
sensitive or protected information that you do not want to be available
to the public, you may submit such comments by mail, hand delivery, or
courier, or you may email them to: [email protected].
Docket: For access to the docket to read background documents or
comments received, go to: www.regulations.gov, and insert the docket
number, CPSC-2022-0017, into the ``Search'' box, and follow the
prompts.
FOR FURTHER INFORMATION CONTACT: Will Cusey, Small Business Ombudsman,
U.S. Consumer Product Safety Commission, 4330 East-West Highway,
Bethesda, MD 20814; telephone (301) 504-7945 or (888) 531-9070; email:
[email protected].
SUPPLEMENTARY INFORMATION:
A. Background
The PFCSA \1\ requires the Commission to promulgate, not later than
30 months after December 27, 2020, a final rule to require flame
mitigation devices in portable fuel containers that impede the
propagation of flame into the container. 15 U.S.C. 2056d(b)(1), (2).
However, the Commission is not required to promulgate a final rule for
a class of portable fuel containers within the scope of the PFCSA if
the Commission determines at any time that:
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\1\ Portable Fuel Container Safety Act of 2020, codified at 15
U.S.C. Sec. 2056d, as stated Public Law 116-260, div. FF, title IX,
Sec. 901, available at: www.govinfo.gov/content/pkg/PLAW-116publ260/pdf/PLAW-116publ260.pdf.
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there is a voluntary standard for flame mitigation devices
for those containers that impedes the propagation of flame into the
container;
the voluntary standard is or will be in effect not later
than 18 months after the date of enactment of the PFCSA (i.e., June 27,
2022); and
the voluntary standard is developed by ASTM International
or such other standard development organization that the Commission
determines to have met the intent of the PFCSA.
15 U.S.C. 2056d(b)(3)(A). Any such Commission determinations
regarding applicable voluntary standards must be published in the
Federal Register. 15 U.S.C. 2056d(b)(3)(B).
On January 13, 2023, the Commission published favorable
determinations under section 2056d(b)(3)(A) of the PFCSA regarding
three voluntary standards for portable fuel containers: ASTM F3429/
F3429M-20, ASTM F3326-21, and section 18 of ANSI/CAN/UL/ULC 30:2022 (UL
30:2022). 88 FR 2206. Therefore, by operation of the PFCSA, portable
fuel containers manufactured after July 12, 2023, must comply with the
requirements of either ASTM F3429/F3429M-20, ASTM F3326-21, or section
18 of UL 30:2022, as applicable. In particular, portable fuel
containers sold empty (that are not safety cans \2\) are required to
comply with the requirements of ASTM F3326-21. Safety cans are required
to meet the requirements of either ASTM F3326-21 or section 18 of UL
30:2022. Portable fuel containers sold pre-filled are required to
comply with the requirements of ASTM F3429/F3429M-20. However, in a May
19, 2023, letter, the CPSC Office of Compliance and Field Operations
exercised enforcement discretion regarding pre-filled portable fuel
containers subject to ASTM F3429/F3429M-20 to prevent a shortage of
critical fuels, including fuels used for emergencies.\3\
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\2\ Safety cans are portable fuel containers sold empty that the
U.S. Occupational Safety and Health Administration (OSHA) generally
regulates for use in the workplace but are also available for
purchase by consumers at many physical and online retailers.
\3\ The letter is available here: https://www.cpsc.gov/s3fs-public/Enforcement-Discretion-Related-to-Portable-Fuel-Containers.pdf?VersionId=7ZC5ry.So7vVIpsL2J7329Pfhshyh49a.
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Under section 2056d(b)(5) of the PFCSA, a voluntary standards
organization must notify the Commission of any revision to the
requirements for flame mitigation devices for the Commission-approved
voluntary standards for portable fuel containers. Once a voluntary
standards organization notifies the CPSC, the revisions will be
incorporated into the
[[Page 74343]]
consumer product safety rule not later than 180 days after notification
(or such later date as the Commission determines appropriate), unless
within 90 days of such notice, the Commission determines that the
revisions do not meet the requirements of section 2056d(b)(3) of the
PFCSA, and so notifies the voluntary standards organization. 15 U.S.C.
2056d(b)(5)(B).
On June 12, 2023, ASTM notified CPSC that it has revised ASTM
F3429/F3429M-20 with the publication of ASTM F3429/F3429M-23. On June
23, 2023, the Commission published a notice of availability and request
for comment regarding revised ASTM F3429/F3429M-23. Two comments were
submitted in support of a favorable Commission determination on the
revisions to ASTM F3429/F3429M. 88 FR 41046. On August 22, 2023, as set
forth in section B of this preamble, the Commission determined that the
revisions meet the requirements of section 2056d(b)(3)(A) of the
PFCSA.\4\ Accordingly, ASTM F3429/F3429M-23 shall be treated as a
consumer product safety rule promulgated under section 9 of the CPSA
effective December 9, 2023 (which is 180 days after ASTM's
notification). This direct final rule creates a new 16 CFR part 1461
for portable fuel containers to incorporate by reference the revised
ASTM F3429/F3429M-23, as well as ASTM F3326-21 and section 18 of UL
30:2022.\5\ This direct final rule is codifying the three voluntary
standards for portable fuel containers that are mandatory under the
PFCSA for the convenience of stakeholders and the public and to provide
clarity regarding which versions of the voluntary standards are
mandatory for portable fuel containers under the PFCSA.
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\4\ See Record of Commission Action here: https://www.cpsc.gov/s3fs-public/RCAASTMsRevisedStandardforPrefilledContainersandDirectFinalRuleUnderthePortableFuelContainerSafetyActof2020.pdf?VersionId=2bvaQho_RlirJo.xyAFUZXyFS2.7Qw7R.
\5\ The Commission voted 4-0 to approve publication of this
notice as drafted.
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B. Revisions to ASTM F3429/F3429M
On January 13, 2023, the Commission published a Federal Register
notice in accordance with the PFCSA, determining that pre-filled
portable fuel containers must comply with ASTM F3429/F3429M-20 as a
consumer product safety rule. 88 FR 2206. On June 12, 2023, ASTM
notified the Commission that a revision of that standard, ASTM F3429/
F3429M-23, was published in May 2023. ASTM F3429/F3429M-23 includes
substantive revisions affecting the flame mitigation performance tests
(the endurance test and the flashback test) and non-substantive
revisions concerning its scope, a referenced document, a section title,
and the appendix of the standard. The substantive revisions affecting
the performance test requirements relate to testing containers with
large volumes, testing containers with wide mouths, modifying the
allowable downward angle of the container during testing, and
eliminating redundant testing when the same flame mitigation device is
used on differently sized containers.
As discussed below, the Commission concluded that the changes in
ASTM F3429/F3429M-23 do not affect the effectiveness of the flame
mitigation device in impeding the propagation of a flame or other
ignition source into the container. The changes to the standard will
improve the safety of testing flame mitigation devices on larger volume
containers and facilitate compliance testing of these containers.
Many of the revisions to ASTM F3429/F3429M-20 were requested by
laboratories conducting the testing for compliance, to improve safety
for test personnel and facilities. Without these changes to the test
methods, manufacturers may not be able to find a certification testing
laboratory to demonstrate compliance for some of their products, which
could limit consumer access to these products. If consumers are unable
to buy pre-filled portable fuel containers that are compliant with ASTM
F3429/F3429M, they may use hazardous substitute containers.
As explained below, the Commission concluded that the revisions in
ASTM F3429/F3429M-23 meet the requirements of section 2056d(b)(3)(A) of
the PFCSA is allowing ASTM F3429/F3429M-23 to become the mandatory
consumer product safety rule for pre-filled portable fuel containers
pursuant to section 2056d(b)(5) of the PFCSA. The background and
revisions to ASTM F3429/F3429M are described in more detail in the CPSC
staff's briefing memorandum.\6\
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\6\ Staff Memorandum available at: https://www.cpsc.gov/s3fs-public/ASTMsRevisedStandardforPerfilledContainersandDirectFinalRuleUnderthePortableFuelContainerSafetyActof2020.pdf?VersionId=_p5lXY4B1YRCU_horxqDSMNF_VcI0NbI.
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1. Substantive Revisions to ASTM F3429/F3429M
a. Larger Volume Containers
The first substantive revision in ASTM F3429/F3429M-23 allows the
container volume to be reduced for testing purposes if the reduced
volume does not impact, change, hinder, or deform the flame mitigation
device or how the flame mitigation device is mounted on the container.
Laboratories that tested containers with larger volumes to ASTM F3429/
F3429M-20 found that a failed test produced a large explosion that
presented a risk to test personnel and equipment. Testing laboratories
determined that they could not safely mitigate the risks when testing
larger volumes without a revision to ASTM F3429/F3429M-20. We note a
flame mitigation device impedes the propagation of the flame into the
container by quenching an external flame at the mouth of the container
before it can ignite the vapors within the container. The shape and
size of the container does not impact determination of the flame
mitigation device's effectiveness because an effective device stops the
flame before it enters the container. The changes proposed affect only
the consequences of a failure, not whether the flame mitigation device
fails. The Commission therefore concludes that this revision
facilitates compliance testing but does not affect the voluntary
standard's satisfaction of the requirements of section 2056d(b)(3)(A)
of the PFCSA.
b. Containers With Wider Mouths
The second substantive revision to ASTM F3429/F3429M-23 limits the
maximum flow rate of gaseous fuel and air used to fill the container
before the tests. This change only alters the rate of filling the
container to prepare it to be tested. Laboratories that tested
containers with wider mouths to ASTM F3429/F3429M-20 found that the
flow of gaseous fuel and air created a large cloud of explosive gas
outside the container. Open flames near the cloud of explosive gas
presented an explosion risk. Testing laboratories determined that they
could not safely mitigate the risks to test personnel when testing
containers with wider mouths without modifying ASTM F3429/F3429M-20.
Under the revision, gaseous fuel and air at the appropriate ratio
fill the container before the trials, but the flow is stopped before
the external flames are introduced. Because the gaseous fuel and air
flow is stopped before the external ignition source is introduced,
slowing the fill rate does not affect the performance of the flame
mitigation device. The Commission concludes that this revision
facilitates compliance testing but does not affect the voluntary
standard's satisfying the requirements of section 2056d(b)(3)(A) of the
PFCSA because the performance of the flame mitigation device when
exposed to
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external ignition sources is evaluated the same as with a faster fill
rate.
c. Downward Angle When Testing Container
The third substantive revision to ASTM F3429/F3429M-23 allows the
container to be mounted at a downward angle between 45 and 60 degrees
when tested, rather than at 45 +/-2 degrees as under the 2020 version
of the standard. Testing laboratories proposed this change to allow
greater flexibility to position the flame directly onto the mouth of
the container as required in the test. Testing laboratories had found
it difficult to properly position the flame as required in the
performance test without being able to adjust the position of the
container significantly. Because an effective flame mitigation device
impedes the flame before it reaches inside the container, and an
ineffective device allow the ignition of the gaseous fuel and air in
the container regardless of the angle, the precise downward angle of
the container is not critical to the effectiveness of the flame
mitigation device.
d. Accepting Flame Mitigation Devices on Other Containers
The fourth substantive revision to ASTM F3429/F3429M-23 allows a
container that uses a flame mitigation device that has met the
requirements of the standard when attached in the same manner to a
similar container model, to be considered compliant with this standard,
without needing to be re-tested. Because a compliant flame mitigation
device prevents flame from reaching vapors in the container, changing
the shape and size of the container does not affect the effectiveness
of the flame mitigation device.
2. Non-Substantive Revisions to ASTM F3429/F3429M
There are three non-substantive revisions in ASTM F3429/F3429M-23.
First, ASTM changed the order of the scope subclauses to match the
standard structure of other ASTM specifications. The text of the scope
was not otherwise changed. Second, ASTM F3326 was removed from the
listed reference documents as it was not used elsewhere in ASTM F3429/
F3429M-23. A reserved section was renamed from a ``permanency'' test to
a ``retention'' test. Currently, this is a placeholder for a potential
future requirement. Finally, some explanatory information in the non-
mandatory appendix for the ``retention'' test was removed, but no
mandatory requirements were added or changed. The Commission concludes
these non-substantive changes do not implicate the standard satisfying
the requirements of section 2056d(b)(3)(A) of the PFCSA.
C. Description of the Rule
This direct final rule creates a new part 1461, ``Portable Fuel
Container Safety Act Regulation.'' Part 1461 incorporates by reference
the three voluntary standards the Commission has determined under the
PFCSA to be mandatory: ASTM F3429/F3429M-23 (updated from the 2020
version of the standard), ASTM F3326-21, and section 18 of UL 30:2022.
The provisions of the direct final rule are described below.
A. Section 1461.1--Scope and Application
Section 1461.1 of the rule provides, in accordance with the PFCSA,
that portable fuel containers must comply with the requirements
specified in Sec. 1461.3, which are considered to be consumer product
safety rules.
B. Section 1461.2--Definition
Section 1461.2 of the rule provides the statutory definition of
``portable fuel container'' found in the PFCSA. Although this
definition is provided in the PFCSA, this section restates the
definition for the convenience of the regulated community and the
public.
C. Section 1461.3--Requirements for Flame Mitigation Devices on
Portable Fuel Containers
Section 1461.3 provides that each portable fuel container
manufactured for sale in the United States shall conform to the
applicable requirements of this section depending on whether the
portable fuel container is sold pre-filled or empty.
Section 1461.3(a)(1) of the rule requires that portable fuel
containers sold to consumers pre-filled must comply with the
requirements of ASTM F3429/F3429M-23, Standard Specification for
Performance of Flame Mitigation Devices Installed in Disposable and
Pre-Filled Flammable Liquid Containers. ASTM F3429/F3429M is listed by
ASTM as a dual standard in inch-pound (F3429 designation) and metric
(F3429M designation) units. Both designations of the standard are
substantively identical except for the inch-pound versus metric units
used in the standard. The standard requires two performance tests of
the container's flame mitigation device. The first is an endurance
test, in which the container is subjected to an external and stationary
2.5-inch flame at the mouth of the container for 30 seconds. The second
test is a flashback test, in which the container is subjected to an
external flash fire near the container mouth. The container passes each
test if the contents of the container do not catch fire or otherwise
ignite in each of five consecutive trials. The two tests are used to
demonstrate that the flame mitigation device impedes the propagation of
two different types of ignition sources, a stationary flame and a
moving flame.
Section 1461.3(a)(2) of the rule requires portable fuel containers
sold empty to the consumer to comply with ASTM F3326-21, Standard
Specification for Flame Mitigation Devices on Portable Fuel Containers.
ASTM F3326 requires a performance test of the container's flame
mitigation devices after the container is exposed to several use-and-
abuse tests. Use-and-abuse tests are designed to ensure a flame
mitigation device still functions after simulating normal use and
reasonably foreseeable abuse of the container over time. The flame
mitigation device performance test demonstrates that the container
prevents a flame traveling at five meters per second from igniting the
contents of the container in each of five consecutive trials. The test
also demonstrates that the flame mitigation device impedes the
propagation of a rapidly travelling flame front into the container.
Portable fuel containers sold empty to the consumer that are
classified as safety cans that meet the requirements of section 18 of
UL 30:2022, Standard for Safety Metallic and Nonmetallic Safety Cans
for Flammable and Combustible Liquids, are not required to comply with
ASTM F3326-21. UL 30:2022 is a voluntary standard that covers various
requirements for safety cans, including requirements for flame
mitigation devices. Section 18 of UL 30 has two performance test
options. The first option is to subject the safety can mouth to an
external and stationary 2.5-inch flame for 30 seconds. The safety can
passes the test if the interior contents of the safety can do not catch
fire or otherwise ignite in each of five consecutive trials. The second
performance test option is used for safety cans that have a flame
arrestor. In this performance test, a 7.5-inch flame is balanced on one
side of the flame arrestor as a fuel-air mixture passes through. The
flame arrestor fails if the flame crosses the flame arrestor and
ignites the fuel-air mixture.
Section 1461.4 of the rule incorporates by reference the three
voluntary standards that are mandatory under the rule.
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D. Direct Final Rule Process
The Commission is issuing this rule as a direct final rule.
Although the Administrative Procedure Act (APA; 5 U.S.C. 551-559)
generally requires agencies to provide notice of a rule and an
opportunity for interested parties to comment on it, section 553 of the
APA provides an exception when the agency ``for good cause finds'' that
notice and comment are ``impracticable, unnecessary, or contrary to the
public interest.'' Id. 553(b)(B).
The purpose of this direct final rule is to codify in the CFR three
voluntary standards (ASTM F3429/F3429M-23, ASTM F3326-21, and section
18 of UL 30:2022) that are mandatory consumer product safety rules by
operation of law under the PFCSA. Public comments would not alter
whether the three voluntary standards are considered mandatory consumer
product safety rules under the PFCSA. The Commission concludes that
when it merely codifies voluntary standards that are already mandatory
consumer product safety rules by statute under the PFCSA, notice and
comment are unnecessary.
In its Recommendation 95-4, the Administrative Conference of the
United States (ACUS) endorses direct final rulemaking as an appropriate
procedure to expedite rules that are noncontroversial and not expected
to generate significant adverse comments. See 60 FR 43108 (Aug. 18,
1995). ACUS recommends that agencies use the direct final rule process
when they act under the ``unnecessary'' prong of the good cause
exemption in 5 U.S.C. 553(b)(B). Consistent with the ACUS
recommendation, the Commission is publishing this rule as a direct
final rule, because CPSC does not expect any significant adverse
comments.
Unless CPSC receives a significant adverse comment by November 30,
2023, this rule will become effective on December 9, 2023--the end of
the 180-day period specified in the PFCSA. In accordance with ACUS's
recommendation, the Commission considers a significant adverse comment
to be ``one where the commenter explains why the rule would be
inappropriate,'' including an assertion challenging ``the rule's
underlying premise or approach,'' or a claim that the rule ``would be
ineffective or unacceptable without a change.'' 60 FR 43108, 43111
(Aug. 18, 1995). As noted, this rule merely codifies in the CFR the
three voluntary standards that are mandatory consumer product safety
rules under the PFCSA and restates the statutory definition of
``portable fuel container''; thus, public comments would not change
such statutory requirements or definitions.
If the Commission does receive a significant adverse comment, the
Commission will withdraw this direct final rule. Depending on the
comment and other circumstances, the Commission may then incorporate
the adverse comment into a subsequent direct final rule or publish a
notice of proposed rulemaking, providing an opportunity for public
comment.
E. Incorporation by Reference
Section 1460.3 of the direct final rule incorporates by reference
ASTM F3429/F3429M-23, ASTM F3326-21, and section 18 of ANSI/CAN/UL/ULC
30:2022. The Office of the Federal Register (OFR) has regulations
regarding incorporation by reference. 1 CFR part 51. Under these
regulations, agencies must discuss, in the preamble to a final rule,
ways in which the material the agency incorporates by reference is
reasonably available to interested parties, and how interested parties
can obtain the material. In addition, the preamble to the final rule
must summarize the material. 1 CFR 51.5(b).
In accordance with the OFR regulations, section C of this preamble
summarizes the major provisions of ASTM F3429/F3429M-23, ASTM F3326-21,
and section 18 of UL 30:2022 that the Commission incorporates by
reference into 16 CFR part 1461. The standards are reasonably available
to interested parties. Until the direct final rule takes effect, read-
only copies of ASTM F3429/F3429M-23 and ASTM F3326-21 are available for
viewing, at no cost, on ASTM's website at: www.astm.org/CPSC.htm. Once
the rule takes effect, a read-only copy of those two ASTM standards
will be available for viewing, at no cost, on the ASTM website at:
www.astm.org/READINGLIBRARY/. Interested parties can purchase copies of
ASTM F3429/F3429M-23 and ASTM F3326-21 from ASTM International, 100
Barr Harbor Drive, P.O. Box C700, West Conshohocken, PA 19428-2959 USA;
telephone: (610) 832-9585; www.astm.org.
A read-only copy of UL 30:2022 is available for viewing, free-of-
charge at UL's Standards Sale Site at: shopulstandards.com. Click
``Browse and Buy Standards,'' and search for UL 30 and then click
``Digital View,'' and sign in, or create a user account. The read-only
copy of UL 30:2022 will remain available for viewing, free-of-charge
after the direct final rule goes into effect. Interested parties can
purchase a copy of UL 30:2022 from UL Standards and Engagement, 151
Eastern Avenue, Bensenville, IL 60106 USA; telephone: (888) 853-3503;
shopulstandards.com.
Interested parties can also schedule an appointment to inspect
copies of ASTM F3429/F3429M-23, ASTM F3326-21, and UL 30:2022 at CPSC's
Office of the Secretary, U.S. Consumer Product Safety Commission, Room
820, 4330 East-West Highway, Bethesda, MD 20814, telephone: (301) 504-
7479; email: [email protected].
F. Effective Date
Section 2056d(b)(5)(B) of the PFCSA provides that not later than
180 days after the Commission is notified of a revised voluntary
standard (or such later date as the Commission determines appropriate),
such revised voluntary standard shall become enforceable as a consumer
product safety rule promulgated under 16 U.S.C. 2058, in place of the
prior version, unless within 90 days after receiving the notice the
Commission determines that the revised voluntary standard does not meet
the requirements in section 2056d(b)(3)(A) of the PFCSA. Unless the
Commission receives a significant adverse comment by November 30, 2023,
the rule therefore will become effective on December 9, 2023. Based on
the Commission's January 2023 published determinations under the PFCSA,
portable fuel containers that are sold empty to the consumer
manufactured after July 12, 2023, must comply with the requirements of
either ASTM F3326-21, or section 18 of UL 30:2022, as applicable. This
direct final rule's effective date of December 9, 2023, which is the
effective date of the ASTM F3429/F3429M-23 revision as a mandatory
safety standard, does not alter the previously established effective
date of July 12, 2023, for ASTM F3326-21 and section 18 of UL 30:2022
under the PFCSA. Products subject to the requirements of those
standards are already required to meet those standards.
Further, portable fuel containers sold pre-filled are also required
under the PFCSA to comply with the requirements of ASTM F3429/F3429M-20
after July 12, 2023. However, on May 19, 2023, the Office of Compliance
and Field Operations issued a letter exercising enforcement discretion
regarding pre-filled portable fuel containers subject to ASTM F3429/
F3429M-20 to prevent a shortage of critical fuels used for emergencies.
G. Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA; 5 U.S.C. 601-612) generally
requires
[[Page 74346]]
agencies to review proposed and final rules for their potential
economic impact on small entities, including small businesses, and
prepare regulatory flexibility analyses. 5 U.S.C. 603, 604. The RFA
applies to any rule that is subject to notice and comment procedures
under section 553 of the APA. Id. As discussed in section D of this
preamble, the Commission has determined that notice and the opportunity
to comment are unnecessary for this rule. Therefore, the RFA does not
apply. CPSC also notes the limited nature of this document, which
merely creates a new part in the Code of Federal Regulations codifying
the incorporations by reference to reflect the voluntary standards that
are mandatory under the PFCSA and the statutory definition of portable
fuel containers.
H. Environmental Considerations
The Commission's regulations provide a categorical exclusion for
the Commission's rules from any requirement to prepare an environmental
assessment or an environmental impact statement where they ``have
little or no potential for affecting the human environment.'' 16 CFR
1021.5(c)(2). This rule falls within the categorical exclusion, so no
environmental assessment or environmental impact statement is required.
I. Preemption
Section 26(a) of the CPSA provides that where a consumer product
safety standard is in effect and applies to a product, no state or
political subdivision of a state may either establish or continue in
effect a requirement dealing with the same risk of injury unless the
state requirement is identical to the federal standard. 15 U.S.C.
2075(a). Section 26(c) of the CPSA also provides that states or
political subdivisions of states may apply to CPSC for an exemption
from this preemption under certain circumstances. The PFCSA deems rules
issued under that statute to be a ``consumer product safety rule.''
Therefore, once a rule issued under the PFCSA takes effect, it will
preempt in accordance with section 26(a) of the CPSA.
J. Congressional Review Act
The Congressional Review Act (CRA; 5 U.S.C. 801-808) states that
before a rule can take effect, the agency issuing the rule must submit
the rule, and certain related information, to each House of Congress
and the Comptroller General. 5 U.S.C. 801(a)(1). The CRA submission
must indicate whether the rule is a ``major rule.'' The CRA states that
the Office of Information and Regulatory Affairs determines whether a
rule qualifies as a ``major rule.''
Pursuant to the CRA, OIRA has determined that the rule does not
qualify as a ``major rule,'' as defined in 5 U.S.C. 804(2). To comply
with the CRA, CPSC will submit the required information to each House
of Congress and the Comptroller General.
List of Subjects in 16 CFR Part 1461
Consumer protection, Portable fuel containers, Incorporation by
reference, Safety.
0
For the reasons discussed in the preamble, the Commission amends 16 CFR
chapter II by adding part 1461 to subchapter B to read as follows:
PART 1461--PORTABLE FUEL CONTAINER SAFETY ACT REGULATION
Sec.
1461.1 Scope and application.
1461.2 Definition.
1461.3 Requirements for flame mitigation devices on portable fuel
containers.
1461.4 Incorporation by reference.
Authority: 15 U.S.C. 2056d.
Sec. 1461.1 Scope and application.
In accordance with the Portable Fuel Container Safety Act of 2020
(PFCSA), portable fuel containers must comply with the requirements
specified in Sec. 1461.3, which are considered to be consumer product
safety rules.
Sec. 1461.2 Definition.
The definition of portable fuel container in the PFCSA (5 U.S.C.
2056d(b)(8)) applies to this part. Specifically, a portable fuel
container is defined in the PFCSA as any container or vessel (including
any spout, cap, and other closure mechanism or component of such
container or vessel or any retrofit or aftermarket spout or component
intended or reasonably anticipated to be for use with such container)--
(a)(1) Intended for flammable liquid fuels with a flash point less
than 140 degrees Fahrenheit, including gasoline, kerosene, diesel,
ethanol, methanol, denatured alcohol, or biofuels;
(2) That is a consumer product with a capacity of 5 gallons or
less; and
(3) That the manufacturer knows or reasonably should know is used
by consumers for transporting, storing, and dispensing flammable liquid
fuels.
(b) [Reserved]
Sec. 1461.3 Requirements for flame mitigation devices on portable
fuel containers.
Each portable fuel container manufactured for sale in the United
States shall conform to one of the following applicable requirements.
(a) Containers sold pre-filled. Portable fuel containers sold pre-
filled with a flammable liquid to the consumer must comply with the
requirements of ASTM F3429/F3429M-23 (incorporated by reference, see
Sec. 1461.4).
(b) Containers sold empty. Portable fuel containers sold empty to
the consumer must meet the requirements of ASTM F3326-21 (incorporated
by reference, see Sec. 1461.4). Portable fuel containers sold empty to
the consumer that are classified as safety cans that meet the
requirements of section 18 of ANSI/CAN/UL/ULC 30:2022 (incorporated by
reference, see Sec. 1461.4) are not required to comply with ASTM
F3326-21.
Sec. 1461.4 Incorporation by reference.
Certain material is incorporated by reference into this part with
the approval of the Director of the Federal Register in accordance with
5 U.S.C. 552(a) and 1 CFR part 51. All approved incorporation by
reference material is available for inspection at the Consumer Product
Safety Commission and at the National Archives and Records
Administration (NARA). Contact the U.S. Consumer Product Safety
Commission at: Office of the Secretary, U.S. Consumer Product Safety
Commission, 4330 East-West Highway, Bethesda, MD 20814; telephone (301)
504-7479, email [email protected]. For information on the availability
of this material at NARA, visit www.archives.gov/federal-register/cfr/ibr-locations or email [email protected]. The material may be
obtained from the following sources:
(a) ASTM International, 100 Barr Harbor Drive, P.O. Box C700, West
Conshohocken, PA 19428-2959; phone: (610) 832-9585; website:
www.astm.org.
(1) ASTM F3326-21, Standard Specification for Flame Mitigation
Devices on Portable Fuel Containers, approved on September 1, 2021.
(2) ASTM F3429/F3429M-23, Standard Specification for Performance of
Flame Mitigation Devices Installed in Disposable and Pre-Filled
Flammable Liquid Containers, approved on May 1, 2023.
(b) UL Standards and Engagement, International, 151 Eastern Avenue,
Bensenville, IL 60106; phone: 1-888-853-3503; website:
www.shopulstandards.com.
(1) ANSI/CAN/UL/ULC 30:2022, Standard for Safety: Metallic and
[[Page 74347]]
Nonmetallic Safety Cans for Flammable and Combustible Liquids, Tenth
Edition, dated April 29, 2022.
(2) [Reserved]
Alberta E. Mills,
Secretary, Consumer Product Safety Commission.
[FR Doc. 2023-23655 Filed 10-30-23; 8:45 am]
BILLING CODE 6355-01-P