[Federal Register Volume 63, Number 189 (Wednesday, September 30, 1998)]
[Proposed Rules]
[Pages 52394-52397]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-26170]



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Part V





Consumer Product Safety Commission





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16 CFR Parts 1145 and 1212



Rule To Regulate Under the Consumer Product Safety Act Risks of Injury 
Associated With Multi-Purpose Lighters That Can Be Operated by 
Children; Multi-Purpose Lighters; Notice of Proposed Rulemaking; 
Proposed Rules

  Federal Register / Vol. 63, No. 189 / Wednesday, September 30, 1998 / 
Proposed Rules  

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CONSUMER PRODUCT SAFETY COMMISSION

16 CFR Part 1145


Rule To Regulate Under the Consumer Product Safety Act Risks of 
Injury Associated With Multi-Purpose Lighters That Can Be Operated by 
Children

AGENCY: Consumer Product Safety Commission.

ACTION: Proposed rule.

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SUMMARY: Elsewhere in this issue of the Federal Register, the 
Commission proposes a safety standard for multi-purpose lighters to 
reduce risks of injury that are associated with the lighters because 
they can be operated by young children. In this notice, the Commission 
proposes to determine by rule, under section 30(d) of the Consumer 
Product Safety Act, that it is in the public interest to issue the 
safety standard, or to take any other regulatory action to address 
risks of injury that are associated with multi-purpose lighters due to 
the fact that they can be operated by children, under the Consumer 
Product Safety Act, rather than under the Federal Hazardous Substances 
Act or the Poison Prevention Packaging Act.

DATES: Comments on the proposed rule should be received by October 30, 
1998.

ADDRESSES: Comments should be mailed to the Office of the Secretary, 
Consumer Product Safety Commission, Washington, DC 20207, or delivered 
to the Office of the Secretary, Consumer Product Safety Commission, 
Room 502, 4330 East-West Highway, Bethesda, Maryland 20814-4408, 
telephone (301) 504-0800. Comments may also be filed by telefacsimile 
to (301) 504-0127 or by email to [email protected]. Comments should be 
captioned ``Multi-Purpose Lighters: CPSA 30(d) Rule.''

FOR FURTHER INFORMATION CONTACT: Concerning legal aspects: Harleigh 
Ewell, Attorney, Office of the General Counsel, Consumer Product Safety 
Commission, Washington, DC 20207; telephone (301) 504-0980, ext. 2217.
    Concerning the proposed Safety Standard for Multi-Purpose Lighters: 
Barbara Jacobson, Project Manager for Multi-Purpose Lighters, Consumer 
Product Safety Commission, Washington, DC 20207; telephone (301) 504-
0477, ext. 1206; email [email protected].

SUPPLEMENTARY INFORMATION:

A. Introduction

    The Commission proposes to determine by rule that it will regulate 
those risks of death and injury that are associated with multi-purpose 
lighters, and that are due to the fact that the lighters can be 
operated by young children, under the Consumer Product Safety Act 
(``CPSA''), 15 U.S.C. 2051-2084. Young children do not appreciate all 
of the consequences of using the product. Those consequences can 
include the ignition of clothing and other articles in the household, 
and may result in injury or death of the child operating the multi-
purpose lighter, or other persons. These risks will be regulated under 
the CPSA, rather than under the Federal Hazardous Substances Act 
(``FHSA''), 15 U.S.C. 1261-1277, or the Poison Prevention Packaging Act 
(``PPPA''), 15 U.S.C. 1471-1476.
    Section 30(d) of the CPSA, 15 U.S.C. 2079(d), provides that a risk 
of injury associated with a consumer product that could be eliminated 
or reduced to a sufficient extent by action under the FHSA or the PPPA 
may be regulated under the CPSA only if the Commission, by rule, finds 
that it is in the public interest to regulate such a risk of injury 
under the CPSA. Elsewhere in this issue of the Federal Register, the 
Commission is proposing a rule under the CPSA that will impose child-
resistance requirements on multi-purpose lighters.
    The Commission recognizes that it might be possible to adequately 
reduce those risks by action taken under the FHSA or the PPPA. 
Nevertheless, the Commission has determined that it is in the public 
interest to regulate those risks of injury under the CPSA rather than 
the FHSA or the PPPA because the authority of the CPSA is more 
appropriate to address risks of injury associated with a mechanical, 
flame-producing device than are the authorities of the FHSA or the 
PPPA.

B. Background

    Multi-purpose lighters are defined as follows:
    (b)(1) Multi-purpose lighter, (also known as grill lighter, 
fireplace lighter, utility lighter, micro-torch, or gas match) means: A 
hand-held, self-igniting, flame-producing product that operates on fuel 
and is used by consumers to ignite items such as candles, fuel for 
fireplaces, charcoal or gas-fired grills, camp fires, camp stoves, 
lanterns, fuel-fired appliances or devices or pilot lights.
    (2) The following products are not multi-purpose lighters:
    (i) Devices intended primarily for igniting smoking materials that 
are within the definition of ``lighter'' in the safety standard for 
cigarette lighters (16 CFR 1210.2(c)).
    (ii) Devices containing more than 10 oz. of fuel.
    (iii) Matches.
    In the Federal Register of January 16, 1997, the Commission 
published an advance notice of proposed rulemaking (``ANPR'') to begin 
a proceeding for development of requirements for multi-purpose lighters 
to address risks of injuries from fires started by children playing 
with multi-purpose lighters. 62 FR 2327.
    The CPSC's staff has identified 178 fires occurring since January 
1988 that were started by children under age 5 who were playing with 
multi-purpose lighters. These fires resulted in a total of 29 deaths 
and 71 injuries.
    Of the statutes administered by the CPSC, the CPSA, the FHSA, and 
the PPPA provide authority for a child-resistance requirement for 
multi-purpose lighters. The possible regulatory options include issuing 
a consumer product safety standard under provisions of the CPSA, a 
banning rule under provisions of the FHSA, and a rule to establish 
requirements to make multi-purpose lighters ``significantly difficult 
for children under five years of age'' to operate under provisions of 
the PPPA.

C. Statutory Authority

    1. The Consumer Product Safety Act. A multi-purpose lighter is a 
``consumer product'' as that term is defined by section 3(a)(1) of the 
CPSA, 15 U.S.C. 2052(a)(1), because it is an article that is produced 
or distributed for sale to consumers for use in or around a household 
or school, in recreation, or otherwise. Sections 7 and 9 of the CPSA, 
15 U.S.C. 2056, 2058, authorize the Commission to issue a consumer 
product safety standard consisting of labeling or performance 
requirements for a consumer product if those requirements are 
``reasonably necessary to prevent or reduce an unreasonable risk of 
injury associated with a consumer product.''
    Section 14(a) of the CPSA, 15 U.S.C. 2063(a), requires each 
manufacturer of a consumer product that is subject to a consumer 
product safety standard to issue a certificate of compliance stating 
that the product conforms to all applicable consumer product safety 
standards. Section 14(c) of the CPSA, 15 U.S.C. 2063(c), requires that 
the certificate of compliance must be based upon a test of each product 
or a ``reasonable testing program.'' Section 14(b) of the CPSA, 15 
U.S.C. 2063(b), also authorizes the Commission to issue rules to 
prescribe a reasonable testing program. Section 14(c) of the CPSA 
authorizes the Commission to issue

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rules requiring labels containing the date and place of manufacture and 
a suitable identification of the manufacturer, unless the product bears 
a private label. In that case, the label shall identify the private 
labeler and contain a code mark that will permit the seller of the 
product to identify the manufacturer upon the request of the purchaser.
    Section 16(b) of the CPSA, 15 U.S.C. 2065(b), authorizes the 
Commission to issue rules requiring manufacturers to maintain records 
of the testing specified in any rule prescribing a reasonable testing 
program. Section 9(g)(2) of the CPSA, 15 U.S.C. 2058(g)(2), authorizes 
the Commission to issue rules prohibiting the stockpiling of products 
that are subject to a consumer product safety rule. Stockpiling means 
the manufacturing or importing of a product between the date of 
promulgation of the consumer product safety rule and its effective date 
at a rate that is established by the rule and is significantly greater 
than the rate at which such product was produced or imported during a 
specified base period ending before the promulgation of the consumer 
product safety rule.
    2. The Federal Hazardous Substances Act. Under the FHSA, in order 
to be a hazardous substance, a product must be toxic, corrosive, an 
irritant, a strong sensitizer, flammable or combustible, or capable of 
generating pressure.1 Butane or petroleum distillate fuel 
contained within a multi-purpose lighter meets the definition of 
``hazardous substance'' given in section 2(f)l(A) of the FHSA, 15 
U.S.C. 1261(f)l(A), because it is ``flammable,'' and in some cases is 
``toxic'' or ``generates pressure,'' and may cause substantial personal 
injury or illness as a proximate result of customary or reasonably 
foreseeable use. Multi-purpose lighters that contain fuel when sold to 
consumers are subject to the labeling provisions of section 2(p) of the 
FHSA, 15 U.S.C. 1261(p), because they contain a hazardous substance 
that is intended or packaged in a form suitable for use in the 
household.
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    \1\ Additional hazards can be addressed for children's products. 
Multi-purpose lighters, however, are not intended for use by 
children within the meaning of the FHSA.
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    Section 3(b) of the FHSA, 15 U.S.C. 1262(b), authorizes the 
Commission to issue rules to prescribe special labeling requirements 
for hazardous substances intended for use in the household, if the 
Commission determines that the labeling specified by section 2(p) of 
the FHSA is not adequate to protect the public health and safety in 
view of the special hazard presented by that substance.
    Section 2(q)(1)(B) of the FHSA, 15 U.S.C. 1261(q)(1)(B), authorizes 
the Commission to issue a rule banning a hazardous substance intended 
for use in the household if the Commission determines that, 
notwithstandinq any labeling which is or could be required by the FHSA, 
the degree or nature of the hazard is so great that protection of the 
public health and safety can be adequately served only by keeping the 
product out of channels of interstate commerce. A banning rule issued 
under section 2(q)(1)(B) of the FHSA could take the form of a 
conditional ban: That is, a rule banning all multi-purpose lighters 
that do not meet certain performance or design requirements specified 
in the rule.
    3. The Poison Prevention Packaging Act. Sections 2, 3, and 5 of the 
PPPA, 15 U.S.C. 1471, 1472, and 1474, authorize the Commission to issue 
rules to require packaging that is ``significantly difficult'' for 
children younger than 5 years of age to open, or ``obtain a toxic or 
harmful amount'' from, any ``hazardous substance'' as that term is 
defined in the FHSA. To issue such a rule, the Commission must make and 
support findings that child-resistant packaging is required to protect 
children from serious personal injury or illness from ``handling, 
using, or ingesting'' the substance.
    A multi-purpose lighter meets the definition of the term 
``package'' set forth in section 2(3) of the PPPA, 15 U.S.C. 1471(3), 
because it is the ``immediate container'' of a hazardous substance. 
However, section 4(a) of the PPPA, 15 U.S.C. 1473(a), provides that, 
for the purpose of making any substance that is subject to requirements 
for child-resistant packaging available to elderly or handicapped 
persons, the manufacturer may package that substance in conventional 
packaging in one size, provided that (1) the substance is also supplied 
in child-resistant packaging; and (2) the conventional packaging is 
labeled with the statement ``This package for households without young 
children.''

D. Choice of Statute

    The Commission has preliminarily determined that the CPSA is the 
most appropriate statute to address risks of injury associated with 
multi-purpose lighters that can be operated by children. Those risks of 
injury arise because multi-purpose lighters are mechanical devices 
intended to produce flame and can be operated by children.
    The CPSA includes provisions authorizing the Commission to issue 
performance and labeling requirements applicable to multi-purpose 
lighters when such requirements are ``reasonably necessary'' to 
eliminate or reduce an unreasonable risk of injury associated with that 
product. This authority is suitable for issuing requirements to address 
hazards associated with young children starting fires with multi-
purpose lighters.
    The CPSA also authorizes the Commission to issue certification 
rules for products subject to a consumer product safety standard. Such 
rules may contain a prescribed testing program upon which the 
certificate of the manufacturer or private labeler is based. The 
effectiveness of the rule for multi-purpose lighters that is proposed 
elsewhere in this issue of the Federal Register depends in large part 
on the testing conducted by the manufacturer under the certification 
rule. It is possible that similar testing requirements could be 
promulgated under the authority of section 10(a) of the FHSA, 15 U.S.C. 
1269(a), that the Commission may issue ``regulations for the efficient 
enforcement'' of the FHSA. However, the authority of the CPSA is 
explicit in this regard and, thus, is preferable.
    The Commission has preliminarily determined that a stockpiling rule 
is in the public interest because it will help ensure the effectiveness 
of any standard for multi-purpose lighters. Neither the FHSA or the 
PPPA explicitly authorizes such a rule.
    The FHSA includes provisions that authorize the Commission to 
require special labeling for, and in some circumstances to ban, a 
household product that contains or consists of a ``hazardous 
substance.'' The FHSA authorizes the Commission to regulate multi-
purpose lighters because they are containers of lighter fuel, which is 
a ``hazardous substance'' as that term is defined in the FHSA. However, 
no provision of the FHSA expressly authorizes the Commission to address 
a hazard that is associated with the mechanical operation of a multi-
purpose lighter as a flame-producing device. The changes needed to 
reduce the risk of child-play fires also involve the mechanical 
characteristics of the lighter's operating mechanism. Thus, the CPSA is 
a more appropriate statute for regulating the mechanical risk of child 
resistance.
    Under the PPPA, the Commission may issue a rule requiring the 
``package''--that is, the multi-purpose lighter--to be ``significantly 
difficult'' for children younger than 5 years of age ``to open or 
obtain a toxic or harmful amount of the substance contained

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therein.'' However, the ability of young children ``to open'' the 
multi-purpose lighter or ``obtain a toxic or harmful amount'' of the 
fuel in the multi-purpose lighter is not the risk of injury associated 
with multi-purpose lighters that is under consideration by the 
Commission. Rather, it is the risk of death and injury from fires 
started by children with multi-purpose lighters. This risk arises from 
the mechanical operation of the multi-purpose lighter, and from the 
ability of young children to manipulate the multi-purpose lighter to 
produce a flame.
    Additionally, the PPPA allows the manufacturer of a substance 
subject to special-packaging requirements to use packaging that is not 
child-resistant if (1) the substance is also distributed in child-
resistant packages and (2) the packages that are not child resistant 
are labeled ``This package for households without young children.'' 
This provision, by allowing the marketing of non-child-resistant multi-
purpose lighters of the types covered by the rule, could significantly 
impair the effectiveness of the rule to reduce the risk of injury.
    Therefore, for the reasons given above, the Commission is proposing 
a rule that would determine that it is in the public interest to 
regulate under the CPSA any risks of injury associated with the fact 
that multi-purpose lighters can be operated by young children. If 
issued, this finding will be codified at 16 CFR 1145.17. The Commission 
proposes that any final rule shall become effective immediately upon 
its publication in the Federal Register. 5 U.S.C. 553(d)(3). (There is 
a proposed 1-year delayed effective date for the safety standard 
itself.)
    Section 30(d) of the CPSA provides that the comment period cannot 
exceed 30 days for a rule finding that it is in the public interest to 
regulate under the CPSA rather than another act. 15 U.S.C. 2079(d). 
Accordingly, comments should be received by the Commission by October 
30, 1998.

D. Impact on Small Entities

    The Regulatory Flexibility Act (``RFA''), 5 U.S.C. 603, requires 
agencies to prepare and make available for public comment an initial 
regulatory flexibility analysis of the impact of any proposed rule on 
small entities, including small businesses. A final regulatory analysis 
is required when a final rule is issued. 5 U.S.C. 604. The RFA further 
provides, however, that an agency is not required to prepare a 
regulatory flexibility analysis if the agency certifies that the rule 
will not have a significant economic impact on a substantial number of 
small entities. 5 U.S.C. 605(b). The regulation issued below does not 
by itself impose any legal or other obligation on any person or firm. 
The rule would simply express the Commission's determination that any 
action taken to eliminate or reduce risks of injury associated with 
multi-purpose lighters that can be operated by children will be taken 
under the authority of the CPSA rather than the FHSA or the PPPA. In 
issuing the safety standard for multi-purpose lighters, the Commission 
will follow all applicable provisions of the CPSA. The provisions of 
the RFA also apply to the safety standard, and the Commission has 
prepared an initial certification that the Safety Standard for Multi-
Purpose Lighters, if issued, will not have a significant economic 
impact on a substantial number of small entities. However, because a 
final rule under section 30(d) of the CPSA would impose no obligation 
on any person or firm, the Commission hereby certifies that the 30(d) 
rule, if issued, will not have a significant economic impact on a 
substantial number of small entities.

F. Environmental Considerations

    The rule proposed below falls within the categories of Commission 
action described in 16 CFR 1021.5(c) as having little or no potential 
for affecting the human environment, and the Commission has no 
information that would indicate otherwise. Therefore, neither an 
environmental assessment nor an environmental impact statement is 
required.

G. Conclusion

    After consideration of the information discussed above, the 
Commission finds that if regulatory action is needed to address risks 
of injury associated with multi-purpose lighters due to the fact that 
they can be operated by children, it is in the public interest to 
regulate such risks under the CPSA rather than the FHSA or the PPPA. 
This determination does not affect other hazards associated with multi-
purpose lighters, such as that some lighters are subject to FHSA 
labeling because the lighters contain fuel that is flammable or toxic 
or generates pressure. Provisions of the FHSA and the PPPA authorize 
the Commission to address risks of injury associated with the fuel 
contained within a multi-purpose lighter because the fuel is a 
``hazardous substance'' as that term is defined by the FHSA. However, a 
multi-purpose lighter is more than a container or a package of a 
hazardous substance. It is a device that incorporates a mechanism for 
igniting the fuel and is intended to be operated to produce a flame. 
The Commission determines that the provisions of the CPSA are the most 
appropriate to address risks of injury associated with a mechanical 
device due to the fact that it can be operated by children to produce 
flame. The Commission also determines that it is in the public interest 
to regulate this risk associated with multi-purpose lighters under the 
CPSA because the certification and stockpiling provisions in the 
proposed rule are necessary to help ensure the effectiveness of the 
rule. Such provisions are most appropriate, and only explicitly 
available, under the CPSA.

List of Subjects in 16 CFR Part 1145

    Administrative practice and procedure, Consumer protection, Fire 
protection, Infants and children, Packaging and containers, Multi-
purpose lighters.

    For the reasons given above, the Commission amends Title 16, 
Chapter II, Subchapter B, of the Code of Federal Regulations as 
follows:

PART 1145--REGULATION OF PRODUCTS SUBJECT TO OTHER ACTS UNDER THE 
CONSUMER PRODUCT SAFETY ACT

    1. The authority citation for part 1145 is revised to read as 
follows:

    Authority: 15 U.S.C. 2079(d).

    2. A new Sec. 1145.17 is added to read as follows:


Sec. 1145.17  Multi-purpose lighters that can be operated by children; 
risks of death or injury.

    (a) The Commission finds that it is in the public interest to 
regulate under the Consumer Product Safety Act any risks of injury 
associated with the fact that multi-purpose lighters can be operated by 
young children, rather than to regulate such risks under the Federal 
Hazardous Substances Act or the Poison Prevention Packaging Act of 
1970.
    (b) Therefore, if the Commission finds regulation to be necessary, 
risks of death or injury that are associated with multi-purpose 
lighters because the lighters can be operated by young children shall 
be regulated under one or more provisions of the Consumer Product 
Safety Act. Other risks associated with such lighters, and that are 
based solely on the fact that the lighters contain a hazardous 
substance, shall continue to be regulated under the Federal Hazardous 
Substances Act.


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    Dated: September 25, 1998.
Sadye E. Dunn,
Secretary.
Consumer Product Safety Commission.
[FR Doc. 98-26170 Filed 9-29-98; 8:45 am]
BILLING CODE 6355-01-P