[Federal Register Volume 64, Number 245 (Wednesday, December 22, 1999)]
[Rules and Regulations]
[Pages 71883-71885]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-32678]



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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: Final rule.

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SUMMARY: Elsewhere in this issue of the Federal Register, the 
Commission issues 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 final rule the 
Commission determines, 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: This rule is effective January 21, 2000.

ADDRESSES: Copies of documents relevant to this rulemaking can be 
obtained from the Office of the Secretary, Consumer Product Safety 
Commission, Washington DC 20207-0001, Telephone (301)504-0800, fax 
(301) 504-504-0127, email [email protected].

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

SUPPLEMENTARY INFORMATION:

A. Introduction

    The Commission determines 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 issues a rule under the CPSA that will impose child-
resistance requirements on multi-purpose lighters. Information on the 
safety hazards associated with the use of multi-purpose lighters by 
young children, and on other aspects relating to the need for and 
provisions of the Safety Standard for Multi-Purpose Lighters can be 
found in the portion of this issue of the Federal Register that issues 
the standard.
    As discussed below, 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.
    In the rule issued elsewhere in this issue of the Federal Register, 
to be codified at 16 CFR 1212.2, multi-purpose lighters are defined as 
follows:
    (a)(1) Multi-purpose lighter, (also known as grill lighter, 
fireplace lighter, utility lighter, micro-torch, or gas match, etc.) 
means: A hand-held, flame-producing product that operates on fuel, 
incorporates an ignition mechanism, 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, or for uses such as soldering or brazing. 
Some multi-purpose lighters have a feature that allows for hands-free 
operation.
    (2) The following products are not multi-purpose lighters:
    (i) Devices intended primarily for igniting cigarettes, cigars, and 
pipes, whether or not such devices are subject to the requirements of 
the Safety Standard for Cigarette Lighters (16 CFR part 1210).
    (ii) Devices containing more than 10 oz. of fuel.
    (iii) Matches.

B. Choice of Statute

    Of the statutes administered by the CPSC, the CPSA, the FHSA, and 
the PPPA provide potential authority for a child-resistance requirement 
for multi-purpose lighters. The possible regulatory options include 
issuing a consumer product safety standard under the CPSA, a banning 
rule under 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 the PPPA.
    The risks of injury associated with multi-purpose lighters that can 
be operated by children 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.
    Part of the rule for multi-purpose lighters that is issued 
elsewhere in this issue of the Federal Register is a certification rule 
that requires the manufacturer or importer to conduct tests to ensure 
that the lighters comply with the safety requirements of the rule. This 
testing is necessary to ensure the effectiveness of the rule, because 
the complex and time-consuming child-panel tests in the standard make 
it impractical for the Commission to routinely test for compliance. 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 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.

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    The FHSA includes provisions that authorize the Commission to 
require special labeling for, and in some circumstances to ban, a 
household product that is or contains 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 therein.'' 
However, the ability of young children ``to open'' the fuel-containing 
portion of the multi-purpose lighter or ``obtain a toxic or harmful 
amount'' of the fuel are not the risks of injury associated with multi-
purpose lighters that the Commission is now addressing. 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.
    The Commission received one comment on the proposed rule to issue 
child-resistance requirements for multi-purpose lighters under the 
CPSA. BIC Corporation disagreed with the Commission's characterization 
of a multi-purpose lighter as a ``package'' for butane, as that term is 
used in the PPPA. BIC cited two court decisions that support its 
contention.
    The Commission has not changed its view that a lighter can be a 
package for the fuel it is sold with, and at least one court has agreed 
with this view. See Carlson v. BIC Corp., 840 F. Supp. 457, 467 (E.D. 
Mich. 1993). However, even if BIC were correct that multi-purpose 
lighters are not packages of butane under the PPPA, this simply would 
provide further support for the Commission's decision to regulate the 
risk arising from children's operation of these lighters under the 
CPSA. Thus, no change to the proposed rule is required in response to 
this comment.
    Therefore, for the reasons given above, the Commission is issuing a 
rule to 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. This finding will 
be codified at 16 CFR 1145.17. The rule shall become effective 
immediately upon its publication in the Federal Register. 5 U.S.C. 
553(d)(3). (There is a 1-year delayed effective date for the safety 
standard itself.)

C. Impact on Small Entities

    The Regulatory Flexibility Act (``RFA''), 5 U.S.C. 603-612, 
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 simply expresses the Commission's determination that any 
action taken to eliminate or reduce risks of injury associated with 
multi-purpose lighters due to the fact that they 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 followed all applicable provisions of the 
CPSA. The RFA also applies to the safety standard, and the Commission 
has certified that the Safety Standard for Multi-Purpose Lighters will 
not have a significant economic impact on a substantial number of small 
entities. Because this final rule under section 30(d) of the CPSA 
imposes no obligation on any person or firm, the Commission hereby 
certifies that this 30(d) rule will not have a significant economic 
impact on a substantial number of small entities.

D. Environmental Considerations

    The rule issued 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.

E. Conclusion

    After consideration of the information discussed above, the 
Commission finds that for any regulatory action 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.

List of Subjects in 16 CFR Part 1145

    Administrative practice and procedure, Consumer protection, Fire 
prevention, Infants and children, Packaging and containers.

    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

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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 that are 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.

    Dated: December 13, 1999.
Sadye E. Dunn,
Secretary, Consumer Product Safety Commission.
[FR Doc. 99-32678 Filed 12-21-99; 8:45 am]
BILLING CODE 6355-01-P