[Federal Register Volume 71, Number 14 (Monday, January 23, 2006)]
[Rules and Regulations]
[Pages 3418-3429]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 06-464]


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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.

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SUMMARY: This final rule amends requirements in the Hazardous Materials 
Regulations (HMR) pertaining to the examination, testing, 
certification, and transportation of lighters and lighter refills. This 
action will clarify regulatory requirements and, where appropriate, 
decrease the regulatory burden, while continuing to provide for the 
safe transportation of lighters and lighter refills in commerce.

DATES: Effective Date: The effective date of these amendments is 
January 1, 2007.

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.

[[Page 3419]]


SUPPLEMENTARY INFORMATION:

List of Topics

I. Background
II. Summary of Regulatory Changes and Analysis of Comments
III. Regulatory Analyses and Notices
    A. Statutory/Legal Authority for this Rulemaking
    B. Executive Order 12866 and DOT Regulatory Polices and 
Procedures
    C. Executive Order 13132
    D. Executive Order 13175
    E. Regulatory Flexibility Act, Executive Order 13272, and DOT 
Procedures and Policies
    F. Paperwork Reduction Act
    G. Regulation Identifier Number (RIN)
    H. Unfunded Mandates Reform Act
    I. Privacy Act
IV. List of Subjects

I. Background

    On August 16, 2004, the Research and Special Programs 
Administration (RSPA), the predecessor agency to the Pipeline and 
Hazardous Materials Safety Administration (PHMSA, we) issued a notice 
of proposed rulemaking (NPRM; 69 FR 50976) proposing to amend 
requirements in the Hazardous Materials Regulations (HMR; 49 CFR parts 
171-180) pertaining to the examination, testing, certification, and 
transportation of lighters and lighter refills. The purpose of the 
rulemaking is to clarify regulatory requirements and decrease 
regulatory burdens without compromising the safe transportation in 
commerce of lighters and lighter refills.
    We proposed: (1) Definitions for ``lighter'' and ``lighter refill'' 
based on the definition in regulations for lighters issued by the 
Consumer Product Safety Commission (CPSC); (2) revisions to the Sec.  
172.101 Hazardous Materials Table (HMT) to include separate entries for 
``lighters'' and ``lighter refills''; (3) adoption of 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); (4) revised approval procedures that permit 
lighter designs to be examined, tested and assigned a unique 
identification number by a qualified person authorized by PHMSA; (5) 
provisions for the transportation of lighter samples; and (6) revised 
packaging requirements for lighters and lighter refills.
    In the NPRM, we noted the CPSC denied a petition from the Lighter 
Association to require all lighters manufactured or imported into the 
United States conform to ASTM F-400. Instead, CPSC urged voluntary 
compliance with the standard. However, on November 30, 2004 CPSC voted 
to initiate development of a mandatory safety standard to prevent 
mechanical malfunction of lighters that could be based on the voluntary 
ASTM F-400. CPSC determined it was necessary to develop a mandatory 
safety standard to address safety concerns associated with reported 
incidents involving defective lighters.

II. Summary of Regulatory Changes and Analysis of Comments

    In response to the NPRM, we received seven comments from 
representatives of the domestic and international lighter industries, 
carrier trade associations, safety associations, and individual 
citizens. In this final rule, we discuss comments submitted to the 
docket, concerns raised by commenters, and the provisions of this final 
rule.

Section 171.8

    In the NPRM, we proposed to add definitions for ``lighter'' and 
``lighter refill'' in Sec.  171.8. The proposed definition for 
``lighter'' was based on the current definition found in the CPSC 
regulations, 16 CFR parts 1210 and 1212, the ASTM F400-00 Standard 
Consumer Safety Specification for Lighters, and the International 
Organization for Standardization's (ISO) 9994:1995(E) Lighters--Safety 
Specification. We proposed to define the term ``lighter'' to mean a 
mechanically operated flame-producing device that employs an ignition 
device, and contains a Division 2.1 liquefied gas fuel such as butane, 
isobutane, propane, or mixture thereof, where the vapor pressure of the 
Division 2.1 material exceeds a gauge pressure of 101.3 kPa (14.7 psia) 
at 20 [deg]C. The definition includes ``cigarette'' lighters and multi-
purpose lighters. A multi-purpose lighter is: (1) A utility lighter, 
that is, a lighter greater than four inches in length that may be used 
to light a fireplace or grill; (2) a micro torch or torch lighter or 
jet turbo lighter, that is, a high-intensity wind-resistant or wind-
proof style that has little or no visible flame that may or may not be 
operated in a hands-free mode; and (3) a portable soldering or brazing 
torch with self-contained fuel supply.
    One commenter is concerned that the definition of lighter does not 
include non-pressurized ``wick'' lighter styles containing absorbed or 
unabsorbed flammable liquid fuel. The commenter asserts that these 
devices are hazardous and should be classed and described as lighters 
when they are offered into transportation.
    The commenter is correct that, for purposes of the HMR, the 
proposed definition of ``lighter'' does not include non-pressurized 
(i.e., gauge vapor pressure of fuel not more than 34.5 kPa (5.0 psi) at 
24 [deg]C (75 [deg]F)) ``wick'' lighter styles containing absorbed or 
unabsorbed flammable liquid fuel. We agree that non-pressurized lighter 
styles pose a hazard when offered for transportation in a fueled 
condition. Therefore, in this final rule, we have modified the 
definition of ``lighter'' to mean a mechanically operated flame-
producing device employing an ignition device and containing a Class 3 
or Division 2.1 material. In addition we have added an entry to the HMT 
for ``Lighters, non-pressurized, containing flammable liquid, 3, 
NA1057, PG II.'' Under this final rule, non-pressurized wick type 
lighters containing flammable liquid fuel are forbidden in 
transportation unless the design has been approved for transportation 
by the Associate Administrator for Hazardous Materials Safety 
(Associate Administrator) under the conditions specified in Sec.  
172.102, Special Provision 168. In addition, in this final rule, we are 
clarifying in Special Provision 168 that a new or never filled lighter 
or one that is cleaned and purged of all its fuel or vapors is not 
subject to the HMR.
    In the NPRM, we proposed to define the term ``lighter refill'' to 
mean a pressurized container of not more than 4 fluid ounces capacity 
(7.22 cubic inches) and containing 65 grams of fuel or less that does 
not contain an ignition device but does contain a release device and is 
intended for use as a replacement cartridge in a lighter or to refill a 
lighter with a Division 2.1 (Flammable gas) fuel. The NPRM also 
included the proposed capacity limitations in Sec.  173.306.
    Commenters did not address the capacity limitations proposed for 
lighter refills transported in commerce. However, we determined that 
capacity limitations should not be included in the regulatory 
definition of ``lighter,'' but are more appropriately addressed in 
operational requirements applicable to their transportation. Therefore, 
in this final rule we are defining lighter refill in Sec.  171.8 to 
mean a pressurized container that does not contain an ignition device 
but does contain a release device and is intended for use as a 
replacement cartridge in a lighter or to refill a lighter with a 
Division 2.1 flammable gas fuel. The capacity limitations for lighter 
refills are specified in Sec.  173.306(h).

Section 172.101

    We are amending the note to paragraph (c)(11) by adding the words 
``lighter samples'' and by adding a

[[Page 3420]]

reference to Sec.  173.308(b)(2) for the transportation requirements 
applicable to lighter samples.
    We are finalizing changes to the Sec.  172.101 Hazardous Materials 
Table (HMT) for the shipping description ``Lighters or Lighter 
refills.'' Both ``Lighters'' and ``Lighter refills'' have the same 
United Nations (UN) identification number (UN 1057). However, the 
approval, special provisions, and packaging requirements are different 
for lighters and lighter refills and we are therefore separating the 
two articles in the HMT. To facilitate the transportation of lighters 
containing flammable liquid fuel, we are adding the entry ``Lighters, 
non-pressurized, containing flammable liquid, NA 1057.'' A lighter 
containing a flammable liquid fuel is excepted from examination and 
testing; however, a lighter containing a flammable liquid fuel must be 
specifically approved by the Associate Administrator. Unapproved 
lighters containing flammable liquids are forbidden in transportation 
(see Sec.  173.21).

Section 172.102

    Commenters did not address the revisions proposed in the NPRM to 
this section. Therefore, in this final rule, we are adopting the 
revisions. We are adding two new numerical special provisions, 168 and 
169, to specify what may be described under the description 
``lighters'' and ``lighter refills,'' respectively. Special Provision 
168 specifies that certain lighter designs must be examined and tested 
by a person authorized by the Associate Administrator. In addition, it 
references specific paragraphs in Sec.  173.308 for determining what 
constitutes a ``new'' lighter design, procedures for offering and 
transporting lighter samples for examination and testing, and provides 
transitional dates for the continued use of lighter design approvals 
issued by RSPA or PHMSA prior to October 1, 2006. Special Provision 168 
also specifies that a non-pressurized wick style lighter does not 
require examination and testing, but does require approval by the 
Associate Administrator to be offered for transportation or transported 
in commerce in a fueled condition. This design approval will specify 
the packaging and most appropriate shipping description for the device 
on a case-by-case basis. Finally, Special Provision 168 codifies our 
long-standing interpretation that a new or unused lighter or a lighter 
that is empty or purged of all fuel or vapors is not subject to the 
HMR.
    Special Provision 169 sets forth requirements for lighter refills 
that do not require approval (i.e., certification) under the HMR. A 
refill that exceeds 4 fluid ounces or contains more than 65 grams of 
fuel must be classed and described for the material contained therein, 
and may not be classed and described as a ``Lighter refill.''
    In addition, we are removing Special Provision N10 and relocating 
the packaging, marking, and shipping paper requirements for lighters to 
Sec.  173.308 (see preamble discussion under Sec.  173.308).

Section 173.6

    Based on a number of recent telephone and written inquiries to 
PHMSA, it appears that individuals in the lighter industry are unclear 
on the applicability of the materials of trade (MOTS) exception in 
Sec.  173.6 to lighters and lighter refills. While we do not believe 
that specific revisions to Sec.  173.6 are necessary, we offer the 
following clarification.
    Lighters and lighter refills are typically regulated as Division 
2.1 materials. The MOTS exception is limited to Division 2.1 and 2.2 
materials in cylinders with a gross weight not over 100 kg (220 pounds) 
or a permanently mounted tank manufactured to the ASME Code of not more 
than 70 gallon water capacity for a non-liquefied Division 2.2 material 
with no subsidiary hazard (Sec.  173.6(a)(2)). A cylinder is defined in 
Sec.  171.8 as a pressure vessel designed for pressures higher than 40 
psia and having a circular cross section. It does not include a 
portable tank, multi-unit tank car tank, cargo tank, or tank car. The 
primary packagings for lighters and lighter refills generally do not 
meet the definition of a cylinder. Therefore, lighters and lighter 
refills generally do not qualify for the MOTS exception in Sec.  173.6.

Section 173.21

    We are revising Sec.  173.21(i) to permit unapproved lighter design 
samples to be offered and transported to an examination and testing 
facility under certain conditions set forth in Sec.  173.308(b)(2). In 
addition, we are clarifying that lighters containing flammable liquid 
fuel are not authorized for transportation in the fueled condition 
unless they have been approved by the Associate Administrator. A new or 
never filled lighter or one that is cleaned and purged of all its fuel 
or vapors is not subject to the HMR.

Section 173.306

    In the proposed rule we did not include language to exclude lighter 
refills from the limited quantity exception for containers of not more 
than 4 fluid ounces capacity (7.22 cubic inches or less) in Sec.  
173.306(a)(1). It was our intent in the NPRM to require lighter refills 
to be shipped in accordance with the new paragraph in Sec.  173.306(h). 
Therefore, we are amending Sec.  173.306(a)(1) to exclude lighter 
refills.
    In Sec.  173.306, paragraph (h) is redesignated as paragraph (i), 
and a new paragraph (h) is added to prescribe requirements for lighter 
refills. Consequently, current paragraphs (i) and (j) are redesignated 
as paragraphs (j) and (k) respectively. We are requiring a lighter 
refill to conform to a volumetric capacity limit of 4 fluid ounces 
(7.22 cubic inches) and a net mass of 65 grams of fuel. Because they 
contain a release device, lighter refills may not be described as ``Gas 
cartridges (flammable) (UN2037).''
    Consistent with the UN Model Regulations, the International Civil 
Aviation Organization's Technical Instructions for the Safe Transport 
of Dangerous Goods by Air (ICAO Technical Instructions) and the 
International Maritime Organization's International Maritime Dangerous 
Goods Code (Amendment 32; IMDG Code), in the NPRM we proposed to 
require lighter refills to be packaged in outer packagings meeting the 
Packing Group II performance level. This specification packaging 
requirement is currently prescribed in the ICAO Technical Instructions 
for transport by aircraft and under the 13th Revised Edition of the UN 
Model Regulations and Amendment 32 of the IMDG Code (both effective 
January 1, 2005). Unless otherwise excepted, we proposed to require UN 
specification outer packaging for lighter refills transported by all 
modes under the HMR. We solicited comments on whether the requirement 
for PG II outer packagings for lighter refills was overly restrictive 
for shipments of lighter refills by highway and rail.
    One commenter believes the requirement for Packing Group II outer 
packagings for lighter refills is overly restrictive for highway 
transportation. The commenter states, ``Lighter refills 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. We understand the need to harmonize with 
international standards. However, we see no reason for the industry to 
bear the additional cost of testing and certifying to PG II when there 
is no known safety reason for such a change.''

[[Page 3421]]

    The current exceptions in the HMR applicable to lighter refills do 
not treat lighter refills as ORM-D as the comments suggests. Currently, 
lighter refills are listed in the hazardous materials table as 
``Lighter refills, 2.1, UN1057''. Column (8A) of the HMT provides no 
exceptions for lighter refills, and column (8B) refers to Sec.  173.308 
for packaging requirements. The packaging requirements do not include a 
provision to rename lighter refills as ``Consumer commodity, ORM-D.'' 
Thus, regardless of transport mode, lighter refills are not eligible 
for the exceptions under the ORM-D hazard class and may not be renamed 
``Consumer commodity.''
    We do agree, however, that the proposed requirement to package 
lighter refills in specification outer packagings for transportation by 
highway or rail is overly restrictive given the risks posed by such 
transportation. Therefore, in this final rule, non-specification outer 
packagings are authorized for lighter refills offered for 
transportation or transported by highway or rail as specified in Sec.  
173.306(h).
    In this final rule, in paragraph (h)(2), we continue to allow the 
current exception from Subparts C through H of Part 172 (i.e., shipping 
papers, marking, labeling, placarding, emergency response information, 
and training), and Part 177, for no more than 1,500 lighter refills 
carried aboard a transport vehicle (see discussion under Sec.  
173.308(e)). In addition, this exception allows the use of non-
specification outer packaging meeting the general requirements of 
Subpart B of Part 173.

Section 173.308

    We proposed in the NPRM revision of paragraph (a) to prescribe 
requirements for the design, capacity, and pressure capability of 
lighters so they are generally consistent with definitions in ASTM F-
400, ISO 9994, UN Model Regulations (Twelfth Revised Edition) and the 
current HMR. We proposed a volumetric capacity limit of 4 fluid ounces 
for lighters consistent with limited quantity requirements for 
compressed gases.
    One commenter suggests the volumetric capacity limit of 4 fluid 
ounces is too large. The commenter states, ``It is unclear to us why 
such a large capacity was selected. If the maximum fuel quantity is 
0.35 fluid ounces, the maximum fuel capacity for a lighter could be as 
low as 1 fluid ounce. We suppose that acetylene torches, hobby lighters 
or so-called micro-torches might have a fuel capacity of 4 fluid 
ounces. However, most conventional lighters and utility lighters have a 
capacity of 1 fluid ounce or less.''
    Although most conventional lighters and utility lighters do have a 
capacity of 1 fluid ounce or less, the capacity limit of 4 fluid ounces 
provides flexibility for a variety of alternative lighter designs. The 
capacity limit of 4 fluid ounces is consistent with the current 
requirement for limited quantities of compressed gases in Sec.  
173.306. The limit provides flexibility without compromising safety in 
transportation.
    In Sec.  173.308(a)(3), the HMR require a cigarette lighter or 
similar device, including closures, to be capable of withstanding 
without leakage or rupture an internal pressure of at least two times 
the vapor pressure of the fuel at 55 [deg]C (131 [deg]F). In addition, 
the HMR require each lighter design be subject to a leakage test (see 
Sec.  173.308(b)(3) of the regulatory text for actual test procedures). 
We solicited comments on whether the pressure test should be required, 
or if it should remain as a capability measure. We did not receive 
comments on this issue, and, therefore, we are maintaining the pressure 
test as a capability standard.
    In this final rule, we are adopting the provisions proposed in the 
NPRM to require lighters containing a Division 2.1 material to be 
examined and successfully tested in accordance with Sec.  173.308(a). 
After the effective date of this final rule, PHMSA will no longer 
approve lighter designs for Division 2.1 materials. Paragraph (a) 
specifies that a person who is qualified and authorized by the 
Associate Administrator under the provisions of subpart E of part 107 
as limited by the conditions specified in Sec.  173.308(a)(4) may 
examine and test a lighter design. Each authorized person will be 
assigned a unique identification code by PHMSA to examine and test 
lighter designs, and the identification code must appear on the test 
report with a unique test report identifier for each design tested. The 
new requirement permits testers to use the same unique design 
identifier that manufacturers register with CPSC, allowing for 
increased flexibility and less regulatory burden.
    In the NPRM, we invited comments on whether foreign entities should 
be allowed to examine and test lighter designs on behalf of the 
Competent Authority of the United States. Several commenters request 
amending the regulations to allow foreign entities to examine and test 
lighter designs on behalf of the Competent Authority of the United 
States. They suggest geographic location and citizenship have no 
bearing on transportation safety. They assert that any regulation that 
does not permit foreign examination of lighters initiates an 
unnecessary technical barrier to international trade.
    We disagree. According to the Lighter Association, approximately 
fifty percent of the lighters transported in the United States are 
imported. We have not been able to determine, and commenters have not 
furnished data, supporting that all foreign testing facilities possess 
the technical expertise and capability to adequately evaluate lighter 
designs. Further, we believe that oversight of approval agencies 
located in foreign countries is likely to present significant 
logistical hurdles to the agency due to resource limitations. 
Therefore, we would be unable to determine the adequacy of foreign 
testing facilities and thus, the appropriate level of safety. For these 
reasons, in this final rule, we are adopting paragraph (a)(4) as it was 
proposed. We will continue to evaluate this issue as the provisions of 
this final rule are implemented.
    In paragraph (b) we proposed to define a ``new'' lighter design 
type and prescribed the requirements under which a lighter design 
sample may be offered for transportation and transported for 
examination and testing. We invited comments on whether the definition 
of a ``new'' lighter design needed further clarification or if it was 
overly restrictive. One commenter suggests the definition of ``new'' 
lighter design type should be revised to be more specific. This 
commenter states lighters that use the same ignition mechanism and the 
same reservoir capacity to provide the same safety performance should 
be considered as the same design.
    We disagree. The definition does not require a lighter produced by 
a single manufacturer with the same ignition mechanism and same 
reservoir capacity as a previous design to be tested as a new design 
unless it was altered in a way that may affect the escape (leakage) of 
gas. To clarify, any lighter altered in a manner that does not affect 
the escape (leakage) of gas--labeling, color, texture, etc.--is not 
considered a ``new'' lighter design according to this definition. 
Consistent with CPSC policy, private labelers and distributors of such 
devices will not be required to maintain copies of test reports, 
provided no changes are made to a device that would affect the ability 
of the device to pass the specified tests. A private labeler is someone 
who might place an approved device in a gift set, or someone who places 
advertisement logos in the form of labels on an approved device for 
resale. We are adopting the definition of a ``new'' lighter design type 
as it was proposed.

[[Page 3422]]

    Paragraph (b) proposed that outer packagings for lighter samples 
must meet the requirements of Subpart M of Part 178 at the Packing 
Group I performance level. One commenter suggests the requirement for 
specification packaging at the Packing Group I performance level is not 
necessary for shipments of lighter samples. The commenter states 
lighter samples have historically been offered for transportation as 
Division 2.1 materials in Packing Group II outer packagings. This 
commenter asserts there have been no known incidents involving lighter 
samples offered into transportation for testing, and requests a 
revision to the packaging requirements for lighter samples to permit 
transport of lighters in Packing Group II outer packagings.
    We disagree. Historically, lighters, including lighter samples, 
were forbidden in transportation unless the device and inner packaging 
had been examined by the Bureau of Explosives and specifically approved 
by the Associate Administrator for Hazardous Materials Safety (Sec.  
173.21(i)). Unapproved lighter designs may not be capable of meeting 
the specific testing and approval requirements required by the HMR. 
Because the quality of an unapproved lighter is unknown, these lighters 
could pose a more significant hazard in transportation than lighter 
already approved. Therefore, in this final rule, we are adopting the 
packaging requirements for lighter samples as they were proposed.
    In the NPRM, we solicited comments on whether to incorporate by 
reference transportation-related portions of the ASTM and International 
Organization for Standardization (ISO) standards for lighters, thereby 
making compliance mandatory, or to include them in the HMR as suggested 
methods by which the performance standard may be met. We also solicited 
comments on whether the leakage test currently required by the HMR is 
overly restrictive or unnecessary or whether the same level of safety 
can be achieved by requiring the elevated temperature and sealed fluid 
fuel reservoir leakage tests prescribed in the ASTM and ISO standards 
for lighters.
    Some commenters support the adoption of the ASTM/ISO tests for 
lighters. They state the ASTM/ISO standards provide for an adequate 
level of safety. Other commenters state the current testing required by 
the HMR provides an adequate level of safety for the storage and 
transportation of lighters. They also note certain parts of the ASTM/
ISO test would not be applicable to transportation (e.g., flame height 
measurement and compatibility).
    The Lighter Association, Inc. submitted the following comment:

    The association has carefully reviewed the proposed gas leakage 
test at proposed Part 173.308(b)(3). Based upon our initial testing, 
the proposed test is not workable because it does not account for 
the absorption of moisture into the plastic bodies of lighters. When 
placed in an oven for 96 hours at 100 degrees F, the weight loss 
from the burning off or evaporation of this moisture easily exceeds 
20 mg. Moreover, placing the lighters in a dessicator for 24 hours 
does not appear to resolve this problem. Second, we do not believe 
that 100 degrees F is sufficiently high to reflect real world 
transportation conditions. We believe that a temperature in the 
range of 120 degrees F or higher is going to be necessary to reflect 
transportation conditions. Third, we suspect that 20 mg is too low 
at the higher temperatures that we are considering. Accordingly we 
are requesting an opportunity to conduct further testing and to come 
back to the agency no later than March 15, 2005 with a new, more 
rigorous, elevated temperature test.

    We have taken these comments into consideration and have determined 
that we do not have sufficient data at this time to warrant a change to 
the current testing requirements for lighters. We believe that the 
current testing requirements may be improved to more accurately 
represent transportation conditions. However, we are not convinced the 
ASTM/ ISO testing requirements for lighters provide a satisfactory 
alternative. In this final rule, we are maintaining current testing 
requirements for lighter designs and their inner packagings; however, 
we encourage persons to submit data, statistics, or alternative test 
methods for further review. We will continue to evaluate this issue, 
and, if necessary, may consider alternative testing procedures for 
lighters in a future rulemaking. In this final rule, we are maintaining 
the current leakage test requirement for lighter samples and we are 
incorporating the test procedure as proposed in Sec.  173.308(b)(3).
    In this final rule, paragraph (c) is amended to provide specific 
packaging requirements for lighters. Lighters must be placed in an 
inner packaging designed to prevent movement of the lighters and 
inadvertent ignition or leakage. In addition, the ignition device and 
gas control lever of each lighter must be designed, or securely sealed, 
taped, or otherwise fastened or packaged to protect against accidental 
functioning. The lighters must then be placed in an authorized outer 
packaging at the Packing Group II performance level.
    Paragraph (d) prescribes the shipping paper and package marking 
requirements for lighters. Consistent with the current shipping paper 
and marking requirements in the HMR--which require packages of lighters 
to be marked and shipping papers to be annotated with the approval 
number assigned by PHMSA--in this final rule, we are requiring the 
identification code and test report identifier to be annotated on a 
shipping paper, in association with the basic description, and marked 
on a package, for all designs contained therein. The shipping paper 
notation and package marking requirements will enable enforcement 
personnel to identify the person who tested and approved the lighters 
for transportation should they identify a problem with the shipment. In 
addition, for transportation by vessel, a closed transport vehicle or 
closed freight container must be marked with the warning statement as 
currently required by the HMR, as currently required.
    In paragraph (e) we proposed in the NPRM to continue to allow the 
current exception from Subparts C through H of Part 172, and Part 177, 
for no more than 1,500 lighters carried aboard a transport vehicle by 
highway. The exception allows the use of non-specification outer 
packaging meeting the general requirements of Subpart B of Part 173. 
This paragraph does not, however, contain an exception from marking the 
test report identifier on the outer package because of the potential 
for transportation by common or contract carriage. We invited comments 
on whether this exception was necessary, no longer relevant, or if its 
use should be discontinued in the interest of safety.
    One commenter suggests that the requirement to mark the test report 
identifier on the outside of a package under the exception for 1,500 
lighters or less in Sec.  173.308(e)(1) should be removed. This 
commenter states, ``This requirement has always been problematic since 
typically persons transporting 1,500 lighters or less are distributors, 
who carry several different brands of lighters. They do not know when 
they order their boxes or plastic totes what lighters will be shipped 
in the outer packaging. Thus, they are faced with the dilemma of 
arbitrarily picking one T number, or putting several on the 
packaging.''
    We agree. However, under this exception, the test report identifier 
marking is the only information available to enforcement personnel and 
carriers to identify the types of lighters that are contained in a 
package and to ascertain whether the lighters have been examined in 
accordance with the HMR. Distributors should be aware of the test 
report identifiers for each design type in

[[Page 3423]]

their inventory. We agree that marking the outside of the packaging may 
impose an unnecessary burden on distributors; however, we still believe 
that some record of the test report identifiers for lighters 
transported in a package must be available to enforcement personnel and 
carriers during transportation. Therefore, as an alternative to marking 
the package, we are allowing a list of test report identifiers to be 
included inside, or attached to the outside of a package as a means of 
complying with the requirement.
    Another commenter is concerned the exception from the shipping 
paper requirement would make it difficult for the carrier to comply 
with the requirement for less than 1,500 lighters carried on a single 
transport vehicle. This commenter suggests that many carriers rely on 
the shipping papers to determine compliance with the hazmat 
regulations. The commenter suggests that a carrier that picks up 
multiple shipments from different shippers may not be aware that it has 
exceeded the 1,500 lighter limit.
    We disagree. The exception in Sec.  173.308(e)(1) still requires 
shippers to mark the outer packaging with the number of lighters 
contained in the package; thus, a carrier should know whether it has 
exceeded the 1,500 limit. Although we except shippers from the shipping 
paper requirements, a carrier may develop an agreement with its 
customers requiring them to provide the driver with information on the 
quantity of lighters that they are offering into transportation.
    One commenter suggests revisions to the exception in Sec.  
173.308(e)(1) requiring a person transporting lighters under that 
exception to be specifically informed of the requirements of that 
section. This commenter states it is unnecessary and burdensome to 
train drivers in aspects of Sec.  173.308(e)(1) that apply to shippers.
    We disagree. Under the exception, we are providing relief from the 
formal training requirements in Subpart H to Part 172. The requirement 
for training in Sec.  173.308(e)(1) simply requires persons who carry 
lighters in accordance with the exception to be informed of the 
requirements. To ensure safety and compliance it is necessary for both 
shippers and carriers to be informed of all of the exception 
requirements.
    Based on the lower level of risk posed by limited numbers of 
lighters, we are allowing additional exceptions for the private 
carriage of lighters in paragraph (e)(2). This exception allows 
lighters to be transported by private carriers in non-specification 
rigid outer packagings where the outer package contains 300 or fewer 
lighters. The total number of lighters that may be transported on a 
single vehicle is limited to a maximum of 1,500. These limits are based 
on current industry practice. In addition, the test report identifier 
is not required to be marked on the outer packaging.

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. As described in detail in this preamble, this 
final rule amends HMR requirements applicable to the transportation of 
lighters and lighter refills to provide increased flexibility to 
shippers and carriers while maintaining the level of safety provided in 
the current regulations.

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 revised definitions for ``lighters'' and 
``lighter refills'' are consistent with the definition used by CPSC and 
with definitions in the ASTM and ISO industry consensus standards. 
Consistent definitions will reduce confusion in the regulated community 
and promote voluntary compliance. In addition, the testing provisions 
adopted for lighters in this final rule are consistent with industry 
consensus standards, and the packaging requirements adopted for 
lighters and lighter refills are consistent with international 
transportation standards. Again, consistent requirements will provide 
additional flexibility, reduce confusion, and promote compliance, 
thereby enhancing transportation safety.
    In this final rule, PHMSA is revising requirements applicable to 
the approval of lighter designs for transportation. Currently, designs 
for lighters intended for transportation in commerce must be approved 
by PHMSA. We receive about 100 requests each year for lighter design 
approvals. Each submission costs an applicant about $175.50 for 
professional, clerical, and testing expenses. There is one testing 
laboratory currently authorized to support PHMSA's approval process. 
The laboratory tests the lighter design and provides the applicant with 
a test report. The applicant then submits the test report to PHMSA with 
its application for approval. We review the application and test report 
and issue an approval; this process may take two to three weeks to 
complete. Once this final rule is implemented, PHMSA will no longer 
approve lighter designs. Instead, PHMSA will authorize third parties to 
test lighter designs and certify compliance with HMR requirements, thus 
eliminating the two-to-three-week delay between completion of testing 
and issuance of an approval and reducing the industry's professional 
and clerical costs for obtaining an approval by about 50 percent. We 
expect that between 10 and 20 laboratories will seek authorization to 
grant lighter design approvals. The increased number of available 
testing facilities may result in reductions in the costs associated 
with performing the required tests.
    In addition, this final rule excepts certain shipments from the 
specification packaging requirements of the HMR; these exception 
provisions will increase shipping options and reduce shipment costs. 
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 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

[[Page 3424]]

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 Sec.  
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. Rather, the final rule incorporates current approval 
procedures for the transportation of lighters and lighter refills into 
the HMR and provides additional flexibility for persons seeking to 
obtain such approval. In addition, the final rule excepts certain 
shipments from the specification packaging requirements of the HMR; 
these exception provisions will increase shipping options and reduce 
shipment costs. Overall, this final rule should reduce the compliance 
burden on the regulated industry without compromising transportation 
safety. 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 imposes no unfunded mandates and thus does not 
impose unfunded mandates under the Unfunded Mandates Reform Act of 
1995.

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.

IV. List of Subjects

49 CFR Part 171

    Exports, Hazardous materials transportation, Hazardous waste, 
Imports, Incorporation by reference, Reporting and recordkeeping 
requirements.

49 CFR Part 172

    Education, Hazardous materials transportation, Hazardous waste, 
Labeling, Markings, Packaging and containers, Reporting and 
recordkeeping requirements.

49 CFR Part 173

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


0
In consideration of the foregoing, 49 CFR chapter I is amended as 
follows:

PART 171--GENERAL INFORMATION, REGULATIONS, AND DEFINITIONS

0
1. The authority citation for part 171 continues to read as follows:

    Authority: 49 U.S.C. 5101-5127; 44701; 49 CFR 1.45 and 1.53; 
Pub. L. 101-410 section 4 (28 U.S.C. 2461 note); Pub. L. 104-134 
section 31001.

0
2. In Sec.  171.8, new definitions of ``lighter'' and ``lighter 
refill'' are added, in appropriate alphabetical sequence, to read as 
follows:


Sec.  171.8  Definitions and abbreviations.

* * * * *
    Lighter means a mechanically operated flame-producing device 
employing an ignition device and containing a Class 3 or a Division 2.1 
material. For design, capacity, and filling density requirements for 
lighters containing a Division 2.1 material, see Sec.  173.308.
    Lighter refill means a pressurized container that does not contain 
an ignition device but does contain a release device and is intended 
for use as a replacement cartridge in a lighter or to refill a lighter 
with a Division 2.1

[[Page 3425]]

flammable gas fuel. For capacity limits, see Sec.  173.306(h) of this 
subchapter.
* * * * *

0
3. In Sec.  171.11, in paragraph (d), a new paragraph (19) is added to 
read as follows:


Sec.  171.11  Use of ICAO Technical Instructions.

* * * * *
    (d) * * *
    (19) Lighters and lighter refills containing Division 2.1 or Class 
3 materials (see Sec.  171.8 of this subchapter) must conform to the 
requirements of this subchapter.

0
4. In Sec.  171.12, in paragraph (b), a new paragraph (23) is added to 
read as follows:


Sec.  171.12  Import and export shipments.

* * * * *
    (b) * * *
    (23) Lighters and lighter refills containing Division 2.1 or Class 
3 materials (see Sec.  171.8 of this subchapter) must conform to the 
requirements of this subchapter.
* * * * *

0
5. In Sec.  171.12a, in paragraph (b), a new paragraph (21) is added to 
read as follows:


Sec.  171.12a  Canadian shipments and packagings.

* * * * *
    (b) * * *
    (21) Lighters and lighter refills containing Division 2.1 or Class 
3 materials (see Sec.  171.8 of this subchapter) must conform to the 
requirements of this subchapter.

PART 172--HAZARDOUS MATERIALS TABLE, SPECIAL PROVISIONS, HAZARDOUS 
MATERIALS COMMUNICATIONS, EMERGENCY RESPONSE INFORMATION, AND 
TRAINING REQUIREMENTS

0
6. The authority citation for part 172 continues to read as follows:

    Authority: 49 U.S.C. 5101-5127; 49 CFR 1.53.

0
7. In Sec.  172.101, in paragraph (c)(11), the Note to paragraph 
(c)(11) is revised to read as follows:


Sec.  172.101  Purpose and use of hazardous materials table.

* * * * *
    (c) * * *
    (11) * * *
    Note to Paragraph (c)(11): For the transportation of samples of 
self-reactive materials, organic peroxides, explosives or lighters, see 
Sec. Sec.  173.224(c)(3), 173.225(c)(2), 173.56(d) or 173.308(b)(2) of 
this subchapter, respectively.
* * * * *

0
8. In Sec.  172.101, the Hazardous Materials Table is amended to read 
as follows:

[[Page 3426]]



                                                                            Sec.   172.101. Hazardous Materials Table
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
              Hazardous                                                                            (8)  Packaging (Sec.   173.***)       (9)  Quantity limitations        (10)  Vessel stowage
              materials                                                                         ------------------------------------------------------------------------------------------------
 Symbols     descriptions   Hazard class or  Identification    PG      Label        Special
              and proper        division          Nos.                 codes       provisions    Exceptions   Non-bulk      Bulk        Passenger     Cargo air-craft   Location       Other
            shipping names                                                                                                            aircraft/rail         only
(1)        (2)............  (3)............  (4)...........  (5)...  (6)......  (7)............  (8A)......  (8B)......  (8C)......  (9A)...........  (9B)...........  (10A).....  (10B)
----------
           (REMOVE).......
 
                                                                                          * * * * * * *
           Lighter
            replacement
            cartridges
            containing
            liquefied
            petroleum
            gases (and
            similar
            devices, each
            not exceeding
            65 grams). See
            Lighters or
            Lighter
            refills etc.
            containing
            flammable gas.
 
                                                                                          * * * * * * *
           Lighters or
            Lighter
            refills
            containing
            flammable gas.
 
                                                                                          * * * * * * *
           (ADD)..........
 
                                                                                          * * * * * * *
           Lighters         2.1............  UN1057........  ......  2.1......  168............  21,308....  21,308....  None......  1 kg...........  15 kg..........  B.........  40
            containing
            flammable gas.
           Lighters, new    ...............  ..............  ......  .........  168............
            or empty,
            purged of all
            residual fuel
            and vapors.
           Lighters, non-   3..............  NA1057........  II....  3........  168............  21........  None......  None......  Forbidden......  Forbidden......  B.........  40
            pressurized,
            containing
            flammable
            liquid,.
           Lighter refills  2.1............  UN1057........  ......  2.1......  169............  306.......  306.......  None......  1 kg...........  15 kg..........  B.........  40
            containing
            flammable gas
            not exceeding
            4 fluid ounces
            (7.22 cubic
            inches) and 65
            grams of
            flammable gas.
           Lighter
            replacement
            cartridges
            containing
            liquefied
            petroleum
            gases see
            Lighter
            refills
            containing
            flammable gas.
            Etc.
 
                                                                                          * * * * * * *
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------


[[Page 3427]]

* * * * *


Sec.  172.102  [Amended]

0
9. In Sec.  172.102, the following changes are made:
0
a. In paragraph (c)(1), new Special Provisions 168 and 169 are added.
0
b. In paragraph (c)(5), Special Provision N10 is removed.
    The additions read as follows:


Sec.  172.102  Special provisions.

* * * * *
    (c) * * *
    (1) * * *
* * * * *
    168 For lighters containing a Division 2.1 gas (see Sec.  171.8 of 
this subchapter), representative samples of each new lighter design 
must be examined and successfully tested as specified in Sec.  
173.308(b)(3). For criteria in determining what is a new lighter 
design, see Sec.  173.308(b)(1). For transportation of new lighter 
design samples for examination and testing, see Sec.  173.308(b)(2). 
The examination and testing of each lighter design must be performed by 
a person authorized by the Associate Administrator under the provisions 
of subpart E of part 107 of this chapter, as specified in Sec.  
173.308(a)(4). For continued use of approvals dated prior to January 1, 
2012, see Sec.  173.308(b)(5).
    For non-pressurized lighters containing a Class 3 (flammable 
liquid) material, its design, description, and packaging must be 
approved by the Associate Administrator prior to being offered for 
transportation or transported in commerce. In addition, a lighter 
design intended to contain a non-pressurized Class 3 material is 
excepted from the examination and testing criteria specified in Sec.  
173.308(b)(3). An unused lighter or a lighter that is cleaned of 
residue and purged of vapors is not subject to the requirements of this 
subchapter.
    169 This entry applies to lighter refills (see Sec.  171.8 of this 
subchapter) that contain a Division 2.1 (flammable) gas but do not 
contain an ignition device. Lighter refills offered for transportation 
under this entry may not exceed 4 fluid ounces capacity (7.22 cubic 
inches) or contain more than 65 grams of fuel. A lighter refill 
exceeding 4 fluid ounces capacity (7.22 cubic inches) or containing 
more than 65 grams of fuel must be classed as a Division 2.1 material, 
described with the proper shipping name appropriate for the material, 
and packaged in the packaging specified in part 173 of this subchapter 
for the flammable gas contained therein. In addition, a container 
exceeding 4 fluid ounces volumetric capacity (7.22 cubic inches) or 
containing more than 65 grams of fuel may not be connected or 
manifolded to a lighter or similar device and must also be described 
and packaged according to the fuel contained therein. For 
transportation by passenger-carrying aircraft, the net mass of lighter 
refills may not exceed 1 kg per package, and, for cargo-only aircraft, 
the net mass of lighter refills may not exceed 15 kg per package. See 
Sec.  173.306(h) of this subchapter.
* * * * *

PART 173--SHIPPERS-GENERAL REQUIREMENTS FOR SHIPMENTS AND 
PACKAGINGS

0
10. The authority citation for part 173 continues to read as follows:

    Authority: 49 U.S.C. 5101-5127, 44701; 49 CFR 1.45, 1.53.

0
11. In Sec.  173.21, paragraph (i) is revised to read as follows:


Sec.  173.21  Forbidden materials and packages.

* * * * *
    (i) Except for a package containing a lighter design sample that 
meets the requirements of Sec.  173.308(b)(2), a package containing a 
lighter (see Sec.  171.8 of this subchapter) containing a Division 2.1 
material, of a design that has not been examined and successfully 
tested by an authorized person under the criteria specified in Sec.  
173.308(a)(4) or, a lighter design containing a Class 3 material, that 
has not been approved by the Associate Administrator.
* * * * *


Sec.  173.306  [Amended]

0
12. In Sec.  173.306, the following changes are made:
0
a. In paragraph (a)(1), in the first sentence, the wording ``cigarette 
lighters'' is removed and the wording ``lighter refills (see 171.8 of 
this subchapter)'' is added in its place. In the last sentence, the 
wording ``paragraph (h)'' is removed and the wording ``paragraph (i)'' 
is added in its place.
0
b. In paragraph (a)(3) introductory text, in the last sentence, the 
wording ``paragraph (h)'' is removed and the wording ``paragraph (i)'' 
is added in its place.
0
c. In paragraph (b) introductory text, in the last sentence, the 
wording ``paragraph (h)'' is removed and the wording ``paragraph (i)'' 
is added in its place.
0
d. Paragraph (i) is redesignated as paragraph (j), paragraph (h) is 
redesignated as paragraph (i), and a new paragraph (h) is added to read 
as follows:


Sec.  173.306  Limited quantities of compressed gases.

* * * * *
    (h) Lighter refills. (1) Lighter refills (see Sec.  171.8 of this 
subchapter) must not contain an ignition element but must contain a 
release device. Lighter refills offered for transportation under this 
section may not exceed 4 fluid ounces capacity (7.22 cubic inches) or 
contain more than 65 grams of a Division 2.1 fuel. For transportation 
by highway or rail, lighter refills must be tightly packed and secured 
against movement in strong outer packagings. For transportation by 
aircraft or vessel, lighter refills must be tightly packed and secured 
against movement in any rigid specification outer packaging authorized 
in Subpart L of Part 178 of this subchapter at the Packing Group II 
performance level.
    (2) Exceptions. For highway transportation, when no more than 1,500 
lighter refills covered by this paragraph are transported in one motor 
vehicle, the requirements of subparts C through H of part 172, and Part 
177 of this subchapter do not apply. Lighter refills covered under this 
paragraph must be packaged in rigid, strong outer packagings meeting 
the general packaging requirements of subpart B of this part. Outer 
packagings must be plainly and durably marked, on two opposing sides or 
ends, with the word ``LIGHTER REFILLS'' and the number of devices 
contained therein in letters measuring at least 20 mm (0.79 in) in 
height. No person may offer for transportation or transport the lighter 
refills or prepare the lighter refills for shipment unless that person 
has been specifically informed of the requirements of this section.
* * * * *

0
13. Section 173.308 is revised to read as follows:


Sec.  173.308  Lighters.

    (a) General requirements. No person may offer for transportation or 
transport a lighter (see Sec.  171.8 of this subchapter) containing a 
Division 2.1 (flammable gas) material except under the following 
conditions:
    (1) The lighter must contain a fuel reservoir not exceeding 4 fluid 
ounces capacity (7.22 cubic inches), and must contain not more than 10 
grams (0.35 ounce) of flammable gas.
    (2) The maximum filling density may not exceed 85 percent of the 
volumetric capacity of each fluid reservoir at 15 [deg]C (59 [deg]F).
    (3) Each lighter design, including closures, must be capable of 
withstanding, without leakage or

[[Page 3428]]

rupture, an internal pressure of at least two times the pressure of the 
flammable gas at 55 [deg]C (131 [deg]F).
    (4) Each appropriate lighter design must be examined and 
successfully tested by a person or agency (authorized testing agency) 
who is authorized by the Associate Administrator to perform such 
examination and testing under the provisions of subpart E of part 107 
of this chapter and who--
    (i) Has the equipment necessary to perform the testing required to 
the level of accuracy required;
    (ii) Is able to demonstrate, upon request, the knowledge of the 
testing procedures and requirements of the HMR relative to lighters;
    (iii) Does not manufacture or market lighters, is not financially 
dependent or owned in whole or in part, by any entity that manufactures 
or markets lighters;
    (iv) Is a resident of the United States; and
    (v) Performs all examination and testing in accordance with the 
requirements of paragraph (b)(3) and (4) of this section.
    (5) The Associate Administrator will assign an identification code 
to each person who is authorized to examine and test lighters. This 
identification code must be incorporated into a unique test report 
identifier for each successfully tested lighter design.
    (b) Examination and testing of lighter design types. (1) Lighter 
design type definition. A new lighter design is one that has never been 
examined and tested or one that differs from a previous design in any 
manner that may affect the escape (leakage) of gas. Lighter 
characteristics that may affect the escape of gas include changes in 
materials of construction, ignition mechanism, burner valve design, 
wall thickness, sealing materials, and type of fuel (e.g., vapor 
pressure differences).
    (2) Lighter samples submitted for examination and testing. Samples 
of a new lighter design are excepted from the requirements of (a)(4) 
and (d) of this section and may be offered for transportation and 
transported under the following conditions:
    (i) The samples must be transported only to an authorized testing 
agency;
    (ii) No more than 12 lighters may be packaged in a single outer 
packaging;
    (iii) Inner packagings must conform to the requirements of 
paragraph (c)(1) of this section. For transportation by aircraft, 
intermediate or outer packagings must meet the pressure differential 
requirements of Sec.  173.27(c) of this part;
    (iv) The outer packaging must conform to the requirements of 
Subpart M of Part 178 of this subchapter at the Packing Group I 
performance level and to the requirements of Sec.  173.24 of this 
subpart;
    (v) The word ``sample'' must appear on the shipping paper as part 
of the proper shipping name or in association with the basic 
description; and
    (vi) In addition to other required markings and labels, the package 
must be marked ``SAMPLE FOR EXAMINATION AND TESTING.''
    (vii) All other applicable requirements of this subchapter must be 
met.
    (3) Examination and testing of sample lighters by an authorized 
testing agency. Each sample lighter must be examined for conformance 
with paragraph (a) of this section by a person authorized by the 
Associate Administrator. In addition, lighters must be subjected to the 
following leakage test:
    (i) A minimum of six lighters must be examined and tested at one 
time. Store the lighters in a desiccator for 24 hours. After drying, 
weigh each lighter on an analytical balance capable of accurately 
measuring to within \1/10\ of a milligram (0.0001 grams).
    (ii) After weighing, place the lighters together in an explosion-
proof, controlled-temperature laboratory oven capable of maintaining 
38.7 1 [deg]C (100 3 [deg]F) for 96 continuous 
hours (4 days). At the end of 96 hours, remove the lighters from the 
oven and place them in the same desiccator and allow the lighters to 
cool to ambient temperature.
    (iii) After cooling, weigh each lighter and determine the net 
weight differences for each lighter tested (subtract the mass after 
oven exposure from the original mass before oven exposure).
    (iv) Weight losses must be assessed to determine the quantity of 
gas that leaked from the lighters and from the weight change as a 
result of absorbed moisture. If the net weight has increased, the test 
facility must run the required test using six empty lighters in 
parallel with the six filled lighters. The parallel tests are conducted 
to determine the weight of moisture absorbed in the plastic in order to 
determine the weight loss of the lighters from gas leakage.
    (v) If the net weight loss for any one of the six lighters exceeds 
20 milligrams (0.020 grams), the design must be rejected.
    (vi) Lighters manufactured to a rejected lighter design may not be 
offered for transportation or transported in commerce unless approved 
in writing by the Associate Administrator.
    (4) Recordkeeping requirements. (i) Following the examination of 
each new lighter design, the person or agency that conducted the 
examination and test must prepare a test report and make that test 
report available to the manufacturer. At a minimum, the test report 
must contain the following information:
    (A) Name and address of test facility;
    (B) Name and address of applicant;
    (C) A test report identifier, that is, the authorized person or 
agency identifier code immediately followed by an alpha/numeric 
identifier of four or more characters assigned to the specific lighter 
design by the authorized person or agency (e.g., ``LAA****,'' where, 
``LAA'' is the identification code assigned to the authorized person or 
agency by the Associate Administrator and ``****'' is replaced with the 
unique test report identifier assigned to the specific lighter design 
by the authorized person or agency);
    (D) Manufacturer of the lighter. For a foreign manufacturer, the 
U.S. agent or importer must be identified;
    (E) Description of the lighter design type (e.g., model, 
dimensions, ignition mechanism, reservoir capacity, lot/batch number) 
in sufficient detail to ensure conformance with paragraph (b)(4)(iii) 
of this section; and
    (F) A certification by the authorized testing agency that the 
lighter design conforms to paragraph (a) of this section and passes or 
does not pass the required leakage test in paragraph (b) of this 
section.
    (ii) For as long as any lighter design is in production and for at 
least three years thereafter, a copy of each lighter's test report must 
be maintained by the authorized testing agency that performed the 
examination and testing and the manufacturer of the design. For a 
foreign manufacturer, each test report must be maintained in accordance 
with this paragraph by the foreign manufacturer's U.S. agent or 
importer.
    (iii) Test reports must be traceable to a specific lighter design 
and must be made available to a representative of the Department upon 
request.
    (5) Transitional provisions. Until January 1, 2012, approval 
numbers issued by the Associate Administrator prior to January 1, 2007 
may continue to be marked on packages and annotated on shipping papers, 
where applicable. After that time, previously issued approvals (i.e., 
T-***) will no longer be valid and each lighter design currently in 
production must be re-examined and tested under the provisions of this 
section.
    (c) Packaging requirements. (1) Inner containment. Lighters must be 
placed in an inner packaging that is designed to prevent movement of 
the lighters and inadvertent ignition or leakage. The ignition device 
and gas control lever of each lighter must be designed, or

[[Page 3429]]

securely sealed, taped, or otherwise fastened or packaged to protect 
against accidental functioning or leakage of the contents during 
transport. If lighters are packed vertically in a plastic tray, a 
plastic, fiberboard or paperboard partition must be used to prevent 
friction between the ignition device and the inner packaging.
    (2) Outer packaging. Lighters and their inner packagings must be 
tightly packed and secured against movement in any rigid specification 
outer packaging authorized in Subpart L of Part 178 of this subchapter 
at the Packing Group II performance level.
    (d) Shipping paper and marking requirements. (1) In addition to the 
requirements of subpart C of part 172, shipping papers must be 
annotated with the lighter design test report identifier (see paragraph 
(b)(4)(i)(C) of this section) traceable to the test report assigned to 
the lighters or, if applicable, the previously issued approval number 
(i.e., T***), in association with the basic description.
    (2) In addition to the requirements of subpart D of part 172, a 
lighter design test report identifier (see paragraph (b)(4)(i)(C) of 
this section) or, if applicable, the previously issued approval number 
(i.e., T***), must be marked on a package containing lighters.
    (3) For transportation by vessel in a closed transport vehicle or a 
closed freight container, the following warning must be affixed to the 
access doors:
WARNING--MAY CONTAIN EXPLOSIVE MIXTURES WITH AIR--KEEP IGNITION SOURCES 
AWAY WHEN OPENING
    The warning must be on a contrasting background and must be in 
letters measuring at least 12.7 mm (0.5 inch) in height.
    (e) Exceptions. (1) Common or contract carriage. For highway 
transportation by common or contract carrier, when no more than 1,500 
lighters covered by this section are transported in one motor vehicle, 
the requirements of subparts C through H of part 172, and Part 177 of 
this subchapter do not apply. Lighters transported in accordance with 
this paragraph are also excepted from the specification packaging, 
shipping paper, and marking requirements specified in Sec. Sec.  
173.308(c) and (d). Inner packagings must conform to paragraph (c)(1) 
of this section. Lighters must be further packaged in rigid, strong 
outer packagings meeting the general packaging requirements of subpart 
B of part 173. Outer packagings must be plainly and durably marked, on 
two opposing sides or ends, with the word ``LIGHTERS'' and the number 
of devices contained therein in letters measuring at least 20 mm (0.79 
in) in height. In addition, the package must include the test report 
identifier for each lighter design as specified in paragraph 
(b)(4)(i)(C) of this section or, if applicable, the previously issued 
approval number (i.e., T***). The test report identifier or approval 
number must be durable, legible, in English, and located in, attached 
to, or marked directly on the package. No person may offer for 
transportation or transport the lighters or prepare the lighters for 
shipment unless that person has been specifically informed of the 
requirements of this section.
    (2) Private carriage. For highway transportation by a private 
carrier, lighters that have been examined and successfully tested in 
accordance with this section are not subject to any other requirements 
of this subchapter under the following conditions:
    (i) No person may offer for transportation or transport the 
lighters or prepare the lighters for shipment unless that person has 
been specifically informed of the requirements of this section;
    (ii) Lighters must be placed in an inner packaging that is designed 
to prevent accidental activation of the ignition device or valve, 
release of gas, and movement of the lighters (e.g., tray, blister pack, 
etc.);
    (iii) Inner packagings must be placed in a securely closed rigid 
outer packaging that limits movement of the inner packagings and 
protects them from damage;
    (iv) The outer package may contain not more than 300 lighters;
    (v) A transport vehicle may carry not more than 1,500 lighters at 
any one time;
    (vi) The lighters may not be placed in an outer packaging with 
other hazardous materials; and
    (vii) Outer packagings must be plainly and durably marked with the 
words ``LIGHTERS, excepted quantity.''

    Authority: 49 CFR part 1.

    Issued in Washington, DC, on January 11, 2006.
Brigham A. McCown,
Acting Administrator.
[FR Doc. 06-464 Filed 1-20-06; 8:45 am]
BILLING CODE 4910-60-P