[Federal Register Volume 89, Number 84 (Tuesday, April 30, 2024)]
[Rules and Regulations]
[Pages 34102-34106]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-09299]
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CONSUMER PRODUCT SAFETY COMMISSION
16 CFR Part 1461
[Docket No. CPSC-2022-0017]
Portable Fuel Container Safety Act Regulation
AGENCY: Consumer Product Safety Commission.
ACTION: Direct final rule.
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SUMMARY: In August 2023, the Consumer Product Safety Commission (CPSC
or Commission) accepted ASTM F3429/F3429M-23 for prefilled portable
fuel containers as the mandatory standard under the Portable Fuel
Container Safety Act of 2020 (PFCSA). In January 2024, ASTM notified
the Commission that ASTM F3429/F3429M-23 had been revised. The
Commission has evaluated revised ASTM F3429/F3429M-24 and finds that
the revisions to the standard carry out the purposes of the PFCSA.
Accordingly, ASTM F3429/F3429M-24 will be incorporated into the
mandatory standard for portable fuel containers.
DATES: The rule is effective on July 27, 2024, unless CPSC receives a
significant adverse comment by May 30, 2024. If CPSC receives such a
comment, it will publish a notice in the Federal Register withdrawing
this direct final rule before its effective date. The incorporation by
reference of the publication listed in this rule is approved by the
Director of the Federal Register as of July 27, 2024.
ADDRESSES: You can submit comments, identified by Docket No. CPSC-2022-
0017, by any of the following methods:
Electronic Submissions: Submit electronic comments to the Federal
eRulemaking Portal at: www.regulations.gov. Follow the instructions for
submitting comments. Do not submit through this website: confidential
business information, trade secret information, or other sensitive or
protected information that you do not want to be available to the
public. CPSC typically does not accept comments submitted by email,
except as described below.
Mail/Hand Delivery/Courier/Confidential Written Submissions: CPSC
encourages you to submit electronic comments by using the Federal
eRulemaking Portal. You may, however, submit comments by mail, hand
delivery, or courier to: Office of the Secretary, Consumer Product
Safety Commission, 4330 East West Highway, Bethesda, MD 20814;
telephone: (301) 504-7479. If you wish to submit confidential business
information, trade secret information, or other sensitive or protected
information that you do not want available to the public, you may
submit such comments by mail, hand delivery, courier, or you may email
them to: [email protected].
Instructions: All submissions must include the agency name and
docket number. CPSC may post all comments without change, including any
personal identifiers, contact information, or other personal
information provided, to: www.regulations.gov. Do not submit to this
website: confidential business information, trade secret information,
or other sensitive or protected information that you do not want to be
available to the public. If you wish to submit such information, please
submit it according to the instructions for mail/hand delivery/courier/
confidential written submissions.
Docket: For access to the docket to read background documents or
comments received, go to: www.regulations.gov, and insert the docket
number, CPSC-2022-0017, into the ``Search'' box, and follow the
prompts.
FOR FURTHER INFORMATION CONTACT: Will Cusey, Small Business Ombudsman,
U.S. Consumer Product Safety Commission, 4330 East West Highway,
Bethesda, MD 20814; telephone (301) 504-7945 or (888) 531-9070; email:
[email protected].
SUPPLEMENTARY INFORMATION:
I. Background
The PFCSA \1\ requires the Commission to promulgate a final rule to
require flame mitigation devices (FMDs) in portable fuel containers
that impede the propagation of flame into the container. 15 U.S.C.
2056d(b)(1)-(2). However, the Commission is not required to promulgate
a final rule for a class of portable fuel containers within the scope
of the PFCSA if the Commission determines that:
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\1\ Portable Fuel Container Safety Act of 2020, codified at 15
U.S.C. 2056d, as stated Public Law 116-260, div. FF, title IX,
section 901, available at: www.govinfo.gov/content/pkg/PLAW-116publ260/pdf/PLAW-116publ260.pdf.
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there is a voluntary standard for flame mitigation devices
for those containers that impedes the propagation of flame into the
container;
[[Page 34103]]
the voluntary standard is or will be in effect not later
than 18 months after the date of enactment of the PFCSA; and
the voluntary standard is developed by ASTM International
or such other standard development organization that the Commission
determines to have met the intent of the PFCSA.
15 U.S.C. 2056d(b)(3)(A).
If the Commission determines that any voluntary standard meets
these requirements, it must publish the determination in the Federal
Register, and the requirements of such a voluntary standard ``shall be
treated as a consumer product safety rule.'' 15 U.S.C. 2056d(b)(4).
Under this authority, on January 13, 2023, the Commission published a
notice determining that three voluntary standards for portable fuel
containers meet the requirements of the PFCSA and would be treated as
consumer product safety rules: ASTM F3429/F3429M-20 (pre-filled
containers); ASTM F3326-21 (containers sold empty); and section 18 of
UL 30:2022 (safety cans). 88 FR 2206.
Portable fuel containers sold pre-filled are within the scope of
ASTM F3429/F3429M, Standard Specification for Performance of Flame
Mitigation Devices Installed in Disposable and Pre-Filled Flammable
Liquid Containers. ASTM lists the standard as a dual standard in inch-
pound units (F3429 designation) and metric units (F3429M designation).
ASTM F3429/F3429M was first published in 2020. ASTM published a revised
version of ASTM F3429/F3429M-23 in May 2023, as ASTM F3429/F3429M-23.
On August 22, 2023, the Commission determined that the 2023 revisions
met the requirements of section 2056d(b)(3)(A) of the PFCSA.\2\
Accordingly, ASTM F3429/F3429M-23 is the current mandatory consumer
product safety rule for pre-filled-portable fuel containers. On October
31, 2023, the Commission published a direct final rule creating 16 CFR
part 1461 for portable fuel containers to incorporate by reference the
revised ASTM F3429/F3429M-23, as well as ASTM F3326-21 and section 18
of UL 30:2022. 88 FR 74342.
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\2\ The Record of Commission Action is available here:
www.cpsc.gov/s3fs-public/RCAASTMsRevisedStandardforPrefilledContainersandDirectFinalRuleUnderthePortableFuelContainerSafetyActof2020.pdf?VersionId=2bvaQho_RlirJo.xyAFUZXyFS2.7Qw7R.
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Under section (b)(5) of the PFCSA, if the requirements of a
voluntary standard that meet the requirements of section (b)(3) are
subsequently revised, the organization that revised the standard shall
notify the Commission after the final approval of the revision. 15
U.S.C. 2056d(b)(5)(A). Any such revision to the voluntary standard
shall become enforceable as the new consumer product safety rule not
later than 180 days after the Commission is notified of a revised
voluntary standard that meets the conditions of section (b)(3) (or such
later date as the Commission determines appropriate), unless the
Commission determines, within 90 days after receiving the notification,
that the revised voluntary standard does not meet the requirements
described in section (b)(3) of the PFCSA. 15 U.S.C. 2056d(b)(5)(B).
On January 29, 2024, ASTM notified the Commission that it has
revised ASTM F3429/F3429M-23 with the publication of ASTM F3429/F3429M-
24. On February 9, 2024, the Commission published a notice of
availability and request for comment regarding ASTM F3429/F3429M-24. 89
FR 9078. The Prefilled Fuel Container Industry Association and the
Household & Commercial Products Association submitted comments in
support of the revisions in ASTM F3429/F3429M-24. Both commenters noted
that the various revisions to the standard are important revisions that
will improve consumer safety, and thus they support the Commission
adopting ASTM F3429/F3429M-24 as the mandatory standard for prefilled
portable fuel containers.
As discussed in section II of this preamble, the Commission
determines that the revisions in ASTM F3429/F3429M-24 meet the
requirements of section 2056d(b)(3)(A) of the PFCSA. 15 U.S.C.
2056d(b)(3)(A). Accordingly, ASTM F3429/F3429M-24 shall be treated as a
consumer product safety rule promulgated under section 9 of the
Consumer Product Safety Act (CPSA) effective July 27, 2024, which is
180 days after ASTM's notification. This direct final rule \3\ updates
the incorporation by reference in the Commission's rule under the PFCSA
to reflect ASTM F3429/F3429M-24 as the mandatory standard for prefilled
portable fuel containers.
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\3\ The Commission voted 5-0 to publish this notification.
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II. Revisions to ASTM F3429/F3429M
ASTM F3429/F3429M-23 is the current mandatory standard for
prefilled portable fuel containers under the PFCSA and has been revised
twice since the original publication in 2020. The ASTM F15.72
subcommittee for Pre-Filled Containers of Flammable and Combustible
Liquids developed the standard. The standard requires two performance
tests of the container's FMD. The first is an endurance test, in which
the container is subjected to an external and stationary 2.5-inch flame
at the mouth of the container for 30 seconds. The second test is a
flashback test, in which the container is subjected to an external
flash fire near the container's mouth. The container passes each test
if the contents of the container do not catch fire or otherwise ignite
in each of five consecutive trials. The two tests determine whether the
FMD impedes the propagation of two different types of ignition sources,
a stationary flame and a moving flame.
Substantive revisions in ASTM F3429/F3429M-24 are described below
and include an FMD retention test, a new option for some rigid
containers to test using a different test gas, clarification of the
requirements for certifying a ``family of containers,'' and
clarification of existing testing procedures. There are also non-
substantive revisions. As discussed below, the Commission concludes
that the revisions in ASTM F3429/F3429M-24 meet the requirements of
section 2056d(b)(3)(A) of the PFCSA. Thus, the Commission is allowing
ASTM F3429/F3429M-24 to become the mandatory consumer product safety
rule for pre-filled portable fuel containers pursuant to section
2056d(b)(5) of the PFCSA.
A. Substantive Revisions to ASTM F3429/F3429M
1. New Retention Test
ASTM F3429/F3429M-24 adds a new retention requirement to section
5.6 and a new retention test method as section 11. The new retention
requirement and test ensures that an FMD installed in a prefilled
portable fuel container is not easily removed by the consumer. The new
retention test requires the FMD to resist a 15-lb push force, a 15-lb
pull force, and a 25 in-lb torque in each direction. This revision
improves safety because it reduces the likelihood that consumers will
remove FMDs installed in prefilled portable fuel containers. The
Commission therefore concludes that these revisions to the voluntary
standard satisfy the requirements of section 2056d(b)(3)(A) of the
PFCSA.
2. Change to Permissible Test Gas
ASTM F3429/F3429M-24 revises requirements in section 5.2 for
adjusting the gas flow calculation procedures in sections 7.3 and
7.5.2, and it adds a new squeeze test method as section 12 to the
standard to permit some rigid containers to be tested with propane or
ethane as acceptable test gases in addition to ethylene. Sections 5.2
and 7 detail how the gas flow is calculated; sections 5.2, 7.3, and
7.5.2 add calculation values for propane and ethylene; and section
7.5.2
[[Page 34104]]
also corrects a mathematical error with the ethylene value given.
For a container to be tested with propane or ethane, it must: (1)
be determined to be rigid or not squeezable by the new squeezing test
method (section 12); and (2) the liquid fuel within the container must
have a Maximum Experimental Safe Gap (MESG) \4\ above a prescribed
value respective of the test gas MESG. This revision allows use of a
larger mesh-size FMD for such rigid containers which still provides
sufficient protection for these rigid containers while also preventing
splashing problems and reducing the likelihood of consumers removing
the FMD to achieve better fuel flow. Manufacturers reported that focus-
group testing indicated that consumers were likely to try to remove or
alter the FMD if the flow of liquid contents was not smooth. In non-
rigid containers, consumers can squeeze the container to help dispense
the liquid contents, but consumers cannot do this with rigid
containers. Testing with propane or ethane results in slightly larger
hole sizes in the FMD that allows the liquid contents to better pour
from a container that cannot be squeezed, and therefore, reduces the
likelihood of consumers trying to remove the FMD. This revision
improves safety by reducing the likelihood of consumers removing safety
features, while ensuring that the safety features still provide the
necessary protection. The Commission therefore concludes that these
revisions to the voluntary standard satisfy the requirements of section
2056d(b)(3)(A) of the PFCSA.
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\4\ MESG is a standardized measurement of how easily a gas flame
will pass through a narrow gap bordered by heat-absorbing metal.
MESG is used to classify gaseous in a variety of applications where
explosion protection is required.
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3. Family of Container Clarification
ASTM F3429/F3429M-24 clarifies the requirements of section 5.8 for
certifying a container with the same FMD as another compliant
container. ASTM F3429/F3429M-23 does not provide any requirements,
guidance, or information regarding the construction of the two
containers. In ASTM F3429/F3429M-24, a statement was added to section
5.8 explaining that the different containers must be ``made from
similar material with a similar wall thickness.'' This revision ensures
that a container using the same FMD as another but not made from the
same material and similar wall thickness requires its own certification
test. The change in section 5.8 allows a manufacturer to certify a
family of containers with similar designs and wall thicknesses and only
variations in sizes with a single certification test but does not allow
a manufacturer to certify any container that shares the same FMD with
another container certified to F3429-24. This change improves safety by
ensuring that FMDs are not accepted when tested on dissimilar
containers. The Commission therefore concludes that these changes to
the voluntary standard satisfy the requirements of section
2056d(b)(3)(A) of the PFCSA.
4. Revisions to Testing Procedures
ASTM F3429/F3429M-24 revises three test procedures from the 2023
edition of the standard. The first revision applies to the procedures
for sample preparation in section 6.1.1.5, clarifying that if the
bottom portion of the container is removed for testing, then the FMD
and the portion of the container or closure the FMD attaches to shall
remain intact.
The second revision to the test procedure is found in a new section
7.5.5 for gas flow calculations under section 7 which clarifies the
procedure for flowing gaseous fuel and air into the container. ASTM
F3429/F3429M-23 allowed for an increased flow rate of gaseous fuel and
air to establish the correct gaseous fuel and air ratio in the
container before the test but did not specify when to reduce the flow.
The revised standard requires the flow to be reduced 30 seconds before
the test starts. This revision ensures the pilot flame outside the
container mouth is not affected by an increased outflow used to prepare
the container before testing and thus improves consistency in testing
from one testing laboratory to another.
The third test procedure revisions are in the endurance test method
in section 8 and the flashback test method in section 9, which makes
the test procedures in the two test methods consistent with each other.
ASTM F3429/F3429M-23 allows the flow rate to be increased in the
flashback test but did not include that provision for the endurance
test. This change in section 9.4.5.1 of ASTM F3429/F3429M-24 allows the
flow rate of gaseous fuel and air to be increased in the endurance test
too. As with the endurance test, section 9.4.7 specifies that the flow
must be reduced 30 seconds prior to the start of the test. This
revision improves the efficiency of the testing laboratory by removing
the possibility of testing laboratories confusing inconsistent
procedures for the two test methods.
The Commission concludes that these revisions improve safety by
facilitating reliable compliance testing.
B. Non-Mandatory Changes to the Standard
The revised standard also made several changes to the non-mandatory
sections of the standard, such as adding a reference to new appendix
information in the scope, adding a discussion to the definition of FMD,
indicating that a FMD may be an assembly comprised of several
components, removing the term ``reserved'' from the functional test,
and adding information that a functional test is not required, but best
practices are included in the appendix. ASTM F3429-23 did not include a
functional test but left a ``reserved'' section as a future possible
requirement with non-mandatory practices in the appendix. This
``reserved'' section confused users of the standard, and this change
removes the possibility for such confusion. The Commission concludes
that with these non-substantive changes, the standard still satisfies
the requirements of section 2056d(b)(3)(A) of the PFCSA.
Sections 1461.3(a) and 1461.4(a)(2) have been amended to
incorporate by reference ASTM F3429/F3429M-24 as the new mandatory
standard for prefilled portable fuel containers to reflect the
Commission's acceptance of revised ASTM F3429/F3429M-24 under the
PFCSA.
III. Direct Final Rule Process
The Commission is issuing this rule as a direct final rule.
Although the Administrative Procedure Act (APA; 5 U.S.C. 551-559)
generally requires agencies to provide notice of a rule and an
opportunity for interested parties to comment on it, section 553 of the
APA provides an exception when the agency ``for good cause finds'' that
notice and comment are ``impracticable, unnecessary, or contrary to the
public interest.'' Id. 553(b)(B).
The purpose of this direct final rule is to codify in the Code of
Federal Regulations (CFR) revised ASTM F3429/F3429M-24 as a mandatory
consumer product safety rule. Because the Commission has determined
that this revision meets the requirements of the PFCSA, it becomes
effective by operation of law under the PFCSA 180 days after the
Commission was notified of the revision. 15 U.S.C. 2056d(b)(5). Public
comments would not alter whether ASTM F3429/F3429M-24 is considered a
mandatory consumer product safety rule under the PFCSA. The Commission
concludes that when it merely updates the codification of the
incorporation by reference for a voluntary standard that is already a
[[Page 34105]]
mandatory consumer product safety rule by statute under the PFCSA,
notice and comment are unnecessary.
In its Recommendation 95-4, the Administrative Conference of the
United States (ACUS) endorses direct final rulemaking as an appropriate
procedure to expedite rules that are noncontroversial and not expected
to generate significant adverse comments. See 60 FR 43108 (Aug. 18,
1995). ACUS recommends that agencies use the direct final rule process
when they act under the ``unnecessary'' prong of the good cause
exemption in 5 U.S.C. 553(b)(3)(B). Consistent with the ACUS
recommendation, the Commission is publishing this rule as a direct
final rule, because CPSC does not expect any significant adverse
comments.
Unless CPSC receives a significant adverse comment by May 30, 2024,
this rule will become effective on July 27, 2024--the end of the 180-
day period specified in the PFCSA. In accordance with ACUS's
recommendation, the Commission considers a significant adverse comment
to be ``one where the commenter explains why the rule would be
inappropriate,'' including an assertion challenging ``the rule's
underlying premise or approach,'' or a claim that the rule ``would be
ineffective or unacceptable without a change.'' 60 FR 43108, 43111
(Aug. 18, 1995). As noted, this rule merely codifies ASTM F3429/F3429M-
24 in the CFR as the mandatory consumer product safety rule under the
PFCSA; thus, public comments would not change that circumstance.
If the Commission does receive a significant adverse comment, the
Commission will withdraw this direct final rule. Depending on the
comment and other circumstances, the Commission may then incorporate
the adverse comment into a subsequent direct final rule or publish a
notice of proposed rulemaking, providing an opportunity for public
comment.
IV. Incorporation by Reference
Section 1461.4(a)(2) of the direct final rule incorporates by
reference ASTM F3429/F3429M-24. The Office of the Federal Register
(OFR) has regulations regarding incorporation by reference. 1 CFR part
51. Under these regulations, agencies must discuss in the preamble to a
final rule, ways in which the material the agency incorporates by
reference is reasonably available to interested parties and how
interested parties can obtain the material. In addition, the preamble
to the final rule must summarize the material. 1 CFR 51.5(b).
In accordance with the OFR regulations, section II of this preamble
summarizes the major provisions of ASTM F3429/F3429M-24 that the
Commission incorporates by reference into 16 CFR part 1461. The
standard is reasonably available to interested parties. Until the
direct final rule takes effect, a read-only copy of ASTM F3429/F3429M-
24 is available for viewing, at no cost, on ASTM's website at:
www.astm.org/CPSC.htm. Once the rule takes effect, a read-only copy of
ASTM F3429/F3429M-24 will be available for viewing, at no cost, on the
ASTM website at: www.astm.org/READINGLIBRARY/. Interested parties can
purchase a copy of ASTM F3429/F3429M-24 from ASTM International, 100
Barr Harbor Drive, P.O. Box C700, West Conshohocken, PA 19428-2959 USA;
telephone: (610) 832-9500; www.astm.org.
Interested parties can also schedule an appointment to inspect a
copy of ASTM F3429/F3429M-24 at CPSC's Office of the Secretary, U.S.
Consumer Product Safety Commission, 4330 East West Highway, Bethesda,
MD 20814, telephone: (301) 504-7479; email: [email protected].
V. Effective Date
Section 2056d(b)(5)(B) of the PFCSA provides that not later than
180 days after the Commission is notified of a revised voluntary
standard (or such later date as the Commission determines appropriate),
such revised voluntary standard shall become enforceable as a consumer
product safety rule promulgated under 15 U.S.C. 2058, in place of the
prior version, unless within 90 days after receiving the notice the
Commission determines that the revised voluntary standard does not meet
the requirements in section 2056d(b)(3)(A) of the PFCSA. 15 U.S.C.
2056d(b)(5)(B). Unless the Commission receives a significant adverse
comment by May 30, 2024, the rule will become effective on July 27,
2024. This direct final rule's effective date of July 27, 2024, which
is the effective date of the ASTM F3429/F3429M-24 revision as a
mandatory safety standard, does not alter the previously established
effective date of July 12, 2023, for ASTM F3326-21 and section 18 of UL
30:2022 under the PFCSA. Products subject to the requirements of those
standards are already required to meet those standards.
VI. Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA; 5 U.S.C. 601-612) generally
requires agencies to review proposed and final rules for their
potential economic impact on small entities, including small
businesses, and prepare regulatory flexibility analyses. 5 U.S.C. 603,
604. The RFA applies to any rule that is subject to notice and comment
procedures under section 553 of the APA. Id. As discussed in section
III of this preamble, the Commission has determined that notice and the
opportunity to comment are unnecessary for this rule. Therefore, the
RFA does not apply. CPSC also notes the limited nature of this
document, which merely updates the incorporation by reference for ASTM
F3429/F3429M in the CFR to reflect ASTM F3429/F3429M-24 as the
mandatory standard for prefilled containers under the PFCSA.
VII. Environmental Considerations
The Commission's regulations provide a categorical exclusion for
the Commission's rules from any requirement to prepare an environmental
assessment or an environmental impact statement where they ``have
little or no potential for affecting the human environment.'' 16 CFR
1021.5(c). This rule falls within the categorical exclusion, so no
environmental assessment or environmental impact statement is required.
VIII. Preemption
Section 26(a) of the CPSA provides that where a consumer product
safety standard is in effect and applies to a product, no state or
political subdivision of a state may either establish or continue in
effect a requirement dealing with the same risk of injury unless the
state requirement is identical to the federal standard. 15 U.S.C.
2075(a). Section 26(c) of the CPSA also provides that states or
political subdivisions of states may apply to CPSC for an exemption
from this preemption under certain circumstances. 15 U.S.C. 2075(c).
The PFCSA deems rules issued under that statute to be a ``consumer
product safety rule.'' Therefore, once a rule issued under the PFCSA
takes effect, it will preempt in accordance with section 26(a) of the
CPSA.
IX. Congressional Review Act
The Congressional Review Act (CRA; 5 U.S.C. 801-808) states that
before a rule can take effect, the agency issuing the rule must submit
the rule and certain related information, to each House of Congress and
the Comptroller General. 5 U.S.C. 801(a)(1). The CRA submission must
indicate whether the rule is a ``major rule.'' The CRA states that the
Office of Information and
[[Page 34106]]
Regulatory Affairs (OIRA) determines whether a rule qualifies as a
``major rule.''
Pursuant to the CRA, OIRA has determined that the rule does not
qualify as a ``major rule,'' as defined in 5 U.S.C. 804(2). To comply
with the CRA, CPSC will submit the required information to each House
of Congress and the Comptroller General.
List of Subjects in 16 CFR Part 1461
Consumer protection, Incorporation by reference, Portable Fuel
Containers, Safety.
For the reasons discussed in the preamble, the Commission amends 16
CFR chapter II as follows:
PART 1461--PORTABLE FUEL CONTAINER SAFETY ACT REGULATION
0
1. The authority citation for part 1461 continues to read as follows:
Authority: 15 U.S.C. 2056d.
0
2. Amend Sec. 1461.3 by revising paragraph (a) to read as follows:
Sec. 1461.3 Requirements for flame mitigation devices on portable
fuel containers.
* * * * *
(a) * * *
Containers sold pre-filled. Portable fuel containers sold pre-
filled with a flammable liquid to the consumer must comply with the
requirements of ASTM F3429/F3429M-24 (incorporated by reference, see
Sec. 1461.4).
* * * * *
0
3. Amend Sec. 1461.4 by revising paragraph (a)(2) to read as follows:
Sec. 1461.4 Incorporation by reference.
* * * * *
(a) * * *
(2) ASTM F3429/F3429M-24, Standard Specification for Performance of
Flame Mitigation Devices Installed in Disposable and Pre-Filled
Flammable Liquid Containers, approved on January 15, 2024.
* * * * *
Alberta E. Mills,
Secretary, Consumer Product Safety Commission.
[FR Doc. 2024-09299 Filed 4-29-24; 8:45 am]
BILLING CODE 6355-01-P