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

SUMMARY: Elsewhere in this issue of the Federal Register, the

Commission proposes a safety standard for multi-purpose lighters to

reduce risks of injury that are associated with the lighters because

they can be operated by young children. In this notice, the Commission

proposes to determine by rule, under section 30(d) of the Consumer

Product Safety Act, that it is in the public interest to issue the

safety standard, or to take any other regulatory action to address

risks of injury that are associated with multi-purpose lighters due to

the fact that they can be operated by children, under the Consumer

Product Safety Act, rather than under the Federal Hazardous Substances

Act or the Poison Prevention Packaging Act.

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

1998.

ADDRESSES: Comments should be mailed to the Office of the Secretary,

Consumer Product Safety Commission, Washington, DC 20207, or delivered

to the Office of the Secretary, Consumer Product Safety Commission,

Room 502, 4330 East-West Highway, Bethesda, Maryland 20814-4408,

telephone (301) 504-0800. Comments may also be filed by telefacsimile

to (301) 504-0127 or by email to [email protected]. Comments should be

captioned ``Multi-Purpose Lighters: CPSA 30(d) Rule.''

FOR FURTHER INFORMATION CONTACT: Concerning legal aspects: Harleigh

Ewell, Attorney, Office of the General Counsel, Consumer Product Safety

Commission, Washington, DC 20207; telephone (301) 504-0980, ext. 2217.

Concerning the proposed Safety Standard for Multi-Purpose Lighters:

Barbara Jacobson, Project Manager for Multi-Purpose Lighters, Consumer

Product Safety Commission, Washington, DC 20207; telephone (301) 504-

0477, ext. 1206; email [email protected].

SUPPLEMENTARY INFORMATION:

A. Introduction

The Commission proposes to determine by rule that it will regulate

those risks of death and injury that are associated with multi-purpose

lighters, and that are due to the fact that the lighters can be

operated by young children, under the Consumer Product Safety Act

(``CPSA''), 15 U.S.C. 2051-2084. Young children do not appreciate all

of the consequences of using the product. Those consequences can

include the ignition of clothing and other articles in the household,

and may result in injury or death of the child operating the multi-

purpose lighter, or other persons. These risks will be regulated under

the CPSA, rather than under the Federal Hazardous Substances Act

(``FHSA''), 15 U.S.C. 1261-1277, or the Poison Prevention Packaging Act

(``PPPA''), 15 U.S.C. 1471-1476.

Section 30(d) of the CPSA, 15 U.S.C. 2079(d), provides that a risk

of injury associated with a consumer product that could be eliminated

or reduced to a sufficient extent by action under the FHSA or the PPPA

may be regulated under the CPSA only if the Commission, by rule, finds

that it is in the public interest to regulate such a risk of injury

under the CPSA. Elsewhere in this issue of the Federal Register, the

Commission is proposing a rule under the CPSA that will impose child-

resistance requirements on multi-purpose lighters.

The Commission recognizes that it might be possible to adequately

reduce those risks by action taken under the FHSA or the PPPA.

Nevertheless, the Commission has determined that it is in the public

interest to regulate those risks of injury under the CPSA rather than

the FHSA or the PPPA because the authority of the CPSA is more

appropriate to address risks of injury associated with a mechanical,

flame-producing device than are the authorities of the FHSA or the

PPPA.

B. Background

Multi-purpose lighters are defined as follows:

(b)(1) Multi-purpose lighter, (also known as grill lighter,

fireplace lighter, utility lighter, micro-torch, or gas match) means: A

hand-held, self-igniting, flame-producing product that operates on fuel

and is used by consumers to ignite items such as candles, fuel for

fireplaces, charcoal or gas-fired grills, camp fires, camp stoves,

lanterns, fuel-fired appliances or devices or pilot lights.

(2) The following products are not multi-purpose lighters:

(i) Devices intended primarily for igniting smoking materials that

are within the definition of ``lighter'' in the safety standard for

cigarette lighters (16 CFR 1210.2(c)).

(ii) Devices containing more than 10 oz. of fuel.

(iii) Matches.

In the Federal Register of January 16, 1997, the Commission

published an advance notice of proposed rulemaking (``ANPR'') to begin

a proceeding for development of requirements for multi-purpose lighters

to address risks of injuries from fires started by children playing

with multi-purpose lighters. 62 FR 2327.

The CPSC's staff has identified 178 fires occurring since January

1988 that were started by children under age 5 who were playing with

multi-purpose lighters. These fires resulted in a total of 29 deaths

and 71 injuries.

Of the statutes administered by the CPSC, the CPSA, the FHSA, and

the PPPA provide authority for a child-resistance requirement for

multi-purpose lighters. The possible regulatory options include issuing

a consumer product safety standard under provisions of the CPSA, a

banning rule under provisions of the FHSA, and a rule to establish

requirements to make multi-purpose lighters ``significantly difficult

for children under five years of age'' to operate under provisions of

the PPPA.

C. Statutory Authority

1. The Consumer Product Safety Act. A multi-purpose lighter is a

``consumer product'' as that term is defined by section 3(a)(1) of the

CPSA, 15 U.S.C. 2052(a)(1), because it is an article that is produced

or distributed for sale to consumers for use in or around a household

or school, in recreation, or otherwise. Sections 7 and 9 of the CPSA,

15 U.S.C. 2056, 2058, authorize the Commission to issue a consumer

product safety standard consisting of labeling or performance

requirements for a consumer product if those requirements are

``reasonably necessary to prevent or reduce an unreasonable risk of

injury associated with a consumer product.''

Section 14(a) of the CPSA, 15 U.S.C. 2063(a), requires each

manufacturer of a consumer product that is subject to a consumer

product safety standard to issue a certificate of compliance stating

that the product conforms to all applicable consumer product safety

standards. Section 14(c) of the CPSA, 15 U.S.C. 2063(c), requires that

the certificate of compliance must be based upon a test of each product

or a ``reasonable testing program.'' Section 14(b) of the CPSA, 15

U.S.C. 2063(b), also authorizes the Commission to issue rules to

prescribe a reasonable testing program. Section 14(c) of the CPSA

authorizes the Commission to issue

[[Page 52395]]

rules requiring labels containing the date and place of manufacture and

a suitable identification of the manufacturer, unless the product bears

a private label. In that case, the label shall identify the private

labeler and contain a code mark that will permit the seller of the

product to identify the manufacturer upon the request of the purchaser.

Section 16(b) of the CPSA, 15 U.S.C. 2065(b), authorizes the

Commission to issue rules requiring manufacturers to maintain records

of the testing specified in any rule prescribing a reasonable testing

program. Section 9(g)(2) of the CPSA, 15 U.S.C. 2058(g)(2), authorizes

the Commission to issue rules prohibiting the stockpiling of products

that are subject to a consumer product safety rule. Stockpiling means

the manufacturing or importing of a product between the date of

promulgation of the consumer product safety rule and its effective date

at a rate that is established by the rule and is significantly greater

than the rate at which such product was produced or imported during a

specified base period ending before the promulgation of the consumer

product safety rule.

2. The Federal Hazardous Substances Act. Under the FHSA, in order

to be a hazardous substance, a product must be toxic, corrosive, an

irritant, a strong sensitizer, flammable or combustible, or capable of

generating pressure.1 Butane or petroleum distillate fuel

contained within a multi-purpose lighter meets the definition of

``hazardous substance'' given in section 2(f)l(A) of the FHSA, 15

U.S.C. 1261(f)l(A), because it is ``flammable,'' and in some cases is

``toxic'' or ``generates pressure,'' and may cause substantial personal

injury or illness as a proximate result of customary or reasonably

foreseeable use. Multi-purpose lighters that contain fuel when sold to

consumers are subject to the labeling provisions of section 2(p) of the

FHSA, 15 U.S.C. 1261(p), because they contain a hazardous substance

that is intended or packaged in a form suitable for use in the

household.

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\1\ Additional hazards can be addressed for children's products.

Multi-purpose lighters, however, are not intended for use by

children within the meaning of the FHSA.

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Section 3(b) of the FHSA, 15 U.S.C. 1262(b), authorizes the

Commission to issue rules to prescribe special labeling requirements

for hazardous substances intended for use in the household, if the

Commission determines that the labeling specified by section 2(p) of

the FHSA is not adequate to protect the public health and safety in

view of the special hazard presented by that substance.

Section 2(q)(1)(B) of the FHSA, 15 U.S.C. 1261(q)(1)(B), authorizes

the Commission to issue a rule banning a hazardous substance intended

for use in the household if the Commission determines that,

notwithstandinq any labeling which is or could be required by the FHSA,

the degree or nature of the hazard is so great that protection of the

public health and safety can be adequately served only by keeping the

product out of channels of interstate commerce. A banning rule issued

under section 2(q)(1)(B) of the FHSA could take the form of a

conditional ban: That is, a rule banning all multi-purpose lighters

that do not meet certain performance or design requirements specified

in the rule.

3. The Poison Prevention Packaging Act. Sections 2, 3, and 5 of the

PPPA, 15 U.S.C. 1471, 1472, and 1474, authorize the Commission to issue

rules to require packaging that is ``significantly difficult'' for

children younger than 5 years of age to open, or ``obtain a toxic or

harmful amount'' from, any ``hazardous substance'' as that term is

defined in the FHSA. To issue such a rule, the Commission must make and

support findings that child-resistant packaging is required to protect

children from serious personal injury or illness from ``handling,

using, or ingesting'' the substance.

A multi-purpose lighter meets the definition of the term

``package'' set forth in section 2(3) of the PPPA, 15 U.S.C. 1471(3),

because it is the ``immediate container'' of a hazardous substance.

However, section 4(a) of the PPPA, 15 U.S.C. 1473(a), provides that,

for the purpose of making any substance that is subject to requirements

for child-resistant packaging available to elderly or handicapped

persons, the manufacturer may package that substance in conventional

packaging in one size, provided that (1) the substance is also supplied

in child-resistant packaging; and (2) the conventional packaging is

labeled with the statement ``This package for households without young

children.''

D. Choice of Statute

The Commission has preliminarily determined that the CPSA is the

most appropriate statute to address risks of injury associated with

multi-purpose lighters that can be operated by children. Those risks of

injury arise because multi-purpose lighters are mechanical devices

intended to produce flame and can be operated by children.

The CPSA includes provisions authorizing the Commission to issue

performance and labeling requirements applicable to multi-purpose

lighters when such requirements are ``reasonably necessary'' to

eliminate or reduce an unreasonable risk of injury associated with that

product. This authority is suitable for issuing requirements to address

hazards associated with young children starting fires with multi-

purpose lighters.

The CPSA also authorizes the Commission to issue certification

rules for products subject to a consumer product safety standard. Such

rules may contain a prescribed testing program upon which the

certificate of the manufacturer or private labeler is based. The

effectiveness of the rule for multi-purpose lighters that is proposed

elsewhere in this issue of the Federal Register depends in large part

on the testing conducted by the manufacturer under the certification

rule. It is possible that similar testing requirements could be

promulgated under the authority of section 10(a) of the FHSA, 15 U.S.C.

1269(a), that the Commission may issue ``regulations for the efficient

enforcement'' of the FHSA. However, the authority of the CPSA is

explicit in this regard and, thus, is preferable.

The Commission has preliminarily determined that a stockpiling rule

is in the public interest because it will help ensure the effectiveness

of any standard for multi-purpose lighters. Neither the FHSA or the

PPPA explicitly authorizes such a rule.

The FHSA includes provisions that authorize the Commission to

require special labeling for, and in some circumstances to ban, a

household product that contains or consists of a ``hazardous

substance.'' The FHSA authorizes the Commission to regulate multi-

purpose lighters because they are containers of lighter fuel, which is

a ``hazardous substance'' as that term is defined in the FHSA. However,

no provision of the FHSA expressly authorizes the Commission to address

a hazard that is associated with the mechanical operation of a multi-

purpose lighter as a flame-producing device. The changes needed to

reduce the risk of child-play fires also involve the mechanical

characteristics of the lighter's operating mechanism. Thus, the CPSA is

a more appropriate statute for regulating the mechanical risk of child

resistance.

Under the PPPA, the Commission may issue a rule requiring the

``package''--that is, the multi-purpose lighter--to be ``significantly

difficult'' for children younger than 5 years of age ``to open or

obtain a toxic or harmful amount of the substance contained

[[Page 52396]]

therein.'' However, the ability of young children ``to open'' the

multi-purpose lighter or ``obtain a toxic or harmful amount'' of the

fuel in the multi-purpose lighter is not the risk of injury associated

with multi-purpose lighters that is under consideration by the

Commission. Rather, it is the risk of death and injury from fires

started by children with multi-purpose lighters. This risk arises from

the mechanical operation of the multi-purpose lighter, and from the

ability of young children to manipulate the multi-purpose lighter to

produce a flame.

Additionally, the PPPA allows the manufacturer of a substance

subject to special-packaging requirements to use packaging that is not

child-resistant if (1) the substance is also distributed in child-

resistant packages and (2) the packages that are not child resistant

are labeled ``This package for households without young children.''

This provision, by allowing the marketing of non-child-resistant multi-

purpose lighters of the types covered by the rule, could significantly

impair the effectiveness of the rule to reduce the risk of injury.

Therefore, for the reasons given above, the Commission is proposing

a rule that would determine that it is in the public interest to

regulate under the CPSA any risks of injury associated with the fact

that multi-purpose lighters can be operated by young children. If

issued, this finding will be codified at 16 CFR 1145.17. The Commission

proposes that any final rule shall become effective immediately upon

its publication in the Federal Register. 5 U.S.C. 553(d)(3). (There is

a proposed 1-year delayed effective date for the safety standard

itself.)

Section 30(d) of the CPSA provides that the comment period cannot

exceed 30 days for a rule finding that it is in the public interest to

regulate under the CPSA rather than another act. 15 U.S.C. 2079(d).

Accordingly, comments should be received by the Commission by October

30, 1998.

D. Impact on Small Entities

The Regulatory Flexibility Act (``RFA''), 5 U.S.C. 603, requires

agencies to prepare and make available for public comment an initial

regulatory flexibility analysis of the impact of any proposed rule on

small entities, including small businesses. A final regulatory analysis

is required when a final rule is issued. 5 U.S.C. 604. The RFA further

provides, however, that an agency is not required to prepare a

regulatory flexibility analysis if the agency certifies that the rule

will not have a significant economic impact on a substantial number of

small entities. 5 U.S.C. 605(b). The regulation issued below does not

by itself impose any legal or other obligation on any person or firm.

The rule would simply express the Commission's determination that any

action taken to eliminate or reduce risks of injury associated with

multi-purpose lighters that can be operated by children will be taken

under the authority of the CPSA rather than the FHSA or the PPPA. In

issuing the safety standard for multi-purpose lighters, the Commission

will follow all applicable provisions of the CPSA. The provisions of

the RFA also apply to the safety standard, and the Commission has

prepared an initial certification that the Safety Standard for Multi-

Purpose Lighters, if issued, will not have a significant economic

impact on a substantial number of small entities. However, because a

final rule under section 30(d) of the CPSA would impose no obligation

on any person or firm, the Commission hereby certifies that the 30(d)

rule, if issued, will not have a significant economic impact on a

substantial number of small entities.

F. Environmental Considerations

The rule proposed below falls within the categories of Commission

action described in 16 CFR 1021.5(c) as having little or no potential

for affecting the human environment, and the Commission has no

information that would indicate otherwise. Therefore, neither an

environmental assessment nor an environmental impact statement is

required.

G. Conclusion

After consideration of the information discussed above, the

Commission finds that if regulatory action is needed to address risks

of injury associated with multi-purpose lighters due to the fact that

they can be operated by children, it is in the public interest to

regulate such risks under the CPSA rather than the FHSA or the PPPA.

This determination does not affect other hazards associated with multi-

purpose lighters, such as that some lighters are subject to FHSA

labeling because the lighters contain fuel that is flammable or toxic

or generates pressure. Provisions of the FHSA and the PPPA authorize

the Commission to address risks of injury associated with the fuel

contained within a multi-purpose lighter because the fuel is a

``hazardous substance'' as that term is defined by the FHSA. However, a

multi-purpose lighter is more than a container or a package of a

hazardous substance. It is a device that incorporates a mechanism for

igniting the fuel and is intended to be operated to produce a flame.

The Commission determines that the provisions of the CPSA are the most

appropriate to address risks of injury associated with a mechanical

device due to the fact that it can be operated by children to produce

flame. The Commission also determines that it is in the public interest

to regulate this risk associated with multi-purpose lighters under the

CPSA because the certification and stockpiling provisions in the

proposed rule are necessary to help ensure the effectiveness of the

rule. Such provisions are most appropriate, and only explicitly

available, under the CPSA.

List of Subjects in 16 CFR Part 1145

Administrative practice and procedure, Consumer protection, Fire

protection, Infants and children, Packaging and containers, Multi-

purpose lighters.

For the reasons given above, the Commission amends Title 16,

Chapter II, Subchapter B, of the Code of Federal Regulations as

follows:

PART 1145--REGULATION OF PRODUCTS SUBJECT TO OTHER ACTS UNDER THE

CONSUMER PRODUCT SAFETY ACT

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

follows:

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

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

Sec. 1145.17 Multi-purpose lighters that can be operated by children;

risks of death or injury.

(a) The Commission finds that it is in the public interest to

regulate under the Consumer Product Safety Act any risks of injury

associated with the fact that multi-purpose lighters can be operated by

young children, rather than to regulate such risks under the Federal

Hazardous Substances Act or the Poison Prevention Packaging Act of

1970.

(b) Therefore, if the Commission finds regulation to be necessary,

risks of death or injury that are associated with multi-purpose

lighters because the lighters can be operated by young children shall

be regulated under one or more provisions of the Consumer Product

Safety Act. Other risks associated with such lighters, and that are

based solely on the fact that the lighters contain a hazardous

substance, shall continue to be regulated under the Federal Hazardous

Substances Act.

[[Page 52397]]

Dated: September 25, 1998.

Sadye E. Dunn,

Secretary.

Consumer Product Safety Commission.

[FR Doc. 98-26170 Filed 9-29-98; 8:45 am]

BILLING CODE 6355-01-P