{"operation":"document","citation":"05-0022","title":"Manufacturing Company — Hazardous Materials Safety Interpretation","source_type":"guidance","agency":"Pipeline and Hazardous Materials Safety Administration","status":"guidance","official":true,"published_on":"2005-03-09","effective_on":null,"summary":"05-0022 response to Manufacturing Company concerning 173.144, 173.306.","machine_formats":{"json":"https://regulus.evalyn.ai/document/phmsa-interpretation-05-0022.json","markdown":"https://regulus.evalyn.ai/document/phmsa-interpretation-05-0022.md"},"app_url":"https://regulus.evalyn.ai/document/phmsa-interpretation-05-0022","source_url":"https://www.phmsa.dot.gov/sites/phmsa.dot.gov/files/legacy/interpretations/Interpretation%20Files/2005/050022.pdf","body":"<<<PAGE 1>>>\n\nof Transportation\nU.S. Department\n400 Seventh Street, S.W\nWashington, D.C. 20590\nPipeline and\nAdministration\nHazardous Materiais Safety\nMAR 9 2005\nMr. David H. Baker\nRef. No. 05-0022\nAttorney for Zippo\nManufacturing Company\nThompson Hine LP\nAttorneys at Law\n1920 N Street, N.W.\nWashington, D.C. 20036-1600\nDear Mr. Baker:\nThis responds to your letter dated January 18, 2005, regarding\nthe applicability of the Hazardous Materials Regulations (HMR;\n49 CFR Parts 171-180) to empty butane lighters and lighter\nrefills under the HMR. Specifically, you ask if an empty\nbutane lighter is regulated under the HMR. In addition, you\nask if\na lighter refill containing 14 grams of butane, a\nDivision 2.1 flammable gas, may be renamed \"Consumer\ncommodity\" and reclassed \"ORM-D\" under the provisions\nspecified in S$ 173.144 and 173.306(a) (1) of the HMR.\nWith regard to your first question, your understanding is\ncorrect that an empty, never-filled lighter is not subject to\nregulation under the HMR. Concerning your second question, a\nmaterial described as a \"Lighter refill, UN1057\" may not be\nrenamed \"Consumer commodity\" and reclassed as an ORM-D\nmaterial; no exceptions for lighter refills are indicated in\nColumn 8A of the Hazardous Materials Table in S 172.101.\nHowever, a lighter refill containing butare may be described\nas \"Butane, UN1011\" and classed as a Division 2.1 material.\nIn\nshipment of butane may be renamed \"Consumer commodity\" and\naccordance with § 173.306 (a) (1), a limited quantity\nreclassed as an ORM-D material provided the shipment conforms\nto the provisions of § 173.306(h).\nThe recent publication of two notices of proposed rulemakings\n(NPRM) in the Federal Register may be of interest. The first,\npublished on August 16, 2004, titled \"Requirements for\nLighters and Lighter Refills,\" [RSPA-04-13795 (HM-237); 69 FR\n50975] proposes a number of revisions applicable to the\nexamination, testing, certification, shipping description, and\n173.144\n173.306\n050022\n\n<<<PAGE 2>>>\n\ntransportation of lighters and lighter refills. The second\nNPRM, published on November 10, 2004, titled \"Revision of\nRequirements for Carriage by Aircraft,\" [RSPA-02-11654 (HM-\n228); 69 FR 65293] proposed to prohibit materials packaged as\nlimited quantities that are forbidden on passenger-carrying\naircraft to be renamed \"Consumer commodity\" and reclassed\n\"ORM-D.\"\nThis proposal, if adopted, would only affect the\ntransportation of lighter refills by aircraft. Copies of both\nNPRMs are enclosed.\nI trust this satisfies your inquiry. Please contact us if we\ncan be of further assistance.\nSincerely,\nHate 7. Mital d\nHattie L. Mitchell\nOffice of Hazardous Materials Standards\nChief, Regulatory Review and Reinvention\n\n<<<PAGE 3>>>\n\nTHOMPSON\nHINE\nBRUSSELS CINCINNATI CLEVELAND\nCOLUMBUSE\nDAYTON NEW YORK WASHINGTON. D.C.\nStevens\n$113.144\nJanuary 18, 2005\n§ 173.308\nClassification Lighter:\nBY HAND\nORM-D\nMr. Michael Stevens\n05 - 0022\nDHM-12\nRegulations Specialist\nPipeline and Hazardous Materials Safety Admınıstratior\nJos Depart, S. a Transportation\nWashington, DC 20590\nRe:\nClassification of new lighter product\nDear Mr. Stevens:\nFollowing up on an email I sent to you on June 29, 2004, a copy of which I attach, I am\nenclosing a completely empty sample of a new lighter product to be manufactured by\nZippo Manufacturing Company (\"Zippo\") of Bradford, Pennsylvania. The product wil\nconsist of the enclosed package containing an empty Zippo refillable butane lighter,\nwhich has never been filled, and a small metal canister containing .5 fl. oz (14 gms or\n14.8 ml) of butane.\nIt is our understanding that completely empty lighter products, e.g., never filled, no\nresidue, no vapors, etc.) are not regulated under the Hazardous Materials Regulations\n(\"'HMR\"). This lighter will be completely empty and will never have been filled with\nfuel.\ncontaining less than 65 grams of gas are treated as a consumer commodity and classified\nIt is further our understanding that butane canisters of less than four ounces and\nas ORM-D material under 49 C.F.R. Part 173.144. This butane canister will be metal\nwith an industry standard valve and the small amount of butane noted above.\nThe purpose of this letter is to confirm that the package containing this empty lighter with\nis critical to Zippo's marketing of this new product as it is not commercially viable to\nthis small butane canister can be shipped as ORM-D under the HMR. This determination\nship and sell this product as a lighter classified under 2.1, or a lighter refill classified\nunder 2.1. The increased cost of shipping products under the HMR and the many\nlimitations on shipping hazardous materials such as lighters by truck and air, have caused\nZippo to develop this new product with the view that it will be treated as ORM-D.\nTHOMPSON HINE LLP\nATTORNEYS AT LAW\n1920 N Street, N.W.\nWashington, D.C. 20036-1600\nwww.ThompsonHine.com\nFax 202.331.8330\nPhone 202.331.8800\n\n<<<PAGE 4>>>\n\nTHOMPSON\nHINE\nMr. Michael Stevens\nJanuary 18, 2005\nPage 2\nWe are requesting your written opinion that for domestic transportation purposes this new\nproduct would be treated as ORM-D, or unregulated under the HMR. We would be\npleased to provide you with more information, or to come in and meet with you regarding\nVery truly yours,\nDavid H. Baker\nAttorney for Zippo Manufacturing Company\n164461\n\n<<<PAGE 5>>>\n\nMessage\nPage 1 of 2\nBaker, David\nFrom:\nStevens, Michael [michael.stevens@RSPA.dot.gov]\nSent:\nTuesday, June 29, 2004 2:31 PM\nTo:\nBaker, David; Stevens, Michael\nCc:\nGorsky, Susan\nSubject: RE: Lighters and Butane\namount of useful information in it. On to your inquiry.\nGood afternoon Mr. Baker.\nThank you very much for the package provided to Susan.\n. There is an immense\nHMR. Because a lighter refill does not meet the definition of an aerosol in § 173.306(a)(3), in order to get to the\nProvided the lighter is empty. (i.e., no vapors, gas, residue, or never filled), the lighter is not regulated under the\nOnly then may it be renamed \"Consumer commodity\" and reclassed as an ORM-D. If the refill does exceed 4\n)RM-D hazard class it cannot exceed 4 fluid ounces capacity (7.22 cubic inches) as specified in § 173.306(a)(1)\nfluid ounces capacity, then it must be offered for transport as either \"Butane, UN1011\" (prohibited on passenger-\nnet mass of gas may not exceed 65 grams. If the net mass of gas exceeds 65 grams, then it must be described\ncarrying aircraft) or \"Lighter refill, UN1057\" (accepted on all aircraft). However, if described as a lighter refill, the\nas the gas contained therein. This clarification is based on the current regulations and is for domestic\nransportation only. For international transport by air, lighter refills can never be renamed \"Consumer commodity'\necause they are not aerosols (see ICAO Packing Instruction 910). For vessel transport, a lighter refill may be\nI hope this advice makes sense. Feel free to contact me anytime on this or any other hazmat matter.\nMichael\nRegards,\nMichael Stevens\nU.S. Department of Transportation\nRegulations Specialist\nOffice of Hazardous Materials Standards (DHM-12)\nResearch and Special Programs Administration\nWashington, DC 20590\n400 Seventh Street S.W.\nFax: (202) 366-3012\nPhone: (202) 366-8553\n----Original Message--.--\nFrom: Baker, David [mailto:David.Baker@thompsonhine.com]\nTo: Stevens, Michael\nSent: Tuesday, June 29, 2004 12:49 PM\nSubject: Lighters and Butane\nCc: Gorsky, Susan <RSPA>\ncomparable ISO standard to Susan. I assume that you received them.\nMichael - we gave the materials on the status of the CSPC rulemaking and the EU's adoption of the\nI had another question about lighters that I wanted to run by both of you, if possible.\nI have a member that proposes to sell an EMPTY refillable lighter with a small can of butane to fill the\nno flammable gas, and butane is ORM-D, that the combined product would not be a haz mat shipment.\nlighter, in a single consumer package. We are assuming that because the lighter contains no fuel, e.g.,\nCan you confirm that to me?\nIf the product is not haz mat, it reduces shipping costs dramatically.\n1/18/2005\n\n<<<PAGE 6>>>\n\nMessage\nPage 2 of 2\nI would greatly appreciate your thoughts on this question.\nThanks, David\n1/18/2005\n\n<<<PAGE 7>>>\n\nMessage\nPage 1 of 2\nStevens, Michael <PHMSA>\nFrom:\nBaker, David [David.Baker@thompsonhine.com]\nSent:\nTuesday, November 30, 2004 4:06 PM\nTo:\nStevens, Michael\nSubject: RE: Aerosols v. Refills\nI don't know how you do this every day.\nThanks for your explanation. I will try and explain to my member.\nThanks again for your help. David\nFrom: Stevens, Michael [mailto:michael.stevens@RSPA.dot.gov]\n-----Original Message-----\nSent: Tuesday, November 30, 2004 4:00 PM\nSubject: RE: Aerosols v. Refills\nTo: Baker, David\n171.8. Because their sole purpose is to expel a gas (as opposed to a gas used to expel a liquid, paste, or\nGood afternoon David. Under the HMR, lighter refills no not meet the definition of an aerosol. See §\n173.306(a)(1). This section limits capacity to 4 fluid ounces (7.22 cubic inches). Section 171.11 authorizes\npowder), a non-DOT specification pressure vessel (e.g., lighter refill) is subject to the limitations of §\n(14) further limits an aerosol to meeting the definition in § 171.8. Internationally, an aerosol is permitted to\nthe use of the ICAO Technical Instructions (ultimately IATA) as an alternative to the HMR and § 171.11(d)\nan aerosol and, therefore, the restriction in § 171.11 and the definition in § 171.8 applies.\nexpel a gas only (e.g., lighter refill). We don't (for safety reasons) agree with the international definition of\ntransported on a U.S. flag carrier anywhere in the world could be offered for transportation as an aerosol\nInternationally (by air), a shipment of lighter refills that does not transit to, through, or from the U.S. or is not\nunder Packing Instruction 203. Packing Instruction 910 of the international air regulations, however, would\nnot allow the further reclassification of a lighter refill to a \"consumer commodity\" as Class 2 materials are\nlimited to only those that use a gas to expel a liquid, paste, or powder (our definition).\nexcessive. All is negotiable.\nWe do agree that the outer packaging proposed for lighter refills for other than air or vessel transport is\nI hope this quick mess makes sense. Feel free to contact me for more.\nMichael Stevens\nRegards,\nU.S. Department of Transportation\nRegulations Specialist\nOffice of Hazardous Materials Standards (DHM-12)\nResearch and Special Programs Administration\n400 Seventh Street S.W.\nWashington, DC 20590\nPhone: (202) 366-8553\nFax: (202) 366-3012\n----Original Message--.-.\nSent: Tuesday, November 30, 2004 3:02 PM\nrom: Baker, David [mailto:David.Baker@thompsonhine.com\nTo: Stevens, Michael\nSubject: Aerosols v. Refills\n02/17/2005\n\n<<<PAGE 8>>>\n\nMessage\nPage 2 of 2\nmat regimes in other countries such as Canada, as well as under IATA. I have looked briefly at the\nMichael - one of my members has suggested that lighter refills are treated as aerosols under haz\nof the lighter regulation?\nissue and am uncertain whether this is correct. Is this an issue you looked at during your analysis\nI would appreciate your thoughts. Thanks, David\n02/17/2005","truncated":false,"body_characters":11172}