Manufacturing Company — Hazardous Materials Safety Interpretation

Page 1of Transportation U.S. Department 400 Seventh Street, S.W Washington, D.C. 20590 Pipeline and Administration Hazardous Materiais Safety MAR 9 2005 Mr. David H. Baker Ref. No. 05-0022 Attorney for Zippo Manufacturing Company Thompson Hine LP Attorneys at Law 1920 N Street, N.W. Washington, D.C. 20036-1600 Dear Mr. Baker: This responds to your letter dated January 18, 2005, regarding the applicability of the Hazardous Materials Regulations (HMR; 49 CFR Parts 171-180) to empty butane lighters and lighter refills under the HMR. Specifically, you ask if an empty butane lighter is regulated under the HMR. In addition, you ask if a lighter refill containing 14 grams of butane, a Division 2.1 flammable gas, may be renamed "Consumer commodity" and reclassed "ORM-D" under the provisions specified in S$ 173.144 and 173.306(a) (1) of the HMR. With regard to your first question, your understanding is correct that an empty, never-filled lighter is not subject to regulation under the HMR. Concerning your second question, a material described as a "Lighter refill, UN1057" may not be renamed "Consumer commodity" and reclassed as an ORM-D material; no exceptions for lighter refills are indicated in Column 8A of the Hazardous Materials Table in S 172.101. However, a lighter refill containing butare may be described as "Butane, UN1011" and classed as a Division 2.1 material. In shipment of butane may be renamed "Consumer commodity" and accordance with § 173.306 (a) (1), a limited quantity reclassed as an ORM-D material provided the shipment conforms to the provisions of § 173.306(h). The recent publication of two notices of proposed rulemakings (NPRM) in the Federal Register may be of interest. The first, published on August 16, 2004, titled "Requirements for Lighters and Lighter Refills," [RSPA-04-13795 (HM-237); 69 FR 50975] proposes a number of revisions applicable to the examination, testing, certification, shipping description, and 173.144 173.306 050022#

Page 2transportation of lighters and lighter refills. The second NPRM, published on November 10, 2004, titled "Revision of Requirements for Carriage by Aircraft," [RSPA-02-11654 (HM- 228); 69 FR 65293] proposed to prohibit materials packaged as limited quantities that are forbidden on passenger-carrying aircraft to be renamed "Consumer commodity" and reclassed "ORM-D." This proposal, if adopted, would only affect the transportation of lighter refills by aircraft. Copies of both NPRMs are enclosed. I trust this satisfies your inquiry. Please contact us if we can be of further assistance. Sincerely, Hate 7. Mital d Hattie L. Mitchell Office of Hazardous Materials Standards Chief, Regulatory Review and Reinvention#

Page 3THOMPSON HINE BRUSSELS CINCINNATI CLEVELAND COLUMBUSE DAYTON NEW YORK WASHINGTON. D.C. Stevens $113.144 January 18, 2005 § 173.308 Classification Lighter: BY HAND ORM-D Mr. Michael Stevens 05 - 0022 DHM-12 Regulations Specialist Pipeline and Hazardous Materials Safety Admınıstratior Jos Depart, S. a Transportation Washington, DC 20590 Re: Classification of new lighter product Dear Mr. Stevens: Following up on an email I sent to you on June 29, 2004, a copy of which I attach, I am enclosing a completely empty sample of a new lighter product to be manufactured by Zippo Manufacturing Company ("Zippo") of Bradford, Pennsylvania. The product wil consist of the enclosed package containing an empty Zippo refillable butane lighter, which has never been filled, and a small metal canister containing .5 fl. oz (14 gms or 14.8 ml) of butane. It is our understanding that completely empty lighter products, e.g., never filled, no residue, no vapors, etc.) are not regulated under the Hazardous Materials Regulations ("'HMR"). This lighter will be completely empty and will never have been filled with fuel. containing less than 65 grams of gas are treated as a consumer commodity and classified It is further our understanding that butane canisters of less than four ounces and as ORM-D material under 49 C.F.R. Part 173.144. This butane canister will be metal with an industry standard valve and the small amount of butane noted above. The purpose of this letter is to confirm that the package containing this empty lighter with is critical to Zippo's marketing of this new product as it is not commercially viable to this small butane canister can be shipped as ORM-D under the HMR. This determination ship and sell this product as a lighter classified under 2.1, or a lighter refill classified under 2.1. The increased cost of shipping products under the HMR and the many limitations on shipping hazardous materials such as lighters by truck and air, have caused Zippo to develop this new product with the view that it will be treated as ORM-D. THOMPSON HINE LLP ATTORNEYS AT LAW 1920 N Street, N.W. Washington, D.C. 20036-1600 www.ThompsonHine.com Fax 202.331.8330 Phone 202.331.8800#

Page 4THOMPSON HINE Mr. Michael Stevens January 18, 2005 Page 2 We are requesting your written opinion that for domestic transportation purposes this new product would be treated as ORM-D, or unregulated under the HMR. We would be pleased to provide you with more information, or to come in and meet with you regarding Very truly yours, David H. Baker Attorney for Zippo Manufacturing Company 164461#

Page 5Message Page 1 of 2 Baker, David From: Stevens, Michael [michael.stevens@RSPA.dot.gov] Sent: Tuesday, June 29, 2004 2:31 PM To: Baker, David; Stevens, Michael Cc: Gorsky, Susan Subject: RE: Lighters and Butane amount of useful information in it. On to your inquiry. Good afternoon Mr. Baker. Thank you very much for the package provided to Susan. . There is an immense HMR. Because a lighter refill does not meet the definition of an aerosol in § 173.306(a)(3), in order to get to the Provided the lighter is empty. (i.e., no vapors, gas, residue, or never filled), the lighter is not regulated under the Only then may it be renamed "Consumer commodity" and reclassed as an ORM-D. If the refill does exceed 4 )RM-D hazard class it cannot exceed 4 fluid ounces capacity (7.22 cubic inches) as specified in § 173.306(a)(1) fluid ounces capacity, then it must be offered for transport as either "Butane, UN1011" (prohibited on passenger- net mass of gas may not exceed 65 grams. If the net mass of gas exceeds 65 grams, then it must be described carrying aircraft) or "Lighter refill, UN1057" (accepted on all aircraft). However, if described as a lighter refill, the as the gas contained therein. This clarification is based on the current regulations and is for domestic ransportation only. For international transport by air, lighter refills can never be renamed "Consumer commodity' ecause they are not aerosols (see ICAO Packing Instruction 910). For vessel transport, a lighter refill may be I hope this advice makes sense. Feel free to contact me anytime on this or any other hazmat matter. Michael Regards, Michael Stevens U.S. Department of Transportation Regulations Specialist Office of Hazardous Materials Standards (DHM-12) Research and Special Programs Administration Washington, DC 20590 400 Seventh Street S.W. Fax: (202) 366-3012 Phone: (202) 366-8553 ----Original Message--.-- From: Baker, David [mailto:David.Baker@thompsonhine.com] To: Stevens, Michael Sent: Tuesday, June 29, 2004 12:49 PM Subject: Lighters and Butane Cc: Gorsky, Susan <RSPA> comparable ISO standard to Susan. I assume that you received them. Michael - we gave the materials on the status of the CSPC rulemaking and the EU's adoption of the I had another question about lighters that I wanted to run by both of you, if possible. I have a member that proposes to sell an EMPTY refillable lighter with a small can of butane to fill the no flammable gas, and butane is ORM-D, that the combined product would not be a haz mat shipment. lighter, in a single consumer package. We are assuming that because the lighter contains no fuel, e.g., Can you confirm that to me? If the product is not haz mat, it reduces shipping costs dramatically. 1/18/2005#

Page 6Message Page 2 of 2 I would greatly appreciate your thoughts on this question. Thanks, David 1/18/2005#

Page 7Message Page 1 of 2 Stevens, Michael <PHMSA> From: Baker, David [David.Baker@thompsonhine.com] Sent: Tuesday, November 30, 2004 4:06 PM To: Stevens, Michael Subject: RE: Aerosols v. Refills I don't know how you do this every day. Thanks for your explanation. I will try and explain to my member. Thanks again for your help. David From: Stevens, Michael [mailto:michael.stevens@RSPA.dot.gov] -----Original Message----- Sent: Tuesday, November 30, 2004 4:00 PM Subject: RE: Aerosols v. Refills To: Baker, David 171.8. Because their sole purpose is to expel a gas (as opposed to a gas used to expel a liquid, paste, or Good afternoon David. Under the HMR, lighter refills no not meet the definition of an aerosol. See § 173.306(a)(1). This section limits capacity to 4 fluid ounces (7.22 cubic inches). Section 171.11 authorizes powder), a non-DOT specification pressure vessel (e.g., lighter refill) is subject to the limitations of § (14) further limits an aerosol to meeting the definition in § 171.8. Internationally, an aerosol is permitted to the use of the ICAO Technical Instructions (ultimately IATA) as an alternative to the HMR and § 171.11(d) an aerosol and, therefore, the restriction in § 171.11 and the definition in § 171.8 applies. expel a gas only (e.g., lighter refill). We don't (for safety reasons) agree with the international definition of transported on a U.S. flag carrier anywhere in the world could be offered for transportation as an aerosol Internationally (by air), a shipment of lighter refills that does not transit to, through, or from the U.S. or is not under Packing Instruction 203. Packing Instruction 910 of the international air regulations, however, would not allow the further reclassification of a lighter refill to a "consumer commodity" as Class 2 materials are limited to only those that use a gas to expel a liquid, paste, or powder (our definition). excessive. All is negotiable. We do agree that the outer packaging proposed for lighter refills for other than air or vessel transport is I hope this quick mess makes sense. Feel free to contact me for more. Michael Stevens Regards, U.S. Department of Transportation Regulations Specialist Office of Hazardous Materials Standards (DHM-12) Research and Special Programs Administration 400 Seventh Street S.W. Washington, DC 20590 Phone: (202) 366-8553 Fax: (202) 366-3012 ----Original Message--.-. Sent: Tuesday, November 30, 2004 3:02 PM rom: Baker, David [mailto:David.Baker@thompsonhine.com To: Stevens, Michael Subject: Aerosols v. Refills 02/17/2005#

Page 8Message Page 2 of 2 mat regimes in other countries such as Canada, as well as under IATA. I have looked briefly at the Michael - one of my members has suggested that lighter refills are treated as aerosols under haz of the lighter regulation? issue and am uncertain whether this is correct. Is this an issue you looked at during your analysis I would appreciate your thoughts. Thanks, David 02/17/2005#