{"operation":"document","citation":"14-0034","title":"Lighter Association, Inc. — Hazardous Materials Safety Interpretation","source_type":"guidance","agency":"Pipeline and Hazardous Materials Safety Administration","status":"guidance","official":true,"published_on":"2014-03-25","effective_on":null,"summary":"14-0034 response to Lighter Association, Inc. concerning 173.308.","machine_formats":{"json":"https://regulus.evalyn.ai/document/phmsa-interpretation-14-0034.json","markdown":"https://regulus.evalyn.ai/document/phmsa-interpretation-14-0034.md"},"app_url":"https://regulus.evalyn.ai/document/phmsa-interpretation-14-0034","source_url":"https://www.phmsa.dot.gov/sites/phmsa.dot.gov/files/legacy/interpretations/Interpretation%20Files/2014/140034.pdf","body":"<<<PAGE 1>>>\n\n1. 2. 3. U.S. Department\nof Transportation\nPipeline and Hazardous\nMaterials Safety\nAdministration\nI 200 New Jersey Avenue, SE\nWashington. 0 C 20590\nMAR 2 5 2014\nDavid H. Baker, Esq.\nGeneral Counsel\nLighter Association, Inc.\n1701 Pennsylvania Avenue, N.W.\nSuite 300\nWashington, D.C. 20006\nRef. No.: 14-0034\nDear Mr. Baker:\nThis responds to your February 19, 2014letter and previous conversations with members of\nmy staff requesting clarification ofthe Hazardous Materials Regulations (HMR; 49 CFR\nParts 171-180) applicable to lighters. In your letter, you describe a difficulty in attempting to\ncomply with the shipping paper and marking requirements in§§ 173.308(d) and (e).\nAccording to your letter, you state that:\nA lighter company must place each and every lighter design report identifier on the outer\npackage for the shipment. In the case of many companies, this means that they must place\n20 or more LAAs on the outer packaging. This is extremely cumbersome as there is only so\nmuch room on the corrugated box used for these shipments. In addition, companies are\nroutinely adding new lighters to their product line, and, therefore, new LAA numbers must\nbe added regularly to the packaging. Hence, boxes must be thrown out and new boxes\nordered, with the new LAA number added.\nAdditionally, you summarize three alternatives informally discussed with the Pipeline and\nHazardous Materials Safety Administration (PHMSA) staff that could satisfy these\nrequirements for lighters. These alternatives are paraphrased below:\nPlace all of the LAA numbers for the company on each box and simply place whatever\nlighter was being shipped in the box.\nPlace every LAA number on the box with little boxes (squares) next to the approval number\nand check off exactly what lighters are in the box by manually putting a check mark in the\napplicable square.\nPlace the predominant approval numbers on the outer packaging. If a lighter company sold\ntwenty lighters, they could place the approval number for the five predominant lighters on\nthe outer packaging.\n\n<<<PAGE 2>>>\n\nFinally, you ask PHMSA to allow the outer packaging and shipping papers for approved\nlighters to be marked as follows (in lieu of the current HMR requirements provided in\n§§ 173.308(d) and (e)):\nLIGHTERS: In compliance with 49 Part 173.308\nParagraph (d) of§ 173.308 prescribes the shipping paper and package marking requirements\nfor lighters. Prior to publication on January 23,2006 [71 FR 3418] ofthe final rule entitled\n\"Hazardous Materials: Requirements for Lighters and Lighter Refills,\" under Docket No.\nRSPA-2004-18795 (HM-237), the previous shipping paper and marking requirements\nrequired packages of lighters to be marked and shipping papers to be annotated with the\napproval numbers assigned by PHMSA. ·After the January 1, 2007 effective date of the\nHM-237 final rule, we instead require the identification code and test report identifier to be\nannotated on a shipping paper, in association with the basic description, and marked on a\npackage, for all designs contained therein.\nThe consistency in pertinent information is important, as the shipping paper notation and\npackage marking requirements enable enforcement personnel to identify the person who\ntested and approved the lighters for transportation should they identify a problem with the\nshipment.\nIn paragraph (e) of§ 1 73 .3 08, we continue to allow the exception from Subparts C through\nH of Part 172, and Part 177, for no more than 1,500 lighters carried aboard a transport\nvehicle by highway. This exception allows for the use of non-specification outer packaging\nmeeting the general requirements of Subpart B of Part 1 73. This paragraph does not,\nhowever, contain an exception from marking the test report identifier on the outer package\nbecause of the potential for transportation by common or contract carriage. In all cases, the\ntest report identifier marking is the only information available to enforcement personnel and\ncarriers to identify the types of lighters that are contained in a package and to ascertain\nwhether the lighters have been examined in accordance with the HMR. Distributors should\nbe aware of the test report identifiers for each design type in their inventory.\nWe agree that marking the outside of the packaging may impose a burden on distributors. At\nthe same time, we maintain our belief that some record of the test report identifiers for\nlighters transported in a package must be available to enforcement personnel and carriers\nduring transportation. Therefore, we cannot authorize the fourth alternative you requested.\nNonetheless, to alleviate the possible burden on distributors, we do allow a list of test report\nidentifiers to be included inside, or attached to the outside of a package as a means of\ncomplying with the requirement.\nIf you believe a rulemaking change, such as a revision, addition, or deletion is warranted, we\ninvite you to file a petition in accordance with§§ 106.95, 106.100 and 106.105 of the HMR,\nincluding all information needed to support your petition. Your request will be further\nevaluated for merit to address in an upcoming rulemaking. For regulations in 49 CFR Parts\n171 through 180, please submit the petition to: Standards and Rulemaking Division, Pipeline\nand Hazardous Materials Safety Administration, PHH-10, U.S. Department of\n2\n\n<<<PAGE 3>>>\n\nTransportation, East Building, 1200 New Jersey Avenue, SE, Washington, DC 20590-0001.\nPlease contact Mr. Steven Andrews in the Regulatory Review and Reinvention Branch of the\nStandards and Rulernaking Division at 202-366-8553 for more information.\nI trust this satisfies your inquiry. Please contact us if we can be of further assistance.\nSincerely,\nT. Glenn Foster\nChief, Regulatory Review and Reinvention Branch\nStandards and Rulernaking Division\n3\n\n<<<PAGE 4>>>\n\nLIGHTER ASSOCIATION, INC.\n1701 Pennsylvania Avenue, N.W.\nSuite 300\nWashington, D.C. 20006\n~,li£ht~rll~f>Q~~!f!1!9!1.Qr.g\n(202) 253 4347\ndavid.baker@lighterassociation.org\nVIA EMAIL AND HAND DELIVERY\nDecember 5, 2012\nMr. Michael Stevens\nOffice of Hazardous Materials Standards\nPipeline & Hazardous Materials Administration\nU.S. Department of Transportation\n1200 New Jersey Avenue, S.E\nWashington, D.C. 20590\nRe: Request for Interpretation Regarding Placement of Approval Numbers for\nLighters on Outer Packagings and Shipping Papers\nDear Mr. Stevens:\nWe are writing to you about an issue which has been particularly difficult for the lighter\nindustry.\nAs you know, under the \"new\" PHMSA lighter regulation (71 Fed. Reg. 3427, January\n23, 2006; as amended at 73 Fed. Reg. 57006, October 1, 2008), individual approvals are\nissued for each lighter design reviewed for \"gas escapage\" and a specific approval\nnumber is designated for that lighter. 49 CFR Part 173.308(b)(4)(i)(C). Under 49 CFR\nPart 173.308(d)(2), these approval numbers must then be set forth on the outer packaging\nfor the lighter. This framework worked perfectly fine, under the old regulation, when a\nsingle T number was issued to a company for all of its lighters. The company simply\nplaced the T number on its outer packaging and used it for all lighter shipments.\nHowever, under the new regulation, it appears that companies have to place every LAA\nnumber on the outer packaging. As stated in the new lighter regulation:\n\" ... a lighter design test report identifier ... must be marked on a paekaging containing\nlighters.\"' 49 CFR Part 173.308( d)(2).\nWhile the language speaks in the singular, \"a lighter design report identifier\", it has been\ngenerally interpreted to mean all identifiers must be marked on the: outer packaging.\n\n<<<PAGE 5>>>\n\nMoreover, this point is clarified further in Part 173.308(e), Exceptions, stating:\n\"In addition, the package must include the test report identifier for each lighter design ... \"\nSo under the new regulation, a lighter company must place each and every lighter design\nreport identifier on the outer package for the shipment. In the case of many companies,\nthis means that they must place 20 or more LAAs on the outer packaging. This is\nextremely cumbersome as there is only so much room on the corrugated box used for\nthese shipments. In addition, companies are routinely adding new lighters to their\nproduct line, and, therefore, new LAA numbers must be added regularly to the\npackaging. Hence, boxes must be thrown out and new boxes ordered, with the new LAA\nnumber added.\nThe cost of modifying packaging each time a new LAA number has to be added is\nenormous. New packaging costs tens of thousands of dollars (because it is much more\ncost effective to purchase large quantities) and testing of a packaging is expensive\n(ranging from $800 to $2000 or more).\nThe same situation applies to printing all of the LAA numbers on the shipping papers.\nLarge retailers are complaining to Lighter Association members that it could hundreds of\nthousands of dollars to change their computer programs to print fifteen, twenty or thirty\nLAA numbers on the shipping paper.\nAnd the logistics of keeping track of what lighters are in the box (outer packaging) are\nextraordinary. Because each box may contain a different assortment of lighters, under\nthe new system, each box shipped must be manually examined by an employee to be\ncertain that the lighters in the box match the LAA numbers on the box. As a result, lighter\ncompanies with many different models, have been forced to hire additional employees\nsimply to ensure that the lighters that go in the box meet exactly the particular LAA\nnumbers pre-printed on the box.\nLighter Association representatives have raised this issue informally with PHMSA staff\nand have received varying guidance on how to respond to this problem.\nOne suggestion was to place all of the LAA numbers for the company on each box and\nsimply place whatever lighter was being shipped in the box. In this manner, the box\nalways contained the LAA number for a lighter being shipped.\nAnother suggestion was to place every LAA number on the box with little boxes\n(squares) next to the approval number and check off exactly what lighters are in the box\nby manually putting a check mark in the applicable square.\nYet another discussion was to follow the example of the interpretation issued many years\nago to the fireworks industry for assortment packages and place the predominant\napproval numbers on the outer packaging. This process was codified at 49 CFR Part\n\n<<<PAGE 6>>>\n\n172.320( c), so today an explosives company shipping more than five products in the\nsame box, can place five approval numbers on the box and ship any number of Division 1\nitems. Similarly, the logic followed that if a lighter company sold twenty lighters, they\ncould place the approval number for five lighters on the outer packaging. This concept\nwas discussed at our November 2011 meeting at PHMSA.\nThe Lighter Association believes that this is a problem that falls under the \"no harm- no\nfoul\" aphorism. All outer packagings utilized by Association members contain the\nfollowing information:\nDivision 2.1 Lighters\nCompany Name or Brand\nFlammable\nFlammable Symbol\nApproval Number\nSo there is absolutely no doubt for the first responder what is in the packaging - it\ncontains lighters with a tiny amount of butane fuel (50 to 80 mg). In the unlikely event of\nan issue with the transportation of the lighters, the first responder would immediately\nknow the Hazardous Materials Classification for the product and the safety risk. The\naddition of a long listing of LAA numbers does not add any relevant information to the\nsituation. Moreover, there has not been an issue involving the transportation oflighters\nin at least 25 Y'~ars. So there is no safety risk, regardless of what resolution is settled\nupon here.\nFrankly, even though the Association actively participated in the rulemaking on the\nrevision to Part 173.308 from 2004 to 2006, we suspect that no one considered this point\nwhen adding the requirement of individual LAA numbers for each lighter. So now we\nhave a situation where some of our members must place 20 or more approval numbers on\nan outer packaging, then discard it when a new lighter is added. This is certainly not\nconsistent with the overall national and state policy to recycle and to reduce energy\nconsumption.\nThe Lighter Association respectfully requests that PHMSA stay all enforcement activity\nrelated to this issue, since 100% technical compliance with this requirement serves no\napparent purpose and is virtually impossible given the large variety of lighters shipped.\nWe are not aware of any enforcement activity on this precise issue, but it is a concern of\nour members since, like all offerors, they are subject to periodic PHMSA inspections.\nMore importantly, the Lighter Association respectfully requests that an interpretation be\nissued stating that the outer packaging and shipping papers for approved lighters can be\nmarked as follows:\n\n<<<PAGE 7>>>\n\nLIGHTERS: In compliance with 49 Part 173.308\nThis would eliminate manual checking off of boxes and would be more comprehensive\nthan the exception for the explosives industry. Moreover, it would meet the needs of\nPHMSA and first responders as they would know exactly what is in the box. There really\nis no reason for them to know the various approval numbers. Accordingly, we would\nrespectfully request that an interpretation letter to this effect be issued.\nThank you for your consideration of our concerns.\nVery truly yours,\nDavid H. Baker\nGeneral Counsel\nDHB:bd","truncated":false,"body_characters":13483}