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[Federal Register Volume 88, Number 209 (Tuesday, October 31, 2023)]
[Rules and Regulations]
[Pages 74342-74347]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-23655]

[[Page 74342]]

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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: The Portable Fuel Container Safety Act of 2020 (PFCSA) 
provides that the Consumer Product Safety Commission (Commission) must 
promulgate a rule to require flame mitigation devices in portable fuel 
containers that impede the propagation of flame into the container, 
unless the Commission determines that there is a voluntary standard for 
flame mitigation devices that achieves the same result. In January 
2023, the Commission published in the Federal Register a notice of its 
determinations under the PFCSA that three such voluntary standards 
collectively apply to all known classes of portable fuel containers. 
Pursuant to the PFCSA, therefore, the requirements of the three 
voluntary standards are treated as a consumer product safety rule under 
the Consumer Product Safety Act (CPSA). ASTM then notified the 
Commission that one standard had been revised. The Commission evaluated 
the revised standard and found that the revisions carry out the 
purposes of the PFCSA. Accordingly the revisions will be incorporated 
into the mandatory standard for portable fuel containers. This direct 
final rule creates a new part codifying the incorporation by reference 
of this revised standard and the other two voluntary standards that are 
mandatory under the PFCSA.

DATES: The rule is effective on December 9, 2023, unless CPSC receives 
a significant adverse comment by November 30, 2023. If CPSC receives 
such a comment, it will publish in the Federal Register a notice 
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 December 9, 
2023.

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 electronic 
mail (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.
    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. If you wish to submit 
confidential business information, trade secret information, or other 
sensitive or protected information that you do not want to be available 
to the public, you may submit such comments by mail, hand delivery, or 
courier, or you may email them to: [email protected].
    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:

A. Background

    The PFCSA \1\ requires the Commission to promulgate, not later than 
30 months after December 27, 2020, a final rule to require flame 
mitigation devices 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 at any time that:
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    \1\ Portable Fuel Container Safety Act of 2020, codified at 15 
U.S.C. Sec.  2056d, as stated Public Law 116-260, div. FF, title IX, 
Sec.  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;
     the voluntary standard is or will be in effect not later 
than 18 months after the date of enactment of the PFCSA (i.e., June 27, 
2022); 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). Any such Commission determinations 
regarding applicable voluntary standards must be published in the 
Federal Register. 15 U.S.C. 2056d(b)(3)(B).
    On January 13, 2023, the Commission published favorable 
determinations under section 2056d(b)(3)(A) of the PFCSA regarding 
three voluntary standards for portable fuel containers: ASTM F3429/
F3429M-20, ASTM F3326-21, and section 18 of ANSI/CAN/UL/ULC 30:2022 (UL 
30:2022). 88 FR 2206. Therefore, by operation of the PFCSA, portable 
fuel containers manufactured after July 12, 2023, must comply with the 
requirements of either ASTM F3429/F3429M-20, ASTM F3326-21, or section 
18 of UL 30:2022, as applicable. In particular, portable fuel 
containers sold empty (that are not safety cans \2\) are required to 
comply with the requirements of ASTM F3326-21. Safety cans are required 
to meet the requirements of either ASTM F3326-21 or section 18 of UL 
30:2022. Portable fuel containers sold pre-filled are required to 
comply with the requirements of ASTM F3429/F3429M-20. However, in a May 
19, 2023, letter, the CPSC Office of Compliance and Field Operations 
exercised enforcement discretion regarding pre-filled portable fuel 
containers subject to ASTM F3429/F3429M-20 to prevent a shortage of 
critical fuels, including fuels used for emergencies.\3\
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    \2\ Safety cans are portable fuel containers sold empty that the 
U.S. Occupational Safety and Health Administration (OSHA) generally 
regulates for use in the workplace but are also available for 
purchase by consumers at many physical and online retailers.
    \3\ The letter is available here: https://www.cpsc.gov/s3fs-public/Enforcement-Discretion-Related-to-Portable-Fuel-Containers.pdf?VersionId=7ZC5ry.So7vVIpsL2J7329Pfhshyh49a.
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    Under section 2056d(b)(5) of the PFCSA, a voluntary standards 
organization must notify the Commission of any revision to the 
requirements for flame mitigation devices for the Commission-approved 
voluntary standards for portable fuel containers. Once a voluntary 
standards organization notifies the CPSC, the revisions will be 
incorporated into the

[[Page 74343]]

consumer product safety rule not later than 180 days after notification 
(or such later date as the Commission determines appropriate), unless 
within 90 days of such notice, the Commission determines that the 
revisions do not meet the requirements of section 2056d(b)(3) of the 
PFCSA, and so notifies the voluntary standards organization. 15 U.S.C. 
2056d(b)(5)(B).
    On June 12, 2023, ASTM notified CPSC that it has revised ASTM 
F3429/F3429M-20 with the publication of ASTM F3429/F3429M-23. On June 
23, 2023, the Commission published a notice of availability and request 
for comment regarding revised ASTM F3429/F3429M-23. Two comments were 
submitted in support of a favorable Commission determination on the 
revisions to ASTM F3429/F3429M. 88 FR 41046. On August 22, 2023, as set 
forth in section B of this preamble, the Commission determined that the 
revisions meet the requirements of section 2056d(b)(3)(A) of the 
PFCSA.\4\ Accordingly, ASTM F3429/F3429M-23 shall be treated as a 
consumer product safety rule promulgated under section 9 of the CPSA 
effective December 9, 2023 (which is 180 days after ASTM's 
notification). This direct final rule creates a new 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.\5\ This direct final rule is codifying the three voluntary 
standards for portable fuel containers that are mandatory under the 
PFCSA for the convenience of stakeholders and the public and to provide 
clarity regarding which versions of the voluntary standards are 
mandatory for portable fuel containers under the PFCSA.
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    \4\ See Record of Commission Action here: https://www.cpsc.gov/s3fs-public/RCAASTMsRevisedStandardforPrefilledContainersandDirectFinalRuleUnderthePortableFuelContainerSafetyActof2020.pdf?VersionId=2bvaQho_RlirJo.xyAFUZXyFS2.7Qw7R.
    \5\ The Commission voted 4-0 to approve publication of this 
notice as drafted.
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B. Revisions to ASTM F3429/F3429M

    On January 13, 2023, the Commission published a Federal Register 
notice in accordance with the PFCSA, determining that pre-filled 
portable fuel containers must comply with ASTM F3429/F3429M-20 as a 
consumer product safety rule. 88 FR 2206. On June 12, 2023, ASTM 
notified the Commission that a revision of that standard, ASTM F3429/
F3429M-23, was published in May 2023. ASTM F3429/F3429M-23 includes 
substantive revisions affecting the flame mitigation performance tests 
(the endurance test and the flashback test) and non-substantive 
revisions concerning its scope, a referenced document, a section title, 
and the appendix of the standard. The substantive revisions affecting 
the performance test requirements relate to testing containers with 
large volumes, testing containers with wide mouths, modifying the 
allowable downward angle of the container during testing, and 
eliminating redundant testing when the same flame mitigation device is 
used on differently sized containers.
    As discussed below, the Commission concluded that the changes in 
ASTM F3429/F3429M-23 do not affect the effectiveness of the flame 
mitigation device in impeding the propagation of a flame or other 
ignition source into the container. The changes to the standard will 
improve the safety of testing flame mitigation devices on larger volume 
containers and facilitate compliance testing of these containers.
    Many of the revisions to ASTM F3429/F3429M-20 were requested by 
laboratories conducting the testing for compliance, to improve safety 
for test personnel and facilities. Without these changes to the test 
methods, manufacturers may not be able to find a certification testing 
laboratory to demonstrate compliance for some of their products, which 
could limit consumer access to these products. If consumers are unable 
to buy pre-filled portable fuel containers that are compliant with ASTM 
F3429/F3429M, they may use hazardous substitute containers.
    As explained below, the Commission concluded that the revisions in 
ASTM F3429/F3429M-23 meet the requirements of section 2056d(b)(3)(A) of 
the PFCSA is allowing ASTM F3429/F3429M-23 to become the mandatory 
consumer product safety rule for pre-filled portable fuel containers 
pursuant to section 2056d(b)(5) of the PFCSA. The background and 
revisions to ASTM F3429/F3429M are described in more detail in the CPSC 
staff's briefing memorandum.\6\
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    \6\ Staff Memorandum available at: https://www.cpsc.gov/s3fs-public/ASTMsRevisedStandardforPerfilledContainersandDirectFinalRuleUnderthePortableFuelContainerSafetyActof2020.pdf?VersionId=_p5lXY4B1YRCU_horxqDSMNF_VcI0NbI.
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1. Substantive Revisions to ASTM F3429/F3429M

a. Larger Volume Containers
    The first substantive revision in ASTM F3429/F3429M-23 allows the 
container volume to be reduced for testing purposes if the reduced 
volume does not impact, change, hinder, or deform the flame mitigation 
device or how the flame mitigation device is mounted on the container. 
Laboratories that tested containers with larger volumes to ASTM F3429/
F3429M-20 found that a failed test produced a large explosion that 
presented a risk to test personnel and equipment. Testing laboratories 
determined that they could not safely mitigate the risks when testing 
larger volumes without a revision to ASTM F3429/F3429M-20. We note a 
flame mitigation device impedes the propagation of the flame into the 
container by quenching an external flame at the mouth of the container 
before it can ignite the vapors within the container. The shape and 
size of the container does not impact determination of the flame 
mitigation device's effectiveness because an effective device stops the 
flame before it enters the container. The changes proposed affect only 
the consequences of a failure, not whether the flame mitigation device 
fails. The Commission therefore concludes that this revision 
facilitates compliance testing but does not affect the voluntary 
standard's satisfaction of the requirements of section 2056d(b)(3)(A) 
of the PFCSA.
b. Containers With Wider Mouths
    The second substantive revision to ASTM F3429/F3429M-23 limits the 
maximum flow rate of gaseous fuel and air used to fill the container 
before the tests. This change only alters the rate of filling the 
container to prepare it to be tested. Laboratories that tested 
containers with wider mouths to ASTM F3429/F3429M-20 found that the 
flow of gaseous fuel and air created a large cloud of explosive gas 
outside the container. Open flames near the cloud of explosive gas 
presented an explosion risk. Testing laboratories determined that they 
could not safely mitigate the risks to test personnel when testing 
containers with wider mouths without modifying ASTM F3429/F3429M-20.
    Under the revision, gaseous fuel and air at the appropriate ratio 
fill the container before the trials, but the flow is stopped before 
the external flames are introduced. Because the gaseous fuel and air 
flow is stopped before the external ignition source is introduced, 
slowing the fill rate does not affect the performance of the flame 
mitigation device. The Commission concludes that this revision 
facilitates compliance testing but does not affect the voluntary 
standard's satisfying the requirements of section 2056d(b)(3)(A) of the 
PFCSA because the performance of the flame mitigation device when 
exposed to

[[Page 74344]]

external ignition sources is evaluated the same as with a faster fill 
rate.
c. Downward Angle When Testing Container
    The third substantive revision to ASTM F3429/F3429M-23 allows the 
container to be mounted at a downward angle between 45 and 60 degrees 
when tested, rather than at 45 +/-2 degrees as under the 2020 version 
of the standard. Testing laboratories proposed this change to allow 
greater flexibility to position the flame directly onto the mouth of 
the container as required in the test. Testing laboratories had found 
it difficult to properly position the flame as required in the 
performance test without being able to adjust the position of the 
container significantly. Because an effective flame mitigation device 
impedes the flame before it reaches inside the container, and an 
ineffective device allow the ignition of the gaseous fuel and air in 
the container regardless of the angle, the precise downward angle of 
the container is not critical to the effectiveness of the flame 
mitigation device.
d. Accepting Flame Mitigation Devices on Other Containers
    The fourth substantive revision to ASTM F3429/F3429M-23 allows a 
container that uses a flame mitigation device that has met the 
requirements of the standard when attached in the same manner to a 
similar container model, to be considered compliant with this standard, 
without needing to be re-tested. Because a compliant flame mitigation 
device prevents flame from reaching vapors in the container, changing 
the shape and size of the container does not affect the effectiveness 
of the flame mitigation device.

2. Non-Substantive Revisions to ASTM F3429/F3429M

    There are three non-substantive revisions in ASTM F3429/F3429M-23. 
First, ASTM changed the order of the scope subclauses to match the 
standard structure of other ASTM specifications. The text of the scope 
was not otherwise changed. Second, ASTM F3326 was removed from the 
listed reference documents as it was not used elsewhere in ASTM F3429/
F3429M-23. A reserved section was renamed from a ``permanency'' test to 
a ``retention'' test. Currently, this is a placeholder for a potential 
future requirement. Finally, some explanatory information in the non-
mandatory appendix for the ``retention'' test was removed, but no 
mandatory requirements were added or changed. The Commission concludes 
these non-substantive changes do not implicate the standard satisfying 
the requirements of section 2056d(b)(3)(A) of the PFCSA.

C. Description of the Rule

    This direct final rule creates a new part 1461, ``Portable Fuel 
Container Safety Act Regulation.'' Part 1461 incorporates by reference 
the three voluntary standards the Commission has determined under the 
PFCSA to be mandatory: ASTM F3429/F3429M-23 (updated from the 2020 
version of the standard), ASTM F3326-21, and section 18 of UL 30:2022. 
The provisions of the direct final rule are described below.

A. Section 1461.1--Scope and Application

    Section 1461.1 of the rule provides, in accordance with the PFCSA, 
that portable fuel containers must comply with the requirements 
specified in Sec.  1461.3, which are considered to be consumer product 
safety rules.

B. Section 1461.2--Definition

    Section 1461.2 of the rule provides the statutory definition of 
``portable fuel container'' found in the PFCSA. Although this 
definition is provided in the PFCSA, this section restates the 
definition for the convenience of the regulated community and the 
public.

C. Section 1461.3--Requirements for Flame Mitigation Devices on 
Portable Fuel Containers

    Section 1461.3 provides that each portable fuel container 
manufactured for sale in the United States shall conform to the 
applicable requirements of this section depending on whether the 
portable fuel container is sold pre-filled or empty.
    Section 1461.3(a)(1) of the rule requires that portable fuel 
containers sold to consumers pre-filled must comply with the 
requirements of ASTM F3429/F3429M-23, Standard Specification for 
Performance of Flame Mitigation Devices Installed in Disposable and 
Pre-Filled Flammable Liquid Containers. ASTM F3429/F3429M is listed by 
ASTM as a dual standard in inch-pound (F3429 designation) and metric 
(F3429M designation) units. Both designations of the standard are 
substantively identical except for the inch-pound versus metric units 
used in the standard. The standard requires two performance tests of 
the container's flame mitigation device. 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 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 are used to 
demonstrate that the flame mitigation device impedes the propagation of 
two different types of ignition sources, a stationary flame and a 
moving flame.
    Section 1461.3(a)(2) of the rule requires portable fuel containers 
sold empty to the consumer to comply with ASTM F3326-21, Standard 
Specification for Flame Mitigation Devices on Portable Fuel Containers. 
ASTM F3326 requires a performance test of the container's flame 
mitigation devices after the container is exposed to several use-and-
abuse tests. Use-and-abuse tests are designed to ensure a flame 
mitigation device still functions after simulating normal use and 
reasonably foreseeable abuse of the container over time. The flame 
mitigation device performance test demonstrates that the container 
prevents a flame traveling at five meters per second from igniting the 
contents of the container in each of five consecutive trials. The test 
also demonstrates that the flame mitigation device impedes the 
propagation of a rapidly travelling flame front into the container.
    Portable fuel containers sold empty to the consumer that are 
classified as safety cans that meet the requirements of section 18 of 
UL 30:2022, Standard for Safety Metallic and Nonmetallic Safety Cans 
for Flammable and Combustible Liquids, are not required to comply with 
ASTM F3326-21. UL 30:2022 is a voluntary standard that covers various 
requirements for safety cans, including requirements for flame 
mitigation devices. Section 18 of UL 30 has two performance test 
options. The first option is to subject the safety can mouth to an 
external and stationary 2.5-inch flame for 30 seconds. The safety can 
passes the test if the interior contents of the safety can do not catch 
fire or otherwise ignite in each of five consecutive trials. The second 
performance test option is used for safety cans that have a flame 
arrestor. In this performance test, a 7.5-inch flame is balanced on one 
side of the flame arrestor as a fuel-air mixture passes through. The 
flame arrestor fails if the flame crosses the flame arrestor and 
ignites the fuel-air mixture.
    Section 1461.4 of the rule incorporates by reference the three 
voluntary standards that are mandatory under the rule.

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D. 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 CFR three 
voluntary standards (ASTM F3429/F3429M-23, ASTM F3326-21, and section 
18 of UL 30:2022) that are mandatory consumer product safety rules by 
operation of law under the PFCSA. Public comments would not alter 
whether the three voluntary standards are considered mandatory consumer 
product safety rules under the PFCSA. The Commission concludes that 
when it merely codifies voluntary standards that are already mandatory 
consumer product safety rules 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)(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 November 30, 
2023, this rule will become effective on December 9, 2023--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 in the CFR the 
three voluntary standards that are mandatory consumer product safety 
rules under the PFCSA and restates the statutory definition of 
``portable fuel container''; thus, public comments would not change 
such statutory requirements or definitions.
    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.

E. Incorporation by Reference

    Section 1460.3 of the direct final rule incorporates by reference 
ASTM F3429/F3429M-23, ASTM F3326-21, and section 18 of ANSI/CAN/UL/ULC 
30:2022. 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 C of this preamble 
summarizes the major provisions of ASTM F3429/F3429M-23, ASTM F3326-21, 
and section 18 of UL 30:2022 that the Commission incorporates by 
reference into 16 CFR part 1461. The standards are reasonably available 
to interested parties. Until the direct final rule takes effect, read-
only copies of ASTM F3429/F3429M-23 and ASTM F3326-21 are 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 those two ASTM standards 
will be available for viewing, at no cost, on the ASTM website at: 
www.astm.org/READINGLIBRARY/. Interested parties can purchase copies of 
ASTM F3429/F3429M-23 and ASTM F3326-21 from ASTM International, 100 
Barr Harbor Drive, P.O. Box C700, West Conshohocken, PA 19428-2959 USA; 
telephone: (610) 832-9585; www.astm.org.
    A read-only copy of UL 30:2022 is available for viewing, free-of-
charge at UL's Standards Sale Site at: shopulstandards.com. Click 
``Browse and Buy Standards,'' and search for UL 30 and then click 
``Digital View,'' and sign in, or create a user account. The read-only 
copy of UL 30:2022 will remain available for viewing, free-of-charge 
after the direct final rule goes into effect. Interested parties can 
purchase a copy of UL 30:2022 from UL Standards and Engagement, 151 
Eastern Avenue, Bensenville, IL 60106 USA; telephone: (888) 853-3503; 
shopulstandards.com.
    Interested parties can also schedule an appointment to inspect 
copies of ASTM F3429/F3429M-23, ASTM F3326-21, and UL 30:2022 at CPSC's 
Office of the Secretary, U.S. Consumer Product Safety Commission, Room 
820, 4330 East-West Highway, Bethesda, MD 20814, telephone: (301) 504-
7479; email: [email protected].

F. 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 16 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. Unless the 
Commission receives a significant adverse comment by November 30, 2023, 
the rule therefore will become effective on December 9, 2023. Based on 
the Commission's January 2023 published determinations under the PFCSA, 
portable fuel containers that are sold empty to the consumer 
manufactured after July 12, 2023, must comply with the requirements of 
either ASTM F3326-21, or section 18 of UL 30:2022, as applicable. This 
direct final rule's effective date of December 9, 2023, which is the 
effective date of the ASTM F3429/F3429M-23 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.
    Further, portable fuel containers sold pre-filled are also required 
under the PFCSA to comply with the requirements of ASTM F3429/F3429M-20 
after July 12, 2023. However, on May 19, 2023, the Office of Compliance 
and Field Operations issued a letter exercising enforcement discretion 
regarding pre-filled portable fuel containers subject to ASTM F3429/
F3429M-20 to prevent a shortage of critical fuels used for emergencies.

G. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA; 5 U.S.C. 601-612) generally 
requires

[[Page 74346]]

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 D 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 creates a new part in the Code of Federal Regulations codifying 
the incorporations by reference to reflect the voluntary standards that 
are mandatory under the PFCSA and the statutory definition of portable 
fuel containers.

H. 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)(2). This rule falls within the categorical exclusion, so no 
environmental assessment or environmental impact statement is required.

I. 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. 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.

J. 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 Regulatory Affairs 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, Portable fuel containers, Incorporation by 
reference, Safety.

0
For the reasons discussed in the preamble, the Commission amends 16 CFR 
chapter II by adding part 1461 to subchapter B to read as follows:

PART 1461--PORTABLE FUEL CONTAINER SAFETY ACT REGULATION

Sec.
1461.1 Scope and application.
1461.2 Definition.
1461.3 Requirements for flame mitigation devices on portable fuel 
containers.
1461.4 Incorporation by reference.

    Authority: 15 U.S.C. 2056d.

Sec.  1461.1  Scope and application.

    In accordance with the Portable Fuel Container Safety Act of 2020 
(PFCSA), portable fuel containers must comply with the requirements 
specified in Sec.  1461.3, which are considered to be consumer product 
safety rules.

Sec.  1461.2  Definition.

    The definition of portable fuel container in the PFCSA (5 U.S.C. 
2056d(b)(8)) applies to this part. Specifically, a portable fuel 
container is defined in the PFCSA as any container or vessel (including 
any spout, cap, and other closure mechanism or component of such 
container or vessel or any retrofit or aftermarket spout or component 
intended or reasonably anticipated to be for use with such container)--
    (a)(1) Intended for flammable liquid fuels with a flash point less 
than 140 degrees Fahrenheit, including gasoline, kerosene, diesel, 
ethanol, methanol, denatured alcohol, or biofuels;
    (2) That is a consumer product with a capacity of 5 gallons or 
less; and
    (3) That the manufacturer knows or reasonably should know is used 
by consumers for transporting, storing, and dispensing flammable liquid 
fuels.
    (b) [Reserved]

Sec.  1461.3  Requirements for flame mitigation devices on portable 
fuel containers.

    Each portable fuel container manufactured for sale in the United 
States shall conform to one of the following applicable requirements.
    (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-23 (incorporated by reference, see 
Sec.  1461.4).
    (b) Containers sold empty. Portable fuel containers sold empty to 
the consumer must meet the requirements of ASTM F3326-21 (incorporated 
by reference, see Sec.  1461.4). Portable fuel containers sold empty to 
the consumer that are classified as safety cans that meet the 
requirements of section 18 of ANSI/CAN/UL/ULC 30:2022 (incorporated by 
reference, see Sec.  1461.4) are not required to comply with ASTM 
F3326-21.

Sec.  1461.4  Incorporation by reference.

    Certain material is incorporated by reference into this part with 
the approval of the Director of the Federal Register in accordance with 
5 U.S.C. 552(a) and 1 CFR part 51. All approved incorporation by 
reference material is available for inspection at the Consumer Product 
Safety Commission and at the National Archives and Records 
Administration (NARA). Contact the U.S. Consumer Product Safety 
Commission at: Office of the Secretary, U.S. Consumer Product Safety 
Commission, 4330 East-West Highway, Bethesda, MD 20814; telephone (301) 
504-7479, email [email protected]. For information on the availability 
of this material at NARA, visit www.archives.gov/federal-register/cfr/ibr-locations or email [email protected]. The material may be 
obtained from the following sources:
    (a) ASTM International, 100 Barr Harbor Drive, P.O. Box C700, West 
Conshohocken, PA 19428-2959; phone: (610) 832-9585; website: 
www.astm.org.
    (1) ASTM F3326-21, Standard Specification for Flame Mitigation 
Devices on Portable Fuel Containers, approved on September 1, 2021.
    (2) ASTM F3429/F3429M-23, Standard Specification for Performance of 
Flame Mitigation Devices Installed in Disposable and Pre-Filled 
Flammable Liquid Containers, approved on May 1, 2023.
    (b) UL Standards and Engagement, International, 151 Eastern Avenue, 
Bensenville, IL 60106; phone: 1-888-853-3503; website: 
www.shopulstandards.com.
    (1) ANSI/CAN/UL/ULC 30:2022, Standard for Safety: Metallic and

[[Page 74347]]

Nonmetallic Safety Cans for Flammable and Combustible Liquids, Tenth 
Edition, dated April 29, 2022.
    (2) [Reserved]

Alberta E. Mills,
Secretary, Consumer Product Safety Commission.
[FR Doc. 2023-23655 Filed 10-30-23; 8:45 am]
BILLING CODE 6355-01-P
```