74342 Federal Register / Vol. 88, No. 209 / Tuesday, October 31, 2023 / Rules and Regulations 

1Portable Fuel Container Safety Act of 2020, 

codified at 15 U.S.C. § 2056d, as stated Public Law 

116–260, div. FF, title IX, § 901, available at: 

www.govinfo.gov/content/pkg/PLAW-116publ260/ 

pdf/PLAW-116publ260.pdf. 

2Safety 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. 

3The letter is available here: https://

www.cpsc.gov/s3fs-public/Enforcement-DiscretionRelated-to-Portable-Fuel-Containers.pdf?VersionId=

7ZC5ry.So7vVIpsL2J7329Pfhshyh49a. 

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. 

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: cpscos@cpsc.gov. 

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: 

sbo@cpsc.gov. 

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: 

• 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

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 


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Federal Register / Vol. 88, No. 209 / Tuesday, October 31, 2023 / Rules and Regulations 74343 

4See Record of Commission Action here: https:// 

www.cpsc.gov/s3fs-public/RCAASTMsRevised

StandardforPrefilledContainersandDirect

FinalRuleUnderthePortableFuelContainer

SafetyActof2020.pdf?VersionId=2bvaQho_

RlirJo.xyAFUZXyFS2.7Qw7R. 

5The Commission voted 4–0 to approve 

publication of this notice as drafted. 

6Staff Memorandum available at: https://

www.cpsc.gov/s3fs-public/ASTMsRevised

StandardforPerfilledContainersandDirect

FinalRuleUnderthePortableFuelContainer

SafetyActof2020.pdf?VersionId=_p5lXY4B1YRCU_

horxqDSMNF_VcI0NbI. 

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. 

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 nonsubstantive 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 prefilled 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

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 


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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 retested. 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 

§ 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-andabuse 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-ofcharge 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: cpsc-os@cpsc.gov. 

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 prefilled 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 


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74346 Federal Register / Vol. 88, No. 209 / Tuesday, October 31, 2023 / Rules and Regulations 

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. 

■ 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. 

§ 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 

§ 1461.3, which are considered to be 

consumer product safety rules. 

§ 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] 

§ 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 § 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 § 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 § 1461.4) 

are not required to comply with ASTM 

F3326–21. 

§ 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 cpsc-os@cpsc.gov. For 

information on the availability of this 

material at NARA, visit 

www.archives.gov/federal-register/cfr/ 

ibr-locations or email fr.inspection@

nara.gov. 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 


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Federal Register / Vol. 88, No. 209 / Tuesday, October 31, 2023 / Rules and Regulations 74347 

1 21 CFR 1308.41–1308.45; 21 CFR part 1316, 

subpart D. 

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 

DEPARTMENT OF JUSTICE 

Drug Enforcement Administration 

21 CFR Part 1308 

[Docket No. DEA1258] 

Schedules of Controlled Substances: 

Placement of Zuranolone in Schedule 

IV 

AGENCY: Drug Enforcement 

Administration, Department of Justice. 

ACTION: Interim final rule; request for 

comments. 

SUMMARY: On August 4, 2023, the 

United States Food and Drug 

Administration approved a new drug 

application for ZURZUVAE 

(zuranolone) capsules for the treatment 

of post-partum depression. The 

Department of Health and Human 

Services provided the Drug Enforcement 

Administration (DEA) with a scheduling 

recommendation to place zuranolone 

and its salts in schedule IV of the 

Controlled Substances Act (CSA). In 

accordance with the CSA, as amended 

by the Improving Regulatory 

Transparency for New Medical 

Therapies Act, DEA is hereby issuing an 

interim final rule placing zuranolone, 

including its salts, in schedule IV of the 

CSA. This action facilitates the public 

availability of zuranolone as a schedule 

IV controlled substance. 

DATES: This rule is effective October 31, 

2023. Comments must be submitted 

electronically or postmarked on or 

before November 30, 2023. 

Requests for hearing and waivers of 

an opportunity for a hearing or to 

participate in a hearing, together with a 

written statement of position on the 

matters of fact and law asserted in the 

hearing, must be received on or before 

November 30, 2023. 

ADDRESSES: Interested persons may file 

written comments on this rulemaking in 

accordance with 21 U.S.C. 811(j)(3) and 

21 CFR 1308.43(g). The electronic 

Federal Docket Management System 

will not accept comments after 11:59 

p.m. Eastern Time on the last day of the 

comment period. To ensure proper 

handling of comments, please reference 

‘‘Docket No. DEA1258’’ on all 

correspondence, including any 

attachments. 

• Electronic comments: The Drug 

Enforcement Administration (DEA) 

encourages commenters to submit 

comments electronically through the 

Federal eRulemaking Portal, which 

provides the ability to type short 

comments directly into the comment 

field on the web page or attach a file for 

lengthier comments. Please go to 

https://www.regulations.gov and follow 

the online instructions at that site for 

submitting comments. Upon completion 

of your submission, you will receive a 

Comment Tracking Number for your 

comment. Submitted comments are not 

instantaneously available for public 

view on Regulations.gov. If you have 

received a Comment Tracking Number, 

your comment has been successfully 

submitted and there is no need to 

resubmit the same comment. 

• Paper comments: Paper comments 

that duplicate electronic submissions 

are not necessary. Should you wish to 

mail a paper comment in lieu of an 

electronic comment, it should be sent 

via regular or express mail to: Drug 

Enforcement Administration, Attn: DEA 

Federal Register Representative/DPW, 

8701 Morrissette Drive, Springfield, VA 

22152. 

• Hearing requests: All requests for 

hearing and waivers of participation, 

together with a written statement of 

position on the matters of fact and law 

asserted in the hearing, must be filed 

with the DEA Administrator, who will 

make the determination of whether a 

hearing will be needed to address such 

matters of fact and law in the 

rulemaking. Such requests must be sent 

to: Drug Enforcement Administration, 

Attn: Administrator, 8701 Morrissette 

Drive, Springfield, Virginia 22152. For 

informational purposes, a courtesy copy 

of requests for hearing and waivers of 

participation should also be sent to: (1) 

Drug Enforcement Administration, Attn: 

Hearing Clerk/OALJ, 8701 Morrissette 

Drive, Springfield, Virginia 22152; and 

(2) Drug Enforcement Administration, 

Attn: DEA Federal Register 

Representative/DPW, 8701 Morrissette 

Drive, Springfield, Virginia 22152. 

FOR FURTHER INFORMATION CONTACT: 

Terrence L. Boos, Drug & Chemical 

Evaluation Section, Diversion Control 

Division, Drug Enforcement 

Administration; Telephone: (571) 362– 

3249. 

SUPPLEMENTARY INFORMATION: 

Posting of Public Comments 

Please note that all comments 

received in response to this docket are 

considered part of the public record. 

DEA will make comments available for 

public inspection online at https://

www.regulations.gov. Such information 

includes personal or business 

identifying information (such as name, 

address, State or Federal identifiers, 

etc.) voluntarily submitted by the 

commenter. In general, all information 

voluntarily submitted by the 

commenter, unless clearly marked as 

Confidential Information in the method 

described below, will be publicly 

posted. Comments may be submitted 

anonymously. The Freedom of 

Information Act applies to all comments 

received. 

Commenters submitting comments 

which include personal identifying 

information (PII), confidential, or 

proprietary business information that 

the commenter does not want made 

publicly available should submit two 

copies of the comment. One copy must 

be marked ‘‘CONTAINS 

CONFIDENTIAL INFORMATION’’ and 

should clearly identify all PII or 

business information the commenter 

does not want to be made publicly 

available, including any supplemental 

materials. DEA will review this copy, 

including the claimed PII and 

confidential business information, in its 

consideration of comments. The second 

copy should be marked ‘‘TO BE 

PUBLICLY POSTED’’ and must have all 

claimed confidential PII and business 

information already redacted. DEA will 

post only the redacted comment on 

https://www.regulations.gov for public 

inspection. 

For easy reference, an electronic copy 

of this document and supplemental 

information to this interim final rule 

(IFR) are available at https://

www.regulations.gov. 

Request for Hearing or Appearance; 

Waiver 

Pursuant to 21 U.S.C. 811(a), this 

action is a formal rulemaking ‘‘on the 

record after opportunity for a hearing.’’ 

Such proceedings are conducted 

pursuant to the provisions of the 

Administrative Procedure Act (APA), 5 

U.S.C. 551–559.1 Interested persons, as 

defined in 21 CFR 1300.01(b), may file 

requests for a hearing in conformity 

with the requirements of 21 CFR 

1308.44(a) and 1316.47(a), and such 

requests must: 

(1) state with particularity the interest 

of the person in the proceeding; 

(2) state with particularity the 

objections or issues concerning which 

the person desires to be heard; and 


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