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Rule2022-25308

Children's Gasoline Burn Prevention Act Regulation

Primary source

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Published

November 22, 2022

Effective

December 22, 2022

Issuing agencies

Consumer Product Safety Commission

Abstract

The Children's Gasoline Burn Prevention Act (CGBPA or the Act) mandated, as a consumer product safety rule, the child-resistance requirements for closures on portable gasoline containers published in the voluntary standard, ASTM F2517-05. ASTM F2517 was revised in 2015 and 2017, and the U.S. Consumer Product Safety Commission (CPSC) allowed those revisions to become mandatory pursuant to the Act. On September 1, 2022, the Commission received notice that ASTM F2517 has been revised again. In this direct final rule, the Commission evaluates the revised ASTM F2517-22e1 standard and finds that the revisions carry out the purposes of the CGBPA. Accordingly, pursuant to the Act, the 2022 revisions to the child-resistance requirements of ASTM F2517 will be incorporated into the mandatory standard for closures on portable gasoline containers. This direct final rule updates the Commission's regulation to reflect that the requirements for closures on portable gasoline containers must meet the requirements in ASTM F2517-22e1.

Full Text

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<title>Federal Register, Volume 87 Issue 224 (Tuesday, November 22, 2022)</title>
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[Federal Register Volume 87, Number 224 (Tuesday, November 22, 2022)]
[Rules and Regulations]
[Pages 71242-71247]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-25308]

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CONSUMER PRODUCT SAFETY COMMISSION

16 CFR Part 1460

[Docket No. CPSC-2015-0006]

Children's Gasoline Burn Prevention Act Regulation

AGENCY: Consumer Product Safety Commission.

ACTION: Direct final rule.

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SUMMARY: The Children's Gasoline Burn Prevention Act (CGBPA or the Act)
mandated, as a consumer product safety rule, the child-resistance
requirements for closures on portable gasoline containers published in
the voluntary standard, ASTM F2517-05. ASTM F2517 was revised in 2015
and 2017, and the U.S. Consumer Product Safety Commission (CPSC)
allowed those revisions to become mandatory pursuant to the Act. On
September 1, 2022, the Commission received notice that ASTM F2517 has
been revised again. In this direct final rule, the Commission evaluates
the revised ASTM F2517-22e1 standard and finds that the revisions carry
out the purposes of the CGBPA. Accordingly, pursuant to the Act, the
2022 revisions to the child-resistance requirements of ASTM F2517 will
be incorporated into the mandatory standard for closures on portable
gasoline containers. This direct final rule updates the Commission's
regulation to reflect that the requirements for closures on portable
gasoline containers must meet the requirements in ASTM F2517-22e1.

DATES: The rule is effective on December 22, 2022, unless CPSC receives
a significant adverse comment by December 7, 2022. If CPSC receives
such a comment, it will publish a notice in the Federal Register,
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 22,
2022.

ADDRESSES: You can submit comments, identified by Docket No. CPSC-2015-
0006, by any of the following methods:
Electronic Submissions: Submit electronic comments to the Federal
eRulemaking Portal at: <a href="http://www.regulations.gov">www.regulations.gov</a>. 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: <a href="http://www.regulations.gov">www.regulations.gov</a>. 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: <a href="/cdn-cgi/l/email-protection#1a796a69793775695a796a6979347d756c">[email&#160;protected]</a>.
Docket: For access to the docket to read background documents or
comments received, go to: <a href="http://www.regulations.gov">www.regulations.gov</a>, and insert the docket
number, CPSC-2015-0006, into the ``Search'' box, and follow the
prompts.

FOR FURTHER INFORMATION CONTACT: Julio A. Alvarado, Office of
Compliance and Field Operations, Consumer Product Safety Commission,
4330 East West Highway, Bethesda, MD 20814-4408; telephone (301) 504-
7418; <a href="/cdn-cgi/l/email-protection#f19b909d87908390959eb192818292df969e87">[email&#160;protected]</a>.

SUPPLEMENTARY INFORMATION:

A. Background

The CGBPA was enacted on July 17, 2008. Section 2(b) of the Act
requires that each portable gasoline container manufactured on or after
January 17, 2009, for sale in the United States, ``shall conform to the
child-resistance requirements for closures on portable gasoline
containers specified in the standard ASTM F2715-05,'' Standard
Specification for Determination of Child Resistance of Portable Fuel
Containers for Consumer Use. CGBPA, Public Law 110-278; 122 Stat. 2602,
Sec. 2(b) (July 17, 2008), codified as a note to 15 U.S.C. 2056. ASTM
F2715-05 established requirements for determining the child

[[Page 71243]]

resistance of gasoline containers and other types of portable fuel
containers, to mitigate hazards associated with children under age 5
accessing gasoline. Section 2(a) of the Act states that the provision
of section 2(b) shall be considered to be a consumer product safety
rule issued by the CPSC under section 9 of the Consumer Product Safety
Act, 15 U.S.C. 2058.
Under section 2(d) of the Act, ASTM must notify the Commission of
any revision to the child-resistance requirements of ASTM F2517-05.
Once ASTM notifies the CPSC, the revisions will be incorporated by
operation of law into the consumer product safety rule unless, within
60 days of such notice, the Commission determines that the revisions do
not carry out the purposes of section 2(b) of the CGBPA, and so
notifies ASTM.
In February 2015, ASTM notified CPSC that it had revised ASTM
F2517-05 with the publication of ASTM F2517-15. The Commission
determined that the revisions in ASTM F2517-15 carried out the purposes
of section 2(b) of the CGBPA, and those revisions were incorporated
into the mandatory standard in April 2015. The Commission published a
direct final rule (DFR) codifying the incorporation by reference of
ASTM F2517-15 at 16 CFR part 1460. 80 FR 16961 (Mar. 31, 2015). In
November 2017, ASTM again notified the Commission that it had revised
ASTM F2517. The Commission allowed ASTM F2517-17 to be incorporated
into the mandatory standard and published a DFR updating the
incorporation by reference in the CFR. 82 FR 58728 (Dec. 14, 2017).
On September 1, 2022, ASTM notified CPSC of another revision, ASTM
F2517-22e1. Unless the Commission determines that the revised standard
does not carry out the purposes of section 2(b) of the CGBPA and
notifies ASTM of such a determination by October 31, 2022, the revision
will be incorporated into the mandatory consumer product safety
standard by operation of law.
As set forth in section B. Description of the Rule in this
preamble, the Commission has determined that the revisions made to ASTM
F2517 carry out the purposes of section 2(b) of the CGBPA. Accordingly,
by operation of law, ASTM F2517-22e1 will be incorporated into
mandatory standard, and this direct final rule updates 16 CFR part 1460
to incorporate by reference ASTM F2517-22e1.\1\
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\1\ The Commission voted 4-0 to approve publication of this
notice as drafted.
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B. Description of the Rule

ASTM F2517-22e1, which was published in August 2022, is an
editorially corrected version of ASTM F2517-22, which was published in
July 2022. Compared to ASTM F2517-17, ASTM F2517-22e1 contains
substantive revisions as well as editorial, non-substantive revisions.
After reviewing the changes to the child-resistance requirements in
sections 2 through 7 of F2517-22e1, the Commission concludes that these
revisions carry out the purposes of section 2(b) of the Act.
The revisions in ASTM F2517-22e1 update the standard to reflect
current gasoline container designs, remove ambiguities in the child
test requirements, creates an adult test that reflects usage patterns
and applies requirements to aftermarket products such as pour spouts
which make it more likely that containers will not be left unsecured
and accessible to children. The Commission concludes that these changes
carry out the purposes of section 2(b) of the Act by improving the
portable gasoline container standard, compared to the requirements of
ASTM F2517-05. Below is a discussion of ASTM F2517-05, subsequent
revisions to the standard, and the substantive and non-substantive
changes made to ASTM F2517-22e1. These changes, and the background of
the voluntary standard, are described in more detail in the CPSC
staff's briefing memorandum.\2\
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\2\ Staff Briefing Memorandum available at: <a href="https://www.cpsc.gov/s3fs-public/Revision-to-Childrens-Gasoline-Burn-Prevention-Act-Regulation-16-C-F-R-part-1460.pdf?VersionId=NHFcZYVIgZy5pT_SKHnGLcWfkeY8p4_O">https://www.cpsc.gov/s3fs-public/Revision-to-Childrens-Gasoline-Burn-Prevention-Act-Regulation-16-C-F-R-part-1460.pdf?VersionId=NHFcZYVIgZy5pT_SKHnGLcWfkeY8p4_O</a>.
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1. Requirements in ASTM F2517-05

The Act made the child-resistance requirements in ASTM F2517-05 for
closures on portable gasoline containers a mandatory consumer product
safety standard. Section 2(d) of the Act makes this 2005 version of the
standard a benchmark for assessing revisions to the standard. ASTM
F2517-05 required that container closures have adequate resistance to
opening by children between 42 months (3 years and 6 months) and 51
months of age (4 years and 3 months). ASTM 2517-05 also required
performance testing to demonstrate that containers could be opened by
older adults.
The child and older adult testing requirements in ASTM F2517-05
were based on the Poison Prevention Packaging Act (PPPA), 15 U.S.C.
1471-77. In 2005, gasoline containers had one opening to fill and pour
from the container. To store the container, a consumer would screw on a
threaded cap, typically using a ratchet mechanism similar to child-
resistant medicine bottles. To fill the gasoline container, or attach a
nozzle to pour from the container, one would use force and squeeze to
defeat the ratchet. The nozzles used in 2005 generally did not contain
any closures or child-resistance features. Containers also had a second
small opening to vent the container. ASTM F2517-05 did not require a
child-resistant closure for the vent opening. Gasoline vapors would
escape the gasoline container through the vent opening.
ASTM F2517-05 included a requirement for a child test program using
a panel of children. The child test required the container to pass a
two-part test. First, the tester would ask a pair of children to open
the container and give them 5 minutes to open it. If a child opened a
container, the test result for that child was marked a failure. The
second part of the test was for children who did not open their
containers in the first part of the test. The tester would visually
demonstrate opening the container, ask the children to open it, and
then give the children 5 minutes to open the container. If a child
opened a container, the test result was marked a failure. If a child
did not open a container, the result was marked a pass.
The older adult test program used 100 adults between 50 and 70
years old, consisting of at least 70 percent women. The older adult
test had two parts. First, the tester would ask an older adult to open
all the caps on the container according to the instructions on the caps
and gave the older adult 5 minutes to familiarize themselves with the
container and open the caps. If the older adult was unable to open the
container in 5 minutes, the tester gave the older adult two ``screener
packages'' to open. A screener package is a gasoline container with the
child-resistance mechanism defeated. If the older adult was able to
open both screener packages, then the test result was marked a failure,
because the test showed that the child-resistance feature made the cap
too difficult for the older adult to open. If the older adult could not
open either screener package, then the older adult was not counted,
because the older adult could not open the gas can, even with the
child-resistance mechanism already defeated.
The second part of the older adult test was for older adults who
opened a container in the first 5 minutes. The tester replaced the
older adult's first container with an identical container. The tester
then asked the older adult to open the caps according to the
instructions on them. After the older

[[Page 71244]]

adult completed that step, the tester asked the older adult to close
the caps on the container according to the instructions. A test where
the older adult completed both tasks within 1 minute total was marked a
pass, because the test showed that an older adult could open and close
two child-resistant containers. Otherwise, the test was marked a
failure. For the container to pass the older adult test, at least 90
percent of the older adults must have passed.

2. Requirements Introduced in ASTM F2517-15 and ASTM F2517-17

The 2015 and 2017 revisions are described in detail in the staff
package. Significant elements of the 2015 revision included a new
requirement that the tester tell the child to ``use your teeth if you
want to'' during a child test. This instruction was based on testing
provisions in the CPSC regulations related to the PPPA, 16 CFR 1700.20.
ASTM F2517-15 also expanded the scope of the standard to include diesel
and kerosene containers, as well as aftermarket components.
In 2017, to account for changes to gasoline container closures,
ASTM revised the requirements to prepare containers for testing as well
as the instructions given to children. ASTM F2517-17 also allowed the
use of centralized testing as long as socio-economic diversity was
maintained. Testing laboratories were finding it difficult to test in
daycare facilities, and centralized testing permitted increased testing
options.

3. Ambiguities in Applying ASTM F2517-17

Gasoline container designs have changed considerably since 2005,
primarily in response to U.S. Environmental Protection Agency (EPA)
vapor emission requirements. Gasoline containers made before 2009
generally contained only one closure to refill and dispense gasoline.
Typically, gasoline containers now contain two closures, one to secure
the container after refilling (refilling closure) and a second within
the spout to prevent vapors from escaping (dispensing closure).
Gasoline containers also no longer contain a separate vent; instead,
they use a venting mechanism incorporated in the dispensing closure.
When a dispensing closure on current gasoline containers is not
activated, the opening automatically closes and seals in the fuel and
vapors. This self-sealing closure is typically achieved using a spring-
loaded mechanism. Opening the dispensing closure on EPA-compliant
gasoline containers also generally requires a more complex series of
actions (e.g., insert the nozzle into receptacle, then push, then
turn), compared to older gasoline containers (e.g., squeeze then turn).
The ASTM subcommittee working on the 2022 standard revision
identified three ambiguities that had arisen in applying ASTM F2517-17.
The first involved a failure provision relating to children ``accessing
liquid'' in the container. This requirement was added in 2017, to
account for self-sealing mechanisms on EPA-compliant gasoline
containers. Laboratories, however, were uncertain whether a child
passes the test who was able to open momentarily a self-sealing closure
without keeping it open long enough to get liquid.
The second ambiguity involved screener packages used to determine
if an older adult was an acceptable participant for testing. Prior to
EPA emission limits, the screener package was typically made by
replacing the child-resistant screw cap with a non-child-resistant
screw cap (e.g., a screw cap with the ratchet removed) on the only
closure. EPA-compliant gasoline containers, however, now also have a
second closure with integrated child-resistance features, so a new
approach was needed to screen older adult participants. ASTM F2517-17
did not clearly indicate a solution.
The final ambiguity involved the resecuring portion of the older
adult test. Older adults were given 1 minute to open and then resecure
the container. EPA-compliant gasoline containers, however, now include
separate dispensing closures and filling closures, and the standard did
not indicate whether the dispensing closure, filling closure, or both
closures, should be tested.

4. Substantive Changes to ASTM F2517

a. Accessing Liquid Failure Criteria in Child Testing
To address the ambiguity of the term ``accessing liquid,'' the
revised standard changed the test to evaluate whether children are able
to ``dispense liquid'' from a self-sealing closure. This new
requirement maintains the understanding that a child should not gain
access to the liquid, but does not necessarily fail a container with a
spring-loaded closure simply because a child pressed the trigger
momentarily but could not keep it open long enough to dispense liquid
from the container. This revision represents an improvement over ASTM
F2517-05 because it enables self-sealing solutions such as spring-
loaded closures, and the momentary exposure of children to gasoline
fumes and vapors from a self-sealing closure exposes children to less
fumes and vapors than a gasoline container from prior to 2009, which,
by design, allowed gasoline fumes and vapors to escape.
b. Instructions to Children To Use Their Teeth
Testing laboratories indicated during the development process of
ASTM F2517-22e1 that they seldom witnessed children trying to use their
teeth when testing gasoline containers. Furthermore, because gasoline
container closures are larger and shaped more irregularly than products
like medicine bottle caps, and they rely on a sequence of actions
rather than just exceeding a certain torque threshold, children are
unlikely to gain a meaningful advantage by using their teeth when
attempting to open a gasoline container closure. Additionally,
stakeholders raised concerns that children using their teeth could
sustain injuries to their mouth or swallow pieces of plastic.
Therefore, ASTM F2517-22e1 removes the instruction to encourage
children to use their teeth. The standard does not prohibit children
from using their teeth, so that children can interact with the closures
as they choose to, including using their teeth. However, the risk of
harming the children during the test is reduced, without adversely
affecting the ability to ascertain the child-resistance of the
container. Removing this instruction aligns with international
standards.\3\
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\3\ CSA Z76.1, ISO 8317-15, ISO 14375:2018, EN 862:2006-02.
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c. New Adult Test Replacing Previous Older Adult Test
The revised standard includes a new adult test. Adults are still
given 5 minutes to read the instruction, familiarize themselves with
the container, and demonstrate that it can be opened and resecured.
Then the adults are given two, 1-minute periods to open and resecure
each closure. However, the demographics, mixture of genders of adults,
and suitability of participants have been changed to reflect more
accurately those who actually use gasoline containers.
Many of the ASTM F2517-17 older adult test requirements were based
on requirements for products subject to 16 CFR 1700.15(b)(2)(i) and the
PPPA. However, the usage and demographics of users of gasoline
containers differ from those for products subject to the PPPA, such as
medicine bottles. Gasoline containers are generally used to fuel
products for yard work (e.g.,

[[Page 71245]]

lawn mowers, leaf blowers), and other activities (e.g., ATVs); so
gasoline container users are expected to have a baseline physical
ability that allows them to complete these tasks. In addition, gasoline
containers are designed to be used repeatedly, so gasoline container
users are expected to have some experience in their operation.
<bullet> The new adult test requirements broaden the age range of
adults, rather than all participants being between 50 and 70, as in the
previous older adult test. Adults between the ages of 50 and 70 are
still included; the new age distribution is:
[cir] 22%-28% are 18 to 29 years of age;
[cir] 45%-55% are 30 to 49 years of age; and
[cir] 22%-28% are 50 to 70 years of age.
<bullet> The new adult test includes more men, but it still
requires at least 30 percent women, rather than 70 percent women, as in
the previous older adult test.
The adult test also replaces the screener package with a self-
certifying question, asking adult participants if they have used a
gasoline container in the last 2 years. Adults who report unfamiliarity
with gasoline containers are not used for the test.
Additionally, the revised standard permits adult test participants
to view videos and other informative materials that might be found on
the internet to reflect better the modern methods that manufacturers
use to provide information to consumers, if those test subjects attempt
to find the videos. Adult participants who try to access additional
information that a manufacturer has on the internet during the
familiarization period of the test would be given that information by
the tester. Finally, the adult test sequence specifically instructs the
adult to open and resecure both the refilling and dispensing closures
within 1 minute for each closure.
d. Approving a Family of Containers
In addition to addressing implementation issues that had arisen
with ASTM F2517-17, ASTM F2517-22e1 allows a ``family'' of gasoline
containers to be acceptable if the smallest container (which is very
likely the easiest for children to manipulate) is tested by children
and the largest container (which is very likely the hardest for
children to manipulate) is tested by adults. A ``family'' of gasoline
containers consists of containers that share the same design features,
including the same child-resistance features, but in varying sizes and
colors. The child-resistance features still need to be tested, but the
same features do not need to be tested repeatedly when shown to be
acceptable on other containers. This revision maintains child-
resistance because the child-resistance features are the same within
the ``family'' of containers. Accordingly, if children cannot access
the smallest container in the family, then it is likely they will not
be able to access the larger containers in the same family.

5. Non-Substantive Revisions in ASTM F2517

In addition to clarifying ambiguities in the prior standard, as
discussed above, the ASTM subcommittee made several non-substantive
changes to the standard that are relevant to CPSC's implementation of
the Act. First, ASTM F2517-22e1 newly includes the terms ``dispensing
system,'' ``closure,'' ``filling opening,'' and ``portable fuel
container'' in the terminology section. ASTM F2517-22e1 also includes a
new ``requirements'' section, Section 4. Requirements that are
applicable to both child and adult testing were moved into this
section.
Two unnecessary requirements were removed from ASTM F2517. The ASTM
subcommittee removed repetitive testing steps for containers where
dispensing systems may be stowed in the container. Some modern gasoline
containers include a dispensing system that is stowed for sale, but is
not intended or practical for the consumer to re-stow in regular use.
Un-stowing a dispensing system was an unnecessary component to testing.
Additionally, a requirement to seal containers 72 hours before testing
was removed because statistical data indicated that the torque required
to open the container did not change over time.
The readability of ASTM F2517-22e1 was improved. The protocol steps
are now written in the imperative. For instance, the language stating
that ``the testing shall take place in a well-lit location that is or
becomes familiar to the children and is isolated from all
distractions'' was revised to state in the imperative ``conduct the
testing in a test area that is well-lit and where the children are
isolated from all distractions.'' The test protocols also were
reorganized into a consistent structure of ``Test Parameters,'' ``Test
Environment,'' and ``Test Panel.''
These non-substantive changes do not impact the purposes of the Act
regarding the child resistance requirements, because the technical
requirements that affect the determination of child resistance were not
changed.

6. Change to Statutory Definition of ``Portable Gasoline Container''

When Congress enacted the CGBPA in 2008, section 2(c) of the Act
defined ``portable gasoline container'' as ``any portable gasoline
container intended for use by consumers.'' In 2020, Congress amended
the definition of ``portable gasoline container,'' by inserting after
``for use by consumers'' the following: ``and any receptacle for
gasoline, kerosene, or diesel fuel, including any spout, cap, and other
closure mechanism and component of such receptacle or any retrofit or
aftermarket spout or component intended or reasonably anticipated to be
for use with such receptacle, produced or distributed for sale to or
use by consumers for transport of, or refueling of internal combustion
engines with, gasoline, kerosene, or diesel fuel.'' \4\ The current
mandatory standard incorporated the previous statutory definition at 16
CFR 1460.2. This definition is being updated to reflect the revised
statutory definition. Therefore, in addition to updating the
incorporation by reference to ASTM F2517-22e1, the draft final rule
also updates the definition of ``portable gasoline container'' stated
in 16 CFR 1460.2 to reflect the current statutory definition.
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\4\ The amendment to this definition was contained in the
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(c), available at: <a href="https://www.govinfo.gov/content/pkg/PLAW-116publ260/pdf/PLAW-116publ260.pdf">https://www.govinfo.gov/content/pkg/PLAW-116publ260/pdf/PLAW-116publ260.pdf</a>.
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C. 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 Commission concludes that when it
updates a reference to ASTM F2517 that is incorporated by reference
under section 2(d) of the CGBPA, notice and comment are not necessary.
Specifically, under section 2(d) of the CGBPA, when ASTM revises
ASTM F2517, that revision will become the new CPSC standard, unless the
Commission determines that ASTM's revision does not carry out the
purposes of section 2(b) of the Act. Thus, unless the Commission makes
such a determination, the ASTM revision becomes CPSC's mandatory
standard by

[[Page 71246]]

operation of law. The Commission is allowing ASTM F2517-22e1 to become
CPSC's new standard. The purpose of this direct final rule is to update
the Code of Federal Regulations (CFR) so that it reflects the version
of the standard that takes effect by statute. This rule updates the
reference in the CFR, but under the terms of the CGBPA, ASTM F2517-22e1
takes effect as the new CPSC mandatory standard for portable fuel
containers, even if the Commission does not issue this rule.
Additionally, the revision of the definition of portable gasoline
container in the regulation is merely to ensure the definition comports
with the revised statutory definition. Thus, public comments would not
alter substantive changes to the standard or the effect of the revised
standard as a consumer product safety standard under section 2(b) of
the CGBPA. Under these circumstances, notice and comment are
unnecessary.
In 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 December 7,
2022, the rule will become effective on December 22, 2022. 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 updates a reference in the CFR to reflect a change that occurs
by statute and a change to the statutory definition of ``portable fuel
container,'' and public comments should address these specific actions.
If the Commission receives 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.

D. Incorporation by Reference

Section 1460.3 of the direct final rule incorporates by reference
ASTM F2517-22e1. 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 B. Description of
the Rule of this preamble summarizes the major provisions of ASTM
F2517-22e1 that the Commission incorporates by reference into 16 CFR
part 1460. The standard is reasonably available to interested parties.
Until the direct final rule takes effect, a read-only copy of ASTM
F2517-22e1 is available for viewing, at no cost, on ASTM's website at:
<a href="http://www.astm.org/CPSC.htm">www.astm.org/CPSC.htm</a>. Once the rule takes effect, a read-only copy of
the standard will be available for viewing, at no cost, on the ASTM
website at: <a href="http://www.astm.org/READINGLIBRARY/">www.astm.org/READINGLIBRARY/</a>. Interested parties can also
schedule an appointment to inspect a copy of the standard 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: <a href="/cdn-cgi/l/email-protection#bfdccfccdc92d0ccffdccfccdc91d8d0c9">[email&#160;protected]</a>. Interested parties can purchase a copy
of ASTM F2517-22e1 from ASTM International, 100 Barr Harbor Drive, P.O.
Box C700, West Conshohocken, PA 19428-2959 USA; telephone: (610) 832-
9585; <a href="http://www.astm.org">www.astm.org</a>.

E. Effective Date

The CGBPA provides that ``the proposed revision shall be
incorporated in the consumer product safety rule . . . unless, within
60 days of such notice, the Commission notifies ASTM International that
the Commission has determined that such revision does not carry out the
purposes'' of section 2(b) of the Act. Unless the Commission receives a
significant adverse comment by December 7, 2022, the rule will become
effective on December 22, 2022. Portable gasoline containers
manufactured or imported on or after the effective date must comply
with the child-resistance requirements for closures on portable
gasoline containers in ASTM F2517-22e1.

F. Certification

Section 14(a) of the CPSA requires that products subject to a
consumer product safety rule under the CPSA, or to a similar rule, ban,
standard, or regulation under any other act enforced by the Commission,
be certified as complying with all applicable CPSC requirements. 15
U.S.C. 2063(a). Such certification must be based on a test of each
product, or on a reasonable testing program. Because ASTM F2517-22e1 is
considered a consumer product safety rule under the CPSA, portable
gasoline containers manufactured or imported on or after December 22,
2022, are subject to the testing and certification requirements of
section 14 of the CPSA with respect to ASTM F2517-22e1.

G. Regulatory Flexibility Act

The Regulatory Flexibility Act (RFA; 5 U.S.C. 601-612) generally
requires 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 C.
Direct Final Rule Process 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 updates the incorporation
by reference to reflect the standard that becomes mandatory under the
CGBPA and to conform the definition of ``portable gasoline containers''
in the regulation with the revised statutory definition.

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

[[Page 71247]]

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 CGBPA deems rules issued
under that statute a ``consumer product safety rule.'' Therefore, once
a rule issued under the CGBPA 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, this 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 1460

Consumer protection, Gasoline, Incorporation by reference, Safety.

For the reasons stated above, the Commission amends 16 CFR part
1460 as follows:

PART 1460--CHILDREN'S GASOLINE BURN PREVENTION ACT REGULATION

0
1. Revise the authority citation for part 1460 to read as follows:

Authority: Sec. 2, Pub. L. 110-278, 122 Stat. 2602; and Pub. L.
116-260, div. FF, title IX, Sec. 901(c).

0
2. Revise Sec. 1460.2 to read as follows:

Sec. 1460.2 Definition.

Portable fuel container means any portable gasoline container
intended for use by consumers and any receptacle for gasoline,
kerosene, or diesel fuel, including any spout, cap, and other closure
mechanism and component of such receptacle or any retrofit or
aftermarket spout or component intended or reasonably anticipated to be
for use with such receptacle, produced or distributed for sale to or
use by consumers for transport of, or refueling of internal combustion
engines with, gasoline, kerosene, or diesel fuel.

0
3. Revise Sec. 1460.3 to read as follows:

Sec. 1460.3 Requirements for child-resistance for closures on
portable gasoline containers.

Each portable gasoline container manufactured on or after December
22, 2022 for sale in the United States shall conform to the child-
resistance requirements for closures on portable gasoline containers
specified in sections 2 through 7 of ASTM F2517-22e1. ASTM F2517-22e1,
Standard Specification for Determination of Child Resistance of
Portable Fuel Containers for Consumer Use, approved June 1, 2022 is
incorporated by reference into this section with the approval of the
Director of the Federal Register under 5 U.S.C. 552(a) and 1 CFR part
51. This material is available for inspection at the Office of the
Secretary, U.S. Consumer Product Safety Commission at: Room 820, 4330
East West Highway, Bethesda, MD 20814, telephone (301) 504-7479, email
<a href="/cdn-cgi/l/email-protection#b8dbc8cbdb95d7cbf8dbc8cbdb96dfd7ce">[email&#160;protected]</a>, or at the National Archives and Records
Administration (NARA). For information on the availability of this
material at NARA, email <a href="/cdn-cgi/l/email-protection#6006124e090e1310050314090f0e200e0112014e070f16">[email&#160;protected]</a>, or go to:
<a href="http://www.archives.gov/federal-register/cfr/ibr-locations.html">www.archives.gov/federal-register/cfr/ibr-locations.html</a>. A read-only
copy of the standard is available for viewing on the ASTM website at
<a href="http://www.astm.org/READINGLIBRARY/">www.astm.org/READINGLIBRARY/</a>. This material may be obtained from ASTM
International, 100 Barr Harbor Drive, PO Box C700, West Conshohocken,
PA 19428-2959; telephone (610) 832-9585; <a href="http://www.astm.org">www.astm.org</a>.

Alberta E. Mills,
Secretary, Consumer Product Safety Commission.
[FR Doc. 2022-25308 Filed 11-21-22; 8:45 am]
BILLING CODE 6355-01-P

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