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Notice of proposed rulemaking: fire pots and gel fuel

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[Federal Register Volume 76, Number 248 (Tuesday, December 27, 2011)][Proposed Rules][Pages 80832-80838]From the Federal Register Online via the Government Printing Office [www.gpo.gov][FR Doc No: 2011-32908]

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CONSUMER PRODUCT SAFETY COMMISSION

16 CFR Part Chapter II

Fire Pots and Gel Fuel; Advance Notice of Proposed Rulemaking;
Request for Comments and Information

AGENCY: Consumer Product Safety Commission.

ACTION: Advance notice of proposed rulemaking.

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SUMMARY: The Consumer Product Safety Commission (“the Commission,”
“CPSC,” or “we”) has reason to believe that firepots and gel fuel
used together may present an unreasonable risk of injury. As of
September 30, 2011, the Commission is aware of 76 incidents that
resulted in 2 deaths and 86 injuries involving firepots used with gel
fuel. All of these incidents occurred between April 3, 2010 and
September 1, 2011. Many of the injuries were severe; over half of the
victims reportedly required hospitalization. This advance notice of
proposed rulemaking (“ANPR”) initiates a rulemaking proceeding under
the Consumer Product Safety Act (“CPSA”). We invite comments
concerning the risk of injury associated with firepots, gel fuel and
gel fuel containers, the regulatory alternatives discussed in this
notice, and other possible ways to address this risk. We also invite
interested persons to submit an existing standard or a statement of
intent to modify or develop a voluntary standard to address the risk of
injury described in this notice.

DATES: Written comments in response to this notice must be received by
February 27, 2012.

ADDRESSES: You may submit comments, identified by Docket No. CPSC-2011-
0095, by any of the following methods:

Electronic Submissions

    Federal eRulemaking Portal: http://www.regulations.gov. Follow the

Written Submissions

information, or other personal information provided, to http://www.regulations.gov. Do not submit confidential business information,

rkhanna@cpsc.gov.

SUPPLEMENTARY INFORMATION:

A. Background

    CPSC staff identified firepots used with gel fuel as an emerging
hazard in June 2011, after a severe injury was reported to the CPSC. We
pursued investigations and conducted analyses of these incidents. As of
September 30, 2011, we are aware of 76 incidents involving firepots
used with gel fuel that resulted in 2 deaths and 86 injuries. In an
effort to address this emerging hazard, the CPSC’s Office of Compliance
and Field Operations initiated several recalls of pourable alcohol gel
fuel. To date, 12 voluntary recalls have been announced recalling more
than 2 million bottles of gel fuel. The products involved in the
recalls were alcohol-based gel fuel in containers intended to be used
with firepots. Each recalled product was marketed for use with

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firepots. We seek to establish a more permanent means to reduce or
eliminate the hazard posed by firepots using gel fuel.

B. The Products

    The incidents discussed in this ANPR all involve firepots used with
alcohol-based gel fuel. When firepots and gel fuel are used together,
they can present serious burn and fire hazards. Firepots and gel fuel
are usually sold as separate products, but they are often marketed for
use together, and some companies manufacture both products.

1. Firepots

    This ANPR covers firepots that are designed and intended to be used
with gel fuel. Firepots are portable, decorative lighting accents
marketed for indoor and outdoor use. Their purpose is decorative. They
provide some illumination and are not intended to provide heat. Many
are made of ceramic material and look like vases or decorative pots,
but some have different features and materials, such as a partial
enclosure made of glass. Firepots are also sometimes called personal
fireplaces, personal fire pits, firelights, or fire bowls. These
products have the following characteristics in common. They: (1) Are
portable; (2) are open on at least one side; (3) have an open cup,
usually made of stainless steel, to hold the gel fuel; and (4) are used
with alcohol-based gel fuel. This ANPR does not cover stationary
fireplaces or lighting products that have a wick or use a type of fuel
other than alcohol-based gel fuel.
    Firepots are relatively new products. They were not prominently
marketed until late 2009. Firepots range in price from under $20 to
more than $100. Based on a review of online retailers’ product
offerings, most models are priced at $20 to $40. Based on information
relating unit sales of gel fuel by a leading manufacturer to its sales
of firepots, we estimate that nearly 2.5 million firepots could have
been sold to consumers since the product was introduced. Most units
likely were purchased in 2010, and during the first six months of 2011.
We have identified at least 10 companies that have manufactured
firepots or have been wholesalers/private labelers of firepots. These
firepots have been sold online or through retail outlets that market
home and garden products. Most of the leading marketers of firepots
also have marketed their own brands of gel fuel. The leading firms in
the firepot market have fewer than 20 employees, and they are
categorized primarily as wholesalers. Under size standards issued by
the U.S. Small Business Administration (“SBA”), wholesalers with
fewer than 100 employees could be considered small businesses. Barriers
to market entry are minimal, and additional firms could market firepots
that they manufacture or import.

2. Gel Fuel

    This ANPR also covers gel fuel that is designed and intended to be
used as fuel for firepots. Gel fuel is composed primarily of alcohol,
and it produces a clean-burning flame with no visible smoke or ash.
CPSC staff analyzed 18 samples of firepot gel fuels to determine
chemical composition, flash point, and viscosity. The analyses showed
that firepot gel fuel is primarily alcohol-based (containing
approximately 80 percent alcohol). The types of alcohol most commonly
included were ethanol, isopropanol (“IPA”), and ethanol and IPA
mixtures. The remaining components in the gel fuel samples were water,
gelling agents, and additives, including citronella and eucalyptus. The
analysis determined that the flashpoint for these samples was less than
or equal to 74[emsp14][deg]F (“F”), with the lowest measure being
32[emsp14][deg]F. Gel fuel has a higher viscosity than liquid fuels.
The analysis found that gel fuel viscosities ranged from 5,000 to
25,000 CentiPoise (“cP”). These viscosities are similar to those of
molasses (5,000 cP) or chocolate syrup (10,000 to 25,000 cP).
    Gel fuel intended for use with firepots has been sold in sizes
ranging from one pint to one gallon, with one-quart containers
apparently the most common size. Individual containers of gel fuel
generally have sold at retail for $5 to $20 per unit. Although firepots
have had a significant presence in the consumer market for the last two
years only, at least one firm has marketed gel fuel similar to what is
used in firepots for approximately the last 10 years to be used as fuel
for gel fuel fireplaces. Gel fuel for fireplaces has been available in
single-use cans since at least the middle 1980s. These products
continue to be marketed by some firms, including firms that had been
active in the market for firepots. Gel fuel also is available in
single-use cans that can be placed in the firepot. Single-use cans of
gel fuel intended for use with firepots are covered by this ANPR. Most
manufacturers and private labelers identified by CPSC staff who offer
gel fuel in bottle containers did not offer it for sale until 2009 or
later.
    Information on unit sales of gel fuels was provided by 11 of the
firms that agreed to voluntary recalls of their products during 2011.
These firms had combined shipments of about 2.5 million units since
2008. One firm accounted for nearly two-thirds of the total reported
unit sales. A twelfth firm also agreed to a recall of its products, but
information on its unit sales is not available. Available information
indicates that the firms would be considered small businesses under SBA
guidelines.

C. The Risk of Injury

1. Incident Data Overview

    As of September 30, 2011, we are aware of 76 incidents involving
firepots that were using gel fuel. These incidents resulted in 2 deaths
and 86 injuries, a majority of which resulted in severe burns that
reportedly required hospitalization. The incidents occurred between
April 3, 2010 and September 1, 2011. A majority of the reported
incidents (as well as a majority of the injuries and both fatalities)
occurred when a consumer was pouring more fuel into a firepot (referred
to as “refueling”), resulting in an explosion. This and other hazard
scenarios are discussed in section C.2 of this preamble. Many injuries
were severe. Of the 86 injury victims, 48 of them (56%) were
hospitalized. Many victims who were not hospitalized received treatment
in emergency rooms for their burn injuries. Most (53) of the incidents
involved 1 victim, but 9 had no victims, and 14 had multiple victims.
    The two fatalities were a 51-year-old man and an 84-year-old woman.
Of the 86 nonfatal injury victims, 19 were victims of unknown age.
Among the 67 injury victims whose age is known, 1 was under 5 years of
age, 7 were between ages 5 and 14, 12 were between ages 15 and 29, 39
were between ages 30 and 49, 7 were between 50 and 64, and 1 was older
than 64.

2. Hazard Scenarios

    From the reported incidents, we identified eight hazard scenarios
associated with firepots using gel fuel. The most common hazard
scenario involves refilling the firepot with gel fuel. The eight
identified hazard scenarios are discussed below.
    Refueling firepot. The majority of incidents, the majority of high
severity injuries, and both deaths reported to date, occurred when
consumers were attempting to refill a firepot that had just recently
been in use. In 49 incidents (64 percent of all reported incidents),
consumers were reportedly in the process of, or had just finished,
refilling a firepot when the flame in the firepot ignited the vapors in
the fuel container and an explosion resulted. These 49

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incidents caused 2 fatalities and 61 injuries, 35 of which were high
severity burns needing hospitalization. In 36 of the 49 refueling
incidents, the most seriously injured person was not the person who was
refilling the firepot. Details on the extent of the burns frequently
are missing for the hospitalized cases, but at least nine victims of
this scenario reportedly sustained between 20 to 70 percent total body
surface area (“TBSA”) burns. In 26 of these 49 incidents, consumers
reported that they believed the firepot had run out of fuel because
they did not see any flames in the firepot. In 6 of these 49 incidents,
consumers reported that a low flame was present in a nearly empty
firepot.
    For example, in one incident, a 51-year-old man sustained 60
percent TBSA burns and died after being hospitalized for 33 days. His
wife also was hospitalized with serious burns. According to the
incident report, “His wife was sitting at the table as he was pouring
the fuel. Suddenly there was an explosion and the husband, wife, lanai,
plants, clothing. etc., were all on fire.” Flaming gel fuel was
dripping from the top of the lanai onto the victims and patio.
    According to another refueling incident report, a firepot was at
the center of a patio table and had been burning for nearly two hours.
The four people present believed that the flame had gone out. One began
to pour more gel fuel into the burn cup. According to the incident
report, “Once the bottle was tilted in a direction to pour the gel
fuel, a fireball erupted. The fireball appeared to come from outside
the bottle and above the gel burner. The `explosion’ knocked the victim
backwards out of her chair where she laid with parts of her upper body
on fire.” The victim was hospitalized (including three nights in the
intensive care unit) and released with second-degree burns on 10
percent of her body–on her face, arms, chest, stomach, and back. The
person pouring the gel fuel suffered minor burn injuries.
    Explosion while lighting firepot. In five incidents (about 7
percent) an explosion occurred in the firepot, which already had fuel
in it, when the consumer attempted to light the firepot with an open-
flame ignition source (such as a match or lighter). These incidents
resulted in nine injuries, four of which were high severity burn
injuries needing hospitalization. According to the incident reports, in
three cases the firepot had already been in use that day and was being
relit having just been refilled. In two cases, it was not clear whether
the firepot had previously been in use that day.
    Fuel container explosion. In two incidents (about 3 percent), the
gel fuel container was a short distance away from a lit firepot when
the container exploded. In both incidents, the victims were
hospitalized, one with high severity burn injuries. In one incident,
the consumer reportedly poured the fuel from a gallon jug into a
ceramic firepot, lit it with a long BBQ lighter, and placed the jug of
fuel a foot away when the jug of fuel ignited and exploded. A 50-year-
old female was injured and hospitalized. In the other incident, the 25-
year-old victim reported: “We poured (brand X) fuel gel into our fire
pot and lit it. We sat the bottle of gel about a foot away from the
pot. (We don’t remember if the top was on or off the bottle.) All of
the sudden, the bottle exploded. The gel that passed over the open
flame of the pot ignited and landed on me. (It sounded like a gunshot.)
The flash sunburned my face, synged (sic) my eyelashes, and burned my
left ear. It caught my left arm, back, hair and shirt on fire.”
Engineering analysis of these incidents suggests that it was likely
that a small flame was present on the bottle after refueling of the
firepot, which could have ignited the flammable vapors in the fuel
container.
    Burn cup ejection. In six incidents (about 8 percent), reports
stated that the burn cup ejected spontaneously from the firepot during
use. These incidents resulted in three injuries, one of which required
hospitalization. Although we could not replicate this scenario in
laboratory testing, we believe that the burn cup ejections may be
caused by excessive pressure that builds up due to inadequate venting
in the interior of the firepot.
    Explosion during use. In four incidents (about 5 percent), reports
stated that fuel in the burn cup exploded spontaneously while the
firepot was in use. Single victims were injured in three of these
cases, with one victim, a 5-year-old boy, reportedly hospitalized for
four days for burn injuries to his face, eyes, and chest. In another
incident, a dog was set on fire; it ran into the house, causing a fire
and substantial property damage. We could not replicate this scenario
in laboratory testing, but we believe that fuel explosions may be due
to exposure to contaminants.
    Tip over of firepot. In three incidents (about 4 percent), lit
firepots tipped over, causing burning gel fuel to spill. These
incidents resulted in six injuries, four of which were high severity
burn injuries requiring hospitalization. Two of the victims were young
children. In these scenarios, the firepot was placed on a surface, such
as a table or stool, when a person bumped into the supporting surface
or accidentally knocked over the firepot, causing the burning gel fuel
to fall onto the victims.
    Firepot breakage. In three incidents (about 4 percent), the firepot
reportedly broke while it was in use. In one incident it was reported
that when the firepot broke, ceramic shards went flying. These
incidents did not result in injury. We did not observe this scenario in
our laboratory testing. However, it is possible that the temperature
and internal pressure generated during use of the firepot could cause
the ceramic firepot to break.
    Explosion while extinguishing flame. In one incident, a consumer
reported that when she attempted to extinguish a firepot using the
snuffer device that was supplied with the firepot, a flame erupted and
flaming gel spurted up to five feet away. The burning gel ignited
furniture and carpeting, causing property damage but no injuries. This
scenario also was not observed in laboratory testing.
    Not enough information. In three incidents, not enough information
was available to classify the hazard pattern. These incidents resulted
in three injuries, one requiring hospitalization.

3. Details Concerning Injuries

    Injuries resulting from these incidents can be extensive and life-
threatening, requiring lengthy, costly, and painful treatment. Burn
injuries are classified by the depth of tissue that is burned, which is
expressed as the degree of burn (first-, second-, or third- degree).
Burn severity is a function of the victim’s age, the depth of burn, the
extent of burn (generally expressed as the percentage of total body
surface area that has second- or third-degree burns), and by the
specific location of the burned area(s). Certain areas of the body are
considered to be critical areas (face, ears, hands, feet, joints,
genitals, and perineum). As a general rule, any injuries involving
second- or third-degree burns in critical areas, and/or >20 percent
TBSA, are considered high severity and require hospitalization.
    The reported injuries range from minor to high severity, and two
victims are known to have died from their severe burns. Surviving
victims of firepot incidents may require life-support and medical
treatment in intensive care units. Detailed information is not
available for all hospitalization cases involving high severity
injuries, but we are aware of at least 15 hospitalized victims who were

[[Page 80835]]

admitted for extensive periods (from 10 to 76 days based on the most
recent update of each specific case). Eleven cases specifically noted
that between 20 to 70 percent of the total body surface area was
burned. Victims may require multiple surgeries, including skin grafts,
and they may be at risk from complications, such as shock, fluid loss,
and infection. In addition, victims may be left with extensive deep
scarring, permanent disfigurement and functional impairment, and severe
psychological trauma, especially if the face is involved.

D. Analysis of Hazards Posed by Firepots and Gel Fuel

    Firepots used together with gel fuel create a serious hazard that
consumers may not perceive accurately. Various characteristics of both
firepots and gel fuels may be responsible for this. We have analyzed
the incidents and samples of the products to understand these hazards
better.

1. Firepots

a. Physical Characteristics
    Firepots have certain physical characteristics that our analysis
indicates could contribute to the hazard reported in these incidents.
All firepots subject to this ANPR have an open receptacle, referred to
as a “burn cup,” to hold gel fuel. The burn cup is usually made of
stainless steel or ceramic material. It has no covering. If the firepot
falls or is knocked over, the burning gel fuel can spread onto people
or combustible items. Unlike candles, oil lamps, or other outdoor
lighting accessories that require a wick to produce a flame, firepots
do not need a wick to sustain a flame; so when a firepot is knocked
over, the fuel and fire will spread readily.
    Firepots are available in a variety of shapes and sizes. The
geometry of some may make them more likely to tip over if the firepot,
or the surface on which it sits, is bumped accidentally. We conducted
tests of several tip-over scenarios. In these tests, when firepots
placed on a flat surface were tipped, fuel was ejected up to 5 feet.
When firepots were positioned on heights simulating placement on a
table or bar, as reported in the incident data, a firepot falling from
a 31-inch height splattered fuel approximately 5 feet, and falls from a
42-inch height splattered fuel about 9 feet. Consumers are not likely
to anticipate the significant distance that gel fuel can spatter. We
are aware of three firepot tip-over incidents injuring six victims in
which four victims were hospitalized.
    The burn cup sits within the firepot and is not secured to the base
of the firepot by any means. We are aware of six incidents in which the
burn cup ejected from the firepot. Staff did not observe this scenario
in laboratory testing. One possible explanation for this scenario is
that while the firepot is in use with the gel fuel, it reaches very
high temperatures, which produces increased pressure within the
firepot. This build up of pressure, without adequate venting, may cause
the burn cup to eject.
b. Warnings and Use
    We examined 11 samples of firepots to assess the warnings provided
with the products and to consider hazards related to how consumers are
likely to use firepots. Most of the firepots that we examined have a
warning directing the consumer not to leave a burning firepot
unattended and to keep it away from children and pets. Some firepots
instruct the user to place the firepot on a flat and level surface
only. Most of the firepots that we examined had a warning directing the
user not to add fuel to an open flame and to check that the flame is
out before refueling.
    These warnings were usually on the package or in the instructions
enclosed in the package. One sample had the warning on the product, but
it was not affixed permanently and would be removed by the consumer
before using the firepot because the warning blocks the burn cup. None
of the samples had permanent warnings about refilling that could be
noticed each time the product is used. We believe that the warnings we
examined are not likely to be effective. They were not conspicuous due
to their placement, lack of visual differentiation, and lack of
pictorial symbols. Moreover, only one warning label clearly stated that
the consequence of not following the warning was severe burns.
    Consumers may not observe and follow warning labels on or
accompanying firepots, even if the warnings are present. In general,
the safer a product is perceived to be, the less likely people are to
read the instructions and warnings that accompany it. Also, the more
familiar people are with a product, the less likely they are to read
instructions and warnings. Firepots appear to be simple and familiar
decorative accessories that are easy to use. They may resemble familiar
and less hazardous products, such as candle holders. In addition, it
may be difficult for consumers to comply with a warning not to refill
the firepot while it is still hot or burning. As discussed in section
D.2.a. of this preamble, gel fuel produces a nearly invisible flame
that consumers may not detect. In 26 of the 49 incidents that
reportedly occurred while a consumer was refilling a firepot, consumers
reported that the flame was out, that there were no visible flames, or
that no gel fuel was left in the firepot. In 10 of the refilling
incidents, consumers acknowledged that the flame was low, the pot was
hot, or that there was a small amount of gel fuel left in the pot
before they refilled it. In these situations, consumers may be
refilling the firepots because they are not sufficiently knowledgeable
about the behavior of alcohol-based fuels, and they identify firepots
with familiar and less hazardous products.

2. Gel Fuel

 a. Physical and Chemical Characteristics
    We examined the physical and chemical properties of 18 samples of
gel fuel to evaluate how these characteristics may contribute to the
firepot incidents that have been reported. The gel fuel samples that we
analyzed were composed primarily of alcohol (approximately 80 percent
alcohol with the balance being water, gelling agent, and additives like
citronella). Most contained ethanol and/or IPA. Gel fuel is flammable.
According to regulations under the Federal Hazardous Substances Act
(“FHSA”), a substance is considered flammable if it has a flashpoint
above 20 [deg]F and below 100 [deg]F. 16 CFR 1500.3(c)(6)(ii). The
flashpoint for the samples that we examined was less than or equal to
74 [deg]F. (Two samples that contained butane had flashpoints of 32
[deg]F and 36 [deg]F.) Under a widely recognized classification system,
gel fuel would also be considered a Class 1 Flammable Liquid. See
National Fire Protection Association (“NFPA”) 30, Flammable and
Combustible Liquids Code, Chapter 4.
    Gel fuel produces a clean-burning flame and generates very little
smoke or soot. This makes the flame less visible than flames produced
by other types of fuel, particularly if it is burning during daylight.
Moreover, as the gel fuel in the burn cup burns, the flames become more
obscured in the bottom of the cup. A small flame or smoldering
combustion of the spent gel fuel may remain in the base of the burn cup
when the fuel is almost exhausted. This can mislead consumers into
thinking that the firepot’s flame is out and needs more fuel. If the
consumer adds fuel to the firepot when there is a small flame or
smoldering combustion in the burn cup, the gel fuel can easily ignite.

[[Page 80836]]

    Gel fuel has a higher viscosity than liquid fuels, such as gasoline
or kerosene. Its consistency is similar to molasses or honey. This
higher viscosity means that a pool of spilled gel fuel will not spread
as widely as a less viscous liquid. However, the higher viscosity
increases the risk of injury with these burning fuels. Most incidents
involved burning gel fuel that contacted victims when the fuel
exploded, was ejected, or spilled. Due to its viscosity, burning gel
fuel, when it contacts skin or clothing, sticks to that surface more
than liquid fuel. Burning gel fuel is difficult to extinguish with the
usual methods used to put out a fire. The reaction that most
individuals would have when they are on fire would be to “stop, drop,
and roll.” However, this maneuver is ineffective because patting the
flaming gel fuel actually spreads the burning surface. Using water to
extinguish a gel fuel fire also is not likely to be effective because,
to be successful, a significant amount of water would be needed, and
initially pouring water on the fire is likely to spread the burning gel
fuel over a larger surface area.
b. Characteristics of Gel Fuel Containers
    Most of the reported incidents occurred when a consumer was in the
process of pouring more gel fuel into a firepot that was, or recently
had been, in use. We examined the gel fuel containers and assessed how
the combination of the properties of the gel fuel and characteristics
of the gel fuel containers may contribute to the risk of injury in
these incidents.
    In the majority of incidents, consumers reported “explosions”
and/or ejecting of burning alcohol fuel during refilling, or bottles
“exploding” after refilling. These phenomena can be explained by
understanding the chemistry within the vapor space (also called the
“headspace”) of the bottle. (See Figure 1.) The headspace is the area
inside the container that is above the level of the fuel in the
container. With alcohol-based gel fuel at room temperature, the
concentration of the alcohol vapors in the headspace is above the lower
flammable limit (“LFL”) and below the upper flammable limit
(“UFL”). This means that, at room temperatures, there is an explosive
concentration within the alcohol fuel bottle headspace. When exposed to
an open flame, this atmosphere will cause an explosion and eject
burning fuel. For this to happen, the bottle must have a sufficient
amount of gaseous headspace but still have a substantial amount of fuel
remaining. The amount of gaseous headspace governs the energy of the
explosion, which then ejects the remaining gel fuel. If the bottle is
in an orientation where fuel is near the bottle throat and a flame is
able to penetrate into the headspace igniting the explosive atmosphere,
an explosion can occur, which rapidly increases the pressure inside the
bottle and ejects the remaining liquid or gel fuel, igniting it as it
exits. Testing at CPSC has confirmed this scenario.
    Most gel fuel containers are open-mouth containers that resemble
water bottles or containers used for storing cleaning liquids. They do
not have safety features, such as venting, grounding, or flame
arrestors to prevent ignition of flammable vapors. Furthermore, while a
majority of the incidents involved refueling, there are incidents, such
as tipovers, can ejections, and explosions, which would not be
addressed by requiring safety features on the gel fuel containers.
[GRAPHIC] [TIFF OMITTED] TP27DE11.002

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c. Warnings and Use of Gel Fuel
    As noted, gel fuel is flammable. Under the FHSA, it is required to
have labeling that warns of the flammability hazard. 15 U.S.C. 1261(p).
Almost all of the gel fuel samples we examined complied with the
warning label requirements of the FHSA. However, we found that these
warnings do not effectively address the hazards posed by gel fuel. As
with the firepot warnings, the gel fuel warnings are not conspicuous.
The majority of gel fuel bottles that we examined warn against
refilling a firepot. However, this warning is only one element in a
long list of directions for use or that is included in the list of
generic warnings, such as: “keep away from children” or “never leave
a burning fire pot unattended.” The refilling warnings are not
differentiated from other statements on the containers, and they do not
have any pictorial symbols. None of the warnings state the consequence
of refilling a firepot while it is hot or burning.
    As with firepots, consumers are not likely to perceive the hazard
posed by gel fuel. Gel fuel containers often are packaged in containers
that look familiar, resembling water bottles. They do not have any
special closures, such as child-resistant packaging, that might alert a
consumer to the potential hazard. The containers may have phrases such
as “environmentally friendly,” “eco-friendly,” “live safe, burn
safe,” and “non-toxic” that may reduce the likelihood that a
consumer would consider the substance to be hazardous. This may lead
consumers to ignore warnings on the product.

E. Relevant Statutory Provisions

    We are conducting this proceeding under the Consumer Product Safety
Act (“CPSA”). 15 U.S.C. 2051 et seq. Firepots and gel fuel are
consumer products. Id. 2052(a)(5). Under section 7 of the CPSA, the
Commission can issue a consumer product safety standard if the
requirements of such a standard are “reasonably necessary to prevent
or reduce an unreasonable risk of injury associated with [a consumer
product].” Id. 2056(a). Such a standard must be expressed in terms of
performance requirements or requirements for warnings or instructions.
Id. Under section 8 of the CPSA, the Commission can issue a rule
declaring a product to be a banned hazardous product when the
Commission finds that a consumer product is being, or will be,
distributed in commerce and there is no feasible consumer product
safety standard that would adequately protect the public from the
unreasonable risk associated with the product. Id. 2057.
    Section 9 of the CPSA sets out the procedure that the Commission
must follow in order to issue a standard or a banning rule. The
rulemaking may begin with an ANPR that identifies the product and the
nature of the risk of injury associated with the product, summarizes
the regulatory alternatives being considered by the Commission, and
provides information about any relevant existing standards and a
summary of the reasons the Commission believes they would not eliminate
or adequately reduce the risk of injury. The ANPR also must invite
comments concerning the risk of injury and regulatory alternatives and
invite submission of an existing standard or a statement of intent to
modify or develop a voluntary standard to address the risk of injury.
Id. 2058(a). The next step in the rulemaking would be for us to review
comments submitted in response to the ANPR and decide whether to issue
a proposed rule along with a preliminary regulatory analysis. The
preliminary regulatory analysis would describe potential benefits and
costs of the proposal, discuss reasonable alternatives, and summarize
the potential benefits and costs of the alternatives. Id. 2058(c). We
would then review comments on the proposed rule and decide whether to
issue a final rule along with a final regulatory analysis. Id. 2058(d)-
(g).

F. Relevant Existing Standards

    We are not aware of any existing mandatory or voluntary standards
that would address the risk of injury associated with firepots and gel
fuel. Other federal agencies have regulations concerning Class I
flammable liquids. For example, the U.S. Department of Transportation
(“DOT”) sets out certain requirements for storage and transportation
of these substances. See, e.g., 49 CFR parts 172 through 177. The
Occupational Safety and Health Administration (“OSHA”) regulates
these substances in the workplace. 29 CFR 1910.106. These regulations
do not establish any requirements related to the risk of injury
identified in the reported incidents. NFPA 30, Flammable and
Combustible Liquids Code, is a voluntary standard concerning
classification, storage, and handling of flammable and combustible
liquids. It does not directly address the firepot gel fuel incidents.
However, some of the provisions concerning containers for storing
flammable liquids could provide guidance for requirements for gel fuel
containers.

G. Regulatory Alternatives

    We are considering the following alternatives to address the risk
of injury associated with firepots and gel fuel:
    1. Mandatory standard. We could issue a rule establishing
performance requirements for firepots and/or gel fuel to prevent or
reduce an unreasonable risk of injury associated with these products.
For example, possible performance requirements for firepots might
include stability requirements to address the tip-over hazard. Possible
requirements for gel fuel might include performance requirements for
flame visibility to increase consumers’ awareness of the presence of a
flame. To address the refueling hazard, one option may be requirements
for gel fuel containers to prevent ignition of the flammable headspace
or to require venting of the container.
    2. Mandatory labeling rule. We could issue a rule setting
requirements for labeling and/or instructions for firepots and/or gel
fuel if we found that such warnings and instructions could sufficiently
reduce the risk of injury identified in the reported incidents.
    3. Voluntary standard. If we determined that a voluntary standard
was adequate to address the risk of injury associated with firepots and
gel fuel, we could defer to the voluntary standard in lieu of issuing a
mandatory rule.
    4. Banning rule. We could issue a rule declaring firepots and/or
gel fuel to be banned hazardous products if we found that no feasible
consumer product safety standard would adequately protect the public
from the unreasonable risk of injury associated with these products.
    5. No regulatory action. We could take no regulatory action, but
continue to rely on corrective actions under section 15 of the CPSA to
address the risk of injury associated with firepots and gel fuel.

H. Solicitation of Information and Comments

    This ANPR is the first step of a proceeding that could result in a
mandatory rule for firepots and gel fuel. We invite interested persons
to submit comments on any aspect of the alternatives discussed above.
    In accordance with section 9(a) of the CPSA, we also invite
comments on:
    1. The risk of injury identified by the Commission, the regulatory
alternatives being considered, and other possible alternatives for
addressing the risk.
    2. Any existing standard or portion of a standard that could be
issued as a proposed regulation.
    3. A statement of intention to modify or develop a voluntary
standard to

[[Page 80838]]

address the risk of injury discussed in this notice, along with a
description of a plan (including a schedule) to do so.
    In addition, we invite comments and information concerning the
following:
    1. What products should we include in or exclude from the
rulemaking? For example, gel fuels tend to use ethanol, isopropanol,
and ethanol and isopropanol mixtures. Specifying the type of alcohol
used in gel fuel would provide clarity as to the scope of any rule on
gel fuel. However, if a gel fuel manufacturer could substitute a
different alcohol or chemical for ethanol or isopropanol, a rule that
was specific with respect to the type of alcohol used might then be
inapplicable.
    2. What possible warnings or instructions for firepots and/or gel
fuel could address the risk of injury?
    3. What possible performance requirements for firepots, gel fuel,
and/or gel fuel containers could address the risk of injury? Examples
of possible performance requirements are a stability test for firepots
making them less likely to tip over or a flame visibility test for gel
fuel so that the flame would be more apparent.
    4. What are the potential costs to manufacturers of labeling or
performance requirements?
    5. What are the potential benefits of a rule that would require
warnings or instructions?
    6. What are the potential benefits of a rule that would establish
performance requirements for firepots, gel fuel, and/or gel fuel
containers?
    7. What is the potential economic impact of banning firepots and/or
gel fuel? What alternative products would remain available?
    8. What is the potential impact of a rule on small entities?
    9. What other uses exist for pourable gel fuels other than the
firepots covered by the ANPR and the fireplaces that are expressly not
covered by this ANPR? What is the potential impact on gel fuel sold for
stationary fireplaces of any rule?
    10. Should pourable gel fuels ever be allowed to be used in open
containers or open flame applications that might allow for spillage or
splattering of gel fuels?
    11. Do single-use cans of gel fuel present the same hazard as
pourable gel fuels? Should single-use cans be treated differently under
a rule?

    Dated: December 20, 2011.
Todd A. Stevenson,
Secretary, Consumer Product Safety Commission.
[FR Doc. 2011-32908 Filed 12-23-11; 8:45 am]BILLING CODE 6355-01-P