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The Oregon Administrative Rules contain OARs filed through June 15, 2014
 
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DEPARTMENT OF STATE POLICE,
OFFICE OF STATE FIRE MARSHAL

 

DIVISION 35

FIRE STANDARD COMPLIANT (REDUCED IGNITION PROPENSITY) CIGARETTES

837-035-0000

Purpose and Scope

(1) The purpose of these rules is to implement the standards, policies and procedures for fire standard compliant (reduced ignition propensity) cigarettes.

(2) The scope of these rules applies to the implementation of ORS 476.755 through 476.806 and 476.995, relating to fire standard compliant (reduced ignition propensity) cigarettes.

Stat. Auth.: ORS 476
Stats. Implemented: ORS 476.755 - 476.806 & 476.995
Hist.: OSFM 2-2007(Temp), f. & cert. ef. 7-2-07 thru 12-28-07; OSFM 3-2007, f. & cert. ef. 11-16-07; OSFM 1-2012, f. & cert. ef. 1-24-12

837-035-0020

Effective Dates

OAR 837-035-0000 through 837-035-0340 are effective upon date of filing.

Stat. Auth.: ORS 476
Stats. Implemented: ORS 476.755 - 476.806 & 476.995
Hist.: OSFM 2-2007(Temp), f. & cert. ef. 7-2-07 thru 12-28-07; OSFM 3-2007, f. & cert. ef. 11-16-07

837-035-0040

Definitions

For the purpose of these rules, the following definitions apply to OAR 837-035-0000 through 837-035-0340:

(1) "Authorized Representative of the State Fire Marshal" means an employee of the State Fire Marshal, as well as Assistants to the State Fire Marshal as defined in ORS 476.060.

(2) "Cigarette" means a roll for smoking:

(a) That is made wholly of tobacco, or of tobacco and any other substance, regardless of size, shape or flavoring or adulteration by or mixing with other ingredients, the wrapper of which is made of paper or other non tobacco materials; and

(b) That, because of its appearance, the type of tobacco used in the filler or its packaging and labeling, is likely to be offered to or purchased by consumers as a cigarette.

(3) "Distribute" means to do any of the following:

(a) Sell cigarettes or deliver cigarettes for sale by another person to consumers;

(b) Receive or retain more than 199 cigarettes at a place of business where the person receiving or retaining the cigarettes customarily sells cigarettes or offers cigarettes for sale to consumers;

(c) Place cigarettes in vending machines;

(d) Sell or accept orders for cigarettes to be transported from a point outside this state to a consumer within this state;

(e) Buy cigarettes directly from a manufacturer or wholesale dealer for resale in this state;

(f) Give cigarettes as a sample, prize, gift or other promotion.

(4) "Fire standard compliant" (FSC) cigarette means a cigarette that has been tested and meets the fire safety performance standard described in ORS 476.770.

(5) "Manufacturer" means:

(a) Any entity that produces, or causes the production of, cigarettes for sale in this state;

(b) An importer or first purchaser of cigarettes that intends to resell within this state cigarettes that were produced for sale outside this state; or

(c) A successor to an entity, importer or first purchaser described in paragraph (a) or (b) of this subsection.

(6) "Packaging" means, but is not limited to, cigarette soft packs, boxes, cartons and cases.

(7) "Quality control and assurance program" means laboratory procedures implemented to ensure that operator bias, systematic and nonsystematic methodological errors and equipment-related problems do not affect the results of testing.

(8) "Reduced ignition propensity" means meeting the fire safety performance standard described in ORS 476.770(6), when tested as described in ORS 476.775(2).

(9) "Reduced ignition propensity cigarette" means a cigarette that has been tested as described in ORS 476.775(2), and meets the fire safety performance standard described in ORS 476.770(6).

(10) "Repeatability" means the range of values within which the repeat results of ignition propensity testing by a single laboratory will fall 95 percent of the time.

(11) "Retail dealer" means a person, other than a manufacturer or wholesale dealer that engages in distributing cigarettes.

(12) "Sell" means to transfer, or agree to transfer, title or possession for a monetary or non-monetary consideration.

(13) "Transporter" means any person importing or transporting into this state, or transporting in this state, cigarettes obtained from a source located outside this state, or from any person not licensed as a distributor under ORS 323.005 to 323.482. It does not include a licensed distributor, a common carrier to whom is issued a certificate or permit by the United States Surface Transportation Board to carry commodities in interstate commerce, or to a carrier of federal tax-free cigarettes in bond, or any person transporting no more than 199 cigarettes at any one time.

(14) "Variety" means a type of cigarette marketed by the manufacturer as being distinct from other types of cigarettes on the basis of brand name, length, filter, wrapping, flavoring or other characteristics.

(15) "Wholesale dealer" means a person that distributes cigarettes to:

(a) A retail dealer or other person for resale; or

(b) A person that owns, operates or maintains cigarette vending machines on premises owned or operated by another person.

Stat. Auth.: ORS 476
Stats. Implemented: ORS 476.755 - 476.806 & 476.995
Hist.: OSFM 2-2007(Temp), f. & cert. ef. 7-2-07 thru 12-28-07; OSFM 3-2007, f. & cert. ef. 11-16-07

837-035-0060

General

(1) All cigarettes sold or offered for sale in Oregon must be fire standard compliant (reduced ignition propensity) as required by ORS 476.760(1).

(2) Initial written certification attesting the cigarette variety has been subjected to ignition propensity testing under ORS 476.780 and meets the fire safety performance standard under ORS 476.770(6), must be provided to the Oregon State Fire Marshal (OSFM) prior to selling cigarettes. Refer to OAR 837-035-0080 for certification requirements.

(3) Re-certification of cigarettes is required every three years after initial certification. Refer to OAR 837-035-0100 for re-certification requirements.

(4) In addition to the above listed requirements, cigarette manufacturers, wholesaler dealers and retailers who sell cigarettes in Oregon must also comply with:

(a) ORS 476.755 through 476.806;

(b) OAR 837-035-0000 through 837-035-0340;

(c) All applicable federal, state and local laws, rules and regulations pertaining to cigarettes.

Stat. Auth.: ORS 476
Stats. Implemented: ORS 476.755 - 476.806 & 476.995
Hist.: OSFM 2-2007(Temp), f. & cert. ef. 7-2-07 thru 12-28-07; OSFM 3-2007, f. & cert. ef. 11-16-07; OSFM 1-2012, f. & cert. ef. 1-24-12

837-035-0080

Certification Requirements

(1) Cigarette manufacturers must submit written certification to the OSFM attesting the cigarette variety has been subjected to ignition propensity testing under ORS 476.780, and meets the fire safety performance standard under ORS 476.755 through 476.806 as proof that cigarette varieties have reduced ignition propensity.

(2) Certifications are valid for three years from the date of receipt by the OSFM.

(3) Written certifications must fulfill the requirements of ORS 476.780, for each cigarette variety. In particular, certifications must contain the following information for each variety of cigarette listed:

(a) The brand name shown on the cigarette packaging;

(b) The style or pack identifier;

(c) The length in millimeters;

(d) The circumference in millimeters;

(e) The flavor, such as menthol or chocolate, if applicable;

(f) Whether the cigarette is filtered or nonfiltered;

(g) A packaging description, such as soft pack or box;

(h) A description of the packaging marking approved by the OSFM under ORS 476.785;

(i) The name, address and telephone number of the laboratory conducting the ignition propensity testing, if other than the laboratory of the manufacturer;

(j) The date of the ignition propensity testing.

Stat. Auth.: ORS 476
Stats. Implemented: ORS 476.755 - 476.806 & 476.995
Hist.: OSFM 2-2007(Temp), f. & cert. ef. 7-2-07 thru 12-28-07; OSFM 3-2007, f. & cert. ef. 11-16-07; OSFM 1-2012, f. & cert. ef. 1-24-12

837-035-0100

Recertification Requirements

(1) Manufacturers must provide written re-certification to the OSFM within three years after the initial certification was received by the OSFM, and each three year period afterward.

(2) The re-certification must fulfill the requirements of ORS 476.780, for each cigarette variety.

Stat. Auth.: ORS 476
Stats. Implemented: ORS 476.755 - 476.806 & 476.995
Hist.: OSFM 2-2007(Temp), f. & cert. ef. 7-2-07 thru 12-28-07; OSFM 3-2007, f. & cert. ef. 11-16-07; OSFM 1-2012, f. & cert. ef. 1-24-12

837-035-0120

Test Method

(1) Cigarette varieties must be tested using the American Society for Testing & Materials (ASTM) International specification E2187-04, Standard Test Method for Measuring the Ignition Strength of Cigarettes or another test method approved by the OSFM consistent with ORS 476.770.

(2) The laboratory conducting ignition propensity testing must have a quality control and assurance program. The program must ensure the testing repeatability value for all test trials used to certify a cigarette variety. The repeatability value of ignition propensity testing may not be greater than 0.19.

(3) Ignition propensity testing used in a manufacturer certification submitted to the OSFM must be conducted in a laboratory accredited under:

(a) The International Organization for Standardization/International Electrotechnical Commission ISO/IEC 17025 Standard of International Organization for Standardization, or

(b) A standard recognized by the OSFM consistent with ORS 476.775(b).

(4) Refer to ORS 476.770 and 476.775 for all testing and quality control requirements.

(5) A cigarette manufacturer may propose a test method and performance standard if OSFM determines that a variety of cigarettes cannot be tested as described in OAR 837-035-0120(1). Upon approval by the OSFM, the manufacturer may use the test method and performance standard to certify the cigarette.

Stat. Auth.: ORS 476
Stats. Implemented: ORS 476.755 - 476.806 & 476.995
Hist.: OSFM 2-2007(Temp), f. & cert. ef. 7-2-07 thru 12-28-07; OSFM 3-2007, f. & cert. ef. 11-16-07

837-035-0140

Performance Standard

(1) As required by ORS 476.770(6), no more than 25 percent of the cigarettes tested in a complete test trial conducted in accordance with an ignition propensity testing method described in ORS 476.775, may exhibit full length burns.

(2) Each cigarette listed in a certification using lowered permeability bands in the cigarette paper to achieve compliance must have (for cigarettes on which the bands are not positioned by design):

(a) At least two nominally identical bands on the paper surrounding the tobacco column; and

(b) At least one complete band must be located at least 15 millimeters from the lighting end of the cigarette.

(3) For cigarettes on which the bands are positioned by design, there must be:

(a) At least two bands fully located at least 15 millimeters from the lighting end and 10 millimeters from the filter end of the tobacco column; or

(b) 10 millimeters from the labeled end of the tobacco column for a non-filtered cigarette.

Stat. Auth.: ORS 476
Stats. Implemented: ORS 476.755 - 476.806 & 476.995
Hist.: OSFM 2-2007(Temp), f. & cert. ef. 7-2-07 thru 12-28-07; OSFM 3-2007, f. & cert. ef. 11-16-07

837-035-0160

Packaging Marking

(1) Manufacturers must mark all packaging for cigarettes to indicate that cigarettes sold in this state are fire standard compliant (reduced ignition propensity). A manufacturer must submit to the State Fire Marshal a proposal for marking cigarette packaging. Proposed packaging marking must be in eight-point font or larger and consist of one of the following:

(a) Modification of the universal product code to indicate a visible mark printed at or around the universal product code. The mark may consist of alphanumeric or symbolic characters permanently printed, stamped, engraved or embossed in conjunction with the universal product code;

(b) A visible combination of alphanumeric or symbolic characters permanently stamped, engraved or embossed upon the packaging or cellophane wrapping;

(c) Printed, stamped, engraved or embossed test indicating the cigarettes meet the fire safety performance standard established in ORS 476.770(6).

(2) The OSFM will approve or disapprove the proposal for packaging marking, and packaging marking proposals not approved or denied by the OSFM within 10 days of receipt are deemed approved. In determining whether to approve or disapprove a proposal for packaging marking, the OSFM must approve packaging marking with the letters "FSC" (signifying fire standard compliant).

(3) Violations of this section are subject to a civil penalty as referenced in OAR 837-035-0320.

Stat. Auth.: ORS 476
Stats. Implemented: ORS 476.755 - 476.806 & 476.995
Hist.: OSFM 2-2007(Temp), f. & cert. ef. 7-2-07 thru 12-28-07; OSFM 3-2007, f. & cert. ef. 11-16-07; OSFM 1-2012, f. & cert. ef. 1-24-12

837-035-0180

Modification of Packaging Markings

(1) Any proposed modifications to packaging markings must be submitted to the OSFM for approval before use.

(2) Violations of this section are subject to a civil penalty as referenced in OAR 837-035-0320.

Stat. Auth.: ORS 476
Stats. Implemented: ORS 476.755 - 476.806 & 476.995
Hist.: OSFM 2-2007(Temp), f. & cert. ef. 7-2-07 thru 12-28-07; OSFM 3-2007, f. & cert. ef. 11-16-07

837-035-0200

Manufacturer Requirements

(1) In addition to the requirements of this division, manufacturers may sell only cigarettes that are fire standard compliant (reduced ignition propensity) to Oregon wholesaler and retailer dealers.

(2) Manufacturers of any cigarette varieties must submit written certification to the OSFM and their wholesale dealers ensuring their cigarettes are fire standard compliant (reduced ignition propensity).

(3) If a manufacturer makes any changes to a cigarette that are likely to alter the cigarette's compliance with the fire safety performance standard described in ORS 476.770(6), the manufacturer must retest to ensure the cigarette still is fire standard compliant (reduced ignition propensity) before distributing.

(4) Manufacturers must retain copies of all test data for at least three years, and provide test data to the OSFM or Attorney General upon request.

(5) Manufacturers must submit proposals for packaging marking to the OSFM for approval. Refer to OAR 837-035-0160 for packaging marking requirements.

(6) Manufacturers must provide enough copies of the packaging marking illustration to wholesale dealers to allow them to provide one copy to each retail dealer.

(7) Violations of this section are subject to a civil penalty as referenced in OAR 837-035-0320.

Stat. Auth.: ORS 476
Stats. Implemented: ORS 476.755 - 476.806 & 476.995
Hist.: OSFM 2-2007(Temp), f. & cert. ef. 7-2-07 thru 12-28-07; OSFM 3-2007, f. & cert. ef. 11-16-07; OSFM 1-2012, f. & cert. ef. 1-24-12

837-035-0220

Wholesale Dealer Requirements

(1) Wholesale dealers must provide one copy of the manufacturer's cigarette packaging marking illustration to each retail dealer.

(2)Wholesale dealers may sell only fire standard compliant/reduced ignition propensity cigarettes.

(3) Wholesale dealers may house non-compliant cigarettes in Oregon, provided they are not to be sold in Oregon.

(4) Violations of this section are subject to a civil penalty as referenced in ORS 476.765, 476.995 and OAR 837-035-0320.

Stat. Auth.: ORS 476
Stats. Implemented: ORS 476.755 - 476.806 & 476.995
Hist.: OSFM 2-2007(Temp), f. & cert. ef. 7-2-07 thru 12-28-07; OSFM 3-2007, f. & cert. ef. 11-16-07; OSFM 1-2012, f. & cert. ef. 1-24-12

837-035-0240

Retail Dealer Requirements

(1) Retail dealers may sell only fire standard compliant/reduced ignition propensity cigarettes.

(2) Violations of this section are subject to a civil penalty as referenced in ORS 476.765 and OAR 837-035-0320.

Stat. Auth.: ORS 476
Stats. Implemented: ORS 476.755 - 476.806 & 476.995
Hist.: OSFM 2-2007(Temp), f. & cert. ef. 7-2-07 thru 12-28-07; OSFM 3-2007, f. & cert. ef. 11-16-07; OSFM 1-2012, f. & cert. ef. 1-24-12

837-035-0260

Inspections

The OSFM or an authorized representative may inspect Oregon wholesale dealers, agents, and retailers for compliance with ORS 476.760. Inspections include packaging, certification, cigarettes, and any other documents to determine compliance with ORS 476.760, 476.770 and 476.785.

Stat. Auth.: ORS 476
Stats. Implemented: ORS 476.755 - 476.806 & 476.995
Hist.: OSFM 2-2007(Temp), f. & cert. ef. 7-2-07 thru 12-28-07; OSFM 3-2007, f. & cert. ef. 11-16-07

837-035-0280

Cooperative Agreements

The OSFM may enter into a cooperative agreement with any state or local agency allowing the agency to act as an authorized representative of the OSFM for enforcement purposes of this division.

Stat. Auth.: ORS 476
Stats. Implemented: ORS 476.755 - 476.806 & 476.995
Hist.: OSFM 2-2007(Temp), f. & cert. ef. 7-2-07 thru 12-28-07; OSFM 3-2007, f. & cert. ef. 11-16-07

837-035-0300

Seizure of Non-Compliant Product

(1) The OSFM, or an authorized representative, may seize and make subject to forfeiture any cigarette that:

(a) Is not fire standard compliant/reduced ignition propensity;

(b) Bears a packaging marking not approved by the OSFM.

(2) If seized cigarettes are determined to be non-compliant, the manufacturer will be given the opportunity to inspect the cigarettes and packaging.

(3) Non-compliant cigarettes that have been forfeited must be destroyed by the OSFM only after allowing the manufacturer to inspect the cigarettes and packaging.

Stat. Auth.: ORS 476
Stats. Implemented: ORS 476.755 - 476.806 & 476.995
Hist.: OSFM 2-2007(Temp), f. & cert. ef. 7-2-07 thru 12-28-07; OSFM 3-2007, f. & cert. ef. 11-16-07

837-035-0320

Civil Penalties

(1) The OSFM may impose civil penalties in accordance with ORS 183.745 for any violation of ORS 476.760 through 476.806, or OAR 837-035-0000 through 837-035-0340. Refer to the following penalty matrix for penalties established by ORS 476.995:

(a) Distributing or offering to sell non-compliant cigarettes to a wholesale or retail dealer: $10,000 or five times the wholesale invoice cost of the cigarettes involved in the violation, whichever is greater;

(b) Distributing or offering to sell not more than 1,000 non-compliant cigarettes to consumers: $500;

(c) Distributing or offering to sell more than 1,000 non-compliant cigarettes to consumers: $1,000 or five times the retail value of the cigarettes involved in the violation, whichever is greater.

(2) Each day a person distributes or offers to sell cigarettes after being notified by the OSFM that the distribution or offer to sell cigarettes is in violation of ORS 476.760, constitutes a separate violation and subjects the person to additional civil penalties.

(3) All monies collected from civil penalties are to be deposited to the Cigarette Fire Safety Fund of the OSFM.

Stat. Auth.: ORS 476
Stats. Implemented: ORS 476.755 - 476.806 & 476.995
Hist.: OSFM 2-2007(Temp), f. & cert. ef. 7-2-07 thru 12-28-07; OSFM 3-2007, f. & cert. ef. 11-16-07

837-035-0340

Procedures, Hearings and Judicial Review

(1) Hearings are conducted according to ORS 183.413 through 183.470.

(2) The Attorney General may bring action for the OSFM to:

(a) Seek injunctive relief to prevent or end a violation;

(b) Recover civil penalties;

(c) Recover attorney fees and other enforcement costs and disbursements.

Stat. Auth.: ORS 476
Stats. Implemented: ORS 476.755 - 476.806 & 476.995
Hist.: OSFM 2-2007(Temp), f. & cert. ef. 7-2-07 thru 12-28-07; OSFM 3-2007, f. & cert. ef. 11-16-07

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