[Federal Register Volume 72, Number 61 (Friday, March 30, 2007)]
[Notices]
[Pages 15184-15187]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-5948]


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DEPARTMENT OF TRANSPORTATION

Pipeline and Hazardous Materials Safety Administration

[Docket No. PHMSA-2006-26275]


Receipt of Petition for Rulemaking Classification of Polyurethane 
Foam and Certain Finished Products Containing Polyurethane Foam as 
Hazardous Materials

AGENCY: Pipeline and Hazardous Materials Safety Administration (PHMSA).

ACTION: Notice.

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SUMMARY: This Notice solicits comments on the merits of a petition for 
rulemaking filed by the National Association of State Fire Marshals 
(NASFM). The NASFM petitioned PHMSA to classify Polyurethane Foam and 
certain finished products containing Polyurethane Foam (PU) as 
hazardous materials in transportation in commerce, as a matter of 
safety for emergency responders and the public.

DATES: Comments must be received by June 28, 2007.

ADDRESSES: Written comments: You may submit comments on this Notice 
identified by the docket number (PHMSA-2006-26275) by any of the 
following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the online instructions for submitting comments.
     Web site: http://dms.dot.gov. Follow the instructions for 
submitting comments on the DOT electronic docket site.
     Fax: 1-202-493-2251.
     Mail: Docket Management System, U.S. Department of 
Transportation, 400 Seventh Street, SW., Nassif Building, PL-402, 
Washington, DC 20590-0001.
     Hand Delivery: PL-402 on the Plaza level of the Nassif 
Building, 400 Seventh Street, SW., Washington, DC, between 9 a.m. and 5 
p.m. Monday through Friday, except Federal holidays.
    Instructions: All submissions must include the agency name and 
docket number for this notice. Internet users may access comments 
received by DOT at http://dms.dot.gov. Note that comments received may 
be posted without change to http://dms.dot.gov including any personal 
information provided. If you believe your comments contain trade 
secrets or confidential commercial information, those comments or 
relevant portions of those comments should be appropriately marked. 
PHMSA procedures in 49 CFR part 105 establish a mechanism by which 
commenters may request confidentiality.

FOR FURTHER INFORMATION CONTACT: Helen Engrum or Susan Gorsky, Office 
of Hazardous Materials Standards (202) 366-8553, Pipeline and Hazardous 
Materials Safety Administration, U.S. Department of Transportation, 400 
Seventh Street, SW., Washington, DC 20590-0001.

SUPPLEMENTARY INFORMATION:

I. Background

    In a letter dated October 31, 2006, the National Association of 
State Fire Marshals (NASFM) submitted a petition for rulemaking to the 
U.S. Department of Transportation (DOT) through the Pipeline and 
Hazardous Materials Safety Administration (PHMSA) under the provisions 
of 49 CFR 106.31. The NASFM requested that the Hazardous Materials 
Regulations (HMR; 49 CFR parts 171-180) be amended to classify 
Polyurethane (PU) Foam and certain finished products containing PU as a 
hazardous material for purposes of transportation in commerce. The 
NASFM is made up of senior-level public safety officials from the 50 
States and the District of Columbia. The NASFM petition was received 
and acknowledged by PHMSA and assigned petition number P-1491; Docket 
No. PHMSA-2006-26275.
    Issuance of this Notice does not constitute a decision by PHMSA to 
undertake a rulemaking action on the substance of the petition. This 
Notice is issued solely to obtain comments on the merits of the 
petition to assist PHMSA in making a decision of whether to proceed 
with a rulemaking. Of particular interest are substantive comments that 
address the following items: (1) Estimated incremental costs or 
savings; (2) Anticipated safety benefits; (3) Estimated burden hours 
associated with the proposals related to information collection; (4) 
Impact on small businesses; and (5) Impact on the national environment.

II. Petition P-1491 Is Quoted as Follows

    As a matter of safety for emergency responders and the public, 
the National Association of Fire Marshals petitions the U.S. 
Department of Transportation (DOT), through the Pipeline & Hazardous 
Materials Safety Administration (PHMSA), to classify polyurethane 
(PU) foam and certain finished products containing it as a hazardous 
material for purposes of transportation. NASFM consists of senior-
level public safety officials from the 50 states and District of 
Columbia.
    The petitioners regard this proposal as critical to the safety 
of emergency responders and the public they are sworn to protect. 
The safety of emergency responders begins with information--at 
minimum, responders have the absolute right to know when they are 
dealing with hazardous materials, so they may take special 
precautions at incidents. The petitioners' interest extends to 
ensuring that hazardous materials are used, stored and transported 
in safe ways. Regulations exist across agencies that regulate the 
use and storage of PU foam, but a gap exists in ensuring the safe 
transportation of this hazardous material. Because it is not 
officially classified as a hazardous material for purposes of 
transportation, the safety of emergency responders and the public is 
compromised.
    The U.S. Department of Transportation's system of hazardous 
materials transportation placarding is critical to the safety of 
emergency responders and the public. Placards typically are the one 
source of information immediately available to responders as they 
determine the safest and most efficient means of suppressing fires 
and of rescuing persons trapped in vehicles. Placards provide 
information essential to knowing how fast a fire might spread, how 
difficult it might be to suppress, and how large and dangerous it 
may become.
    When hazardous materials are not properly placarded, the 
consequences to emergency responders could be injury or death. 
Obviously some shippers and transporters choose to violate the law 
by failing to properly placard when placarding is required. However, 
the DOT does not require placarding with some well-recognized 
hazardous materials. Such is the case with most grades of rigid and 
flexible PU foam and many of the finished products containing this 
highly flammable solid.
    PU foam, whether in bulk shipments or in finished products, is 
explicitly listed and controlled as a hazardous material in all 
phases of manufacturing, construction and more recently, consumer 
applications. As such, records pertaining to the hazardous nature of 
PU foam already are kept and reports are routinely issued by the 
producers of these materials. Ironically, when the risks are least 
manageable--in transportation--PU foam is not officially considered 
hazardous. This petition aims to correct this inadvertent oversight.
    Whether experienced in the real world or observed under 
scientific conditions, PU foam is a hazardous material. A 
significant

[[Page 15185]]

and unambiguous body of scientific literature underscores the poor 
fire performance of these materials and products, and a preliminary 
review of the fire incident data found numerous transportation 
incidents where PU foam and such products as upholstered furniture 
and mattresses provided the fuel load for significant fires. These 
are not new observations. Smoldering and small open flame ignitions 
of finished products containing PU foam have long been the number-
one cause of death by fire in the home.

Proposed Rulemaking Procedure

    NASFM proposes the following procedure based on its 
understanding of the PHMSA rulemaking process: Issue an Interim 
Final Rule designating bulk shipments of Polyurethane (PU) Foam as a 
Class 9 hazardous material. As part of this Interim Final Rule

Phase I

     Assign a North American Identification number to PU 
foam.
     Except shippers/carriers from requiring shipping 
papers, employee training, specific packaging requirements, and 
placarding.
     Require carriers to display Orange Panels with the 
identification number to identify the presence of PU foam for 
initial responders.
     Require transportation incidents involving PU foam 
fires to be reported to PHMSA.
     Publish a Safety Alert identifying measures initial 
responders can take to protect themselves and the general public 
during this initial response phase of the incident involving PU 
foam.
     Incorporate the measures published in the Safety Alert 
into the 2008 Emergency Response Guidebook (ERG).
    Cotton can be used as an example of how PU can be initially 
regulated. The following is recommended for inclusion in the 
Hazardous Materials Table (49 CFR 172101):

------------------------------------------------------------------------
 
------------------------------------------------------------------------
Column 1--Symbols......................  D (Domestic).
Column 2--HM description and proper      Polyurethane Foam.
 shipping name.
Column 3--Hazard Class or Division.....  9.
Column 4--Identification Number........  NA XXXX (to be assigned by
                                          PHMSA).
Column 5--Packing Group................  Leave blank.
Column 6--Label Codes..................  None.
Column 7--Special Provisions...........  To be determined by PHMSA.
Column 8--Packaging (8A, 8B, and 8C)...  None.
Column 9--Packaging Limitations........  To be determined by PHMSA and
                                          the Federal Aviation
                                          Administration.
Column 10--Vessel Stowage..............  To be determined by PHMSA and
                                          the U.S. Coast Guard.
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    This should not be considered a significant rulemaking, because 
there are a limited number of carriers transporting bulk PU foam.

Phase IIA

    Initiate domestic rulemaking to finalize Interim Final Rule and 
explore the need for additional regulatory oversight of products 
manufactured using PU foam through the issuance of a Notice of 
Proposed Rulemaking.

Phase IIB

    Introduce PU foam as a proposed work item at the 30th session of 
the Transport of Dangerous Goods Sub-Committee, December 4-12 2006 
in Geneva, Switzerland.
    Phase IIA and IIB can be conducted simultaneously.
    DOT has the authority to classify PU foam as a hazardous 
material.
    The precise classification of PU foam is a legalistic matter for 
consideration by regulators, and may require special treatment given 
the unusual properties of these materials. For example, PU foam 
becomes highly flammable as it moves rapidly from solid to liquid to 
vapor states. In that way, it is similar to gasoline, which becomes 
hazardous as it moves from a liquid to a vapor. Gasoline is a 
flammable liquid when, in scientific terms, it is a flammable vapor. 
Another unique characteristic is that, unlike most hazardous 
materials, PU foam becomes dangerous as it becomes lighter in 
weight, for a simple reason: low density PU foam contains more air 
to feed a fire and more surfaces to ignite.
    Manufacturers of PU foam describe these materials as 
``combustible solids'' on the material safety data sheets provided 
to customers and regulators. However, PU foam does not fit neatly 
into the combustible solids category. The prescribed test methods 
used with combustible solids are irrelevant to the real-world fire 
hazards posed by PU foam, because PU foams possess fire performance 
and chemical properties more comparable to well-established 
hazardous materials such as gasoline that react in liquid and vapor 
phases.\1\ A fire hazard of this significance may not legally be 
ignored simply because of the inflexibility of the rating system.
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    \1\ Langevin, Kennedy, and Conyers. United States. Cong. House. 
Foam Fire Safety Act. 109th Cong., 1st sess. HR 943. 17 Feb. 2005. 8 
Sept. 2006 http://thomas.loc.gov/cgi-bin/query/z?c109:H.R.943.IH:
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    Rather than assigning PU foam to Class 4 as a flammable solid, 
NASFM recommends that it be placed within Class 9, which exists for 
unusual but clearly hazardous materials and products ranging from 
molten asphalt to life preservers containing pressurized containers. 
The exact classification may not matter as much as the fact that the 
classification will subject this material to tighter controls in 
transport, thus helping to ensure the safety of emergency responders 
and the public.
    Classification of PU foam as a hazardous material for 
transportation is necessary as a matter of consistency of policies 
across various agencies that define the safe use of hazardous 
materials.
    Those responsible for safety in residential, manufacturing and 
storage occupancies already regard PU foam as a hazardous material 
because of its poor fire performance.
     Manufacturers' Materials Safety Data Sheets and warning 
labels on the bulk shipments note the flammability characteristics 
of PU foam. Manufacturers recognize that PU foam poses unique fire 
and explosion hazards. A typical label on PU foam sold in bulk says:

    If ignited, foam can produce rapid flame spread, intense heat, 
dense black smoke and toxic gases. Material can melt into a burning 
liquid that can drip and flow. Accumulated polyurethane dust can be 
readily ignited and presents a fire risk. High concentrations of 
dust in the air can explode if exposed to a flame, spark, or other 
ignition sources.\2\

    \2\ ``Material Safety Data Sheet.'' Foamex. 17 July 2002. Foamex 
International, Inc. 8 Sept. 2006. http://www.foamex.com/ftpWs/MSDS%20Flexible%20Polyurethane %20Foam%20-
%20English.pdfsearch=%22OSHA%20polyurethane%20flexible%20foa
m%20fire%22.
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     The National Fire Protection Association standard NFPA 
13's hazard classification system lists PU foam as a Group A 
Plastic. This now requires increased use of automatic fire 
sprinklers, imposes limits on storage requirements and is strictly 
enforced by state and local fire code enforcement officials.
     Starting in July 2007, the U.S. Consumer Product Safety 
Commission (CPSC) will begin enforcement of mattress fire safety 
requirements that effectively isolate PU foam in residential fires. 
This action has the benefit of significantly reducing the risk of 
fires when mattresses are being transported, in addition to 
preventing the approximately 400 mattress fires that occur every 
year. \3\ Even if the CPSC proposes fire safety requirements for 
upholstered furniture, there is some question whether these 
standards will be adequate to address the issues discussed here.
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    \3\ Chowdbury, Risiana, Michael Greene, David Miller, and Linda 
Smith. 1999 Revised--2002 Residential Fire Loss Estimates. U.S. 
Consumer Product Safety Commission. Washington, DC, 2005.
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    The use of PU foam is regarded as hazardous in some 
transportation modes.
     The Coast Guard has issued warnings on the fire hazard 
of polyurethane insulation and other organic foams on vessels.\4\
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    \4\ Bell, Henry H. Navigation and Vessel Inspection Circular No. 
8-80. United States Coast Guard. Washington, DC: U.S. Coast Guard, 
1980. 8 Sept 2006. http://www.uscg.mil/hq/gm/nvic/8_80/n8-80.pdf#search=%22Navigation%20and%20Vessel%20Inspection%20 
Circular%20No.%208-80%22

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[[Page 15186]]

     The Occupational Safety and Health Administration has 
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issued warnings about PU foam in marine applications saying,

    Rigid polyurethane and polyisocyanurate foams will, when 
ignited, burn rapidly and produce intense heat, dense smoke and 
gases which are irritating, flammable and/or toxic. As with other 
organic materials the most significant gas is usually carbon 
monoxide. Thermal decomposition products from PU foam consist mainly 
of carbon monoxide, benzene, toluene, oxides of nitrogen, hydrogen 
cyanide, acetaldehyde, acetone, propene, carbon dioxide, alkenes and 
water vapor.\5\
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    \5\ Baier, Edward J. ``The Fire Hazard of Polyurethane and Other 
Organic Foam Insulation Aboard Ships and in Construction.'' OSHA 
Hazard Information Bulletins. 10 May 1989. U.S. Department of Labor. 
8 Sept. 2006. http://www.osha.gov/dts/hib/hibdata/hib19890510.html
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     The Federal Aviation Administration requires that all 
seat cushions and padding be self-extinguishing.\6\
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    \6\ United States. Federal Aviation Administration. Electronic 
Code of Federal Regulations (E-CFR) Title 14: Aeronautics and Space 
Part 23. 25 Sept. 2006 http://ecfr.gpoaccess.gov/cgi/t/text/text-idx?c=ecfr&sid=06a589895da22315eabb8c077bed3ded&rgn=div8&view=text&node=14:1.0.1.3.10.4.86.72&idno=14
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     The National Transportation Safety Board issued a 
recommendation on the use of PU foam in maritime applications in 
1995 saying,

    The Safety Board believes that NFPA [the National Fire 
Protection Association] and the Coast Guard should establish, in 
cooperation, a national marine fire safety standard on the safe use 
of RPU [Rigid Polyurethane] foam and other organic combustible 
material insulation on vessels.\7\
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    \7\ Hall, Jim. ``Safety Recommendation in Reply to M-95-24 and -
25.'' 17 July 1995. Washington, DC: National Transportation Safety 
Board, 1995. http://www.ntsb.gov/recs/letters/1995/M95_24_25.pdf#search=%22NTSB%20safety%20recommendation%20M-95-24%22.
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    The current classifications of PU foam as a hazardous material 
are supported by a large and unambiguous body of technical and 
scientific literature. A bibliography is in the appendix to this 
petition.
    The petitioners also ask PHMSA to review the results of recent 
large-scale fire tests conducted on behalf of the European Union, 
which demonstrate clearly the danger that PU foam presents during 
transport. The SP Swedish National Testing and Research Institute 
conducted four full-scale tests involving truck fires in the 
Runehamar tunnel in Norway in September 2003. In one test a truck 
was loaded with furniture and in another, a truck was loaded with 
mattresses and wooden pallets. In both tests, the heat release rates 
(HRR), or measure of the fire's intensity, reached levels that are 
normally expected only from hazardous materials.\8\ In fact, 
temperatures in the tunnel reached those comparable to tunnel tests 
involving petroleum products.\9\
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    \8\ Lonnemark, Anders. On the Characteristics of Fires in 
Tunnels. Lund, Sweden: Tryckeriet I E-Huset, Lund University, 2005.
    \9\ Ibid., 524.
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    PHMSA is well aware of the difficulties of securing data from 
hazardous materials incidents. Because PU foam is not classified as 
a hazardous material for transportation, it might follow that 
finding examples of incidents would be that much more difficult. But 
with little effort, NASFM has found numerous examples. Here are two:
     On August 28, 2006, a furniture delivery truck caught 
fire on Interstate 5 near San Diego. The semi-truck veered of the 
road, hitting a guardrail before the truck burst into thick flames 
and smoke. According to the California Highway Patrol, the semi-
truck was transporting furniture and mattresses that quickly went up 
in flames. The incident began around 4 pm during the evening rush 
hour, and the fire was still burning at 5:30 pm; the incident closed 
northbound lanes of I-5 well into the evening and backed up traffic 
for miles.
     A May 7, 2005, fire in Navarro County, Texas, resulted 
in the loss of a reported $10,500 truck where an upholstered sofa 
and chair were among the items first ignited.
    As part of a rulemaking, NASFM is prepared to work with PHMSA to 
undertake a systematic review of incident records where PU foam 
contributed to motor carrier fires. These fires may be ignited 
accidentally because of collisions or friction during transport, 
electrical faults, careless smoking, or they may be ignited 
intentionally. Regardless of ignition source, the ensuing fires 
present unacceptable risks to emergency responders.
    NASFM is especially interested in incidents that may involve the 
GMC Savana cargo van that is recommended for furniture deliveries by 
the American Home Furnishings Alliance, yet has been the subject of 
two DOT supervised recalls because of potential fire hazards related 
to defective brakes and electrical components.\10\ This vehicle has 
been the subject of at least 10 recalls overall; some of these 
defects have the potential to cause the vehicle to crash, further 
increasing the risk of vehicle fire.
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    \10\ ``2003 GMC Savana Recalls & Problems.'' Internet Auto 
Guide. 25 Sept. 2006. http://www.internetautoguide.com/auto-recalls/67-int/2003/gmc/savana/2500/index.html.
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    Exemptions are possible for fire-resistant PU foam and finished 
products containing PU foam that meet certain flammability 
standards.
    The petitioners believe it is reasonable to exempt certain 
finished products from this rule. For example, mattresses sold after 
July 1, 2007, in the United States must comply with CPSC 
requirements that effectively shield PU foam from ignition sources. 
Much as properly packaged individual containers of fingernail polish 
remover are exempt while bulk shipments are not, this new fire 
safety standard may exempt compliant mattresses from classification 
as a hazardous material. Some upholstered furniture used by 
institutions such as health care facilities, prisons and hotels meet 
the State of California's most stringent fire safety requirements 
for institutional use, and may be eligible for exemption. Certain 
grades of high density, fire resistant PU foams as currently 
specified by the State of California also may be candidates for 
exemption. The full text of these requirements can be found in the 
appendices to this document.
    But while some exemptions may be justified, the fact remains 
that most bulk shipments and many finished products containing PU 
foam are formally listed and treated as hazardous materials in 
factories, warehouses, retail and residential occupancies by their 
manufacturers, users, and regulators. These materials and products 
do not suddenly become less hazardous when being transported among 
these places. In fact, given the uncertainties of traffic, road 
conditions, driver behavior and condition of the vehicle, the risks 
are greater during transport, especially to emergency responders who 
may need to negotiate treacherous conditions such as a steep, muddy 
slope to rescue a driver from a burning truck full of PU foam.
    The benefits of changing the classification of PU foam far 
outweigh the costs.
    Given the similarities of PU foam's fire performance to that of 
gasoline and other classified hazardous materials, NASFM believes 
that benefits of the hazardous materials classification proposed 
here may be comparable to these existing classified materials. 
Additionally, because PU foam is already classified as hazardous 
across numerous other agencies, there will be no significant 
incremental costs associated with the proposed action.
    The social and economic costs associated with the loss of a 
roadway tunnel are well understood. Serious fires involving PU foam 
on roads, on bridges, in garages or in tunnels pose a significant 
danger to the health and safety of persons, often result in the 
total loss of involved vehicles and can cause significant structural 
damage to roads, tunnels or surrounding buildings. The March 1999 
fire in the Mont Blanc tunnel between France and Italy tragically 
demonstrated the disastrous results of a fire involving materials 
classified as non-hazardous: 39 people died during the two-day fire, 
and the tunnel was closed for three years following the tragedy. The 
cost to the Italian economy alone due to direct damage and lost 
revenues associated with the tunnel during the three-year closure is 
estimated at $215 billion.\11\ In addition to injuries and 
fatalities that result from catastrophic transportation incidents, 
the social cost to the surrounding region cannot be ignored. The 
furniture truck fire on I-5 backed up traffic for miles and delayed 
hundreds of thousands of people in traffic for hours. As 
demonstrated by the SP Swedish National Testing and Research 
Institute Runehamar tunnel fire tests, a truck containing quantities 
of polyurethane--even when in finished products--is capable of 
causing this sort of catastrophic fire, which may result in numerous 
injuries and fatalities and require years and billions of dollars to 
repair.
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    \11\ ``EU Tunnel Fire Safety Action.'' Tunnels & Tunneling 
International (2003). 8 Sept. 2006. <http://www.etnfit.net/unprotected_documents/EU%20Action%20-%20Tunnel%20Fire%20Safety%20%-%20TT%20paper.pdf#search=%22Mont%20Blanc%20tunnel%20fire%20cost%22>.
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     The petitioners believe there are no direct effects, 
including preemption effects under section 5125 of Federal hazardous 
materials transportation law, of our proposed

[[Page 15187]]

action on States, on the relationship between the Federal government 
and the States, and on the distribution of power and 
responsibilities among the various levels of government.
    The petitioners regard the actions proposed here as being fully 
supportive of the States' interests in the safety of its citizens 
and emergency responders.
     The regulatory burden on small businesses, small 
organizations, small governmental jurisdictions and Indian tribes 
will be minimal.
    Small businesses, small organizations, small governmental 
jurisdictions, and Indian tribes now comply with safety requirements 
for PU foam enforced by state and local officials in manufacturing, 
storage, retail and residential occupancies. Classifying PU foam as 
a hazardous material for transportation may add some minimal costs 
related to placarding, packaging and the selection of routes.
     Recordkeeping and reporting costs to manufacturers and 
transporters will be minimal.
    This action is unlikely to add significantly to existing record 
keeping and reporting burdens. The manufacturers and users of PU 
foam already regard these materials as ``combustible solids'' and 
accordingly maintain and share data with their customers and 
regulators.
     Classification of PU foam as a hazardous material will 
not have any adverse environmental effects but may have significant 
positive effects on the natural environment. Additionally, this 
action would significantly reduce the costs borne by society for the 
unsafe transportation of this hazardous cargo.
    Possible environmental effects from the reclassification of PU 
foam are:
     Increased emissions resulting from longer routes needed 
to transport PU foam;
     Decreased emissions of the noxious by products of PU 
fires like hydrogen cyanide, hydrochloric gas and carbon monoxide 
because of increased precautions taken to reduce the number of these 
fires.
    Societal impacts from the reclassification of PU foam are 
readily apparent. Fewer PU foam fires directly benefit society 
through decreased injuries, fatalities and property damage.
    Therefore, we respectfully ask the DOT to use its clear 
authority to protect emergency responders and the public they are 
sworn to serve, by accepting this petition and moving forward 
expeditiously with enforcement.

III. Purpose of the Notice

    The purpose of this Notice is to solicit comments on the merits of 
a petition for rulemaking filed by the National Association of State 
Fire Marshals requesting classification of Polyurethane Foam (PU) and 
certain finished products containing PU as hazardous materials under 
the Hazardous Materials Regulations. The safety implications of the 
proposals in the petition will be given careful considerations as we go 
through the process of determining whether regulatory action is needed.
    Because of the many attachments to petition P-1491 (e.g., MSDS, 
appendices, bibliography, and other information) submitted with this 
petition, we encourage interested parties to access the Web site: 
http://dms.dot.gov to review the petition and other documentation 
submitted with the petition.

    Issued in Washington, DC, on March 27, 2007.
Robert A. Richard,
Deputy Associate Administrator for Hazardous Materials Safety.
 [FR Doc. E7-5948 Filed 3-29-07; 8:45 am]
BILLING CODE 4910-60-P