[Federal Register Volume 73, Number 89 (Wednesday, May 7, 2008)]
[Notices]
[Pages 25825-25826]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-10101]


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DEPARTMENT OF TRANSPORTATION

Pipeline and Hazardous Materials Safety Administration

[Docket No. PHMSA-2006-26275]


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; re-opening of comment period.

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SUMMARY: On March 30, 2007, PHMSA published a notice soliciting 
comments on the merits of a petition for rulemaking filed by the 
National Association of State Fire Marshals (NASFM). The petitioner 
asked PHMSA to designate polyurethane foam and certain finished 
products containing polyurethane foam as hazardous materials when 
transported in commerce as a matter of safety for emergency responders 
and the general public. PHMSA is re-opening the comment period so that 
interested persons may submit additional comments on the March 30, 2007 
notice and on supplemental information submitted by the petitioner. The 
comment period will remain open until further notice is published in 
the Federal Register.

DATES: The period for submitting comments on the NASFM petition for 
rulemaking will remain open until further notice is published in the 
Federal Register.

ADDRESSES: You may submit comments identified by the docket number 
PHMSA-2006-26275 by any of the following methods:
     Federal eRulemaking Portal: Go to http://www.regulations.gov. Follow the online instructions for submitting 
comments.
     Fax: 1-202-493-2251.
     Mail: Docket Operations, U.S. Department of 
Transportation, West Building, Ground Floor, Room W12-140, Routing 
Symbol M-30, 1200 New Jersey Avenue, SE., Washington, DC 20590.
     Hand Delivery: To Docket Operations, Room W12-140 on the 
ground floor of the West Building, 1200 New Jersey Avenue, SE., 
Washington, DC 20590, 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 at the beginning of the comment. Note 
that all comments received will be posted without change to the docket 
management system, including any personal information provided.
    Docket: For access to the docket to read background documents or 
comments received, go to http://www.regulations.gov or DOT's Docket 
Operations Office (see ADDRESSES).
    Privacy Act: Anyone is able to search the electronic form of any 
written communications and comments received into any of our dockets by 
the name of the individual submitting the document (or signing the 
document, if submitted on behalf of an association, business, labor 
union, etc.). You may review DOT's complete Privacy Act Statement in 
the Federal Register published on April 11, 2000 (Volume 65, Number 70; 
Pages 19477-78), which may also be found at http://www.regulations.gov.

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, 
1200 New Jersey Ave., SE., Washington, DC 20590-0001.

SUPPLEMENTARY INFORMATION: 

I. Background

    On October 31, 2006, the National Association of State Fire 
Marshals (NASFM) submitted a petition for rulemaking (P-1491) to the 
Pipeline and Hazardous Materials Safety Administration (PHMSA) under 
the provisions of 49 CFR 106.31. The NASFM asked PHMSA to amend the 
Hazardous Materials Regulations (HMR; 49 CFR Parts 171-180) to 
designate polyurethane foam and certain finished products containing 
polyurethane foam 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.
    On March 30, 2007, PHMSA published a notice [61 FR 15184] to 
solicit comments on the merits of the NASFM petition for rulemaking. 
The comment period closed June 28, 2007. Approximately 30 associations 
and individuals submitted comments in response to the notice. Most 
commenters oppose the designation of polyurethane foam and certain 
finished products containing polyurethane foam as hazardous materials 
under the HMR, stating that the transportation safety risks of such 
materials have not been documented and the costs of increased 
regulation would be prohibitive.
    In a letter dated October 19, 2007, NASFM asked PHMSA to defer 
action on its petition and re-open the public docket to allow 
additional consideration of the flammability risks posed by 
polyurethane foam and finished products containing polyurethane foam. 
NASFM notes that polyurethane foam and products containing polyurethane 
foam ``do not fit neatly within the Agency's long-standing 
definitions'' for flammable solids, and suggests that the agency should 
consider whether another, more appropriate definition should be 
developed to convey the risks associated with these materials. NASFM 
also suggests that federal, state, and industry standards-setting 
agencies and organizations should consider developing a standard test 
and definition applicable to polyurethane foam. According to NASFM:

    Other branches of the U.S. Department of Transportation, the 
U.S. Coast Guard, and the U.S. Consumer Product Safety Commission 
regulate these materials and each agency has its own tests, 
standards and terms to define the same combustible properties. The 
same is true of the International Building Code, International Fire 
Code, and the National Fire Protection Association's standard for 
automatic fire extinguishers (NFPA 13), all of which contain the 
language to provide authority to regulate polyurethane foam as a 
hazardous material requiring special protection. These model codes 
are referenced in countless Federal, state and local statutes. In 
effect, the polyurethane foam in the dashboard of a truck is 
regulated while the polyurethane foam shipped on the truck is not. 
The polyurethane foam shipment is regulated as a fire hazard in the 
factories in which it is made and used, in the warehouses in which 
it is stored, in the retail stores that offer it to the public and 
in the home.


[[Page 25826]]


    We appreciate and share NASFM's concern for public safety and 
effective emergency response. We agree the comment period on this issue 
should be extended to permit interested persons to provide more data 
and information on the definitional issue raised by NASFM in its 
October 19, 2007 letter.

II. Request for Comments

    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. Comments are requested in regard to the safety 
implications of the proposals contained in the NASFM's petition. We are 
particularly interested in data and information related to regulation 
of polyurethane foam by other agencies, such as the Consumer Product 
Safety Commission, the Occupational Safety and Health Administration, 
the U.S. Coast Guard, and the National Fire Protection Association, and 
whether the standards used by these agencies could be adapted for use 
in the transportation environment. We invite interested persons to 
supplement comments they may have already submitted to address the 
issues raised in NASFM's October 19, 2007 letter, to highlight other 
issues that we should consider in making a decision on the petition, or 
to provide additional data and information in support of previously 
stated positions.

    Issued in Washington, DC, on May 1, 2008.
Theodore L. Willke,
Associate Administrator for Hazardous Materials Safety.
[FR Doc. E8-10101 Filed 5-6-08; 8:45 am]
BILLING CODE 4910-60-P