[Federal Register Volume 76, Number 66 (Wednesday, April 6, 2011)]
[Notices]
[Pages 19182-19187]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-8103]


-----------------------------------------------------------------------

DEPARTMENT OF TRANSPORTATION

Pipeline and Hazardous Materials Safety Administration

[Docket No. PHMSA-2006-26275; Notice No. 11-3]


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), 
DOT.

ACTION: Notice; closing of comment period and denial of petition P-
1491.

-----------------------------------------------------------------------

SUMMARY: On March 30, 2007, a notice [72 FR 15184] was published in the 
Federal Register soliciting 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 as hazardous 
material for purposes of transportation in commerce. The comment period 
for the notice closed June 28, 2007. Subsequently, on October 19, 2007, 
the NASFM requested that action be deferred on the petition, and that 
the public docket be re-opened to allow interested persons to submit 
additional comments on the March 30, 2007 notice, and on supplemental 
information submitted by the petitioner. On May 7, 2008, a notice [73 
FR 25825] was published in the Federal Register re-opening the comment 
period and indicating that it would remain open until further notice 
had been published in the Federal Register. Since re-opening of the 
comment period, no additional or supplemental information have been 
submitted to PHMSA to support the contention that polyurethane foam and 
certain finished products containing polyurethane foam should be 
designated as hazardous materials when transported in commerce. As 
well, no further comments have been submitted to suggest we continue to 
pursue any further action on this subject.
    Therefore, in light of the fact that the comment period had been 
extended and remained opened for more than three years, with no further 
comment or data having been submitted to PHMSA to support proposals 
contained in petition P-1491 or the NASFM's October 19, 2007 
supplemental letter, issuance of this notice closes the comment period 
for the March 30, 2007 Notice [72 FR 15184] and the May 7, 2008 Notice 
[73 FR 25825], under Docket No. PHMSA-2006-26275.
    Docket: For access to the docket to read background documents or 
comments received, go to http://www.regulations.gov or 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 20590-0001, between 9 a.m. and 5 p.m., Monday through 
Friday, except Federal Holidays.
    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 L. Engrum, Office of Hazardous 
Materials Standards (202) 366-8553, Office of Hazardous Materials 
Safety, Pipeline and Hazardous Materials Safety Administration, U.S. 
Department of Transportation, 1200 New Jersey Avenue, 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 to the U. S. 
Department of Transportation (DOT) through the Pipeline and Hazardous 
Materials Safety Administration (PHMSA) under the provisions of 49 CFR 
106.95 (formerly 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 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. The 
NASFM petition was received and acknowledged by PHMSA and assigned 
petition number P-1491; Docket No. PHMSA-2006-26275. On March 30, 2007, 
a notice [72 FR 15184] was published in the Federal Register soliciting 
comments on the merits of the petition for rulemaking filed by the 
NASFM.

[[Page 19183]]

A. Summary of Petition P-1491

    As a matter of safety for emergency responders and the public, the 
National Association of State Fire Marshals (NASFM) petitioned the 
Department to classify PU foam and certain finished products containing 
PU foam as a hazardous material for purposes of transportation in 
commerce. The NASFM regards this proposal as critical to the safety of 
emergency responders and the public they are sworn to protect, and said 
that 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. 
According to the NASFM, 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, and because it is not 
officially classified as a hazardous material for purposes of 
transportation, the NASFM believes the safety of emergency responders 
and the public is compromised.

B. NASFM's Proposed Rulemaking Procedure

    In its petition, the NASFM proposed 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 (Miscellaneous) 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 US Coast Guard.
------------------------------------------------------------------------

    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.
    Phase IIA and IIB can be conducted simultaneously.

C. NASFM's Follow-Up Requests for Exceptions or Exemptions

    On June 26, 2007, the NASFM submitted a letter to the docket 
stating that the dialogue resulting from the public comment period on 
this petition has caused the NASFM to consider amending the petition to 
exempt mattresses that meet the new Federal fire safety requirements 
(16 CFR part 1633), institutional and other upholstered furniture that 
meets California Technical Bulletin 133, and charitable organizations, 
such as the Salvation Army whose trucks may occasionally carry 
upholstered furniture and mattresses. Previously, the NASFM had 
contacted the Business and Institutional Furniture Manufacturers 
Association (BIFMA), the International Sleep Products Association 
(ISPA), and the Salvation Army to determine if they wish the NASFM to 
amend its petition as noted. The resulting correspondence (i.e., copies 
of letters from the NASFM written to BIFMA, ISPA, and the Salvation 
Army asking them if they wish to be excepted from the proposals in the 
PU foam petition) was submitted to the docket as an attachment to the 
June 26, 2007 letter to the docket.
    On August 7, 2007, the NASFM submitted a letter to PHMSA requesting 
an amendment of its original petition (P-1491) to provide exceptions. 
It requested that if the PU proposals from petition P-1491 are adopted, 
the following categories or organizations should be excepted:
    (1) Mattresses that meet or exceed the Federal standard for 
flammability (open flame) of mattress sets in accordance with 16 CFR 
part 1633; [CPSC]
    (2) Upholstered furniture in compliance with the standard 
California Technical Bulletin 133; and
    (3) Charitable not-for-profit organizations.

D. NASFM's Request To Defer Action on Petition P-1491 and Extend the 
Comment Period

    On October 19, 2007, the NASFM submitted a letter to PHMSA asking 
to defer any action on its petition (P-1491) and to re-open the public 
docket to allow additional consideration of the flammability risks 
posed by PU foam and finished products containing PU foam. In its 
letter, the NASFM noted that PU foam and products containing PU foam 
``do not fit neatly within the Agency's long-standing definition 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. The 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 the NASFM:


[[Page 19184]]


    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. It is regulated in the seats of a commercial aircraft, 
but not in the cargo hold of that same aircraft.

    The NASFM stated that the question is not whether PU foam is 
dangerously flammable, but whether PHMSA has a more appropriate means 
of classifying PU foam as a hazardous material for transportation. For 
this reason, the NASFM asked to defer action on its petition and to re-
open the public docket. The NASFM believes that additional public 
comment may be useful to solicit ideas on how best to classify PU foam 
under PHMSA's existing definitions, possible statutory changes to 
clarify questions such as this, and comments on whether a single 
standardized test might be feasible.
    On May 7, 2008, PHMSA re-opened the public docket and extended the 
comment period of the preceding original notice [72 FR 15184] to allow 
additional public comment on the question of whether there is a more 
appropriate means of classifying PU foam as a hazardous material for 
purposes of transportation in commerce. In the subsequent notice [73 FR 
25825] re-opening the comment period, PHMSA said that we appreciated 
and shared the NASFM's concern for public safety and effective 
emergency response, and agreed with the NASFM that 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 
the NASFM in its October 19, 2007 letter. PHMSA indicated that the 
comment period would remain open until further notice had been 
published in the Federal Register, and that this action did not 
constitute a decision by DOT/PHMSA to undertake a rulemaking action on 
the substance of the petition. The notice was 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. We were particularly 
interested in 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.
    We asked that the commenters address the safety implications of the 
proposals contained in the NASFM's petition. We were particularly 
interested in data and information related to regulation of PU foam by 
other agencies, such as the Consumer Product Safety Commission (CPSC), 
the Occupational Safety and Health Administration (OSHA), the U.S. 
Coast Guard (USCG), and the National Fire Protection Association 
(NFPA), and whether the standards used by these agencies could be 
adapted for use in the transportation environment. We invited 
interested persons to supplement comments they may have already 
submitted to address the issues raised in the 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. To date, no further 
information or additional comments have been received, including any 
comments on the issues raised in the NASFM October 19, 2007 letter, 
suggesting that Federal, State, and industry standards-setting agencies 
and organizations should consider developing a standard test and 
definition applicable to PU foam.

II. Summary of Comments Received on the March 30, 2007 Notice [72 FR 
15814]

    The purpose of the notice [72 FR 15184] was to solicit comments on 
the merits of a petition for rulemaking (P-1491) filed by the NASFM 
requesting classification of PU foam and certain finished products 
containing PU foam as a Class 9 (Miscellaneous) hazardous material, 
whether or not it meets the Class 9 (Miscellaneous) definition in Sec.  
173.140 of the HMR. The majority of commenters did not support the 
NASFM request to classify PU foam and certain finished products 
containing PU foam as a Class 9 (Miscellaneous) hazardous material 
during transportation. Under the HMR, a Class 9 (Miscellaneous) 
material presents a hazard in transportation but does not meet the 
definition of any other hazard class. Class 9 (Miscellaneous) materials 
are: (a) Any material which has an anesthetic, noxious or other similar 
property which could cause extreme annoyance or discomfort to a flight 
crew member so as to prevent the correct performance of assigned 
duties; or (b) Any material that meets the definition of an elevated 
temperature material, a hazardous substance, and a hazardous waste, or 
a marine pollutant.
    Twenty-nine (29) of the thirty (30) comments received opposed the 
proposals to classify PU foam as a hazardous material, saying, among 
other reasons, that there is little or no evidence or data 
demonstrating the dangers of PU foam in transportation. Most commenters 
believe that the transportation safety risks of such materials have not 
been documented and the costs of increased regulation would be 
prohibitive. Many commenters said that PU foam does not exhibit hazard 
characteristics that meet any of the hazard class definitions in the 
HMR, and that the NASFM did not provide any data, documentation, or 
information that would warrant a change.
    Comments were received from the following trade associations, 
companies, organizations and individuals:

                           List of Commenters
------------------------------------------------------------------------
                 Commenters                            Position
------------------------------------------------------------------------
1. American Chemistry Council (Center for     Opposed.
 the PU Industry).
2. American Home Furnishings................  Opposed.
3. American Moving and Storage Assoc........  Opposed.
4. American Trucking Associations...........  Opposed.
5. Association of Rotational Moulders         Opposed.
 International.
6. Bayer Material Science...................  Opposed.
7. Bodman Attorneys & Counselors (for Lear    Opposed.
 Corporation).
8. The Business and Institutional Furniture   Opposed.
 Manuf. Assoc..

[[Page 19185]]

 
9. The Council on Safe Transportation of      Opposed.
 Hazardous Articles.
10. Ken A. Cruishank (DOE Subcontractor)....  Opposed.
11. Foam Supplies, inc......................  Opposed.
12. Dangerous Goods Advisory Council........  Opposed.
13. General Plastics Manufacturing Company..  Opposed.
14. Gonzalez, Saggio, Harlan LLP (for         Opposed.
 Johnson Controls, Inc.).
15. Hickory Chair...........................  Opposed.
16. Hickory Springs Manufacturing Company...  Opposed.
17. High Point Furniture Industries.........  Opposed.
18. Huntsman Polyurethanes..................  Opposed.
19. International Sleep Products Association  Opposed.
20. International Vessel Operators Dangerous  Opposed.
 Goods Assoc., Inc..
21. Metal Construction Association..........  Opposed.
22. McIntyre Law Firm, PLLC (for the PU Foam  Opposed.
 Assoc.).
23. National Tank Truck Carriers, Inc.......  Opposed.
24. National Association of State Fire        Support.
 Marshals.
25. National Home Furnishings Association...  Opposed.
26. North American Automotive Hazmat Action   Opposed.
 Committee.
27. Polyisocyanurate Insulation               Opposed.
 Manufacturers Association.
28. Ritchie Industries, Inc.................  Opposed.
29. Sealed Air Corporation..................  Opposed.
30. Charles (Chuck) Williamson (Retired from  Opposed.
 Plastics Industry).
------------------------------------------------------------------------

A. One Commenter Supports Granting of Petition P-1491

    The NASFM believes that the proposals in its petition have merit. 
On May 9, 2007, the NASFM commented to the Docket. The NASFM stated 
that PHMSA has clear authority to grant the petition, and that the 
NASFM has provided sufficient justification in support of the proposed 
action. The NASFM said it enthusiastically supports PHMSA's innovative 
approach to encouraging cooperative problem-solving among stakeholders 
via ``enterprise'' dialogues, and therefore welcomes this opportunity 
to elaborate on the petition. The NASFM noted that this public comment 
addresses the question of whether polyurethane foam and products 
containing it are hazardous materials, and is the first of three 
submissions the NASFM will make to this docket.
    In its comment, the NASFM affirmed that the American Chemistry 
Council's Center for the Polyurethanes Industry (CPI) describes itself 
as representing ``the leading companies engaged in the business of 
polyurethanes.'' CPI members are committed to environmental and social 
sustainability and the health, safety and security of its employees and 
communities. Over the years, the NASFM has observed the Center and its 
predecessor, the Alliance for the Polyurethanes Industry (API), 
translate these words into stewardship that often goes well beyond 
minimum mandatory levels of safety. Attached to this comment were 
articles, MSDS, and a technical bulletin, marked as Attachments A, B, 
C, D, and E. The attachments addressed fire safety guidelines on 
flexible PU used in upholstered furniture and bedding, proper handling 
and storage of flexible PU, several MSDS on PU from two manufacturers, 
and an article on the problem of flammability of foamed plastics in 
storage.
    On June 12, 2007, the NASFM acknowledged in its comments that in 
the notice PHMSA had requested data on known transportation incidents 
involving polyurethane foam and products containing it. The NASFM went 
on to say that even if polyurethane foam and products containing it 
were currently classified as hazardous materials for transportation, 
incident data might not be readily available. Because PU foam is not 
classified as a hazardous material for transportation, it might follow 
that finding examples of incidents would be difficult. Federal Law 
requires immediate and detailed reporting of serious transportation 
incidents where the term ``serious'' is defined as a fatality or injury 
caused by the hazardous material, loss of more than 119 gallons of 
product, closure of a major transportation artery, or change of an 
aircraft's flight plan.
    The NASFM said that it is willing to undergo a detailed review of 
fire department reports from incidents involving commercial vehicles. 
In separate correspondence to the U.S. DOT, the NASFM said that it will 
soon propose a detailed assessment of fire department records to 
identify transportation incidents where shipments of PU foam and 
product containing it contributed to the severity of the fire. To this 
end, on June 12, 2007, the NASFM submitted to the U.S. DOT, Bureau of 
Transportation Statistics (BTS) ``an unsolicited research proposal.'' 
The NASFM said that details of the proposal were included in an 
attachment from the firm of TriData Corporation, ``an acknowledged 
expert in fire statistics and well known to the Department.'' The NASFM 
requested funding from BTS to utilize multiple data sources to 
determine the extent PU foam is involved in transportation incidents. 
To date, PHMSA has no knowledge of the BTS response to the NASFM's 
request for funding and research into incidents involving the 
transportation of PU foam.
    In its June 28, 2007 comment to the docket, the President of the 
NASFM stated:

    Whether or not a hazardous material has been technically 
classified as a hazardous material does not affect the temperature 
of a fire or the smoke and gases from that fire. When a clearly 
hazardous material is not officially classified, the hazard is all 
that much greater because emergency responders have no way of 
knowing the risks as they attempt to rescue trapped vehicle 
occupants, protect nearby lives and property, and suppress the fire.
    Firefighters are trained to look for placards, read manifests 
and consult with experts before they choose tactics. The American 
Chemistry Council's Chemtrec program handles 300 telephone calls a 
day, many from emergency responders at the scene of incidents 
seeking information on a hazardous material listed on a manifest or 
placard. Responders know that water can cause an explosion when used 
with some hazardous materials and that some suppression foams

[[Page 19186]]

do not work on certain hazardous materials. Responders know that 
evacuation may be necessary depending on the hazardous material and 
weather conditions. But when responders have no way of knowing that 
a burning substance is hazardous, they have no way of taking any of 
these precautions.
    No one questions the fact that polyurethane foam ignites easily, 
spreads fire aggressively, and generates large volumes of highly 
toxic smoke and gases. Polyurethane foam is classified as a 
combustible solid where it is manufactured, stored, sold and used in 
construction. Other branches of the U.S. Department of 
Transportation recognize the exceptionally poor fire performance of 
polyurethane foam, as do the National Transportation Safety Board, 
the U.S. Coast Guard, The Departments of Defense and Commerce, and 
the U.S. Consumer Product Safety Commission.
    The U.S. Department of Transportation has broad powers to 
protect the public, ensure the safety of emergency responders and 
classify and regulate hazardous materials. The National Association 
of State Fire Marshals, on behalf of its members as well as 
emergency responders nationwide, asks the Department to use its 
authority to ensure that responders have some way of knowing when 
they are dealing with transportation incidents involving this 
exceptionally hazardous material.

    PHMSA notes that we did not receive any individual comments from 
firefighters, emergency responders, or firefighter associations. The 
NASFM has said that it speaks on behalf of firefighters and emergency 
responders nationwide.

B. Commenters Opposed to Granting Petition P-1491

    The majority of commenters opposed the proposals contained in the 
petition. The American Home Furnishings Alliance (AHFA) opposed the 
petition and said about 80 percent of the upholstery sold in the United 
States is manufactured domestically. To remain competitive, domestic 
producers rely on lean manufacturing and distribution regimens. Process 
management software ensures that the right quantities of wood frame 
parts, polyurethane foam, and polyester fiber are delivered to 
furniture plants in response to individual orders at retail. 
Consequently, AHFA members are vitally interested in the efficient safe 
transportation of bulk foam, foam cushions and other furniture 
components. Regulatory changes that would disrupt this just-in-time 
manufacturing process are a recipe for job loss. AHFA asked that PHMSA 
weigh the logistical burdens the proposed regulation would have on the 
furniture industry and its carriers against any safety benefit likely 
to be accrued.
    The McIntyre Law Firm, PLLC, on behalf of the Polyurethane Foam 
Association (PFA), suggested that PHMSA dismiss the petition. In 1994, 
PHMSA issued an interpretation as a result of an inquiry from James T. 
McIntyre, Counsel for the PFA, in response to a request for a 
determination that the HMR does not apply to flexible PU foam. In the 
interpretation response, PHMSA concluded that flexible PU foam is able 
to burn, but are not self-reactive, do not meet the definition of a 
Division 4.1 (flammable solid) material, do not release flammable gas 
or vapor likely to create a flammable mixture with air in a transport 
vehicle, do not meet any hazard class definition and, therefore, it is 
not regulated by the HMR for purposes of transportation in commerce. In 
concluding that PU foam is not a Division 4.1 hazardous material, DOT 
determined that it does not fit within any class, which would include 
Class 9 (Miscellaneous). Thus, Mr. McIntyre stated that the petition is 
asking for a reversal of that determination, but it cites no 
justifiable basis for doing so.
    The American Chemistry Council (ACC) stated that polyurethanes are 
an important contributor of the U.S. economy and such a rulemaking 
could have serious repercussions for consumers and small businesses. 
The ACC said that in 2004, the total production of polyurethane in the 
United States was approximately 6,692.5M pounds. Because of this large 
production volume, the polyurethanes industry directly creates 47,500 
jobs paying $2 billion in wages to its employees and generates $19.7 
billion in revenues. Increased regulations would result in increased 
cost for transporting these products on our nation's roadways, without 
any evidence that such classification would result in safer 
transportation of PU foam and products containing PU. Finally, 
classifying such widely used products as a hazardous material has the 
potential to create unnecessary concern with emergency responders. ACC 
said that this could have unintended negative consequences in the 
effectiveness of the existing hazardous material emergency response 
program.
    The Business and Institutional Furniture Manufacturers Association 
(BIFMA) said that as written the proposal appears to regulate shipment 
of ``urethane'' foam whether in bulk or in finished goods. In addition 
to commercial furniture, this could conceivably be extended to 
clothing, shoes, and other products where the percentage of urethane 
foam is also small and the products have little or no fire hazard in 
their final form. BIFMA members are currently dealing with many 
overlapping and often conflicting rules on furniture flammability. For 
example, the CPSC is in the process of developing more rigorous 
flammability rules for upholstered furniture at the same time that 
environmental agencies are banning chemical fire retardants that are 
often required to achieve flame resistance performance. The entire 
regulatory environment for furniture flammability is changing, and the 
proposed regulation of urethane foam as a hazardous material would 
further complicate the use and handling of these materials in a way 
that could be detrimental to many manufacturers, distributors, and 
consumers, alike.
    The Council on Safe Transportation of Hazardous Articles, Inc. 
(COSTHA) stated that while we understand the intent of the NASFM to 
enhance safety to emergency responders, they see insignificant safety 
benefits that might be anticipated through this petition. Emergency 
responders are already trained to be aware of hazards associated with 
vehicle fires due not only to the contents of the vehicle but the 
components built into the vehicle, many of which employ vinyl and other 
polymers due to their strength and durability and the ``creature 
comforts'' the public demands. PU foam may also be in common use as an 
insulating material in refrigerated delivery trucks such as those 
involved in delivery of dairy products or frozen foods, and in 
refrigerated freight containers. COSTHA said to attempt to identify, 
classify, and mark all of these articles and substances for 
transportation might tend to create complacency or a false sense of 
safety when responding to fires involving vehicles not so marked.
    The Dangerous Goods Advisory Council (DGAC) stated that while it 
appreciates the concerns expressed by the NASFM, DGAC does not consider 
the petition compelling and recommends that PHMSA deny the petition. 
Further, while oftentimes materials not subject to the HMR have the 
potential for extensive damage in tunnels, they do not consider the HMR 
to be the appropriate means of controlling risks to tunnels posted by 
non-hazardous materials. In fact, the referenced Mont Blanc tunnel fire 
which resulted in 39 deaths and an estimated cost of $2.5 billion 
involved the burning of 9 tons of margarine, road bed material and 
nearby vehicles.
    The National Tank Truck Carriers, Inc. (NTTC) stated that 
polyurethane foam does not meet the definition of a hazardous material, 
even as a Miscellaneous Class 9 material. NTTC noted, in this instance, 
the effort to have it both ways by requiring an orange

[[Page 19187]]

label, while also exempting shippers and carriers from complying with 
the normal hazardous materials requirements regarding shipping papers, 
training, and placarding, et al., demonstrates the weakness of the 
petition. It is unclear how emergency response will be improved. NTTC 
said that what is foreseeable, however, is that the requested action 
would unnecessarily open the door to consideration of numerous other 
non-hazardous products. In addition, it would weaken the international 
harmonization of hazardous materials that PHMSA is working to further, 
and which NTTC supports. In short, NTTC views the petition as ``an 
attempt to fit a round peg into a square hole,'' and urged the 
Administrator to deny the petition.
    The International Sleep Products Association (ISPA) opposes the 
petition and requests that PHMSA dismiss it. ISPA said that most 
mattress producers assemble finished mattresses from components 
supplied by third parties, and that many mattresses sold in the United 
States today contain flexible PU foam to provide cushioning and 
support. All finished mattresses, including those that contain flexible 
PU foam, must meet various flammability standards. For example, since 
the mid-1970s, the Consumer Product Safety Commission (CPSC) has 
required that all mattresses resist ignition from a smoldering 
cigarette. 16 CFR part 1632. Beginning July 1, 2007 the CPSC will 
require that all mattresses withstand an open-flame ignition (such as a 
match, lighter, or candle). 16 CFR part 1633. ISPA said that PHMSA 
should dismiss the petition because it provides no legal or factual 
basis for designating PU foam as a hazardous material.
    The American Trucking Associations (ATA) said that one of the most 
troubling aspects of the petition is the difficulty motor carriers 
would experience in complying with the suggested requirement to mark 
trucks to indicate the presence of polyurethane foam. Polyurethane foam 
is ubiquitous. In addition to its use in furniture, pillows, 
mattresses, car seats, and carpet padding, it is used as insulation in 
refrigerators, freezers and truck bodies. It is used as a packaging 
material. It also is used as a decorative coating and is molded into 
car bumpers. The ATA said that motor carriers take seriously their 
responsibility to comply with DOT regulations, and that the regulatory 
requirements requested in this petition set up motor carriers to fail--
as motor carriers face a regulatory requirement to mark trucks 
containing polyurethane foam, but have no corresponding way to know 
whether a shipper has tendered articles containing polyurethane foam.

III. PHMSA Is Denying the NASFM Petition P-1491

    In accordance with 49 CFR 106.95, Petition P-1491 is denied for the 
following reasons:
    (1) In conclusion, the majority of commenters do not believe that 
PU foam, nor products that contain PU foam, meet any of the defining 
criteria under the HMR, and do not constitute an ``unreasonable'' risk 
to health, safety and property when transported in commerce. PHMSA 
agrees with the majority of the commenters. A PU fire is similar to 
house fires and other fires with organic materials. A PU fire does not 
require special fire fighting agents, procedures, or protective 
equipment and, therefore, does not pose an unreasonable danger to first 
responders. PHMSA believes that the information in the compendium do 
not support the petition. Thus, classifying PU foam as a hazardous 
material is unwarranted and inconsistent with the standards for 
classification set forth in the HMR.
    (2) PU foam is not designated as a hazardous material because it is 
not considered a substance or material capable of posing an acute or 
unreasonable risk to health, safety and property when transported in 
commerce. The petition does not provide sufficient supporting data to 
warrant the adoption of the petition.
    (3) PU foam products are solid organic materials. Like many other 
plastic products, PU foam products were not deemed to meet the 
``Readily combustible solid'' definition and test criteria when DOT and 
the UN Committee of Experts developed the definition, test method, and 
criteria in 1990. The Material Safety Data Sheets (MSDS) submitted by 
the NASFM did not identify PU foam products as hazardous materials. 
Rather, the MSDS recognizes that PU foam products when exposed to fire 
will melt into liquid and the flash point of the liquids is >500 
[deg]F, which is outside of the range and criteria of Flammable liquid 
or Combustible liquid, as defined in 49 CFR 173.120.
    (4) The safety implications of the proposals in the petition were 
given careful considerations as we went through the process of 
determining whether regulatory action was needed. While we understand 
the intent of the NASFM to improve safety of emergency responders, 
anticipated safety benefits associated with the transportation of PU 
foam would be insignificant, since emergency responders are already 
trained to be aware of hazards associated with vehicle fires due to 
components built into the vehicle, many of which employ vinyl and other 
polymers because of their strength and durability.
    (5) The NASFM stated in the petition that this should not be 
considered a significant rulemaking because there are a limited number 
of carriers transporting bulk PU foam. However, if the proposal to 
classify PU foam as a hazardous material was adopted, it could be 
applied universally to all PU foam products. To attempt to identify, 
classify, and mark all of these articles and substances for purposes of 
transportation in commerce would be a much larger impact, greater than 
transportation. The costs associated with implementing the petition 
would far exceed the benefits.

    Issued in Washington, DC, on March 31, 2011.
Magdy El-Sibaie,
Associate Administrator for Hazardous Materials Safety.
[FR Doc. 2011-8103 Filed 4-5-11; 8:45 am]
BILLING CODE 4910-60-P