19182 Federal Register / Vol. 76, No. 66 / Wednesday, April 6, 2011 / Notices 

by a U.S. company, Spyker of North 

America, and are sold and serviced in 

the U.S. through a network of 18 

dealers. Spyker argued that denial of an 

extension will negatively impact these 

companies. 

3. Spyker argued that if the exemption 

is not granted, U.S. consumer choice 

would be harmed and that the agency 

has long maintained that the National 

Traffic and Motor Vehicle Safety Act 

seeks, if possible, to avoid limiting 

consumer choice. 

4. The petitioner argued that given 

their exotic design and highperformance nature, the C line vehicles 

are not expected to be used extensively, 

nor are they expected to carry children 

with any frequency. 

NHTSA specifically invites comment 

on the likelihood that a child or infant 

will be a passenger in a Spyker vehicle 

sold in the U.S. 

5. Spyker stated that as of the 

submission date of its application for 

extension, approximately 60 exempted 

C line vehicles have been imported into 

the U.S. and there have been no reports 

of any air bag-related injuries. 

6. Spyker stated that an important 

safety feature that the C line vehicles 

offer is enhanced occupant protection. 

The petitioner stated that occupants are 

positioned in a protective ‘‘cell’’ because 

the main chassis structure is built 

around them. 

Agency Review of Petition—Upon 

receiving a petition, NHTSA conducts 

an initial review of the petition with 

respect to whether the petition is 

complete and whether the petitioner 

appears to be eligible to apply for the 

requested exemption. The agency has 

tentatively concluded that the petition 

is complete. The agency has not made 

any judgment on the eligibility of the 

petitioner or the merits of the 

application, and is placing a nonconfidential copy of the petition in the 

docket. 

IV. Issuance of Notice of Final Action 

We are providing a 30-day comment 

period. After considering public 

comments and other available 

information, we will publish a notice of 

final action on the application in the 

Federal Register. 

Issued on: March 31, 2011. 

Joseph S. Carra, 

Acting Associate Administrator for 

Rulemaking. 

[FR Doc. 2011–8082 Filed 4–5–11; 8:45 am] 

BILLING CODE 4910–59–P 

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 reopening 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. 

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Federal Register / Vol. 76, No. 66 / Wednesday, April 6, 2011 / Notices 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 shipping name ........................... Polyurethane Foam. 

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 SubCommittee. 

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: 

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19184 Federal Register / Vol. 76, No. 66 / Wednesday, April 6, 2011 / Notices 

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 

§ 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 the PU Industry) ................................................................................................................... Opposed. 

2. American Home Furnishings ................................................................................................................................................................. Opposed. 

3. American Moving and Storage Assoc. .................................................................................................................................................. Opposed. 

4. American Trucking Associations ........................................................................................................................................................... Opposed. 

5. Association of Rotational Moulders International .................................................................................................................................. Opposed. 

6. Bayer Material Science ......................................................................................................................................................................... Opposed. 

7. Bodman Attorneys & Counselors (for Lear Corporation) ...................................................................................................................... Opposed. 

8. The Business and Institutional Furniture Manuf. Assoc. ...................................................................................................................... Opposed. 

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Federal Register / Vol. 76, No. 66 / Wednesday, April 6, 2011 / Notices 19185 

LIST OF COMMENTERS—Continued 

Commenters Position 

9. The Council on Safe Transportation of Hazardous Articles ................................................................................................................. Opposed. 

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 Johnson Controls, Inc.) ............................................................................................................... Opposed. 

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 Goods Assoc., Inc. ......................................................................................................... Opposed. 

21. Metal Construction Association ........................................................................................................................................................... Opposed. 

22. McIntyre Law Firm, PLLC (for the PU Foam Assoc.) ......................................................................................................................... Opposed. 

23. National Tank Truck Carriers, Inc. ...................................................................................................................................................... Opposed. 

24. National Association of State Fire Marshals ....................................................................................................................................... Support. 

25. National Home Furnishings Association ............................................................................................................................................. Opposed. 

26. North American Automotive Hazmat Action Committee ..................................................................................................................... Opposed. 

27. Polyisocyanurate Insulation Manufacturers Association ..................................................................................................................... Opposed. 

28. Ritchie Industries, Inc. ......................................................................................................................................................................... Opposed. 

29. Sealed Air Corporation ........................................................................................................................................................................ Opposed. 

30. Charles (Chuck) Williamson (Retired from Plastics Industry) ............................................................................................................. Opposed. 

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 problemsolving 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 

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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 

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Federal Register / Vol. 76, No. 66 / Wednesday, April 6, 2011 / Notices 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 nonhazardous 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 mid1970s, 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 °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 

DEPARTMENT OF TRANSPORTATION 

Surface Transportation Board 

[Docket No. FD 35237] 

City of Davenport, Iowa—Construction 

and Operation Exemption—in Scott 

County, Iowa 

By petition filed on July 21, 2009, the 

City of Davenport, Iowa (the City) seeks 

an exemption under 49 U.S.C. 10502 

from the prior approval requirements of 

49 U.S.C. 10901 to construct 

approximately 2.8 miles of rail line in 

southern Eldridge, northern Davenport, 

and an unincorporated area of Scott 

County, Iowa. The new line will provide 

the Eastern Iowa Industrial Center, an 

industrial park, with rail access. The 

City will hire an operator to provide 

service on the line, but the City also will 

be required to ensure continued rail 

service. 

In a decision served on October 19, 

2009, the Board instituted a proceeding 

under 49 U.S.C. 10502(b). No comments 

opposing the petition have been filed. 

The Federal Highway Administration 

(FHWA), the lead Federal agency on this 

rail project, and the City issued an 

Environmental Assessment (EA) for 

public review and comment on March 

17, 2008. On July 8, 2008, the FHWA 

issued its Record and Finding of No 

Significant Impact and recommended 3 

environmental conditions to mitigate 

the impacts of the project. After the 

Board’s Office of Environmental 

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