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###### Department of Transportation

###### Pipeline and Hazardous Materials Safety Administration 

          - [Docket No. PHMSA-2006-26275] 

# AGENCY:

Pipeline and Hazardous Materials Safety Administration (PHMSA). 

# ACTION:

Notice; re-opening of comment period. 

# 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. 
      ( print 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