By Glenn P. Wicks, Ronce Almond and Han S. Kang, The Wicks Group LLC    July, 2007

This article re-examines this familiar and integral part of the HMR, with a particular focus on how the ORM-D consumer commodity classification is applied and enforced in air transportation. Because of the unique dangers in the air, the HMR provides numerous special provisions for air shipments, and the HMR rightfully distinguishes ORM-D consumer commodity regulations and exceptions applicable for air transportation. In air transportation, there are fewer exceptions available for ORM-D consumer commodities, and there are more severe consequences under the Federal Aviation Administration (“FAA”) Penalty Guidelines for not properly declaring ORM-D consumer commodity status.

The Department of Transportation’s (“DOT”) Hazardous Materials Regulations (“HMR”) provide some exceptions from its requirements for certain consumer commodities eligible for classification as ORM-D materials. These exceptions have played a critical role in the United States regulation of hazardous materials as they serve to increase the efficiency of government regulations by distinguishing less dangerous materials while subjecting them to certain basic HMR requirements. Arguably, without this regulatory flexibility, the HMR may be considered less fair and reasonable, since more egregious violations would be treated the same as minimal ones, in turn resulting in less focused enforcement of the HMR as regulators would have to be as vigilant in inspecting shipments posing minimal danger as those presenting greater risks to air transportation.

This article re-examines this familiar and integral part of the HMR, with a particular focus on how the ORM-D consumer commodity classification is applied and enforced in air transportation. Because of the unique dangers in the air, the HMR provides numerous special provisions for air shipments, and the HMR rightfully distinguishes ORM-D consumer commodity regulations and exceptions applicable for air transportation. In air transportation, there are fewer exceptions available for ORM-D consumer commodities, and there are more severe consequences under the Federal Aviation Administration (“FAA”) Penalty Guidelines1 for not properly declaring ORM-D consumer commodity status. These consequences are examined below through the discussion of the FAA’s HMR enforcement policies. Packagers and shippers must be aware of the scope and procedures involved in classifying a shipment as ORM-D and the potential penalties for failing to do so. (Readers should be careful to note that this article was written purposefully so as not to address small arms and power device cartridges which, for domestic shipment only, are also materials which may be re-classed as ORM-D under §§ 172.101 and 173.63.)

What is ORM-D Consumer Commodity?
In order to properly understand the ORM-D exceptions, a review of the definitions of ORM-D and “Consumer Commodity” under the HMR is necessary. First, most ORM-D shipments, contain consumer commodities that are classified as ORM-D. The HMR defines, in 49 CFR § 171.8, “consumer commodity” as “a material that is packaged and distributed in a form intended or suitable for sale through retail sales agencies or instrumentalities for consumption by individuals for purposes of personal care or household use.” It then specifically includes “drugs and medicines” in the definition. Thus, not the components that make up the material but the nature of its use is determinative of the shipment’s consumer commodity status. Consumer commodity is the proper shipping name for certain materials that meet this definition and the limited quantity provisions, as provided in § 173.150 to § 173.155, and § 173.306(i).2
(Editor’s note: see the comment in on page 22 and the DOT letter of interpretation regarding the mistake in 49 CFR 173.306 requiring correction, that has been acknowledged by PHMSA.)

Second, the term ORM-D itself is defined, in part, by the manner in which a shipment is prepared. ORM-D material is defined in § 173.144 as “a material such as a consumer commodity, which, although otherwise subject to the regulations of this subchapter, presents a limited hazard during transportation due to its form, quantity and packaging. It must be a material for which exceptions are provided in the § 172.101 table.” This section follows Class definitions and assignments of Packing Groups (“PG”) from Class 1 through Class 9. It provides that ORM-D is a separate Class, which has very important implications, especially for sanction calculation purposes.

Therefore, when defining ORM-D consumer commodity, the HMR places important emphasis not only on the limited hazardous nature of a given material, but also on its form and packaging. If a material qualifies as an ORM-D consumer commodity, then a packager or shipper seeking to transport such a material may be able to take advantage of certain exceptions to the shipping requirements of the HMR.

What are ORM-D Consumer Commodity Exceptions?
Only certain materials are eligible for the ORM-D exceptions. Under the HMR the following materials may take advantage of the ORM-D consumer commodities status:
•    Class 2 (compressed gases)
•    Class 3 (flammable and combustible liquids);
•    Division 4.1 (flammable solids) in PG II and III; Division 4.3 (dangerous when wet material) in PG II and III;
•    Division 5.1 (oxidizers) in PG II and III; Division 5.2 (organic peroxides);
•    Division 6.2 (poisonous materials) in PG III;
•    Class 8 (corrosive materials) in PG II and III; and
•    Class 9 (miscellaneous hazardous materials).

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