Beveridge & Diamond
 

DOT Proposes to Extend Transitional Period for New Rules for Transporting Consumer Commodities (ORM-D) That Are Hazardous Materials

Beveridge & Diamond, P.C., May 30, 2012

On May 25, 2012, the Pipeline and Hazardous Materials Safety Administration (“PHMSA”) within the U.S. Department of Transportation (“DOT”) proposed to extend the timeframe for phasing out the long-standing rules that have allowed limited quantities of hazardous materials that are consumer commodities to be re-classed as “Other Regulated Materials” (“ORM-D”) and to be eligible for significantly reduced transportation requirements.  See 77 Fed. Reg. 31,274 (May 25, 2012).  Comments on the proposal are due on July 24, 2012.

The ORM-D regulations have provided a number of important exceptions from otherwise applicable requirements for transport of a wide range of consumer products that are hazardous materials, such as aerosol cans, perfumes, and certain cleaning products.  The rules have significantly simplified the transport of such products, for example, from manufacturers to distributors, retailers, and consumers, and back again (e.g., for expired, damaged, obsolete, returned, recalled, or used goods).

In 2011, PHMSA amended its Hazardous Materials Regulations (“HMR”) to eliminate the ORM-D classification in order to harmonize its regulations with the corresponding international dangerous goods regulations.  See 76 Fed. Reg. 3308 (January 19, 2011).  Under this amendment, the materials previously classified as ORM-D might still be eligible for reduced requirements under the provisions for “limited quantities” of hazardous materials.  However, the limited quantity provisions are different from the ORM-D rules in many ways (e.g., with respect to package markings and documentation), and thus would require significant changes in the way that consumer commodities must be transported.

PHMSA originally allowed continued compliance with the ORM-D rules until January 1, 2013 for materials transported by aircraft, or until January 1, 2014 for materials transported by other modes (i.e., truck, rail, or vessel).  However, several parties appealed the final rule, arguing that the rapid phase-out of the old rules would create confusion and place unreasonable burdens on shippers and carriers. 

In the proposed rule that was just issued, PHMSA proposes extending the transitional period until December 31, 2015 for domestic highway, rail and vessel transportation of ORM-D materials.  Significantly, however, the phase-out period for domestic air transport would remain unchanged; such shipments would have to comply with the new rules no later than January 1, 2013.  Of course, international shipments must already comply with the relevant international dangerous goods regulations.

The proposed rule also includes a number of other provisions that may be important to a narrower range of parties, such as modifications to the rules for fuel cell cartridges transported on aircraft in passenger-checked baggage, lithium ion battery-powered mobility aids (e.g., wheelchairs), and fire extinguishers.

For more information about these developments, please contact Aaron Goldberg at agoldberg@bdlaw.com or Elizabeth Richardson at erichardson@bdlaw.com.