International Legal Affairs: V7N2
Shipping Hazardous Materials
Shipping ammunition within the United States? Easy. Slap a UPS Ground shipment label and ORM-D sticker on it and off it goes. When it comes to international shipments, whether being imported or exported, it’s not so easy. Recently, the employee of a colleague called to ask for help shipping ammunition via air to an international client. As the discussion proceeded, it was clear that the employee tasked with the shipment had no idea how to ship, let alone the restrictions and limitations on how to move hazardous materials internationally.
Depending upon the commodity and quantity of hazardous material, hazardous cargo (i.e., ammunition or explosives) may be allowed on passenger aircraft, be restricted to cargo aircraft only, or require ocean cargo for international transportation. There are many types of hazardous materials that may be shipped in international commerce; for purposes of this article, we will focus on Division 1, the section that governs ammunition and explosives.
Who Regulates the Shipment of Hazardous Materials?
Within the United States, the U.S. Department of Transportation regulates the movement of hazardous materials. Hazardous materials must be accurately identified – often the most difficult, but also the most important step in the shipping process. The classification of the material will determine how the material is packed, what items are packed within the shipment, and ultimately how the cargo is shipped. Identification of hazardous materials is the responsibility of the shipper. Other major responsibilities include correct marking and/or placarding, employee training, providing correct and accurate emergency contact information, and incident reporting. The shipper bears the majority of the burden in ensuring that hazardous materials are shipped properly and correctly.
Ammunition is a common type of hazardous material shipped in domestic and international commerce. Ammunition falls under Division 1, the classification for explosives. There are four sub-sets of Division 1:
Division 1.1 Mass Explosive Hazard
Division 1.2 Projection Hazard
Division 1.3 Mass Fire Hazard
Division 1.4 Minor Explosive Hazard
Hand grenades and high explosives are typically classified within Division 1.1, while small arms ammunition is typically classified as Division 1.4. Within each division there are 13 compatibility groups to determine how the parcels should be packed during shipping. Each lettered compatibility group informs the carrier and those moving the hazardous material as to the nature of the hazard being shipped. Primers are typically classified as 1.4(b), small arms ammunition classified as 1.4(s), and incendiary ammunition as 1.4(g). As an example, Division 1.1 and 1.2 cargo may not be shipped in the same vehicle or be stored in the same facility with any other hazardous materials within Divisions 2 through 8. In the event of a catastrophic event, the explosion of the Division 1 cargo will not create a bigger mess with the presence of other hazardous materials.
Once the cargo is passed off to the carrier for shipment, the liability and responsibilities do not end. The carrier must determine (based upon the Division and compatibility groups) how to ship the cargo, how to properly load, unload, and mark the vehicle, and must ensure that employees (in particular, drivers) are properly trained. The carrier must also ensure that the delivery vehicle is in sound mechanical condition. Finally, the carrier must check to insure that the material offered by the shipper is properly described and packaged.
What About Consumer Commodities and “ORM-D” Markings?
A consumer commodity is a hazardous material that is packaged and distributed in a quantity and form intended for retail sale and designed for household use purposes. Typical consumer commodities include hair spray, paint, and some adhesives.
ORM-D (Other Regulated Material Category D- “Domestic”) is a marking for shipping a hazardous material that falls under the consumer commodity exemption within in the United States. Packages marked ORM-D may still contain hazardous material in a limited quantity; the shipment presents a limited hazard during transportation due to its form, quantity, and packaging. The key elements to the consumer commodity exemption are quantity and packaging; shipping four eight pound jugs of gunpowder may fall under the consumer commodity exemption, while two sixteen pounds jugs may not, even though the net weights are the same. In this case, the shipping details matter. Typically ORM-D will only ship by ground. Each ORM-D material and category of ORM-D material is listed within the regulations at 49 CFR 172.101 Table and 173.144.
What About Batteries?
On September 6, 2010, UPS Flight 6 flying between Dubai and Cologne, Germany developed an in-flight fire about 120 miles from Dubai. Upon returning to the Dubai airport, the aircraft was unable to safely land, resulting in the death of two pilots. The accident was attributed with reasonable certainty to have originated within a cargo container which held thousands of lithium batteries. Following the investigation, the FAA issued a restriction on the carrying of lithium batteries on passenger aircraft. As a result of that restriction, any shipment of lithium batteries, whether on passenger or cargo aircraft is likely to be scrutinized.
While one may not consider batteries as being hazardous, a quick look reveals that they are prevalent within modern daily life; they power our cell phones, lap top computers, cameras, and hundreds of other small, hand held devices. When travelling as an airline passenger, there are jurisdictions that will examine the size and quantity of lithium batteries. Airlines advise that spare lap top batteries are not permitted in checked luggage. When shipping lithium batteries via air cargo, lithium batteries are required to be declared and properly labeled.
What About International Shipments?
The consumer commodity exemption and ORM-D marking requirement only apply to domestic U.S. shipments; they cannot be used for international shipments. As a result, the shipment of even small quantities of hazardous materials can result in difficult and expensive deliveries. The packing requirements for international shipments are much more rigorous than domestic ORM-D shipments, with additional documentation required. As one may imagine, the added responsibilities, training, and compliance required to move hazardous materials take additional time and effort, resulting in increased shipping rates for hazardous materials. A shipment of 1,000 rounds of .30-30 ammunition from the United States to Malaysia resulted in a $1,000 invoice for shipping alone. The cost to ship ammunition and other hazardous materials via air
is not inexpensive.
Shipping via air cargo has been briefly touched upon above. Domestic shipment of ORM-D or Hazardous Materials via air is generally not permitted. When shipping internationally, the practicality of shipping hazardous materials and the availability of aircraft dedicated solely for cargo use expand the available shipping options. Division 1.4 – small arms ammunition – may be permitted on passenger aircraft, depending upon the quantity of the explosive material. Division 1.1 – high explosives – will only be allowed on cargo aircraft, and even then, at the whim of the carrier. Finally, when transiting other countries, over-flight permits may be required; although a carrier is willing to move Division 1.1 high explosives via a cargo aircraft, the countries the aircraft will fly over may not allow the flight to transit its airspace.
Shipping ammunition by air is not always cost effective – what about ocean shipments? Shipping ammunition and other hazardous materials by ocean can be very cost effective. In some cases, it may be the only way in which to move hazardous materials. In some very rare cases, it may be almost impossible to move hazardous materials without extraordinary measures.
Often, export clients wish to order several thousand rounds of ammunition. When an explanation is provided as to the costs to ship via air, they often ask about ocean cargo. Recall that hazardous material needs to be packed by Division and compatibility groups; shipping a single pallet of ammunition via ocean cargo will usually result in a single pallet shipped within an otherwise empty shipping container. The resultant shipping charges will be for the use of a full container, with no pro-rated charges for the “empty” space not used.
Similar to the over-flight restrictions of air cargo, ocean cargo has its own limitations. Carriers may restrict or refuse the shipment of Division 1 cargo. If the Division 1 cargo is accepted, it may be restricted to the top outermost row of shipping containers, rather than a location closer to the vessel hull. Presumably, in the unlikely event of a catastrophic event, the vessel is less likely to be sunk and lost at sea. U.S. State Department restrictions on the transshipment of defense articles (read: arms and ammunition) limit where vessels may make ports of call. In some cases, it may be impossible to ship arms and ammunition to an end user using commercially available scheduled vessels due to the scheduled ports of call. In these cases, a chartered vessel may be the only method of delivering the commodities to the buyer and end user. This author is aware of cargo vessels being chartered to allow the carriage of Division 1.1 and 1.4 ammunition to commercial and military customers in Southeast Asia and Australia; the need to charter a vessel is very real and not uncommon due to the myriad of U.S. government restrictions in place.
It is not uncommon for shipping rates for hazardous materials to be double (or more) than non-hazardous shipments. Of course, unscrupulous shippers could attempt to circumvent the regulations and ship hazardous materials improperly. In these cases, the civil penalty for a violation tops out at $175,000 where there is a death, serious injury, or serious property damage. Criminal liability could also attach, resulting in fines up to $250,000 for individuals, $500,000 for corporations, and the possibility of incarceration. Although there may be a short term incentive to ship improperly, the civil and/or criminal ramifications will quickly exceed any perceived savings in shipping improperly.
Shipping hazardous materials domestically and internationally is not always easy, cheap, or quick. Knowing how to ship hazardous materials, being able to navigate the regulations governing these types of shipments, and the ability to call upon exports that deal with these types of shipments are key to a successful shipment. When in doubt, seek professional help.
Mr. Wong is a Washington licensed attorney. He regularly provides legal counsel to the firearm and defense industry via his law firm, The Firearms Law Group. Mr. Wong also maintains Hurricane Butterfly, an import/export company that assists U.S. firearm manufacturers and foreign buyers wade through the regulatory morass of U.S. import/export regulations. He may be contacted via email at jmwong@FirearmsLawGroup.com.
The guidance provided within this article was correct and current at the time it was written. Policies and regulations change frequently. The preceding article is not intended as legal advice, and should not be taken as legal advice. If the reader has specific legal questions, seek competent legal counsel.