[Federal Register: October 7, 2005 (Volume 70, Number 194)]
[Rules and Regulations]
[Page 58795-58831]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr07oc05-8]
[[Page 58795]]
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Part II
Department of Transportation
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Federal Aviation Administration
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14 CFR Parts 119, 121, 135, and 145
Hazardous Materials Training Requirements; Final Rule
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DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
14 CFR Parts 119, 121, 135, and 145
[Docket No.: FAA-2003-15085; Amendment Nos. 119-10, 121-316, 135-101,
145-24]
RIN 2120-AG75
Hazardous Materials Training Requirements
AGENCY: Federal Aviation Administration (FAA), DOT.
ACTION: Final rule.
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SUMMARY: The Federal Aviation Administration (FAA) is amending its
hazardous materials (hazmat) training requirements for certain air
carriers and commercial operators. In addition, the FAA is requiring
that certain repair stations provide documentation showing that persons
handling hazmat for transportation have been trained, as required by
the Department of Transportation's Hazardous Materials Regulations
(HMRs). The FAA is updating its regulations because hazmat
transportation and the aviation industry have changed significantly
since the FAA promulgated its hazmat regulations over 25 years ago. The
rule will set clear hazmat training standards and ensure uniform
compliance with hazmat training requirements.
DATES: Effective Date: November 7, 2005. SFAR Expiration Date: February
7, 2007. Compliance Date: February 7, 2007.
FOR FURTHER INFORMATION CONTACT: Janet McLaughlin, Office of Hazardous
Materials, ADG-1, Federal Aviation Administration, 800 Independence
Ave., SW., Washington, DC 20591; telephone (202) 267-8434.
SUPPLEMENTARY INFORMATION:
Availability of Rulemaking Documents
You can get an electronic copy using the Internet by:
(1) Searching the Department of Transportation's electronic Docket
Management System (DMS) Web page (http://dms.dot.gov/search); (2) Visiting the Office of Rulemaking's Web page at http://
http://www.faa.gov/avr/arm/index.cfm; or
(3) Accessing the Government Printing Office's Web page at http://www.gpoaccess.gov/fr/index.html
.
You can also get a copy by submitting a request to the Federal
Aviation Administration, Office of Rulemaking, ARM-1, 800 Independence
Avenue SW., Washington, DC 20591, or by calling (202) 267-9680.
Identify the amendment number or docket number of this rulemaking.
Anyone is able to search the electronic form of all comments
received into any of our dockets by the name of the individual
submitting the comment (or signing the comment, if submitted on behalf
of an association, business, labor union, etc.). You may review DOT's
complete Privacy Act statement in the Federal Register of April 11,
2000 (65 FR 19477-19478), or you may visit http://dms.dot.gov.
Small Business Regulatory Enforcement Fairness Act
The Small Business Regulatory Enforcement Fairness Act (SBREFA) of
1996 requires the FAA to comply with small entity requests for
information or advice about compliance with statutes and regulations
within its jurisdiction. If you are a small entity and you have a
question regarding this document, you may contact the local FAA
official, or the person listed under FOR FURTHER INFORMATION CONTACT.
You can find out more about SBREFA on the Internet at http://www.faa.gov/regulations_policies/rulemaking/sbre_act/
.
Terms and Abbreviations Frequently Used in This Document
Note: For the purposes of this rulemaking the terms ``air
carrier,'' ``operator,'' ``air operator,'' ``carrier,'' and
``airline'' are used synonymously to refer to part 121 or part 135
operators. The term ``hazardous material'' is used synonymously with
``dangerous goods.''
AC--Advisory Circular
ALPA--Air Line Pilots Association
ATA--Air Transport Association of America, Inc.
COMAT--Material owned or used by a certificate holder, commonly
referred to as ``company material.'' Material is only considered
COMAT in transportation if it is being transported on the operator's
own aircraft.
Hazmat--Hazardous material
HMRs--Department of Transportation's Hazardous Materials Regulations
found in 49 CFR parts 171 through 180
ICAO--International Civil Aviation Organization
ICAO TI--International Civil Aviation Organization Technical
Instructions for the Safe Transport of Dangerous Goods By Air
IATA--International Air Transport Association
IATA DGR--International Air Transport Association Dangerous Goods
Regulations
NATA--National Air Transportation Association
NPRM--Notice of Proposed Rulemaking
NTSB--National Transportation Safety Board
PHMSA--Pipeline and Hazardous Materials Safety Administration
(formerly the Research and Special Programs Administration)
RSPA--Research and Special Programs Administration (now the Pipeline
and Hazardous Materials Safety Administration)
SFAR--Special Federal Aviation Regulation
TRF--Transport-related function, i.e., any function performed for
the certificate holder relating to the acceptance, rejection,
storage incidental to transport, handling, packaging of COMAT,
loading, of items for transport on board an aircraft
TSA--Transportation Security Administration
UPS--United Parcel Service
USPS--United States Postal Service
Will-carry operator--An operator authorized in its operations
specifications to carry hazmat
Will-not-carry operator--An operator prohibited in its operations
specifications from carrying hazmat that meets the definition of a
hazardous material under the HMRs
Table of Contents
I. The Proposed Rule
II. Background
III. Statutory Authority
IV. Overview of Changes in the Final Rule
V. Discussion of Public Comments
V.1. General
V.2. Transition Period
V.3. Clarification of Supervisory Training Requirements
V.4. Constructive Knowledge
V.5. Applicability/Transport-Related Function (TRF)
V.6. New Hire/New Job Function
V.7. Persons Working for More Than One Certificate Holder
V.8. Recurrent Training
V.9. Notice to Repair Stations
V.10. Foreign Locations
V.11. Recordkeeping Requirements
V.11.A. Location
V.11.B. Content
V.12. Proposed Appendix N (Adopted as Appendix O)
V.13. Training Method
V.14. Single-Pilot Operations
V.15. Repair Stations (Part 145)--General
V.16. Application for Part 145 Certificate
V.17. Notification of Hazardous Materials Authorizations
VI. Section-by-Section Discussion of the Final Rule
VII. Rulemaking Analysis and Notice
VII.1. Paperwork Reduction Act
VII.2. International Compatibility
VII.3. Economic Evaluation Summary
VII.4. Regulatory Flexibility Determination
VII.5. International Trade Impact Assessment
VII.6. Unfunded Mandates Assessment
VII.7. Executive Order 13132, Federalism
VII.8. Environmental Analysis
VII.9. Regulations That Significantly Affect Energy Supply,
Distribution, or Use
I. The Proposed Rule
On May 8, 2003, the FAA published a notice of proposed rulemaking
(NPRM) on hazardous material training requirements for certain air
carriers, commercial operators, and repair stations (68 FR 24810). In
that NPRM,
[[Page 58797]]
the FAA proposed to amend the manual and hazmat training regulations in
parts 121 and 135 to incorporate most of the guidance that is currently
contained in Advisory Circulars (ACs). In addition, the FAA proposed to
add requirements for part 145 repair stations so that the FAA could
increase its oversight of the hazmat training that repair stations are
required to conduct under 49 CFR part 172.
The comment period for the NPRM originally was scheduled to close
July 7, 2003, but was extended to September 5, 2003 in response to
public requests. See notice of extension of comment period published in
the Federal Register on July 7, 2003 (68 FR 40206; July 7, 2003). The
FAA received approximately 70 comments on the NPRM, many of which
raised concerns with some aspects of the proposal.
II. Background
As discussed in the preamble of the NPRM, hazmat transportation
regulations have changed since regulations for hazmat training were
first adopted over 25 years ago. The Department of Transportation (DOT)
implemented the Hazardous Materials Regulations (HMRs), 49 CFR parts
171 through 180 (41 FR 15972; April 15, 1976), in part to address
changes following deregulation of the airline industry in the 1970s.
DOT regulations govern the domestic transportation of hazmat by all
modes of transport. The international aviation community relies on the
International Civil Aviation Organization (ICAO) to set the standards
for the safe transport of dangerous goods by air. These standards are
contained in the ``Technical Instructions for the Safe Transport of
Dangerous Goods by Air'' (ICAO TI). The ICAO TI also establishes hazmat
training standards for air operators.
In the past, the FAA has used ACs as a way of helping air carriers
and operators comply with the hazmat training requirements in the DOT
HMRs. Information contained in ACs is not mandatory; it is advisory.
This rule will incorporate existing guidance documents into regulations
that can be uniformly enforced.
The proposed rule identified persons working for, or on behalf of
the part 121 or part 135 operator who would need to receive hazmat
training by the nature of the job description they hold or supervise.
As used in the NPRM, the term ``supervise'' was intended to mean more
than just being a designated supervisor. It was meant to include
individuals with any degree of direct oversight over a function
addressed by the proposed rule. This final rule clarifies that the term
``supervise'' only applies to those persons who have direct supervision
over the job functions performed.
Consistent with the NPRM, the final rule establishes a two-pronged
training program--one for part 121 and part 135 operators electing to
transport hazmat (will-carry certificate holders), and the other for
part 121 and part 135 operators electing not to transport hazmat (will-
not-carry certificate holders). Will-carry certificate holders will
have to conduct in-depth training for persons directly supervising or
performing any of the following job functions involving items for
transport on aircraft--acceptance, rejection, handling, storage
incidental to transport, packaging of company materials owned or used
by the certificate holder (known as COMAT), and loading. (Henceforth
this list will be referred to as a transport-related function (TRF).)
Will-not-carry certificate holders will be required to conduct training
sufficient to enable the persons directly supervising or performing a
TRF to identify material marked or labeled as hazmat, or material that
is not marked or labeled as hazmat but possesses indicators that it
might contain hazmat. Some possible indicators of hazmat include a
hazard label or caution statement on the package with no accompanying
shipping documentation, a notation such as ``flammable paint,'' without
proper shipping paper declarations or labels or markings.
The FAA also proposed to add requirements for part 145 repair
stations that would increase oversight of compliance with DOT hazmat
training regulations. The FAA proposed that, at the time of application
for a part 145 certificate or rating, a repair station would have to
certify to the FAA that all hazmat employees, as defined in 49 CFR
171.8, are trained under the HMRs, and that it is otherwise in
compliance with the hazmat training requirements of the HMRs. This
final rule modifies that proposal to require repair stations to submit
a certification to the FAA that all hazmat employees are trained under
the HMR prior to the FAA issuing a certificate, not at the time of
application.
In addition, the FAA proposed to amend part 145 by adding a
requirement that repair stations notify each of its workers of the
will-carry or will-not-carry status of the part 121 or part 135
operators for which the repair station works. In the final rule the FAA
adopts this requirement with some amendments. This notification would
have to be done as soon as the repair station is informed of the part
121 or part 135 operator's status. This requirement is intended to be
the companion requirement to the proposed notification requirement for
part 121 and part 135 operators. In the final rule the FAA amends the
proposed provision to require the repair station verify receipt of the
notification and communicate this status to its employees, contractors,
or subcontractors that handle or replace aircraft components or other
items regulated by 49 CFR parts 171 through 180 prior to performing
work for, or on behalf of the part 121 or part 135 operator.
III. Statutory Authority
The FAA has broad statutory authority to regulate for aviation
safety. Specifically, the FAA has authority under 49 U.S.C. 44701(a)(5)
to prescribe ``regulations and minimum standards for other practices,
methods, and procedures the Administrator finds necessary for safety in
air commerce and national security.'' Also, 49 U.S.C. 44701(b)(1)
states ``Prescribing Minimum Safety Standards.--The Administrator may
prescribe minimum safety standards for--(1) an air carrier to whom a
certificate is issued under section 44705 of this title; * * *.'' In
addition, the FAA is required to carry out its duties in a way that
``best tends to reduce or eliminate the possibility or recurrence of
accidents in air transportation'' (49 U.S.C. 44701(c)).
IV. Overview of Changes in the Final Rule
In response to public comments, the FAA is making the following
changes in the final rule (discussed in detail under ``VI. Section-by-
Section Discussion of the Final Rule'')--
Clarifying that the term ``transport-related function
(TRF)'' is merely a shorthand reference used in the NPRM preamble and
the final rule preamble to refer to the list of covered job functions
contained in Sec. Sec. 121.1001 (proposed as Sec. Sec. 121.801) and
135.501. This term, as amended in the final rule preamble, is used to
avoid repeating the list ``acceptance, rejection, storage incidental to
transport, handling, packaging of COMAT (company material) and loading
of items for transport on board an aircraft.'' The FAA did not intend
for the term to extend beyond the list of covered job functions. The
term transport-related function is not a separate regulatory term so it
is not defined in the regulations.
Removing the terms ``unloading'' and ``carriage'' from the
list of covered job functions proposed in Sec. Sec. 121.801
[[Page 58798]]
(adopted as Sec. 121.1001) and 135.501. The term ``unloading'' is
removed because it is not a job function that needs to be addressed
through the FAA's hazmat training program, since the item is being
removed from the aircraft and thus would not pose a danger to the
aircraft. If an item is subsequently loaded onto an aircraft, a trained
person would have to perform the loading function. Based on comments
from industry, the FAA believes it could be confusing to include the
term ``carriage'' in the list of covered job functions in Sec.
121.1001 and Sec. 135.501. The term ``carriage'' is removed. The FAA
does not believe the removal of this term to be significant because all
of the terms covered by carriage are already listed as covered
functions.
Closely aligning the training modules in Appendix O
(proposed as Appendix N) of part 121 with the standards in the 2005
edition of the ICAO TI and the IATA DGR. This will allow for workers to
be trained in accordance with the job function they perform for part
121 or part 135 operators. The final rule does not prescribe exactly
how each worker is to be trained. To this end, the FAA is removing the
training ``modules'' and specifying minimum aspects of training for
different job functions. The part 121 and part 135 operators will still
be responsible for assessing the breadth and depth of each worker's
training needs based on his or her job functions.
Modifying proposed Sec. Sec. 121.801 (adopted as Sec.
121.1001) and 135.501 that would have required hazmat training to apply
to all persons involved in supervising a hazmat job function. In the
final rule, the FAA is limiting hazmat training to ``direct''
supervisors. This amendment eliminates the need to train persons up the
supervisory chain who are not actively engaged in job functions that
require hazmat training.
Amending the recurrent hazmat training requirement
currently contained in 121.401 and 135.323 by relocating it to
Sec. Sec. 121.1001 and 135.501 and amending the annual retraining
cycle to a 24-month cycle. This change is consistent with the
International Civil Aviation Organization's Technical Instructions on
the Safe Transport of Dangerous Goods (ICAO TI) and the International
Aviation Transport Association's Dangerous Goods Recommendations (IATA
DGR) and (JAROPS) requirements.
Clarifying that computer-based training (CBT) and
distance-learning techniques, such as interactive video training, are
acceptable means for satisfying the training specified in Appendix O of
part 121, provided there is an opportunity for trainees to interact
with an instructor to answer all questions prior to certifying
completion of the training. Interaction may be in person or via
telecommunications connection (e-mail, telephone, etc).
Amending the recordkeeping provisions of Sec. Sec.
121.1007 (proposed as Sec. 121.804) and 135.507 to permit hazmat
training records to be maintained electronically and off-site as long
as they can be transmitted to a worker's place of work upon request.
Harmonizing the requirements for the content of hazmat
training records with the Pipeline and Hazardous Materials Safety
Administrations's (PHMSA's) HMR, the ICAO TI, and the IATA DGR
requirements. The FAA is deleting the requirement that the training
records contain a statement signed by a person designated by the
Director of Training.
Removing the specific references to ``aircraft
dispatcher,'' ``flight instructor,'' and ``check airman'' in Tables 1
and 2 in Appendix O of part 121 (proposed as Appendix N). The type of
hazmat training an employee receives is based on the job functions he
or she performs for, or on behalf of the part 121 or part 135 operator,
not his or her job description.
Clarifying that part 145 repair station personnel are
required to be trained to a part 121 or part 135 operator's hazmat
program only when they are performing or directly supervising a job
function listed in Sec. 121.1001 or Sec. 135.501, for or on behalf of
that part 121 or part 135 operator, including the aircraft loading
function. The repair stations that meet the definition of a ``hazmat
employer'' (49 CFR 171.8) must meet existing training requirements
under 49 CFR part 172 subpart H.
Requiring that a part 145 certificate holder inform
employees, contractors, or subcontractors that handle or replace
aircraft components or other items regulated by 49 CFR parts 171
through 180 of the will-carry or will-not-carry status of the part 119
certificate holders for which it performs work.
Amending the final rule to require that the repair
stations certify to the FAA that they comply with 49 CFR hazmat
training requirements (if applicable) prior to the FAA's issuance of a
part 145 certificate or rating. This requirement will replace the
proposed requirement that a repair station provide this certification
upon application for a certificate.
V. Discussion of Public Comments
V.1. General
Comments
Both Ameristar Air Cargo and Express.Net Airlines commented that
the proposed dispatcher training should also apply to anyone who
performs a similar function (i.e., flight following or flight
locating). Ameristar stated that, ``flight followers perform the
function of operational control on behalf of the Director of Operations
and should be required to have some training in regard to their duties
associated with the transport of hazardous materials.''
FAA Response
The requirement for hazmat training is determined by the employee's
job function as specified in Sec. Sec. 121.1001 and 135.501, not the
job description. If the person performing the job description of
aircraft dispatcher, flight instructor or check airman also performs a
job function identified in Sec. 121.1001 or Sec. 135.501, he or she
must complete the applicable portion of the part 121 or part 135
operator's approved hazmat training program. Crewmembers have specific
training requirements in Appendix O, regardless of the other functions
they perform relating to cargo onboard the aircraft. A person
performing any job function listed in Sec. 121.1001 or Sec. 135.501
must meet the same requirement whether specifically listed in the
current Sec. 121.401 or Sec. 135.323. The reference to pilots, flight
engineers, flight attendants and dispatchers in proposed Appendix N has
been amended in the final rule. This appendix, adopted as Appendix O,
identifies training associated with applicable job functions and is
closely aligned with the 2005 edition of the ICAO TI and the
International Air Transport Association Dangerous Goods Regulations
(IATA DGR). Dispatcher training is currently referenced in Sec. Sec.
121.401(a)(1) and 135.323(a)(1). In the final rule the FAA is amending
these sections only to remove the reference to hazardous materials
training. The hazmat training requirements are relocated in 14 CFR
subpart Z of part 121 and subpart K of 135. However, the other training
requirements referenced by Sec. Sec. 121.401 and 135.323 remain
unchanged. The requirement for each crewmember, aircraft dispatcher,
flight instructor and check airman to be adequately trained to perform
his or her duties other than hazmat job functions must be retained in
Sec. 121.401(a)(1) and Sec. 135.323(a)(1) to maintain the
requirements for flight and proficiency training identified in
Appendixes E and
[[Page 58799]]
F. This requirement is not changed in this rulemaking.
Comments
The Air Transport Association of America, Inc. (ATA) stated that
the FAA should address non-compliance such as that brought to light in
the ValuJet accident, through appropriate enforcement. Other commenters
noted that the NPRM imposes additional training requirements on
carriers, when the FAA could far more effectively reduce undeclared and
improperly declared hazmat by improving public education efforts
towards shippers who offer hazmat for air transportation.
FAA Response
The FAA uses the enforcement process to address issues of
noncompliance with FAA and DOT regulations and will continue to do so.
Since 2000, FAA Hazardous Material Specialists have inspected over
8,000 shipping companies and conducted over 2,000 visits to shipper
facilities, trade associations and various conferences to educate and
inform shippers of their responsibilities under the HMRs. However, even
with this public education campaign, the FAA has initiated 222
investigations for accepting hazardous materials improperly from
January 2000 to December 2003. These investigations include both
instances where hazmats were improperly labeled/marked or packaged, and
instances where material was shipped undeclared and later found to be
hazmat. Taking into account that noncompliance with the regulations
continues despite the FAA's current training requirements and public
education efforts, the FAA has adopted the revised training rules to
improve the hazmat training program given to those individuals
performing the job functions listed in Sec. Sec. 121.1001 and 135.501.
The FAA believes that a hazmat training requirement that includes
clearly enforceable hazmat recognition training for both will-carry and
will-not-carry certificate holders is a critical step towards reducing
the number of improperly prepared or undeclared shipments. Recognition
training for will-not-carry certificate holders is currently
administered in accordance with advisory material; thus there are no
regulatory standards. Enforceable hazmat training standards serve the
dual purpose of establishing a mandatory hazmat training program with
uniform requirements, and reducing the potential that ``discoverable''
hazmat shipments will move undetected. A ``discoverable'' hazmat
shipment is a shipment that is likely to be flagged by a trained
individual as a potential hazmat shipment, even though it is not
properly prepared for shipment or is shipped undeclared. The FAA
recognizes that not all improperly shipped hazmats or undeclared
hazmats may be discoverable, even by a trained individual.
Additionally, the FAA notes that outreach to the aviation industry
and public education has not been effective in eliminating the problem
of improper shipments of oxygen generators. Since the Valujet tragedy
in 1996, the FAA has investigated both operators and repair stations
and has documented over 60 instances of improperly transported oxygen
generators for which the FAA is collecting over $3 million in civil
penalties. Oxygen generators are a key piece of equipment used in the
aviation industry and are often shipped as COMAT without complying with
DOT's hazmat regulations.
The FAA also has been actively engaged in enforcing the hazmat
regulations. It has collected over $6 million in hazmat civil penalties
for violations from U.S.-certificated air carriers from 2000 to 2003.
One part 121 operator pled guilty in September 2003, to willfully not
providing required hazmat information to its pilots. Another part 121
operator entered into a plea agreement with the U.S. Attorney for the
Southern District of Florida in December 1999, which included agreed-to
``statement of facts'' describing hazmat infractions. One repair
station was convicted of willfully not providing hazmat training in
1999.
Comment
ATA commented that the NPRM would not improve safety and is broader
than necessary to address the primary safety objective cited--
prevention of another ValuJet-type accident caused by inadequately
trained contractors.
FAA Response
Valujet was a will-not-carry part 121 operator, thus the oxygen
generators should never have been placed on board a Valujet aircraft
for shipment as cargo. The FAA did not have any enforceable hazmat
training requirements for part 121 will-not-carry certificate holders.
This final rule corrects that deficiency. The commenter is correct that
this rule addresses issues and concerns discovered through our
oversight that are broader than the issues raised by the ValuJet
accident.
Comment
United Parcel Service (UPS) challenged the FAA's statutory
authority to promulgate requirements for training non-hazmat employees.
UPS commented that the FAA has not articulated ``a reasonable basis for
requiring a certificate holder to provide hazardous materials training
to employees who do not perform or supervise any functions regulated
under the HMR or who do not otherwise directly affect hazardous
materials transportation safety.''
FAA Response
The FAA has broad statutory authority to regulate for aviation
safety. Specifically, the FAA has authority under 49 U.S.C. 44701(a)(5)
to prescribe ``regulations and minimum standards for other practices,
methods, and procedures the Administrator finds necessary for safety in
air commerce and national security.'' Also, 49 U.S.C. 44701(b)(1)
states ``Prescribing Minimum Safety Standards.--The Administrator may
prescribe minimum safety standards for--(1) an air carrier to whom a
certificate is issued under section 44705 of this title; * * *.'' In
addition, the FAA is required to carry out its duties in a way that
``best tends to reduce or eliminate the possibility or recurrence of
accidents in air transportation'' (49 U.S.C. 44701(c)).
Consistent with its statutory authority, the FAA has previously
required hazmat training for non-hazmat employees working for part 119
certificate holders operating under part 135. (See 38 FR 14914; June 7,
1973.) The FAA believes that prior and current hazmat enforcement
actions and accidents by will-not-carry operators transporting hazmat
demonstrate the need for will-not-carry training. Additionally, the FAA
notes that the industry's own International Air Transport Association's
(IATA's) Dangerous Goods Regulations paragraph 1.5.0.1 states that the
ICAO TI and IATA DGR include training for persons with various
responsibilities in processing cargo (not necessarily involving
dangerous goods). Thus, given our expertise and that the aviation
industry's own representatives have determined such training is
important, the FAA is including it in this change.
Comment
Several commenters addressed the need to regulate or certify the
hazmat training companies providing training under this rule.
Express.Net Airlines stated that ``regulation should mandate a skill
level for instructors in the same manner the regulation mandates skill
level for management personnel required for operations conducted under
parts 121 and 135 from Part 119.65.'' Express.Net believed that the FAA
[[Page 58800]]
should have a program that sets forth the basic knowledge a person
should possess before providing hazmat instruction. Express.Net noted
that the European community requires operators that load, unload or
transport dangerous goods to have a person in the position of Dangerous
Goods Safety Advisor.
COSTHA commented that the NPRM should be amended to assess, monitor
and certify professional schools that would be authorized to provide
hazmat training. It urged the FAA to amend the NPRM to state that in
lieu of developing an in-house training program, carriers (both will-
carry and will-not-carry), repair stations and any other person
affected by the regulations would be in compliance by completing a
training program offered by a FAA-certified hazmat training company.
FAA Response
The comment suggesting that FAA establish standards for instructors
or instructional schools is outside the scope of this rulemaking.
Additionally, the comment suggesting a new required position for
operators is also outside the scope of this rulemaking.
Comment
The overwhelming majority of the part 121 and part 135 operators
requested flexibility in designing and determining curriculum,
determining the depth of training required for the function the
individual employee performs, the method of delivery, length of
training and method of testing.
FAA Response
The FAA recognizes that part 121 and part 135 operators require
flexibility to accomplish the required hazmat training. The FAA notes
that it is the part 121 and part 135 operators' responsibility to
ensure that the type, duration and delivery method of training is
adequate and appropriate for each worker. The approved hazmat training
program may be provided by company training programs, computer based
programs, self-guided compact disk (CD) training programs, outside
training firms or consultants, or any other type of organization
offering training that meets the objective training requirements.
Hazmat training may be provided by the operator or other public or
private sources, including training classes that are offered by the
IATA to the extent that the IATA training addresses the training
specified in the FAA-approved hazmat training program. This FAA final
rule will require that, regardless of the teaching method used, the
operator must provide a method to respond to students' questions prior
to certifying completion of the training. E-mail is an acceptable means
of communicating and responding to questions.
Comment
UPS asked that the FAA confirm in any subsequent notice that
operators only need to submit an outline of their proposed training
programs rather than the actual training curriculum.
FAA Response
Section 121.401(a)(1) applies to all training as currently written,
including hazmat. Once the final rule is fully effective, Sec.
121.401(a)(1) will only apply to training other than hazmat training.
New Sec. Sec. 121.1003 (proposed as Sec. 121.802) and 135.503 will
contain the hazmat training requirement. As part of the hazmat training
requirement, part 121 and part 135 operators are required to obtain FAA
approval of the hazmat training program. The current practice of
submitting an outline sufficient to provide an overview of the training
program will suffice for purposes of approval, unless it is necessary
to see the full hazmat training program to understand the curriculum.
Comment
The Air Line Pilots Association (ALPA) urged the FAA to clarify a
concept called ``will-not-accept'' that is different than ``will-not-
carry.'' ALPA believed that the two concepts are different because
``will-not-carry'' means no hazmat is allowed on the aircraft, while
``will-not-accept'' would allow carriers to carry their own hazmat as
COMAT from point to point on their aircraft, but they would not be able
to accept hazmat shipments from outside entities. ALPA believed that
clarifying the three levels of classification (will-not-carry, will-
not-accept, and will-carry) would be useful in allowing a carrier to
develop a training program that would meet the needs of its operation.
FAA Response
The FAA only proposed will-carry and will-not-carry hazmat
training. The part 119 certificate holder's operations specifications
will either include an authorization permitting the certificate holder
to handle and transport hazmat (will-carry certificate holder) or a
prohibition against handling and transporting hazmat (will-not-carry
certificate holder). There are no other options. Officially, the FAA
has never endorsed a concept called ``will-not-accept'' that would
allow carriers classified as will-not-carry certificate holders to
carry hazmat as COMAT. If the COMAT is a hazardous material, it may be
carried only by a will-carry certificate holder. A will-carry
certificate holder may choose to limit its acceptance and transport of
hazardous materials to COMAT only; however, the company makes this
decision. The certificate holder is considered a ``will-carry''
operator, and the will-carry training program applies.
Comment
ATA noted that the procedures for handling dangerous goods, once
the Transportation Security Administration (TSA) finds them, are
currently under active discussion between the TSA and the carriers. The
commenter went on to say that it is unclear what role carrier employees
will have in handling such goods, or whether that responsibility will
be handled completely or partially by a third-party contractor. ATA
urged the FAA to reconsider the need for any additional training for
carrier personnel who check-in passengers and luggage, and ensure that
the rule takes into account ongoing developments in the TSA's role.
FAA Response
In drafting the final rule the FAA was cognizant of Pipeline and
Hazardous Materials Safety Administration (PHMSA) (formerly Research
and Special Programs Administration (RSPA)) and TSA activities in the
area of hazmat transport by aircraft. On February 28, 2003, RSPA (now
PHMSA) issued a ``Formal interpretation of regulations'' (68 FR 9735)
clarifying that hazmat regulations apply to carry-on and checked
baggage. Additionally, the RSPA interpretation specifically identified
the point at which the carry-on baggage has been offered by the
passenger for transportation and the point at which checked baggage has
been accepted by the airlines for transportation. Carry-on baggage
(including items on his/her person) is considered offered for
transportation when the passenger tenders the baggage to screening
personnel at an airport security screening checkpoint or otherwise
attempts to proceed through the checkpoint with the hazardous material
on his or her person. A passenger offers carry-on baggage for
transportation, and represents it as fit for moving by aircraft, when
the baggage is placed on the X-ray machine conveyer belt, handed to the
baggage screening personnel, or placed in a bin or tray for examination
by screening personnel, or when the passenger physically passes through
the security checkpoint with the baggage (including items on his or her
person). Carry-on
[[Page 58801]]
baggage is accepted by an air carrier when the airline accepts the
boarding pass of the passenger while boarding the flight. The passenger
is responsible for ensuring compliance for carry-on baggage with the
HMR from the point of offer and at all times until transportation is
complete.
Checked baggage is offered to the carrier at the point the
passenger presents the baggage for acceptance by the carrier. This can
occur at curbside check-in, at the ticket counter at the airport, or
when the passenger presents the bag to screening personnel for
explosive detection screening as a prerequisite to presentation to the
carrier. When the baggage is tendered at curbside check-in or the
ticket counter to the air carrier, the baggage is considered to have
been accepted when the air carrier issues a baggage claim ticket for
the checked baggage.
Given the various points at which baggage is considered offered for
transport, and the varied types of workers that might accept baggage,
it is critical that certificate holder's workers receive the proper
hazmat training so that baggage can be properly screened. At the time
of this writing, TSA checked baggage screeners are instructed to point
out possible unauthorized hazmat items discovered in baggage to airline
representatives so the airline representatives can determine if the
items can be transported under the hazmat regulations. The certificate
holder must report any unauthorized hazmat discovered in checked
baggage to the FAA under PHMSA's rules at 49 CFR 175.31. In order for a
worker to be capable of performing this job function, he or she must
have completed hazmat training.
Comments
The National Transportation Safety Board (NTSB) commented that in
May 1996, it issued Safety Recommendation A-96-26, which called for the
FAA to require air carriers to revise as necessary their practices and
training for accepting passenger baggage and freight shipments, and for
identifying undeclared or unauthorized hazardous materials that are
offered for transport. The NTSB voiced concern that the proposed
training requirements would apply only to passenger air carriers. The
NTSB urged the FAA to apply the training requirements to cargo carriers
and cargo-only operations too.
FAA Response
The FAA has contacted the NTSB and informed them that the proposed
training requirements would apply to both passenger and cargo air
carriers. The final rule does not change this fact.
Comments
Integrated cargo carriers like UPS and FedEx Express were concerned
that the proposals were drafted so broadly that, literally interpreted,
they could require training of drivers in the carriers' ground
operations. These carriers were concerned because their ground
operations have not been covered under the FAA's training requirements
in the past, although they are subject to PHMSA's hazmat training
requirements. UPS and FedEx note that ground operations may well be
outside the jurisdiction of the FAA. The commenter added that if the
FAA intended the proposals to extend to those drivers, the costs of the
additional training time would be enormous, with no commensurate safety
benefit. Moreover, such coverage could conflict with the jurisdiction
of other Federal agencies, and it would be problematic if FAA approval
were required for a small portion of an otherwise extensive training
process used to qualify drivers for their duties on-road.
FAA Response
Fed Ex and UPS are part 121 operators and both accept many types of
hazmat for air transportation as well as transportation by rail and
motor vehicle. The key to determining whom to train is to delineate
which party is responsible for accepting a package for air
transportation. This fact is consistent with current regulations. If a
part 121 or part 135 operator's truck drivers are accepting property
for air transportation, they must be trained in accordance with this
rule. However, if another employee performs that job function for the
part 121 or part 135 operator, then the truck driver would not have to
be trained in accordance with this rule. For instance, a truck driver
who is required to perform the function of acceptance of a package for
air transport would have to be trained for performing that function.
This is the same requirement as for a person at the sort facility
performing the same function. In this case, if the truck driver is not
responsible for performing the acceptance of a package for air
shipment, and the certificate holder was relying on the truck driver to
accept the package for only motor vehicle transport, then the truck
driver does not need to be trained in the certificate holder's program.
It is the function being performed or directly supervised that mandates
the training requirement, not the job designation.
Comment
The Regional Airline Association (RAA) noted that after the Valujet
accident the FAA invested heavily in the Air Transportation Oversight
System (ATOS), which is an FAA oversight process that assesses an
airline's safety attributes beyond strict regulatory compliance. RAA
stated that ATOS was intended to raise the level of safety in the
industry without additional regulations. RAA then questioned whether
this proposal and the Part 60 proposal to codify extensive advisory
material are a step back from the FAA's earlier commitment to the ATOS
concept. RAA asked whether all of the FAA's advisory and field policy
materials will be codified.
FAA Response
The FAA codifies voluntary standards when it believes it is in the
best interest of safety to do so. In this case, hazardous materials are
of significant concern in air transportation because of the potentially
devastating consequences in the event of an accident due to an
improperly transported hazmat.
V.2. Transition Period
Comments
AmAv, Inc., ATA, and UPS voiced concern that 15 months may not be
enough time to develop the training program and have it approved by the
FAA. In particular these commenters were concerned about what to do if
the Principal Operations Inspector (POI) is not able to complete a
review and approval of the program within the specified time frame.
AmAv, Inc. also noted that having the POI approve the program would be
a substantial increase in workload and some Flight Standards District
Offices (FSDOs) are already overburdened and understaffed. UPS said
that a certificate holder's current training program should remain in
effect pending the FAA's approval of the revised training program.
FAA Response
The commenters raised several concerns that demonstrated some
misunderstanding about the proposed rule. First, the POI will not be
approving Hazardous Material Programs that include hazmat training.
POIs will continue to approve the general operator's training program
covered by Sec. 121.401 or Sec. 121.135. With regard to hazmat
training, the POI will ``receive'' the training program information
from part 121 and part 135 operators and submit it for review to the
appropriate Regional Hazardous Material Branch
[[Page 58802]]
Manager in the FAA's Regional Security and Hazardous Materials Offices.
This is consistent with current practice. The Hazardous Materials
Branch Manager currently reviews the carrier's hazmat training program
and will continue to be responsible for approving it and relaying that
information back to the POI.
Second, part 121 and part 135 operators do not have to be concerned
about having to implement the hazmat training program before it is
approved by the FAA. Certificate holders are permitted to continue
using their existing FAA approved training programs during the 15-month
transition period. As provided in SFAR 99, ``during the transition
period, these certificate holders can continue to comply with the
current requirements or comply with the new requirements.'' The FAA
believes that the 15-month transition period is a sufficient time
period.
Third, incorporating the changes into the existing hazmat training
program should not be difficult. The FAA chose 15 months as a
transition period because it believes that the time period is
sufficient to allow certificate holders to include any changes
necessary due to this final rule into their existing mandatory 12-month
annual recurrent training. Once this rule goes into effect, the
recurrent training requirement is amended from annually to every 24
months. Since the hazmat training provision had been incorporated into
the certificate holder's overall training provisions in Sec. Sec.
121.401 and 135.323, the recurrent training requirement for hazmat had
been aligned with the certificate holder's other recurrent training
requirements for flight and proficiency training. The final rule
amendment aligns the FAA's hazmat recurrent training provision with
long-standing international recommendations and current industry
practice for hazmat recurrent training. Thus, hazmat training and
flight and proficiency training are now on different cycles. The
movement from annual recurrent hazmat training to recurrent hazmat
training every 24 months also aligns FAA requirements with the cycle
for regulatory updates and changes followed by ICAO, IATA and the
United Nations Subcommittee on the Transport of Dangerous Goods. The
requirement to provide recurrent training every 24 months should
provide the certificate holder with a streamlined process for revising
and updating hazmat training programs.
Finally, the FAA does not believe that the changes necessitated by
this rule will be as dramatic as the part 121 and part 135 operators
foretell. Prior to publication of the NPRM, the FAA surveyed will-carry
and will-not-carry operators with FAA-approved hazmat training programs
to determine if the content of their training programs would be in
compliance with the proposals in the NPRM. The FAA also randomly
reviewed FAA-approved hazmat training programs currently in operations
manuals of both will-carry and will-not-carry operators. These programs
also were all found either to be completely adequate in content as
compared to the proposed rule or would require only minor amendments.
Thus, the FAA anticipates that given the changes in the final rule
certificate holders will not require significant changes to the current
hazmat training program curriculum. In fact, most part 121 and part 135
operators adhere to the ICAO TI and the IATA DGR training requirements
as an industry standard, and this final rule is closely aligned with
the ICAO TI and IATA DGR training requirements that will be effective
January 1, 2005. Therefore, certificate holders adhering to the ICAO TI
and IATA DGR requirements will have programs that currently meet both
the industry standards and the FAA's regulatory standards. IATA
(International Air Transport Association) represents over 270 airlines
operating under the flags of almost as many nations comprising 95% of
the international scheduled air traffic. IATA's resolution 618 requires
all member airlines to adhere to the following requirements.
In scheduled and/or unscheduled operations, no dangerous goods are
permitted to be accepted and carried unless they comply fully with the
international standards and recommended practices of Annex 18 to the
Convention on International Civil Aviation--''The Safe Transport of
Dangerous Goods by Air'' and its associated Technical Instructions as
reflected in the ``IATA Dangerous Goods Regulations.''
Through IATA, airlines individual networks function as a worldwide
system. Due to this business practice, even smaller non-member airlines
that interline with IATA carriers must meet all of the member
requirements or their cargo cannot be interlined in the cargo system.
V.3. Clarification of Supervisory Training Requirements
Comments
UPS, Continental, and ATA were concerned that the proposed
requirement to train the supervisors of employees who perform a hazmat
function was too broad. UPS stated that the NPRM would require training
for ``every employee of a certificate holder with any supervisory
responsibilities whatsoever,'' even a ``certificate holder's chief
executive officer, even though that person may not perform a single
function directly affecting hazardous materials safety.'' UPS also
commented that the FAA has not articulated a ``reasonable basis for
requiring a certificate holder to provide hazardous materials training
to employees who do not perform or supervise any functions regulated
under the HMR or who do not otherwise directly affect hazardous
materials transportation safety.''
ATA stated that the ``definition of supervisor would sweep in
hundreds of supervisory personnel whose responsibilities rarely if ever
bring them in contact with hazmat.'' ATA added that covered supervisors
would include ``all levels of carrier management at an airport, as well
as the corporate management and officers to whom they report * * *.
Such broad applicability to supervisors without regard to their
responsibilities regarding hazmat is unnecessary to ensure safety and
an unreasonable burden on the carriers.''
FAA Response
The FAA agrees that the definition of the term ``supervisor'' as
used in the NPRM was too broad. In the final rule, the FAA is adding
the term ``direct'' to qualify the term ``supervisor'' in every place
where it is used in the new hazmat training regulations. This change is
necessary to clarify that only the ``direct'' supervisor of a worker
performing any of the job functions in Sec. 121.1001 (proposed as
Sec. 121.801) or Sec. 135.501 for, or on behalf of the certificate
holder is required to complete the part 121 or part 135 operator's FAA-
approved training program. This amendment should address the issues
raised in the comments.
V.4. Constructive Knowledge
Comments
A number of commenters (Northwest Airlines, UPS, Southwest, United
Airlines, Delta Airlines, and ATA) voiced concerns with the proposed
requirement to train people to identify material as hazmat that is not
properly labeled and marked as a hazmat. These commenters asked the FAA
to provide a trigger list that would help them train their employees in
this regard. UPS commented that the ``development of clear and well-
conceived indicia of constructive knowledge is essential to
[[Page 58803]]
enabling air carriers to implement effective training with respect to
undeclared hazardous materials.'' UPS was concerned that the proposed
rule would leave certificate holders guessing at what indicators the
FAA will deem sufficient to place a carrier on notice that a package
may contain hazardous materials. United Airlines noted that the FAA
needed to coordinate with the DOT's Office of Intermodalism, which is
in the process of developing a definition of the term ``constructive
knowledge.'' ATA commented that training revisions should not be
completed until DOT guidance on determining the presence of undeclared
hazmat is publicly available and preferably commented upon.
FAA Response
Many commenters raised the issue of what constitutes ``constructive
knowledge'' of the presence of hazardous materials in a shipment, in
the context of enabling the trained person to recognize items that
contain, or may contain, hazardous materials regulated under the HMRs.
In a 1998 interpretation published in the Federal Register (63 FR
30411-30412; June 4, 1998), RSPA (now PHMSA) used the term
``constructive knowledge'' to express the ``knowingly'' standard in 49
U.S.C. 5123(a)(1)(B) that a person ``acts knowingly'' when ``a
reasonable person acting in the circumstances and exercising reasonable
care'''' would have ``actual knowledge of the facts giving rise to the
violation.'' RSPA also stated, ``all relevant facts must be considered
to determine whether or not a reasonable person acting in the
circumstances and exercising reasonable care would realize the presence
of hazardous materials.'' In addition, RSPA stated, ``Information
concerning the contents of suspicious packages must be pursued to
determine whether hazardous materials have been improperly offered. A
carrier's employee who accepts packages for transport must be trained
to recognize a `suspicious package' * * *.'' Id.
In 2001, Fed Ex asked DOT to develop further guidance on what
constitutes ``constructive knowledge'' that a carrier is deemed to have
of the presence of hazardous materials when the carrier accepts a
shipment for transportation. DOT held a public meeting on June 19,
2002, and is considering the numerous oral and written comments in this
proceeding (Docket No. OST-01-10380).
In the context of this final rule, the FAA is not specifying
detailed hazmat training content. Should DOT or PHMSA issue a further
interpretation on ``constructive knowledge,'' certificate holders would
be authorized to adjust their training content accordingly. Hazmat
training program content will always have to be adjusted as hazmat
regulatory changes become effective. These adjustments are the
responsibility of the certificate holder.
The practice that an operator's staff be adequately trained to
assist them to identify and detect undeclared dangerous goods has been
an industry standard in the IATA DGR for over 10 years. The IATA DGR
information is intended to prevent undeclared dangerous goods in cargo
from being loaded on an aircraft and prevent passengers from taking on
board those dangerous goods that they are not permitted to have in
their baggage.
V.5. Applicability/Transport-Related Function (TRF)
Comments
ATA, Northwest, UPS, United, and the National Air Transportation
Association (NATA) were concerned that the application of the term
``transport-related function'' would end up requiring them to train all
or a substantial number of the employees in their operations. UPS
recommended that the FAA issue guidelines so that a carrier can
determine when an employee could ``reasonably be foreseen'' as
performing or supervising a transport related function.
FAA Response
The FAA recognizes the concerns voiced by the commenters. The term
``transport-related function'' is a shorthand reference used in the
preamble of the NPRM and final rule to refer to the specific listed job
functions in Sec. Sec. 121.1001 (proposed as Sec. Sec. 121.801) and
135.501. It is not intended to extend beyond those listed job
functions.
In the final rule the FAA is also removing the terms ``unloading''
and ``carriage'' from the list of specific covered job functions. This
decision is consistent with movement to closely align the regulations
with the 2005 edition of the ICAO TI and the IATA DGR. Training
conducted by an operator to satisfy industry training practices and
standards (e.g. IATA) that meet or exceed the requirements of new part
121 Appendix O would be sufficient for compliance with the final rule
requirements. The FAA does not believe that removing these terms from
the list of covered functions adversely impacts safety. First, the term
``unloading'' covers a job function that actually removes the item from
the aircraft where it does not pose a danger. Second, the FAA's
research indicates that the personnel loading the aircraft typically
are the same as the personnel unloading the aircraft. Since loading is
a covered job function, these persons would be trained in accordance
with the rule. Finally, if the unloaded cargo is subsequently loaded
onto another aircraft, then the person doing the subsequent loading
would need to be trained.
With regard to the removal of the term ``carriage,'' the FAA does
not believe there is a safety issue since the term essentially
incorporates all of the listed job functions and is not a stand-alone
term. Consequently, the FAA finds that a specific listing of the term
is unnecessary.
V.6. New Hire/New Job Function
Comment
Atlas Air stated that under the current regulations, when a carrier
hires an employee/contractor who used to work for another all-cargo
carrier and he or she provides a valid Dangerous Goods certification
from that carrier, the carrier simply enters the employee's name in the
training records under his or her valid certificate and schedules the
employee for recurrent training when the base month comes up. Atlas Air
urged the FAA to clarify that this practice can continue since limiting
the practice would constitute an unnecessary financial burden.
FAA Response
The FAA recognizes that part 121 and part 135 operators will have
many similarities in their hazmat training programs. However, each
carrier has its own policies and procedures regarding the handling and
transport of hazmat. Thus, a new employee that will perform a job
function listed in Sec. 121.1001 or Sec. 135.501 does not have to be
fully trained in all aspects of the hazmat regulations if he or she has
been trained by another certificate holder with the same will-carry or
will-not-carry status within the 24-month period. However, he or she
must receive training on the certificate holder's policies and
procedures prior to performing his or her job. It is the responsibility
of every part 121 and part 135 operator to train each employee in the
procedures and policies the certificate holder has implemented to
comply with the HMR and these regulations.
Comments
Ameristar noted that the NPRM did not address how to handle a
person who is not trained at a departure or destination point that
helps load an
[[Page 58804]]
aircraft under the supervision of a flight crewmember. An entire
initial training program is not practical for a person that may be
loading only one piece of freight (i.e., a seat belt pretensioner,
Class 9 (UN3268)) using a forklift on a one-time basis for an operator.
Ameristar also noted that there were no provisions for contract
employees in the NPRM.
FAA Response
Currently, the regulations require that the workers (contractor or
direct airline employee) performing a hazmat job function (including
unloading) be trained. There are no exceptions under current FAA
training regulations. In this final rule, the FAA is adopting a new
exception that would allow a person (either a new hire or someone who
is performing a new job function) to perform a job function involving
storage incidental to transport or loading of items on an aircraft for
transport, provided the person is under the direct visual supervision
of another properly trained employee authorized to directly supervise
him or her. The exception is only valid for 30 days, and is contingent
on the certificate holder complying with the recordkeeping requirements
in Sec. Sec. 121.1007(b) and 135.907(b) (proposed as Sec. 121.804(b))
or Sec. 135.504(b), as applicable. After that time period, the
individual must receive the required training.
V.7. Persons Working for More Than One Certificate Holder
Comments
Several carriers were concerned about the application of the
training requirement for employees or contractors who work for more
than one certificate holder. Atlas Air stated that proposed Sec.
121.803(a) would prevent Atlas, Polar, and similarly situated carriers
from relying on another certificate holder's training program to
satisfy the training obligation.
Additionally, Atlas Air commented that the second exception in
proposed Sec. 121.803(c), limiting the retraining required of persons
working for other certificate holders in certain circumstances, would
permit certification only from another certificate holder with the same
will-carry status. Atlas believed this would put it at a distinct
disadvantage around the world by prohibiting the acceptance of foreign
carriers' certifications, which represent a large segment of Atlas'
business.
UPS stated that proposed Sec. 121.803(c)(1) would require a
certificate holder to receive written verification that a repair
station employee was properly trained from an ``authorized,
knowledgeable person representing the other certificate holder.'' The
commenter said that the FAA provided no standards or guidelines for how
a certificate holder can determine whether a person is
``knowledgeable.''
United commented that the process for verifying that a contractor
has provided its employees with the proper hazmat training is ``far too
cumbersome and leaves each certificate holder with little option but to
provide such service personnel with the full scope of hazmat
training.'' Aircraft Electronics Association and Aviation Suppliers
Association believed that contractors may be unwilling to provide the
training certifications required by proposed Sec. Sec. 121.803(c) and
135.503(c) for fear of legal liability or because they do not want to
assume training costs that their competitors are not assuming.
Moreover, the commenter stated, several of the exceptions are based on
the worker having received prior training by a certificate holder
having the same operations specifications authorization for the
carriage of hazmat.
FAA Response
The FAA believes that the exception provided for in Sec. Sec.
121.1005(c) and 135.505(c) (proposed as Sec. Sec. 121.803(c) and
135.503(c)) will actually minimize the training burden on part 121 and
part 135 operators. After reviewing the concerns voiced by the
commenters, it appears that many of the commenters may have
misunderstood what type of training is required. The core of each part
121 and part 135 operator's training program is substantially the same.
However, a worker who has been trained by one certificate holder but
used by a second should be aware of that certificate holder's policies
and procedures for handling hazmat. For instance, a worker initially
performing work for a certificate holder with an operations
specification prohibiting the acceptance of radioactive material may
not have received in-depth training in the transport of radioactive
materials. However, if that worker performs a job function listed in
Sec. 121.1001 or Sec. 135.501 for or on behalf of an additional
certificate holder that does accept radioactive material, the worker
must be trained on the regulations pertaining to such materials.
Therefore, a part 121 or part 135 operator using a person trained under
another part 121 or part 135 operator's approved training program (both
with the same will-carry or will-not-carry status) only has to train
that person in the way it complies with the regulations.
Only operations conducted in accordance with parts 121, and 135,
and part 145 certificate holders are covered by this rulemaking. Thus,
the part 121 or part 135 certificate holders must ensure that a worker
is trained when using a worker in a foreign location. Since this final
rule is closely aligned with the 2005 edition of the ICAO TI and the
IATA DGR requirements, there should be minimal differences in training.
If the actual operations are in a foreign location, then the foreign
location requirements in Sec. Sec. 121.1005 and 135.505 (proposed as
Sec. Sec. 121.803 and 135.503) may be applicable.
The FAA agrees that the term ``authorized, knowledgeable person''
cannot be confirmed. Therefore, in the final rule the FAA is removing
the proposed terminology and replacing it with the phrase ``person
designated by the certificate holder to hold the records.''
Comment
MidWest Airlines agreed that if a contractor is a will-not-carry
airline for hazardous materials and provides services for a will-carry
airline, the contractor needs to receive hazardous materials training
from that airline. However, MidWest stated that it did not ``understand
the need for training to be provided when the status of the airline and
contractor is reversed.''
FAA Response
A worker of a part 121 or part 135 operator with a status of will-
carry operator receives hazmat training appropriate for the job
function being performed. If the worker also performs or directly
supervises job functions for a will-not-carry certificate holder, the
employee will only have to be trained in the policies and procedures
for the will-not-carry certificate holder. For instance, the worker
needs to know what the policies are for a will-not-carry certificate
holder if the worker identifies cargo as potential hazmat. These
policies and procedures would include information such as who does the
worker notify and where does the material get placed until the
appropriate person investigates, etc. Only the policies and procedures
specific to the will-not-carry certificate holder will need to be
provided.
V.8. Recurrent Training
Comments
Several commenters raised concerns with the FAA's proposal to
require annual recurrent training. Atlas Air
[[Page 58805]]
requested that the FAA make the recurrent training requirement every
two years, consistent with ICAO and United Nations (UN)
recommendations. Ameristar Air Cargo commented that the base-month
concept in the proposed rule is inconsistent with 14 CFR 121.401(b).
This requires an industry to have two standards. Ameristar believed
that the requirements of 14 CFR 121.433a currently allow the grace-
month provision.
NATA urged the FAA to keep its recurrent training requirements
consistent with PHMSA's recurrent training requirements under the HMRs.
FAA Response
In response to comments on this issue, the FAA is closely aligning
the final rule with the 2005 edition of the ICAO TI and the IATA DGR
including modifying the proposal by requiring recurrent training every
24 months instead of annually. The change in recurrent training from
every twelve months to every 24 months should not adversely impact
safety since recurrent training is designed to update workers on
amendments in the regulations. These amendments tend to occur on a 24-
month schedule, keeping aligned with ICAO and IATA amendments. Under 49
CFR 175.20 ``Compliance and Training'' for air carriers, the FAA's 14
CFR 121.135, 121.401, 121.433a, 135.323, 135.327 and 135.333 are
incorporated by reference. Under PHMSA's ``hazmat employee'' concept,
recurrent training is required every three years. Currently, the FAA
requires that recurrent hazmat training be completed by part 121 and
part 135 operators annually along with the flight and proficiency
training. The FAA's recurrent training requirements were in place
before PHMSA's and were not superceded by PHMSA's retraining
requirements. There are other differences between PHMSA's and the FAA's
training requirements. For instance, the FAA requires the hazmat
training program to be reviewed and approved by the agency.
The FAA also is clarifying that recurrent hazmat training can be
taken in the calendar month before or the calendar month after it is
actually due without changing the anniversary date for retraining
purposes. A person can be retrained earlier than one calendar month
prior to the training anniversary date; however, the anniversary date
will change to the completion date of the retraining. The FAA believes
that these exceptions provide the part 121 and part 135 operators with
maximum flexibility in scheduling retraining while ensuring that there
is not an extensive time period between the retraining dates.
V.9. Notice to Repair Stations
Comments
Several commenters opposed the FAA's proposal to require a
certificate holder to communicate and verify awareness of its hazardous
materials policies and procedures to a repair station. UPS noted that
``all repair stations likely `use' or `handle' materials classified as
hazardous materials in the course of their operations.'' Thus, proposed
Sec. 121.803(e) quite possibly could require ``notice and awareness''
for every repair station utilized by a certificate holder.
NATA was concerned that the requirement to verify that the repair
station is ``aware of'' its status and policies and procedures is
``another regulatory trap.'' In this instance, the commenter stated,
the FAA is establishing a mandate without giving a clear means of
compliance. Southwest believed that while the requirement to provide
written notification to each repair station performing work on the
certificate holder's behalf is obtainable and objective, ``the
requirement to ensure that the repair station is ``aware of' the
certificate holder's policies and procedures is a subjective
requirement that cannot be verified by the carrier.''
ATA stated that ``carriers can and do take the objective steps of
informing repair stations whether they carry hazmat and advising them
of carrier procedures for HMR compliance.''
FAA Response
The FAA agrees that the term ``aware of'' is somewhat subjective.
The FAA's intent in proposing this standard was to ensure that critical
information was effectively communicated between two parties.
The will or will-not-carry status of a certificate holder is
critical information that must not get drowned out by other
information. That is why the FAA proposed that part 121 and part 135
operators ensure that each repair station be aware of the part 121 and
part 135 operator's will or will-not-carry status. In the final rule,
the FAA is replacing the requirement for the repair station to be
``aware of'' the operator's will-or will-not-carry status with a
requirement for the repair station to acknowledge receipt of the
notification. This change is reflected in Sec. Sec. 121.1005(e),
135.505(e), and 145.206(a).
There are many ways to get a written verification. One way of
complying with this requirement would be to have the responsible person
from the part 121 or part 135 operators write a letter to the repair
station stating its status and policies and procedures and then have
the authorized repair station supervisor or manager sign and return a
copy of the letter. However, to allow for flexibility, the FAA is not
mandating this method; it is simply one method of compliance. The FAA's
purpose in adopting this requirement is to ensure that the repair
station receive the required notification from the part 121 or part 135
operator. This notification then triggers the requirement for the part
145 repair station to notify its covered employees of the part 121 or
part 135 operator's' status. Based on ATA's comments, it appears that
part 121 or part 135 operators already are taking some level of care to
ensure that repair stations know which certificate holders carry
hazmat. The only additional step may be the written verification.
V.10. Foreign Locations
Comment
NATA and ATA opposed the exception for certificate holders
operating at foreign locations in proposed Sec. 121.803(f) (adopted as
Sec. 121.1005(f)). NATA believed that this exception should be
standard operating procedures regardless of whether local labor laws
require the certificate holder to use persons working in that country
to load and unload aircraft, given the logistical problems of training
and recordkeeping for part 135 operators.
ATA commented that workers in foreign locations already receive
function-specific hazmat training and follow the ICAO Technical
Instructions. Current FAA rules require ``supervision'' by a trained
person of loading, offloading, and handling of dangerous goods by
persons who have not had the FAA-approved training. The commenter
stated, ``ATA believed that the proposal would unreasonably narrow the
exception for untrained employees working under supervision by
restricting the exception to loading and unloading.'' Thus, ATA argued
that any other handling of hazmat would have to be done by someone who
has had the extensive training, regardless of supervision. For loading
and unloading, the trained person would have to provide ``direct visual
supervision.'' The commenter added that, in situations where there is
more than one flight being worked, particularly at hubs, this is
unworkable. There is no compromise of safety in continuing to allow the
trained person to supervise by giving appropriate direction and follow-
up, enabling him or her to handle more than one issue at once.
[[Page 58806]]
FAA Response
The FAA believes that the loading with untrained workers should not
be standard operating procedures at foreign locations regardless of
local labor laws. This is consistent with current FAA hazmat training
regulations. Since the FAA is now closely aligning the final rule with
the 2005 edition of the ICAO TI and IATA DGR requirements, general
training should be more standardized. In the final rule, the FAA is
also removing the term ``unloading'' from the list of specific covered
job functions listed in Sec. Sec. 121.1001 and 135.501. Thus, part 121
and part 135 operators should find it easier to obtain trained workers
to use in completing these hazmat job functions. Under the exception
adopted in the final rule, loading with untrained workers can be
performed only if the labor laws of the foreign country require that
the certificate holder uses persons who work in that country, and the
worker performs the loading function under the direct visual
supervision of a trained worker. The existing rule does not require
visual supervision of the untrained worker. However, in the NPRM the
FAA proposed such a requirement, and this requirement is adopted in the
final rule. The certificate holder can use a non-supervisory person
trained to load the aircraft, provided they are authorized to directly
supervise the untrained worker in the performance of this function. The
FAA has determined that requiring a trained supervisor to visually
observe the performance of the untrained person's duties is an
important step towards eliminating the possibility of undeclared
discoverable hazmat or improperly shipped hazmat from being loaded onto
the aircraft.
The current exception also includes the term ``handling;'' however,
the proposal removed that term because it was confusing to regulated
entities. The FAA has understood the term ``handling,'' as used in the
current CFR, to refer to the handling that would be required during the
loading of the aircraft. The industry's application, however, has been
inconsistent. Although the FAA is eliminating this term, the FAA still
recognizes that those people who load must handle the cargo. The
removal of the term ``handling,'' however, eliminates any confusion
over the breadth of the exception.
V.11. Recordkeeping Requirements
V.11.A. Location
Comments
A number of commenters raised concerns with the proposed amendments
to the recordkeeping requirements. The proposed rule would have
required the certificate holder to maintain signed records of each
training course for the last three years. ATA Airlines noted that this
is not in keeping with current practices that allow paper records to be
discarded after 90 days if they are entered into an automated record
keeping system. ATA encouraged the FAA to accept a centralized,
computerized corporate record that is accessible by field locations.
Many of the carriers stated that they have electronic files and
databases and oppose a manual file system as a step backwards.
The proposed rule also would have required that the records be
maintained at the location where the person performs or supervises the
hazmat function. Many commenters opposed this proposed requirement.
ALPA stated that records should be maintained ``at the company
headquarters or at a facility that is charged with keeping such
records.'' Columbia Helicopters noted that because many certificate
holders affected by the NPRM operate from multiple sites, frequently
rotating aircrew and maintenance personnel ``moving records is an
unnecessary burden and greatly increases the likelihood of loss or
administrative error.'' All commenters agreed that allowing computer
records that can be accessed from various locations is the best option.
The proposed rule also would require the certificate holder to
maintain records on its independent contractors and subcontractors. UPS
believed that the certificate holder should not have to maintain
records for its contractors and subcontractors. It stated that such a
requirement may blur the relationship and ``give rise to a presumption
that personnel employed by the contractor are employees of the
certificate holder.''
FAA Response
The FAA agrees with the commenters that the worker training records
should not be required to be kept as a written record. In the final
rule, the FAA is clarifying that the part 121 and part 135 operators
have the responsibility to determine the method of recordkeeping
(electronic, manual, etc). This allows the certificate holder to manage
its recordkeeping program in a manner appropriate to its business. The
worker training records may be maintained by any method (including
electronic). The records may be maintained in a central location
provided that they can be made available upon request at the location
of the employee. Contractors performing or directly supervising a job
function listed in Sec. Sec. 121.1001 or 135.501 for, or on behalf of
a part 121 or part 135 operator will be required to comply with the
training requirements of 14 CFR. A certificate holder is responsible
for ensuring that its workers are properly trained. A contractor
performing or directly supervising a job function listed in Sec. Sec.
121.1001 or 135.501 for, or on behalf of the part 121 or part 135
operator represents the same responsibility to the certificate holder
as a direct employee. Therefore, since the part 121 or part 135
operator is responsible for maintaining the records for all direct
employees performing or directly supervising a function listed in
Sec. Sec. 121.1001 or 135.501 for, or on behalf of the part 121 or
part 135 operator, it should also be responsible for maintaining the
records of contractors performing or directly supervising the same job
functions.
V.11.B. Content
Comment
A number of carriers commented on the signature requirement in the
proposed recordkeeping rule. Proposed Sec. Sec. 121.804(c)(3) and
135.504(c)(3) (adopted as Sec. Sec. 121.1007 and 135.507) would have
required training records to be signed by a person designated by the
Director of Training. ASTAR Air Cargo pointed out that Sec. 121.401(c)
states: ``When the certification required by this paragraph is made by
an entry in a computerized recordkeeping system, the certifying
instructor, supervisor, or check airman must be identified with that
entry. However, the signature of the certifying instructor, supervisor,
or check airman is not required for computerized entries.'' ASTAR along
with ATA Airlines, Southwest, Chautauqua Airlines, Ameristar, FedEx,
AMR Corporation, and the Air Transport Association all supported
eliminating the signature requirement. Ameristar, Fed Ex, ATA and AMR
Corporation also pointed out that there is no Director of Training, so
requiring that individual's signature implies a requirement that is not
possible.
ASTAR also believed that the description of the training course
required by proposed Sec. Sec. 121.804(c)(4) and 135.504(c)(4)
(adopted as Sec. Sec. 121.1007 and 135.507) is redundant and not
required since a full description of the training program is contained
in the FAA-approved Training Manual.
FAA Response
The FAA agrees with the commenters' suggestions, and in the final
rule, the FAA is eliminating the requirement for the signature. The FAA
also did not
[[Page 58807]]
intend to require that certificate holders employ a Director of
Training. The FAA is instead requiring that the individual who is
providing the hazmat training be identified on the training record. The
contents of the training records will be the same as 49 CFR 172.704(d),
ICAO TI 1;4.2.4, and IATA DGR 1;1.5.4.1. The FAA is harmonizing the
contents to eliminate duplication of recordkeeping. The same records
required under this rulemaking can be used for compliance with all
hazmat regulations having the same requirements (49 CFR 172.704(d),
ICAO TI 1;4.2.4, and IATA DGR 1;1.5.4.1).
V.12. Curriculum--Proposed Appendix N (Adopted as Appendix O)
Comments
Many commenters stated that the training curriculum set forth in
proposed Appendix N (adopted as Appendix O) goes beyond the knowledge
needed to fulfill the given job function. ATA and Southwest Airlines
called the training ``excessive.'' ATA went on to argue that
``excessive training inundates employees with needless information and
requirements that are extraneous to their specific responsibilities
and--at best--distracts from the central purpose of job specific
training, diluting the effect of training on material relevant to their
function. At worst, it confuses employees about their assigned roles
and responsibilities.''
United and Midwest Airlines urged the FAA to abandon the idea of a
one-size-fits-all training program and allow the certificate holder to
tailor the training subject matter to the employee's job functions.
Chautauqua Airlines stated that its current program has been approved
by the FAA, but would not be acceptable under the proposed rule since
the programs are not divided into specific modules. Chautauqua argued
that to prepare a hazmat program that follows the prescribed curriculum
``would require significant efforts by various business unit training
organizations internal to CHQ, costing both time and money.''
AMR Corporation explains that a flight attendant will greet a
customer and/or help a customer with luggage after the customer has
interfaced with at least one of its agents trained in dangerous goods
acceptance, and after passing through TSA-controlled checkpoint where
security screeners are tasked with looking for threatening objects.
Flight attendants are trained in the safety of the passenger. They are
trained to handle a situation in flight where a substance may be
leaking or found to be inappropriate in the cabin. Training in
documentation checks and acceptance guidelines would not increase the
awareness or effectiveness of these employees in identifying hidden
dangerous goods.
Furthermore, AMR Corporation noted that its dispatchers do not
supervise the loading, nor do they perform other load planning
functions. The commenter added that a dispatcher may be tasked with
contacting Air Traffic Control, Airport Rescue and Fire Fighting, or
the Federal Aviation Administration; however, dangerous goods
acceptance training would not improve his or her ability to assist the
flight crew.
NATA stated that persons required to be trained on Module 6 but not
5, should not be required to be trained on Module 8. In order to do
their jobs properly, NATA said that these persons do not need to know
the ``use of hazardous materials tables, proper shipping names, hazard
class definitions, UN/ID numbers, or packing groups'' as described in
Module 8. ATA believed that the FAA could greatly alleviate the
unnecessary burden by aligning them with the ICAO Technical
Instructions. The ICAO TI allows the carrier to tailor the training
content for each employee group, making it commensurate with job duties
of the specific employees in question.
ASTAR Air Cargo made a similar request and urged the FAA to include
the statement ``Each Hazmat employee must be provided only that
function specific training concerning each of the areas of training
which are specifically applicable to the operation the employee
performs.'' ASTAR pointed out that this suggested language is nearly
identical to that of CFR title 49 and would allow operators to tailor
the training as necessary.
ATA Airlines, Delta, and UPS believed that proposed Table 1, which
defined training requirements based on Job Function defined by
Categories of Personnel, is confusing and will require interpretation.
ATA also stated that there is no differentiation between levels of
knowledge required based on actual involvement in the dangerous
materials transport process. UPS wanted the rule to clarify that the
level of training should be commensurate with the employee's
responsibilities. UPS urged the FAA to place proposed Appendix N into
an advisory circular so that certificate holders would have greater
flexibility in structuring their own training programs.
As stated in the comments submitted by ATA, ``ATA's will-not-carry
members also have FAA-approved training programs that provide for HMR
instruction. Indeed, even though they do not transport hazmat, they
provide recognition training to acceptance employees to enable them to
recognize and refuse hazmat if it is offered to their carrier.''
Furthermore ATA stated that carriers provide ``persons engaged in
passenger and baggage check-in services (e.g., skycaps, ticket counter
agents, flight attendants, etc.) with recognition training and
function-specific training on relevant hazmat topics.'' ATA also stated
``the FAA could greatly alleviate the unnecessary burden on carriers by
specifically authorizing them, as the ICAO Technical Instructions
provide, to tailor training content for each employee group, making it
commensurate with job duties of the specific employees in question. The
ICAO Technical Instructions are a reasonable starting point for that
assessment. This allows carriers to plan in accordance with their own
business structures.''
Express.Net Airlines was concerned that no standard exists for the
length of time necessary to conduct training and points to the FAA's
publication ``FAA National Operations and Training Manual for the
Acceptance and Transport of Dangerous Goods in Air Transportation.'' In
that document, the FAA recommends an 8-hour initial training program
and a 2-hour recurrent training program for operators that elect to
carry hazmat.
ALPA believed that the proposed modules listed for pilot
crewmembers are adequate provided that the training is ``specifically
tailored for the duties and responsibilities of the flight crew
member.'' ALPA requested that the FAA add a note to Tables 1 and 2
stating that ``Awareness-level training of components within a module
may be appropriate if the person (employee) does not actually perform
those functions.''
Atlas Air asked the FAA to clarify whether all-cargo carriers and
passenger carriers would be required to follow the same curriculum.
Jet Arizona, Aviation Services Unlimited, and Southwest Airlines
commented on recognition training for will-not-carry operators. Jet
Arizona believed that will-not-carry certificate holders should only be
required to train to the level required for their crews to recognize
hazmat for the purposes of preventing it from being loaded on that
company's aircraft. It believed that additional training creates an
unnecessary burden that the FAA has not justified adequately with data.
Aviation Services Unlimited also commented that to require operators to
change their already-successful
[[Page 58808]]
programs only unnecessarily increases the burden.
Ameristar Air Cargo suggested that in Module 13 the FAA delete the
words ``Policies and procedures regarding handling, packaging, and
transport of hazardous materials moving by means other than air.'' The
commenter said that this element leaves too much interpretation to the
FAA inspector approving a hazardous materials program. The commenter
suggested the following language: ``Applicable policies and procedures
regarding handling, packaging, and transport of hazardous materials
moving by means other than air.''
Express.Net Airlines noted that Table 1 of proposed Appendix N was
incomplete because Module 10 `Notice to Pilot-in-Command' training
would not have been required for category 3 workers; ``persons who
handle, store, and load or unload packages, passenger baggage or
cargo'' on the aircraft.
Menlo Worldwide Forwarding recommended that an additional exception
be included in the rule to allow the establishment of a stand-alone
training and supervision program administered by an integrated freight
forwarder that contracts multiple certificate holders to transport
dangerous goods and is subject to review and approval of the FAA. The
commenter added that air carriers would incorporate the training
regimen into their approved programs by referring to the integrated
freight forwarder's training program and services in their Operations
Manuals.
Direct Flight stated that simply because requirements may be
suitable for a part 135 scheduled commuter airline does not mean those
requirements are appropriate for a small on-demand carrier simply
because the way each operates is very different. Continental believed
that the NPRM inappropriately combined part 121 and part 135 duties
together. Continental stated that ``there are many specific duties for
Part 135 carriers that do not apply to a Part 121 carrier. For example,
there are many Part 135 carriers that will have their flight crews
assigned to tasks that are not performed by the flight crew of Part 121
carriers (i.e., loading baggage and cargo into the airplane).''
FAA Response
Many commenters disagreed with the proposal to mandate curriculum
for a part 121 or part 135 operator's hazmat training program. The FAA
agrees, and in the final rule the FAA is closely aligning the training
requirements in 14 CFR parts 121 and 135 with those in the 2005 edition
of the ICAO TI and the IATA DGR. The certificate holders believed that
the ICAO TI standards are the best common reference point to facilitate
the uniform, seamless handling of hazmat in international air
transportation. By accepting the operator's comments indicating that
only part 121 and part 135 operators themselves can develop specific
detailed hazmat training curricula, the FAA believes that the need to
provide model hazardous material training programs has been reduced.
The direction taken by the ICAO Dangerous Goods Panel in 2002
(published in the 2005-2006 edition of the ICAO TI and IATA DGR) was a
departure from the traditional ``categories of staff'' to a task-
oriented (function-specific) approach, which is the same approach the
FAA is adopting. Additionally, in the final rule, the FAA closely
aligns the required training for persons performing or directly
supervising job functions listed in Sec. 121.1001 or Sec. 135.501
for, or on behalf of a will-not-carry certificate holder with the
requirements for handling only non-dangerous goods in the 2005 edition
of the ICAO TI. The training standards will apply to both all-cargo and
passenger carriers.
The part 121 or part 135 operators will also be required to provide
training on any operator specific policies and procedures not
specifically mentioned in new Appendix O. The FAA believes that each
certificate holder currently trains all employees in their individual
policies and procedures, so this should not be an additional burden.
This allows part 121 or part 135 operators to train in accordance with
their own business structures. If a certificate holder's training
program differs from the ICAO TI format, it should discuss this with
the FAA during the approval process.
Therefore, in the final rule the FAA is clarifying that the part
121 or part 135 operator has the responsibility to determine which
employees meet the job function requirement to train, the level of
training required, the delivery method of administering the training,
including a test to verify comprehension, and the method of
recordkeeping (electronic, certificate, etc). The FAA is not specifying
requirements for these processes. The FAA believes these amendments
will allow the certificate holder to manage their FAA approved hazmat
training programs as appropriate. The final rule will not contain the
training modules. Instead, Table 1--Operators That Transport Hazardous
Materials--Will-Carry Certificate Holders, and Table 2--Operators That
Do Not Transport Hazardous Materials--Will-Not-Carry Certificate
Holders, will provide the minimum aspects to be covered in the part 121
and part 135 operator's hazmat training program for each job function
performed. These minimum requirements will apply to persons performing
or directly supervising the job function.
Given the changes that the FAA is making to the final rule, the FAA
anticipates that most part 121 or part 135 operators should not have to
substantially change their training programs if their current FAA-
approved hazmat training program contains the minimum requirements
required by 2005 edition of the ICAO TI and IATA DGR. Standards for
will-not-carry training will require that both part 121 and part 135
will-not-carry certificate holders conduct recognition training to
assist persons directly supervising or performing a job function
covered in Appendix O, Table 2, identifying possible undeclared, as
well as declared, hazmat.
The specific job function specified in Appendix O will determine
the training required. In-depth training is intended to give detailed
knowledge of the requirements pertaining to the specific job function
that the person performs. General-awareness training is intended to
provide a general overview of the regulatory scheme.
V.13. Training Method
Comments
Atlas Air, Northwest Airlines, AMR Corporation, Express.Net
Airlines and ALPA were concerned that the proposed requirement would
eliminate computer-based training. In addition, the proposed rule would
require an interactive instructor to be available to address any
questions or concerns. ALPA believed that recent changes in computer-
based training have made that possible. The Dangerous Goods Council
urged the FAA to allow an electronic instructor to be used who could be
immediately available by instant message, e-mail or phone.
FAA Response
Part 121 or part 135 operators have the responsibility for ensuring
that the specific level and duration of hazmat training is adequate and
appropriate for each worker. While the responsibility for providing the
hazmat training remains with the certificate holder, the FAA has the
responsibility for approving the hazmat training program. Hazmat
training may be provided by company training programs, computer-based
programs, self-guided CD training programs, outside training firms or
consultants, educational institutions, or
[[Page 58809]]
any other type of organization offering training. Electronic
instruction is permitted and an on-site instructor is not required.
Hazmat training may be provided by the part 121 or part 135 operator or
other public or private sources, including training classes that are
offered by the IATA to the extent that the IATA training satisfies the
FAA-approved hazmat training program. The part 121 or part 135 operator
must ensure that the hazmat training program provides a method to
respond to students' questions prior to certifying completion of the
training and that all persons are tested to verify understanding of the
regulations and requirements.
V.14. Single-Pilot Operations
Comments
Several commenters were concerned that the FAA did not adequately
address the issue of the single-pilot operation in the proposed rule.
NATA provided an example of a part 135 on-demand carrier using Cessna
Caravans (which require only one pilot) in a cargo configuration to
regularly transport newspapers for delivery. On occasion, the newspaper
employee delivering or picking up the newspapers may assist the pilot
in the loading or unloading of these papers. NATA believed that
proposed Sec. 135.503(a) would require the certificate holder to
provide hazmat training of this helpful person. NATA saw no
justification for this restrictive requirement. The pilot instead could
be trained as a supervisor and then permit the newspaper employee to
assist in performance of the transport-related function under direct
supervision similar to the requirements of the foreign locations
exception (see proposed Sec. 135.503(f)). NATA believed that, given
the nature of part 135 on-demand operations, which use any and all
airports on short notice, the principle of direct supervision is
reasonable as a general rule rather than the exception.
Direct Flight Inc. also urged the FAA to-- (1) clarify the notation
``would remain subject to the hazmat training requirements in Sec.
135.333,'' since the proposal removes Sec. 135.333; and (2) drop that
portion of the NPRM which applies to small, will-not-carry, on-demand
part 135 operators and instead retain the language contained in Sec.
135.333(c).
FAA Response
In the final rule, the FAA is deleting the language ``would remain
subject to the hazmat training requirements in Sec. 135.333,'' since
that language is only applicable to the current hazmat training
requirements. Hazmat training requirements are being relocated in
subpart K.
The part 135 operator has the responsibility for ensuring that the
level of training is adequate and appropriate for each employee. In the
situation described by NATA, the FAA agrees that the pilot could be
trained in accordance with the FAA's hazmat regulations and supervise
the loading function pursuant to Sec. 135.505. The on-demand operator
or an operator using one person for loading has the responsibility for
determining the adequacy of training. This is consistent with current
requirements under Sec. 135.333(d). In fact, the requirements under
Sec. 135.333(d) have been expanded because under the final rule,
single-pilot operators can use the new-hire exception. Single-pilot
operators also will only be required to conduct recurrent training
every 24 months once the FAA harmonizes the recurrent training with
international and industry standards.
V.15. Repair Stations (Part 145)--General
Comment
One commenter noted that it does not appear that the repair
stations have any transitional period. ATA noted that carriers already
notify repair stations of their will-carry or will-not-carry status and
their procedures for HMR compliance.
FAA Response
The final rule does not contain a transitional period to allow part
145 repair stations to train their workers because part 145 repair
station workers are already required to be trained if they are hazmat
employees, as defined in 49 CFR 171.8. Repair stations that perform or
directly supervise a job function listed in Sec. Sec. 121.1001 or
135.501 for, or on behalf of a part 121 or part 135 operator would need
to be trained in accordance with the FAA's requirements as well. This
is the same requirement for any contractor or subcontractor performing
or directly supervising a job function listed in Sec. Sec. 121.1001 or
135.501 for, or on behalf of a part 121 or part 135 operator. For
instance, part 145 repair stations performing work for, or on behalf of
will-not-carry certificate holders who perform loading functions for
the part 121 or part 135 operators will need to be hazmat trained
during the 15-month transition period. Additionally, most part 121 and
part 135 operators have indicated that they currently notify the repair
stations of their status (will-carry or will-not-carry). Consequently,
the notification requirement adopted by the FAA in the final rule
should not pose an additional burden. In the final rule, the FAA is
simply making notification mandatory and enforceable.
The requirement to certify to the FAA that all hazmat employees
have been trained as required by 49 CFR 172.704(d) is satisfied by
providing copies of the records required by 49 CFR 172.704(d), or by
submitting a letter from an authorized representative of the repair
station indicating that all hazmat employees are trained in accordance
with 49 CFR. The only additional hazmat training requirement would be
for the repair station employees who directly supervise or perform a
job function listed in Sec. 121.1001 or Sec. 135.501 for, or on
behalf of the part 121 or part 135 operators, such as loading the
certificate holder's aircraft for transport. The FAA believes that only
a very small percentage, if any, of part 145 repair station employees
actually load the part 121 or part 135 operator's aircraft for
transport unless the repair station also is certified under part 121 or
part 135 which would impose the requirements of part 121 or part 135 of
14 CFR currently.
Comment
ALPA agreed with the FAA's decision to include part 145 Aircraft
Repair Stations in the NPRM. The commenter said that a significant
potential exists that materials or components being shipped to, shipped
from, or returned to service could contain hazardous materials.
Northwest Airlines, AMR Corporation, Midwest Airlines, and NATA were
concerned that the training program for repair stations would be
burdensome because repair stations would have to be trained and current
in every carrier's hazmat program. AMR Corporation noted that repair
stations will simply pass the cost of training down to the certificate
holder. AMR Corporation stated that ``if the FAA established repair
stations as ``shippers'' and regulated the shipping community, the FAA
could go further in promoting safety in this area.
NATA did not object, in concept, to the FAA's desire to reference
49 CFR 172 within the part 145 regulations. NATA was concerned with the
increased training burdens on the certificate holder. NATA contended
that it is redundant for a repair station employee, already trained
under their employer's program, to then be trained by the certificate
holder if performing a TRF. NATA also believed that the real problem in
the industry is lack of education.
[[Page 58810]]
The NTSB supported the repair station proposal and believed that it
will enhance the likelihood that repair stations will provide
appropriate hazardous materials training for their employees. Safety
recommendation A-97-73 called for the FAA to require air carriers to
ensure that maintenance facility personnel, including mechanics and
shipping, receiving, and stores personnel, at air carrier-operated or
subcontracted facilities are provided initial and recurrent training in
hazardous materials handling. The NTSB also supported the notification
requirement.
Chromally Gas Turbine Corporation stated that the proposed
requirement would require training and documentation for everyone in a
``repair station who even handles hazardous waste and/or labels
hazardous waste containers which will never be involved in air
transport.''
The Aircraft Electronics Association (AEA) believed that hazmat
training, where needed, can be incorporated into training programs
already required under 14 CFR 145.163. AEA also requested that the FAA
adopt a narrowly tailored exemption for repair stations that hold only
radio and/or instrument ratings (plus an associated airframe rating)
for purposes of avionics installations. AEA stated that most repair
stations holding these ratings do not handle hazmat, and those that do
already are required to have appropriate training programs by the
hazmat training requirements of title 49.
Boeing urged the FAA to adopt a new Sec. 145.5(c) that would allow
the repair station to receive acknowledgement from the air carrier that
its training program is adequate. Boeing believed that such a provision
would be adequate if a certificate holder verifies the adequacy of the
repair station's controls over the processes, procedures, and training
of persons performing transport-related functions for a repair station.
The option to require specific training, if deemed necessary, provides
flexibility to both the certificate holders and repair stations while
maintaining adequate controls to ensure the proper handling and
shipping of hazardous materials, and the continued safety of aircraft
and personnel.
FAA Response
In the final rule, the FAA is removing the words ``and use in
repair operations aircraft components, consumable materials on behalf
of the operator regulated under 49 CFR parts 171 through 180'' from
Sec. 145.165. By making this amendment, the FAA seeks to clarify that
the repair stations intended to be covered under this proposal are the
part 145 repair stations that perform work for, or on the part 121 or
part 135 operator's behalf and are regulated by 49 CFR parts 171
through 180. This, by definition in 49 CFR, would include only the
repair stations that offer or accept hazardous material for
transportation. The remainder of the requirement is retained. All part
145 repair stations that are regulated under 49 CFR currently are
required to have hazmat training in place.
The FAA is not adopting the recommendation suggested by Boeing that
carriers approve a repair station's training program. Repair stations
may perform duties as hazmat shippers, and when they do, they are
regulated under 49 CFR. However, if they perform or directly supervise
a job function listed in Sec. Sec. 121.1001 or 135.501 for, or on
behalf of a part 121 or part 135 operators, such as loading of the
certificate holder's aircraft, they are required to be trained under
the FAA's hazmat training requirements.
V.16. Application for Part 145 Certificate
Comments
Ameristar Air Cargo believed that employees should not have to be
trained by the time the application is filed, but instead should be
required to be trained prior to the repair station being issued a
certificate. Ameristar also believed that proposed Sec. 145.5 is very
clear in regards to required training, making the proposed language of
Sec. 145.11(a)(5) redundant.
FAA Response
The FAA agrees with Ameristar that the repair station employees
should have to be trained prior to FAA issuing a part 145 certificate
or change in rating, not at the time of application. The final rule
requires that the repair station certify that all hazmat employees have
been trained as required by 49 CFR part 172 subpart H prior to issuing
the repair station certificate or rating. For a change in rating, a
repair station is not required to submit another certification if
previously provided.
V.17. Notification of Hazardous Materials Authorizations
Comments
Ameristar and AEA believed that the requirement to notify all
workers is very broad in scope. AEA believed that the proposed
requirement would needlessly encompass personnel such as administrative
employees who may have no involvement with the work being performed for
the part 121 or part 135 carriers. This notification requirement should
be limited to--(1) repair station employees who actually perform
maintenance services on parts, components, or appliances belonging to
part 121 or part 135 carriers; (2) personnel responsible for receiving
and shipping those items; and (3) the supervisory personnel overseeing
these two categories of workers.
AEA also believed that the reference to ``each certificate holder''
is vague and should be limited to ``each certificate holder for which
the repair station provides maintenance services.''
FAA Response
The FAA believes that the notification requirement is essential and
a very minimal requirement for hazardous material communication
information. The FAA has determined that it is essential for a repair
station to know whether its customers are will-carry or will-not-carry
operators. In the final rule, the FAA is clarifying that the
notification requirement applies only to the repair station employees,
its contractors, or subcontractors that handle or replace aircraft
components or other items regulated by 49 CFR parts 171 through 180.
This will eliminate the possibility of the notification process
applying to personnel such as administrative or others who do not come
into contact with any aircraft components.
Comment
Both Northwest Airlines (NWA) and Aircraft Electronics Association
questioned the need for the certificate holder to train repair station
employees as referenced in proposed Sec. 121.803(a). NWA stated that
this requirement could easily double or triple the amount of training
that it would be required to administer. Aircraft Electronics believed
that this requirement conflicts with the existing training requirements
in 49 CFR, which imposes the requirement on the hazmat employer.
FAA Response
In the final rule, Sec. 145.165(b) states that repair station
workers must not perform or directly supervise any job function listed
in Sec. 121.1001 or Sec. 135.501 for or on behalf of the part 121 or
part 135 operator unless that person has completed training under the
part 121 or part 135 operator's hazmat training program. When
performing or directly supervising any job function listed in Sec.
121.1005 or Sec. 135.501 for or on behalf of a part 121 or part 135
operator, a repair station worker is not any different than any other
contractor or subcontractor performing or directly
[[Page 58811]]
supervising a covered job function including loading the certificate
holder's aircraft. Any contractor loading the aircraft for
transportation must be trained under the FAA's Approved Hazardous
Materials Training Program for that part 121 or part 135 operator.
There is not a requirement for the part 121 or part 135 operators to
train all repair station employees, only those who perform a covered
function for or on behalf of the certificate holder. For instance, a
repair station worker that loads COMAT onto an aircraft, or otherwise
prepares the cargo for air shipment, for or on behalf of the
certificate holder, must be trained in the certificate holder's hazmat
training program.
Training conducted to comply with 14 CFR may meet the requirements
in 49 CFR depending on the content of the training program.
VI. Section-by-Section Discussion of Final Rule
Part 119--Special Federal Aviation Regulation (SFAR) No. 99
The NPRM proposed to establish an SFAR that would contain all
current part 121 and part 135 hazmat training regulations that would be
replaced by the proposed changes. The SFAR is adopted without changes.
The SFAR will expire 15 months after the effective date of the rule.
As proposed, all existing hazmat training requirements in
Sec. Sec. 121.401(a)(1), 121.433a, 135.323(a)(1), and 135.333 are
moved into Special Federal Aviation Regulation (SFAR) No. 99. This is
designed to make it easier for certificate holders to identify existing
requirements and distinguish them from new requirements. The remaining
parts of these regulations that are not hazmat-related will remain in
their respective sections. New Sec. Sec. 121.1003 and 135.503
(proposed as Sec. Sec. 121.802 and 135.502) will require hazmat
training for part 119 certificate holders conducting operations in
accordance with part 121 and/or part 135 of 14 CFR.
The SFAR will exist for 15 months after the effective date of the
final rule, during which time certificate holders certificated on or
before November 7, 2005 will be responsible for bringing their hazmat
training programs into full compliance with the new regulations. During
the 15-month transition period, current part 121 and part 135 operators
may continue to comply with the current requirements or elect to comply
with the new requirements. As of February 7, 2007, all part 121 and
part 135 operators are required to comply with the new training
requirements.
Section 119.49 Contents of Operations Specifications
The FAA proposed to redesignate the current language of Sec.
119.49(a)(13) as (a)(14) and add a new (a)(13) to provide that a
certificate holder's operations specifications must include either an
authorization permitting the part 121 or part 135 operator to handle
and transport hazmat (will-carry certificate holder) or a prohibition
against handling and transporting hazmat (will-not-carry certificate
holder). The FAA did not receive any comments on this section. The
references to paragraph (b) and (c) were inadvertently left out of the
NPRM. The NPRM preamble discussed amending Sec. 119.49 to show that
all part 121 and 135 operators' operations specifications will be
required to show the appropriate authorization.
Sections 121.135 and 135.23 Manual Contents
The FAA proposed that the current manual requirements in 14 CFR
121.135(b)(23) and 135.23 (p) be amended to require that both will-
carry and will-not-carry certificate holders include procedures and
information to assist each person directly supervising or performing a
job function listed in Sec. 121.1001 or Sec. 135.501 for, or on
behalf of a part 121 or part 135 operator in recognizing hazmat. The
FAA is adopting the proposed provisions with some modifications, which
are discussed below. The FAA believes that the proposed changes are
necessary to clarify who is covered by the requirements and to more
clearly specify the types of procedures and policies that must be
provided. Some procedures are common to both will-carry and will-not-
carry certificate holders. Other procedures vary, depending upon
whether the carrier is a will-carry or will-not-carry certificate
holder.
A. Both will-carry and will-not-carry certificate holders: In the
final rule, the FAA is maintaining current manual requirements for both
will-carry and will-not-carry certificate holders, with some
amendments. The final rule requires that manuals for both will-carry
and will-not-carry certificate holders contain procedures for rejecting
packages not properly prepared and offered for shipment under 49 CFR
parts 171 through 180, or that appear to contain hazmat. This is a
change from the current requirements and was proposed because the
current language only refers to identifying or recognizing packages
marked and labeled as hazmat. The FAA wants certificate holder
personnel to be better trained so that they are more likely to stop
either packages improperly offered for shipment as hazmat, or packages
that contain undeclared hazmat shipments which provide indicia of
hazmat to a trained individual (discoverable hazmat shipment).
Thus in the final rule, the FAA is requiring part 121 and part 135
operators to have procedures for rejecting materials that appear to be
improperly prepared or possible undeclared hazmat. The FAA has found
that in many cases packages not marked and labeled as hazmat still
display indicators that would lead a trained person to suspect the
presence of hazmat. For example, terms such as ``chemicals,''
``lighters,'' ``paint,'' or ``solvents'' on packages or accompanying
documents not prepared as a hazmat indicate the possible presence of an
undeclared hazmat. Additionally, trigger lists (such as the ones found
in the ICAO TI Part 7, Chapter 6, or in IATA DGR Part 2 Chapter 2) may
be used to alert personnel to the possible presence of hazmat in items
not properly identified as hazmat.
In the final rule, the FAA adopts the requirement for both will-
carry and will-not-carry certificate holders to communicate to
crewmembers and persons, including contractors and subcontractors
performing or directly supervising job functions listed in Sec. Sec.
121.1001 and 135.501 for, on behalf of, the part 121 or part 135
operator of the operator's procedures for notifying DOT of hazmat
incidents and discrepancies. (See Sec. Sec. 121.135(b)(23)(ii)(B) and
135.23(p)(2)(ii)). Again, this is a change from the current
requirements, which require a certificate holder to include this
information in its manual only if the certificate holder has will-carry
status.
The manual also must communicate the terms under which a
certificate holder, including a will-not-carry certificate holder, may
carry hazmat in accordance with the passenger and crew exceptions
listed in 49 CFR 175.10. Currently, training for these hazmat
exceptions are included in the will-carry and will-not-carry training
programs based on long-standing advisory circular guidance. This
amendment will make the training enforceable.
In the final rule, the FAA also requires part 121 and part 135
operators to indicate in their manuals whether they are will-carry or
will-not-carry operators, as specified in the operations
[[Page 58812]]
specifications. (See Sec. Sec. 121.135(b)(23)(ii)(C) and
135.23(p)(2)(iii)). This information currently does not have to be in
the certificate holder's manual.
B. Will-carry certificate holders only: A part 121 or part 135
operator authorized as a will-carry operator will be required to
provide to crewmembers and persons, including contractors and
subcontractors performing or directly supervising job functions listed
in Sec. Sec. 121.1001 and 135.501 for, or on behalf of, the part 121
or part 135 operator with additional procedures and information
regarding the transport of hazmat in its manual. The covered persons
include any other person who directly supervises or performs a job
function listed in Sec. 121.1001 or Sec. 135.501 for, or on behalf of
a part 121 or part 135 operator under any other arrangement.
Additionally, part 121 or part 135 operators electing will-carry
status are required to provide procedures and information to ensure
that--
The packages containing hazmat are properly offered,
accepted, handled, stored, packaged and loaded on the aircraft in
compliance with 49 CFR;
Requirements for notice to the pilot in command (49 CFR
175.33) are met; and
Aircraft replacement parts shipped as COMAT, consumable
materials, and any other item regulated under the HMRs, are properly
handled, packaged, and carried on board the aircraft.
C. Will not carry operators: There are no manual requirements
specific only to will-not-carry certificate holders. The manual
requirements are shared with the will-carry certificate holders.
Transfer of Hazmat Provisions to SFAR No. 99
All existing hazmat training requirements in Sec. Sec.
121.401(a)(1), 121.433a, 135.323(a)(1), and 135.333 are moved into
Special Federal Aviation Regulation (SFAR) No. 99 to make it easier for
certificate holders to identify existing requirements and distinguish
them from new requirements. New Sec. Sec. 121.1003 and 135.503
(proposed as Sec. Sec. 121.802 and 135.502) will require hazmat
training for part 119 certificate holders conducting operations in
accordance with part 121 and/or part 135. Section 121.401 is shown in
the regulatory text only to show how the section reads once the hazmat
training requirements are removed. The SFAR will expire on February 7,
2007.
Part 121--Subpart Z and Part 135 Subpart K--Hazardous Materials
Training Program
The FAA notes that the numbering of new sections in part 121 has
changed due to the adoption of new rules since the NPRM was published.
In the final rule, therefore, the new subpart and sections are
renumbered accordingly. In addition, the FAA is skipping numbers in
between sections to allow room for the addition of new sections in the
future. Therefore, regulations proposed as subpart Y Sec. Sec. 121.801
through 121.804 are renumbered as subpart Z Sec. Sec. 121.1001 through
121.1007 in the final rule. The FAA is renumbering sections in part 135
subpart K for the same reason. Sections in subpart K that were proposed
as Sec. Sec. 135.501 through 135.504 are renumbered as Sec. Sec.
135.501 through 135.507 in the final rule.
Hazmat training rules in part 121, subpart Z, and part 135, subpart
K, require all air carriers and commercial operators to train each
crewmember and person who directly supervises or performs a job
function listed in Sec. 121.1001 or Sec. 135.501. The FAA believes
that adequate training of each person involved in a job function listed
in Sec. 121.1001 or Sec. 135.501 will greatly enhance safety in air
transportation and help avoid life-threatening incidents. Also, due to
the frequency of undeclared shipments, the FAA believes that a broader
training program, which includes hazmat recognition training, must be
mandated for all part 121 and part 135 operators. However, as discussed
below, the FAA is removing the term ``curriculum'' and the modules
previously included in proposed Appendix N (adopted as Appendix O) of
part 121 in this final rule.
1. Applicability and definitions (Sec. Sec. 121.1001 and
135.501)--The final rule includes new subparts that prescribe
requirements for certificate holders to train crewmembers and persons
directly supervising or performing a job function listed in Sec.
121.1001 or Sec. 135.501, whether the part 121 or part 135 operator is
a will-carry or will-not-carry operator. The will-carry or will-not-
carry status is relevant only to the content of the training, not to
the requirement to train. The FAA is removing the term ``curriculum''
because the FAA has decided against mandating a curriculum. Instead, it
will be the certificate holder's responsibility to determine which
workers require certain training based on the job functions they
perform. The certificate holder will need to determine the level,
content and duration of training.
The current requirements in Sec. Sec. 121.433a and 135.333 apply
only to persons handling or carrying hazardous material, even though
the approved hazmat training programs contained in the certificate
holder's manuals indicate the training is currently applied on a
broader basis. The hazmat training requirements contained in the final
rule apply to a broader group of individuals than covered in the
current regulations.
1.A. Paragraph (a): Paragraph (a) identifies who is required to
receive hazmat training. The training requirements cover crewmembers
and persons who directly supervise or perform a job function listed in
Sec. 121.1001 or Sec. 135.501 for, or on behalf of a certificate
holder in the transport of an item on board an aircraft. Part of the
training includes teaching individuals how to recognize materials that
may be hazmat but are improperly prepared for shipment. The NPRM
included a list of specific job positions and the type of training they
needed. The final rule establishes training based on the job function
performed by the employee. Currently, Sec. Sec. 121.433a and 135.333
forbid operators from using a person to perform, and forbids a person
from performing, ``any assigned duties and responsibilities for the
handling or carriage of dangerous articles and magnetized materials
governed by Title 49 CFR'' unless the person has been trained. The NPRM
proposed applicability provisions in Sec. Sec. 121.801 (adopted as
Sec. 121.1001) and 135.501 that were broad enough to cover not only
those persons performing a job function listed in Sec. 121.1001 or
Sec. 135.501, but also those persons supervising the performance of
that job function. This ensured that the certificate holder identified
and trained each person who could reasonably be foreseen as supervising
or performing a TRF, whether or not it was part of his or her day-to-
day job duties (function-specific training). In the final rule, the FAA
is clarifying that the training requirement does not apply to every
supervisor, but rather to the ``direct'' supervisor who oversees the
performance of a job function listed in Sec. 121.1001 or Sec.
135.501.
In this final rule, the FAA also clarifies the portion of the NPRM
preamble that discussed when an individual's job function would
necessitate training. The NPRM language that generated confusion is as
follows: ``Whether a person were officially assigned to perform a job
function would be irrelevant [to the need to train]. This would ensure
that the certificate holder identifies and trains each person who could
[[Page 58813]]
reasonably be foreseen as performing or supervising a TRF, whether or
not it is part of his or her job description.''
It was not the FAA's intent to require a part 121 or part 135
operator's entire work force to receive hazmat training. As an example,
a person can be reasonably foreseen as performing or directly
supervising a job function listed in Sec. 121.1001 or Sec. 135.501
when he or she may be asked to fill in for a sick or absent worker or
supervisor. The certificate holder has the responsibility to determine
which employees meet the ``function specific'' or ``assigned''
requirements to mandate training. The training requirements attach to
the actual job function performed or directly supervised.
The FAA has also removed the job functions of ``unloading'' and
``carriage'' from the list of covered job functions in the final rule.
This amendment brings the job functions covered in the training rule
closely aligned with the 2005 edition of the ICAO TI and the IATA DGR
hazmat training requirements. The FAA does not believe that removing
these terms from the list of covered functions adversely impacts
safety. First, the term ``unloading'' covers a job function that
actually removes the item from the aircraft where it does not pose a
danger. Second, FAA's research indicates that the personnel loading the
aircraft are the same as the personnel unloading the aircraft. Since
loading is a covered job function, these persons would be trained in
accordance with the rule. Finally, if the unloaded cargo is
subsequently loaded onto another aircraft, then the person would need
to be trained. With regard to removing ``carriage,'' the FAA does not
believe there is a safety issue since the term essentially incorporates
all of the listed job functions and is not a stand-alone term.
1.B. Paragraph (b): Sections 121.1001 (b) (proposed as Sec.
121.801(b)) and 135.501(b) set forth relevant definitions. Paragraph
(b)(1) defines ``Company material (COMAT)'' as material owned or used
by the certificate holder.'' COMAT is a term of art used in the
aviation industry. The FAA is using the term to ensure that persons are
trained to understand that COMAT classified as hazardous material must
be marked, labeled, and identified as hazmat, and that there is no
exception for the transport of hazardous material as COMAT for will-
not-carry certificate holders. In the final rule the FAA is not
changing this definition.
Paragraph (b)(2) defines ``initial hazardous material training.''
The definition of ``initial hazardous material training'' is consistent
with the initial training requirement in 49 CFR part 172 subpart H,
although 49 CFR does not specifically define initial hazmat training.
In the final rule the FAA is not changing this definition.
Paragraph (b)(3) defines ``recurrent hazardous material training.''
The definition of ``recurrent hazardous materials training'' is also
consistent with the way the term is used in 49 CFR part 172 subpart H,
although under PHMSA's rules, this term is not defined. The NPRM
proposed retaining an annual training requirement. However, the FAA is
amending this proposal in the final rule to mandate recurrent hazardous
material training every 24 months, consistent with the ICAO TI and the
IATA DGR.
2. General Requirement to Train (Sec. Sec. 121.1003 and 135.503)
(proposed as Sec. Sec. 121.802 and 135.502))--In the NPRM, the FAA
proposed mandating a ``curriculum'' for both will-carry and will-not-
carry certificate holders to improve the knowledge base of persons
supervising or performing a TRF. The term ``curriculum,'' as used in
the NPRM was widely misunderstood. Upon further consideration, the FAA
realizes that the term ``content'' would have been a better description
of the requirement. Actual curriculum (content) would vary depending
upon the certificate holder's hazmat acceptance policy and the worker's
job function. Standards for will-not-carry operators require that both
part 121 and part 135 operators conduct training to assist those
persons directly supervising or performing a job function listed in
Sec. 121.1001 or Sec. 135.501 to identify possible undeclared, as
well as declared, hazmat.
The training for will-carry operators covers two phases of training
specified by the HMRs--general awareness training and function-specific
training. The type of hazmat training necessary depends upon the job
function performed or directly supervised. It is the responsibility of
the certificate holder to ensure that the level of training is adequate
and appropriate for each worker's job function. The specific level and
duration of training is determined by the certificate holder, not the
FAA.
2.A. Paragraph (a)--Sections 121.1003(a) and 135.503(a) (proposed
as Sec. Sec. 121.802(a) and 135.502(a)) require all hazmat training
programs to include, at a minimum, the requirements of Appendix O of
part 121. The training programs will ensure that each crewmember and
person directly supervising or performing a job function listed in
Sec. 121.1001 or Sec. 135.501 is trained to comply with the
applicable requirements of 49 CFR parts 171 through 180, and that
persons are trained to look for certain indicia that may indicate an
undeclared (discoverable hazmat) or improperly prepared hazmat item.
The FAA is closely aligning the job functions and the associated
minimum aspects of training with the 2005 edition of the ICAO TI and
the IATA DGR standards.
2.B. Paragraph (b)--Under paragraph (b), a certificate holder must
develop an organized training program that will build upon a person's
knowledge of hazmat regulations, keep up with current requirements, and
focus on any problem areas. This requirement is consistent with current
regulatory provisions. With certain exceptions, each crewmember and
person performing or directly supervising a job function listed in
Sec. 121.1001 or Sec. 135.501 will be required to receive initial
hazardous materials training prior to performing or directly
supervising that job function.
2.C. Paragraph (c)--Under paragraph (c) the certificate holder must
obtain FAA approval of the hazmat training program prior to
implementing the program. This requirement is consistent with the
current training requirements in Sec. Sec. 121.401 and 135.323.
3. Training Requirement (Sec. Sec. 121.1005(a) and 135.505(a))
(proposed as Sec. Sec. 121.803 (a) and 135.503 (a))--Sections
121.1005(a) and 135.505(a) provide that no certificate holder can use
any crewmember and person to directly supervise or perform a job
function listed in Sec. 121.1001 or Sec. 135.501, unless that person
has satisfactorily completed the certificated holder's FAA-approved
initial or recurrent hazardous materials training program within the
past 24 months. A person is satisfactorily trained when that person
understands the relevant training material and is capable of performing
his or her job in compliance with both 49 CFR parts 171 through 180 and
part 121, subpart Z, or part 135, subpart K, as applicable.
A person who has not received this training cannot be used to
directly supervise or perform a job function listed in Sec. 121.1001
or Sec. 135.501, unless the conditions of an exception were satisfied.
4. New Hire/New Job Functions--(Sec. Sec. 121.1005(b) and
135.505(b)) (proposed as Sec. Sec. 121.803(b) and 135.50(b))--The FAA
proposed two exceptions to the training requirements contained in
Sec. Sec. 121.1005(a) and 135.505(a). These exceptions apply to
persons who are new hires or who are changing job functions and have
not received the required initial or recurrent
[[Page 58814]]
hazmat training for the new job function. The new hire/new job function
exception applies only to persons performing a job function involving
storage incidental to transport, or loading of items on the part 121 or
part 135 operator's aircraft for transport. This exception could not be
used for persons performing or directly supervising any other job
function listed in Sec. 121.1001 or Sec. 135.501 for, or on behalf of
the part 121 or part 135 operator. The new hire/new job function
exception can be applied for a period of not more than 30 days from
either the date of hire or, for a change of job function, the date the
person began performing the new job function.
To use this exception, the person would have to be under the direct
visual supervision of another properly trained employee authorized to
directly supervise him or her by the part 121 or part 135 operator. The
direct supervisor must have successfully completed the certificate
holder's approved initial or recurrent hazardous materials training
program. In addition, the certificate holder must comply with the
recordkeeping requirements in Sec. 121.1007(b) or Sec. 135.507(b)
(proposed as Sec. Sec. 121.804(b) and 135.804(b)), as applicable. The
direct supervisor must observe the untrained person's performance to
ensure that the job function is performed in compliance with both the
FAA's regulations and the DOT's HMRs. Use of a video camera will not
satisfy the direct visual supervision requirement. The requirement for
the supervisor-to-worker ratio to be approved by the principal
operations inspector or the principal security inspector is being
removed. The FAA has determined that the requirement for the supervisor
to visually observe the untrained person's performance provides
sufficient oversight.
The new hire/new job function exception is similar to the exception
in 49 CFR 172.704(c)(1) for multi-modal training in that it applies to
new hires or persons changing job functions. However, unlike the
exception in 49 CFR, this exception is only valid for 30 days from the
date of employment or a change in job function. This is more limited
than the new hire/new job function exception now in 49 CFR, which
applies for 90 days after employment or a change in job function.
5. Persons Working for More Than One Certificate Holder (Sec. Sec.
121.1005(c) and 135.505(c)) (proposed as Sec. Sec. 121.803(c) and
135.503(c))--The second exception is in Sec. Sec. 121.1005(c) and
135.505(c) and applies to workers who directly supervise or perform a
job function listed in Sec. 121.1001 or Sec. 135.501 for, or on
behalf of more than one part 121 or part 135 operator. Under this
exception, a part 121 or part 135 operator using a person to directly
supervise or perform a job function listed in Sec. 121.1001 or Sec.
135.501 need only train that person in its own policies and procedures
and any additional information not covered by the other part 121 or
part 135 operator's training program, in accordance with its own
hazardous materials training program. In the final rule, the FAA is
changing the term ``authorized, knowledgeable person'' to ``person
designated to hold the records representing the other certificate
holder.'' This change is necessary because there are no standards a
certificate holder can apply to determine who is an ``authorized,
knowledgeable person.'' However, a certificate holder should have an
individual responsible for maintaining records.
The certificate holder can use this exception only if both of the
following conditions are met:
(1) The certificate holder using this exception receives written
verification from the person designated to hold the records
representing the other certificate holder for whom the person works
that the person has satisfactorily completed that certificate holder's
required initial or recurrent approved hazardous material training for
that specific job function in the last 24 months.
(2) The certificate holder who trained the person has the same
will-carry or will-not-carry status listed in its operations
specifications as the certificate holder using the exception. This also
applies to an employee who previously worked for a will-not-carry
certificate holder providing any policy differences are communicated to
the employee.
The NPRM contained an example for a repair station that was
misunderstood. The only repair station workers required to be trained
in the part 121 or part 135 operator's FAA-approved training program
are the repair station workers performing or directly supervising a job
function listed in Sec. 121.1001 or Sec. 135.501 for, or on behalf of
the part 121 or 135 operator including loading the certificate holder's
aircraft for transport. The requirement to train the repair station
workers who perform or directly supervise a job function listed in
Sec. 121.1001 or Sec. 135.501 for, or on behalf of the part 121 or
135 operator is not any different than training any other contractor
performing or directly supervising a job function listed in Sec.
121.1001 or Sec. 135.501 for, or on behalf of the part 121 or 135
operator. The FAA is providing the following example to help clarify
the application of this exception.
Example B: Employees loading (a job function listed in Sec.
121.1001 or Sec. 135.501) a part 121 or part 135 operator's
aircraft for transport perform work, including the job function of
loading the aircraft, for 10 will-carry certificate holders. Persons
performing any job function involving loading of a part 121 or a
part 135 operator's aircraft will have to be trained according to
Appendix O (proposed as Appendix N) of part 121 under the part 121
or part 135 operator's FAA-approved hazmat training program. Then
the repair station employees will receive training in the policies,
procedures, and any differences for each of the remaining nine part
121 or part 135 operator's training programs. The substantive
requirements such as marking, labeling, documentation, etc. in the
hazmat training programs are standardized by PHMSA's HMRs, and vary
little among will-carry certificate holders. The person required to
be trained under the FAA-approved training program would have to
receive this training every 24 months.
However, if a worker performed loading for part 121 or part 135
will-not-carry certificate holders, the repair station could not use
the exception to also perform loading or any other job function
listed in Sec. 121.1001 or Sec. 135.501 for, or on behalf of, a
will-carry certificate holder, without the worker being trained. The
worker will have to complete the hazmat training required under the
will-carry certificate holder's approved hazmat training program.
The FAA believes that this exception will help to minimize the
training burden. Given that the core of each certificate holder's
hazmat training program will be substantially the same; the only
differences will be a certificate holder's policies and procedures for
implementing the regulations.
6. Recurrent Training (Sec. Sec. 121.1005(d) and 135.505(d))
(proposed as Sec. Sec. 121.803(d) and 135.503(d))--The definition of
the term ``recurrent hazardous materials training'' is similar to the
definition of ``recurrent training'' used in part 121, subpart O, for
flight and proficiency training. The FAA is mandating that the
recurrent hazmat training be completed within 24 months while recurrent
flight and proficiency training remains on an annual schedule. Thus,
all persons affected by this rule are required to receive hazardous
materials training every 24 months. However, a person may receive
recurrent hazardous material training earlier than it is due or before
the end of the month after it is due. These timing provisions are
similar to those requirements currently contained in Sec. 121.433a(a).
Therefore, if recurrent hazmat training is due in January, but
completed in February, it will be
[[Page 58815]]
considered as having been accomplished in January, and recurrent
training would be due again before the end of 24 months following
January. The training is not considered out-of-date until 31 days after
the 24-month anniversary of the last training. Section 121.1005(d)
states: ``A person who satisfactorily completes recurrent hazmat
training in the calendar month before or the calendar month after the
month in which the training is due is considered to have taken that
training during the month in which it is due. If the person completes
this training earlier than the month before it is due, the month of the
completion date becomes the new anniversary date.''
7. Notice to Repair Stations (Sec. Sec. 121.1005(e) and
135.505(e)) (proposed as Sec. Sec. 121.803(e) and 135.503(e))--Based
on the NTSB's report on Valujet Flight 592 and the FAA's experience
with repair stations, the FAA has concluded that there should be better
communication between repair stations and the part 121 and part 135
operators regarding the will-carry or will-not-carry status of the
certificate holder. The NPRM proposed to ensure this communication in,
Sec. Sec. 121.1005(e) and 135.505(e) which required certificate
holders to provide written notification of their will-carry or will-
not-carry status and policies and procedures to each repair station
that performed work on their behalf and that uses or replaces
consumable materials, aircraft parts, or other items regulated by 49
CFR parts 171 through 180. The repair stations covered by this
requirement were viewed broadly by many commenters because the language
used in the NPRM was unclear. The FAA is therefore clarifying that the
repair stations intended to be covered under this rule are the repair
stations that perform work for, or on behalf of a part 121 or part 135
operators and are regulated by 49 CFR parts 171 through 180.
The proposed rule also contained language that would have required
the certificate holder to make sure the repair station was aware of the
will-carry or will-not-carry status of the certificate holder. The FAA
is removing this language in the final rule and replacing it with a
requirement for the part 145 certificate holder to acknowledge receipt
of the notification.
8. Foreign Locations (Sec. Sec. 121.1005(f) and 135.505(f))
(proposed as Sec. Sec. 121.803(f) and 135.503(f))--The current
exception in Sec. 121.433a for operators operating at a foreign
location in Sec. Sec. 121.1005(f) and 135.505(f) is maintained in the
final rule. Under the final rule, part 121 or part 135 operators
operating in foreign locations where they are required to use persons
working in that country to load aircraft can use persons even if they
have not received the required hazmat training, but only if they are
under the direct visual supervision of someone who has received the
required initial or recurrent training. The current exception in Sec.
121.433a applies to those persons loading and unloading an item onto an
aircraft. The job function of unloading has been removed from this
exception as it has been removed from the list of covered job functions
that require hazmat training under this final rule. The current
exception also includes the term ``handling;'' however, the FAA is not
including handling in the final rule because it may be confusing. The
use of the term ``handling'' in the current CFR refers to the handling
that would be required during the loading of the aircraft. Although the
FAA is not including this term in the final rule, the FAA still
recognizes that those people who load must handle the cargo. The
removal of the term ``handling'' is necessary, however, to eliminate
any confusion over the breadth of the exception.
9. Recordkeeping Requirements (Sec. Sec. 121.1007 and 135.507)
(proposed Sec. Sec. 121.804 and 121.504).
9.A. Paragraph (a)--Sections 121.1007(a) and 135.507(a) require
each certificate holder to maintain training records of all initial and
recurrent hazmat training received within the preceding 3 years for all
job functions of persons listed in Appendix O (proposed as Appendix N)
of part 121 who directly supervise or perform a job function listed in
Sec. 121.1001 or Sec. 135.501 for 90 days after they stop directly
supervising or performing the covered job function. This length of time
is identical to that required by 49 CFR 172.704(d). The certificate
holder is responsible for maintaining records for direct employees,
contractors, subcontractors, and any other person directly supervising
or performing a job function listed in Sec. 121.1001 or Sec. 135.501
for, or on behalf of the part 121 or 135 operator. Records may be
maintained electronically.
9.B. Paragraph (b)--Paragraph (b) requires the certificate holder
make the records available to the FAA upon request at the location
where the trained person performs or directly supervises the covered
job function. Records must be available at the location at which a
person works and may be provided by electronic means. This modification
aligns the provision with 49 CFR, the ICAO TI, and the IATA DGR. The
records are required to be maintained for 90 days after the person
stops directly supervising or performing a job function listed in Sec.
121.1001 or Sec. 135.501.
9.C. Paragraph (c)--Under proposed Sec. Sec. 121.804(c) and
135.504(c) the required information to be maintained was more specific
than that required by 49 CFR 172.704(d). The FAA proposed that the
records would have to contain references to the individual's job
function performed or supervised; dates of each training course
successfully completed within the preceding three years; a statement
signed and dated by a person designated by the director of training;
and a description of each training course successfully completed. In
Sec. Sec. 121.1007(c) and 135.507(c) of the final rule, the FAA is
aligning the required contents for each record with the ICAO TI, the
IATA DGR, and 49 CFR. Under the final rule, the records must contain
the individual's name; most recent training completion date; a
description, copy, or reference to training materials used to meet the
training requirement; name and address of organization providing the
training; and a copy of the certification issued when an individual was
trained (showing that a test was satisfactorily completed).
Both the ``format'' of the record verifying completion of training
and ``who'' records the verification would be left to the operator. The
recordkeeping enables the FAA to monitor compliance with the hazmat
training requirements. However, to alleviate duplication of
recordkeeping, the FAA is changing the final rule so that the required
contents are aligned with 49 CFR 172.704(d), ICAO TI 1;4.2.4 and IATA
DGR 1;1.5.4.1.
9.D. Paragraph (d)--Sections 121.1007(d) and 135.507(d) contain a
recordkeeping requirement for a certificate holder using the new hire/
new job function exception. This requirement is necessary to monitor
compliance with the new exception. Under the requirements of Sec. Sec.
121.1007(b) and 135.507(b), a certificate holder must maintain a record
that includes:
(1) A signed statement from an authorized representative of the
certificate holder authorizing the use of the person in accordance with
the exception;
(2) The date of hire or change in job function;
(3) The person's name and assigned job functions;
(4) The name of the supervisor of the job function; and
(5) The date the person is to receive and complete hazmat training
in
[[Page 58816]]
accordance with Appendix O of part 121.
Part 121--Appendix O (Proposed as Appendix N)--Hazardous Materials
Training Requirements for Certificate Holders
The FAA notes that the lettering of the appendices in part 121 has
changed due to other rulemaking activity since the NPRM was published.
In the final rule, therefore, proposed Appendix N is being adopted as
Appendix O.
Many commenters disagreed with the proposal to mandate curriculum
for the certificate holder's hazmat training program. The FAA agrees
and is closely aligning the final rule with the training requirements
in the 2005 edition of the ICAO TI and the IATA DGR. The certificate
holders indicated that the ICAO TI standards are the best common
reference point to facilitate the uniform, seamless handling of hazmat
in international air transport. By modifying the final rule to allow
certificate holders to develop their own training curriculum, the FAA
believes that the need to provide model hazardous material training
programs has been diminished.
Consequently, the FAA is removing the training modules from
Appendix O. Table 1 ``Operators That Transport Hazardous Materials
(Will-Carry Certificate Holders)'' and Table 2 ``Operators That Do Not
Transport Hazardous Materials (Will-Not-Carry Certificate Holders)'' in
Appendix O will provide the minimum aspects to be covered in the
certificate holder's hazmat training program. These minimum
requirements will apply to persons performing or directly supervising a
job function listed in Sec. 121.1001 or Sec. 135.501 for, or on
behalf of the part 121 or part 135 operator. If a certificate holder's
FAA-approved hazmat training program currently contains the minimum
requirements, no changes will be required.
Will-not-carry certificate holders (both part 121 and part 135)
will be required to conduct recognition training to assist persons
directly supervising or performing a job function covered in Appendix O
Table 2 in identifying discoverable undeclared hazmat offered for
shipment.
Will-carry certificate holders (both part 121 and part 135) are
required to cover the three phases of training specified by the HMRs--
General awareness, function-specific, and safety training. The specific
job function performed or directly supervised and the certificate
holder's policies and procedures will determine the level of training
required under Appendix O. General awareness training is intended to
give general information and guidance about the overall hazmat
regulations. Function-specific training is intended to give an in-depth
and detailed understanding of the regulations regarding a specific job
function that the employee will perform.
The change adopted in the final rule reflects changes to the 2005
edition of the ICAO TI and the IATA DGR. The FAA proposed a category of
staff approach consistent with the ICAO TI and the IATA DGR at the time
the NPRM was drafted. However, the 2005 edition of the ICAO TI adopts a
task-oriented approach, and this is the approach the FAA is now
adopting. The 2005 edition of the ICAO TI recommended that dangerous
goods training programs, approved by the competent authorities, be
established and maintained by or on behalf of persons with various
responsibilities in processing cargo (not necessarily involving
dangerous goods). The ICAO Dangerous Goods Panel determined that
persons handling only non-dangerous goods should undertake dangerous
goods training. Subsequent to the 2005 ICAO TI amendments being
announced, IATA adopted the same training requirement to be included in
the 2005-2006 IATA DGR. The IATA DGR reflects the industry standard
practices or operational considerations, including training for those
employees and operators handling only non-dangerous goods.
In Appendix O of part 121, the FAA is using a matrix similar to the
matrix in the ICAO TI Table 1-4 and the IATA DGR Table 1.5A. The matrix
has seven categories of personnel and 14 aspects of hazmat training.
Since the categories and matrices are function-based, the required
components in the training programs will be the same or similar to
requirements for compliance with ICAO, IATA, and 49 CFR. The aspects of
training in Appendix O are designated subject matter relating to
dangerous goods transport with which the various persons performing
specific functions must be familiar. These are comparable to the ``area
of training'' listed in the tables of proposed Appendix N of the NPRM.
The detailed curriculum, previously proposed in Modules 1 through 13 in
the NPRM, are removed in the final rule to allow the certificate holder
to use the functions being performed to determine the training
commensurate with the personnel's responsibilities taking into account
the requirements in Appendix O. Therefore, in the final rule, the FAA
is clarifying that the certificate holder has the responsibility to
determine the level of training required, the method of training,
duration, type of testing necessary, and the method of recordkeeping.
Thus, in the final rule, the FAA is amending the proposed requirement
to test all persons through a method that verifies comprehension of
each subject area. The certificate holder must certify that a test has
been completed satisfactorily.
Under the final rule, part 121 and part 135 operators will still
need to provide any operator-specific policies and procedures not
specifically mentioned in Appendix O. The FAA believes each certificate
holder currently trains all workers in its individual policies and
procedures, so this will not be an additional requirement. If a
certificate holder's training program differs from the required format,
that fact can be discussed with the FAA during the approval process.
The following examples are designed to clarify the application of
hazmat training.
Example C: A will-carry certificate holder that accepts all
hazmat allowed by regulation will develop a training program to
include all applicable topics or aspects identified in the table in
Appendix O. The training must provide both an in-depth appreciation
of the whole subject and, policies and procedures specific to the
job function being performed. Depending on the responsibilities of
the person, the aspects of training to be covered may vary from
those shown in Appendix O.
Example D: A will-carry certificate holder that accepts hazmat,
but has a prohibition on carrying radioactive material will develop
a training program to include all applicable topics or aspects
identified in Table 1 in Appendix O. This training must provide an
in-depth appreciation of hazmat as a whole and will contain an
awareness of radioactive material and knowledge of the policy of the
certificate holder's prohibition against the transport of
radioactive material for transportation. Depending on the
responsibilities of the person, the aspects of training to be
covered may vary from those shown in Appendix O.
Example E: A certificate holder's worker (applies to both will-
carry and will-not-carry certificate holders) accepts small parcel
cargo at the ticket counter. In addition to general awareness
training on the general philosophy and limitations of hazmat, the
person is required to have training applicable to passenger handling
and cargo acceptance. Depending on the responsibilities of the
person and whether or not hazardous materials are accepted at that
counter, the aspects of training to be covered may vary from those
shown in Appendix O.
Example F: A will-not-carry certificate holder that does not
accept hazmat develops a training program that includes all required
aspects or topics in Table 2 of Appendix O. This training must
provide general information and guidance to workers to give a
general appreciation of the requirements.
[[Page 58817]]
Depending on the responsibilities of the person, the aspects of
training to be covered may vary from those shown in Appendix O.
Example G: When a part 121 or part 135 operator, its subsidiary
or agent offers a consignment of hazmat for air transport, the
certificate holder, subsidiary, or agent is a shipper and must
comply with shipper's responsibilities and training. This is
applicable even if the consignment is to be transported on its own
or another certificate holder's aircraft.
Part 135--Hazardous Materials Training Program (Sec. Sec. 135.501
Through 135.507) (Proposed as Sec. Sec. 135.501 Through 135.504)
The FAA notes that the numbering of sections in part 135 has
changed due to the adoption of new rules since the NPRM was published.
In the final rule, therefore, sections in subpart K are renumbered
accordingly. In addition, the FAA is skipping numbers in between
sections to allow room for the addition of new sections in the future.
Therefore, sections in subpart K that were proposed as Sec. Sec.
135.501 through 135.504 are renumbered as Sec. Sec. 135.501 through
135.507 in the final rule.
Currently, part 135 contains exceptions for certificate holders who
use only one pilot in their operations. Specifically, these certificate
holders are excepted from the manual requirements in Sec. 135.21.
These certificate holders, however, will remain subject to the hazmat
training requirements in subpart K.
All part 135 operators, including single-pilot certificate holders,
must meet the hazmat training requirements in Appendix O of part 121.
Additionally, those persons loading aircraft for these certificate
holders must have hazmat training that meets the requirements of
Appendix O of part 121, including being informed of the certificate
holder's restrictions and limitations regarding the transport of hazmat
or meet the exception in Sec. 135.505(b).
The certificate holders with only one pilot do not have an approved
hazmat training program. These certificate holders must be able to
demonstrate compliance with this hazmat training rule and will have to
continue to maintain records of training. In addition, certificate
holders conducting operations that transport hazmat with one pilot
remain subject to DOT's hazardous material training and recordkeeping
requirements in 49 CFR part 172 subpart H.
Part 145--Repair Stations
Section 145.53 Issue of Certificate (Proposed as Sec. 145.11 (a)(5))
Section 145.57 Amendment to or Transfer of a Certificate
The FAA notes that the numbering of sections in part 145 has
changed due to the adoption of new rules since the NPRM was published.
Therefore, proposed Sec. 145.11 (a)(5) is incorporated into Sec.
145.53 in the final rule.
The FAA continues to be concerned about hazmat training provided to
persons performing work at repair stations used by part 121 or part 135
operators. Repair stations workers that perform work on behalf of part
121 or part 135 operators that are ``hazmat employers'' as defined by
49 CFR 171.8, currently must establish a hazmat training program under
49 CFR part 172 subpart H. Historically, the FAA has verified
compliance with hazmat training requirements only after an enforcement
proceeding was initiated. The FAA believes this regulation adopts a
pro-active approach. If the hazmat training requirements are not
complied with, the FAA will not issue the repair station's certificate
or rating.
As revised in this final rule, Sec. 145.53 (proposed as Sec.
145.11(a)(5)) requires part 145 certificate holders located within the
United States to certify in writing that all hazmat employees (see 49
CFR 171.8) for the repair station, its contractors, or subcontractors
are trained as required in 49 CFR part 172 subpart H. Part 145
certificate holders located outside the United States must certify in
writing that all employees for the repair station, its contractors, or
subcontractors performing a job function involving the transport of
dangerous goods (hazardous material) are trained as outlined in the
most current edition of the International Civil Aviation Organization
Technical Instructions for the Safe Transport of Dangerous Goods by
Air.
This certification must be submitted prior to the FAA's issuing a
part 145 certificate or rating. The certification also must be provided
by the holder of a repair station certificate when applying for a
change to its certificate. This includes a change to the location of
the repair station, or a request to add or amend a rating. Requiring a
repair station to provide this certification imposes minimal additional
documentation as part of the application for certification or rating
process, but ensures that the applicant is aware of its training
responsibility under the HMRs.
Section 145.165 Hazardous Materials Training (Proposed as Sec. 145.5)
The FAA notes that the numbering of sections in part 145 has
changed due to the adoption of new rules since the NPRM was published.
Therefore, proposed Sec. 145.5 is adopted as Sec. 145.165 in the
final rule.
Section Sec. 145.165 paragraph (a) (proposed as Sec. 145.5(a))
provides a cross reference to the hazardous materials training
requirement in 49 CFR. By including this cross reference in part 145,
the FAA is notifying all repair stations that they must carefully
review the hazardous properties of the items with which they work to
determine whether they are regulated by 49 CFR parts 171 through 180.
If so, the repair station must establish and implement a hazardous
materials training program as currently required by 49 CFR part 172
subpart H.
In the final rule, the FAA is removing the language ``uses or
replaces aircraft components, uses or handles consumable hazardous
materials or other items regulated by 49 CFR parts 171 through 180'' to
clarify that the repair stations intended to be covered under this
final rule are the repair stations that perform work for, or on behalf
of a part 121 or part 135 operator and are regulated by 49 CFR parts
171 through 180. A repair station may use or handle hazardous materials
without placing those items in transportation. Thus only the repair
stations that perform functions regulated under 49 CFR parts 171-180
would be covered by this requirement.
Many required items on aircraft are regulated hazmat when shipped
as cargo. Examples include oxygen generators used to provide oxygen to
passengers in the event of an emergency, and fuel control units for jet
engines. Since the crash of Valujet Flight 592, the FAA repeatedly has
investigated incidents where oxygen generators and fuel control units
were transported as cargo that were offered and accepted for air
transportation improperly.
While this regulation is designed to help improve compliance and
prevent these types of mistakes, the FAA is also clarifying the
interplay of requirements between FAA and DOT hazmat training
regulations. If a repair station is performing the functions of a
shipper and preparing an item classified as a hazardous material
(including materials shipped as COMAT) for shipment by air, DOT's
hazmat training regulations in 49 CFR part 172 H currently apply. If a
person does not perform a job function listed in Sec. 121.1001 or
[[Page 58818]]
Sec. 135.501 on behalf of the part 121 or part 135 operator, then that
person does not have to be trained under the FAA's training
regulations. However, if a repair station worker performs a job
function listed in Sec. 121.1001 or Sec. 135.501 for, or on behalf of
the part 121 or 135 operator then that person must be trained in
accordance with both DOT's hazmat training regulations and FAA's hazmat
training regulations.
The FAA believes the only job function currently or previously
performed by repair stations that are not also affiliated with part 121
and part 135 operators is the loading of the certificate holder's
aircraft for transport. Since any person currently loading the part 121
or part 135 operator's aircraft would have to be trained under the
FAA's hazmat training requirements, the repair station employee also
would have to complete the required FAA hazmat training. Section
145.165(b) prohibits repair station workers from directly supervising
or performing a job function listed in Sec. 121.1001 or Sec. 135.501
for, or on behalf of the part 121 or 135 operator unless those persons
have been trained in accordance with the part 121 or part 135
operator's FAA-approved hazardous material training program applicable
to that job function.
Section 145.206 Notification of Hazardous Materials Authorizations
(Proposed as Sec. 145.27)
The FAA notes that the numbering of sections in part 145 has
changed due to the adoption of new rules since the NPRM was published.
In the final rule, therefore, proposed Sec. 145.27 is renumbered Sec.
145.206 in the final rule. In addition, the section is divided into
paragraphs (a) and (b), as discussed below.
Section 145.206 (proposed as Sec. 145.27) requires each repair
station to notify repair station employees, its contractors, or
subcontractors that handle or replace aircraft components or other
items regulated by 49 CFR parts 171 through 180 of the will-carry or
will-not-carry status of the part 121 or part 135 operators for which
the repair station does work.
In the final rule, the FAA is adding a requirement (as paragraph
(a)) that the repair stations must inform the part 121 or part 135
operator that it has received the required notification. This receipt
notification replaces the proposed requirement for the part 121 and
part 135 operators to make sure that the repair station is aware of its
status.
The language proposed in Sec. 145.27 is adopted as paragraph (b)
in the final rule, with modification. In the final rule, the FAA is
changing the words ``notify all workers'' to ``notify its employees,
contractors, or subcontractors that handle or replace aircraft
components or other items regulated by 49 CFR parts 171 through 180.''
This language clarifies that all workers do not require notification.
VII. Regulatory Analysis and Notices
VII.1. Paperwork Reduction Act
An agency may not collect or sponsor the collection of information,
nor may it impose an information collection requirement unless it
displays a currently valid Office of Management and Budget (OMB)
control number. As required by the Paperwork Reduction Act of 1995 (44
U.S.C. 3507(d)), the FAA submitted a copy of the new information
collection requirements in this rule to the OMB for its review. OMB
approved the collection of this information and assigned OMB control
number 2120-0705.
This rule was proposed in the Federal Register of May 8, 2003. At
that time, the FAA requested public comments on the proposed
information collection requirements. These comments, and the FAA's
responses, are discussed under ``V.11. Recordkeeping Requirements.''
The following is a summary of the full ``Supporting Statement'' of
information collection requirements submitted to OMB for review. The
numbers in the ``Supporting Statement'' are derived from the full
Economic Evaluation, which is in the docket for this rulemaking.
The estimated first-year hour and cost burdens to part 121
operators and part 135 operators to revise their hazardous materials
manuals are as follows:
Large part 121 operators: 408 hours/$27,299
Small part 121 operators: 856 hours/$36,988
Large part 135 operators: 24 hours/$1,037
Small part 135 operators: 12,624 hours/$365,970
Total: 13,912 hours/$431,294
The estimated annual manual revision hour and cost burdens
for years 1-10 are as follows:
Large part 121 operators: 40.8 hours/$2,730
Small part 121 operators: 85.6 hours/$3,699
Large part 135 operators: 2.4 hours/$104
Small part 135 operators: 1,262.4 hours/$36,597
Total: 1,391.2 hours/$43,130
The estimated first-year hour and cost burden for part 121
operators and part 135 operators to restructure their databases are as
follows:
Large part 121 operators: 72 hours x 36 firms/$114,860
Small part 121 operators: 32 hours x 87 firms/$81,153
Large part 135 operators: 72 hours x 3 firms/$6,819
Small part 135 operators: 8 hours x 2,536 firms/$588,149
Total: 25,880 hours/$790,981
The estimated annual hour and cost burden for years 1-10
for part 121 and part 135 operators to restructure their databases are
as follows:
Large part 121 operators: 259.2 hours/$11,486
Small part 121 operators: 278.4 hours/$8,115
Large part 135 operators: 21.6 hours/$682
Small part 135 operators: 2,028.8 hours/$58,815
Total: 2,588 hours/$79,098
The estimated annual hour and cost burden to part 121
operators and part 135 operators to update their training records is as
follows:
Part 121 operators: 1,052 hours/$20,071
Part 135 operators: 2,617 hours/$1,939
Total: 3,669 hours/$22,010
The estimated first-year hour and cost burden to part 121
operators and part 135 operators to notify 145 repair stations of their
will-carry or will-not-carry statuses are as follows:
Part 121 operators: 4,386.8 hours/$75,853
Part 135 operators: 2,792.9 hours/$38,314
Total: 7,179.7 hours/$114,167
The estimated hour and cost burden for years 1-10 to part
121 operators and part 135 operators to notify 145 repair stations of
their will-carry or will-not-carry statuses are as follows:
Part 121 operators: 797.6 hours/$15,170
Part 135 operators: 507.8 hours/$7,663
Total: 1,305.4 hours/$22,833
The total estimated annual hour and cost burdens to part
145 operators to comply with Sec. Sec. 145.53 and 145.206 are as
follows:
440 hours/$87,560
All estimated annual burdens to part 121 operators, part
135 operators, and part 145 repair stations are as follows:
Part 121 operators: 1,461.6 hours/$41,200
Part 135 operators: 3,823 hours/$103,861
Part 145 repair stations: 440 hours/$87,560
Total: 5,724.6 hours/$232,621
Additional annual costs to part 121 and part 135 operators
that are not
[[Page 58819]]
already following the procedures required by the final rule for the
collection of information are as follows:
Large will-not-carry part 121 operators: $120,528
Small will-not-carry part 121 operators: $6,912
Large will-not-carry part 135 operators: $6,048
Small will-carry part 135 operators: $8,100
Small will-not-carry part 135 operators: $78,192
Total: $219,780
VII.2. International Compatibility
In keeping with U.S. obligations under the Convention on
International Civil Aviation, it is FAA policy to comply with
International Civil Aviation Organization (ICAO) Standards and
Recommended Practices to the maximum extent practicable. The FAA has
reviewed the corresponding ICAO Standards and Recommended Practices and
has determined that differences would affect U.S. aircraft operators
only, and therefore it is not necessary for the FAA to file any
differences with ICAO. Foreign carriers operating in the United States
will not be affected by the rule.
VII.3. Economic Evaluation Summary
Changes to Federal regulations must undergo several economic
analyses. First, Executive Order 12866 directs each Federal agency to
propose or adopt a regulation only upon a reasoned determination that
the benefits of the intended regulation justify its costs. Second, the
Regulatory Flexibility Act of 1980 requires agencies to analyze the
economic impact of regulatory changes on small entities. Third, the
Trade Agreements Act (19 U.S.C. 2531-2533) prohibits agencies from
setting standards that create unnecessary obstacles to the foreign
commerce of the United States. In developing U.S. standards, this Trade
Act also requires agencies to consider international standards and,
where appropriate, use them as the basis of U.S. standards. Fourth, the
Unfunded Mandates Reform Act of 1995 (Public Law 104-4) requires
agencies to prepare a written assessment of the costs, benefits, and
other effects of proposed or final rules that include a Federal mandate
likely to result in the expenditure by State, local, or tribal
governments, in the aggregate, or by the private sector, of $100
million or more annually (adjusted for inflation).
In conducting these analyses, FAA has determined this rule:
(1) Has benefits that justify its costs; is a ``significant
regulatory action'' as defined in section 3(f) of Executive Order
12866; and is ``significant'' as defined in DOT's Regulatory Policies
and Procedures;
(2) Will not have a significant economic impact on a substantial
number of small entities;
(3) Will not impact international trade; and
(4) Does not impose an unfunded mandate on state, local, or tribal
governments, or on the private sector.
These analyses, available in the public docket for this rulemaking,
are summarized below.
Cost Assumptions
Discount rate: 7%.
Because there will be a 15-month transition from the
effective date of the rule, the time horizon for this cost section is
from 2006 through 2015.
Monetary Values expressed in 2003 dollars.
To calculate recurrent training costs, the FAA assumes a
24-month cycle instead of the annual cycle used in the proposed rule.
The 24-month cycle is consistent with ICAO/IATA recommendations.
Because hazmat training records are already kept
electronically, updating these records with recurrent training
information every two years is estimated to take approximately five
additional minutes per employee in the final rule instead of the 10
minutes per employee estimated in the proposed rule.
The FAA assumes the cost of the IATA/FIATA International
Cargo Agents training course to be $216, which includes training
materials, an examination fee, and a shipping fee.
The FAA assumes that training will be conducted based on a
self-taught, independent study method (as all IATA/FIATA International
Cargo Agents training courses are conducted) or based on computer-based
training (CBT).
The FAA assumes that many of these operators will maintain
computer-based records.
5% of employees of deficient part 121 carriers \1\ will
receive hazardous materials training.
---------------------------------------------------------------------------
\1\ A deficient operator is an operator who is not already in
compliance with the standards, while a non-deficient operator is an
operator who is already in compliance with the standards. This
determination was based on the operators' responses to the ``Special
Emphasis Review: Hazardous Materials or Dangerous Goods Programs and
Requirements,'' as summarized in Appendix A of the full regulatory
evaluation in the public docket for this rulemaking.
---------------------------------------------------------------------------
10% of non-crewmember employees of deficient part 135
carriers \1\ will receive hazardous materials training.
5% of employees, of non-deficient part 121 carriers,\1\
who have already received the necessary hazardous materials training,
will receive that training every other year resulting in cost saving
for their employer.
All crewmembers and 10% of employees, of non-deficient
part 135 carriers,\1\ who have already received the necessary hazardous
materials training, will receive that training every other year
resulting in cost savings for their employer.
Changes in Cost Analysis From the NPRM to the Final Rule
The NPRM costs were estimated to be $107.5 million ($75.8 million,
discounted) over a 10-year period. The final rule costs are estimated
at $7.2 million ($5.0 million, discounted) over a 10-year period. This
decrease in costs is attributed to several changes made from the
issuance of the NPRM to the publication of this final rule.
As shown in the table below, the majority of the cost reduction is
due to aligning the training requirements to the ICAO/IATA standards,
reducing the number of employees at part 121 and part 135 operators who
will need to be trained, and reducing the recurrent training
requirements to every 24 months instead of the every 12-month
requirement in the NPRM. Additionally, administrative costs were
reduced significantly from the NPRM for part 121 and part 135
operators, largely due to the final rule allowing for electronic
recordkeeping.
[[Page 58820]]
----------------------------------------------------------------------------------------------------------------
Administrative Training
------------------------------------------------
Change in Total
Recordkeeping Alignment with population
ICAO/IATA estimates
----------------------------------------------------------------------------------------------------------------
Undiscounted
----------------------------------------------------------------------------------------------------------------
NPRM............................................ $13,525,600 $91,565,900 $105,091,500
Final Rule...................................... 220,107 4,608,915 4,829,022
Difference...................................... 13,305,493 7,763,157 16,193,828 100,262,478
-------------------------------------------------
Discounted
----------------------------------------------------------------------------------------------------------------
NPRM............................................ 9,294,000 64,523,400 73,817,400
Final Rule...................................... 220,107 3,056,216 3,276,323
Difference...................................... 9,073,893 44,064,820 17,402,364 70,541,077
----------------------------------------------------------------------------------------------------------------
Further, the NPRM estimated significant training costs for repair
stations. The FAA has since learned that repair stations have stopped
performing job functions related to hazardous materials transport,
including loading. However, this rule requires repair stations to train
their employees, contractors, and subcontractors if they are performing
job functions related to hazardous materials transport for part 121 or
part 135 carriers. Repair stations that are hazmat employers will be
required to train their employees so they are in compliance with 49 CFR
part 172, but that is not a cost of this rule. Repair stations that do
not perform the listed job functions will not be required to train
their employees, so generally, the only increased costs borne by repair
stations will be administrative.
Costs of This Rulemaking
The estimated cost to part 121, part 135 operators, and domestic
part 145 repair stations to comply with the administrative and training
provisions over a 10-year period are approximately $3.1 million ($2.1
million, discounted), $3.2 million ($2.3 million, discounted), and
$876,000 ($575,000, discounted), respectively. The total costs of this
rulemaking are approximately, $7.2 million ($5.0 million, discounted),
over a 10-year period.
Cost Savings and Safety Benefits of This Rulemaking
The cost savings over a 10-year period are estimated at $70.8
million, or $44.1 million, discounted, of which ``will carry''
operators will realize cost savings of $37.4 million ($23.3 million,
discounted) and ``will not carry'' operators will realize cost savings
of $33.4 million ($20.8 million, discounted).
The expected part 121 benefits of the rule over 10 years from
avoided accidents involving the carriage of hazardous materials will be
approximately $60.9 million. However, there is a 15 percent probability
(based on the Poisson distribution) that the estimated benefits from
avoiding these types of accidents could be $319.7 million or higher
over 10 years. The Poisson distribution model was used to estimate the
probability of experiencing potential rare incidents on board U.S. air
carriers over the next 10 years. The Poisson distribution provides a
realistic model for predicting rare and random phenomena.
The expected part 135 benefits of the rule over 10 years from
avoided accidents involving the carriage of hazardous materials will be
approximately $3.4 million. However, there is a 26 percent probability
(based on the Poisson distribution) of one or more fatal accidents and
the estimated benefits from avoiding these types of accidents will
range between $6 million and $25 million.
VII.4. Regulatory Flexibility Determination
The Regulatory Flexibility Act of 1980 (Act) establishes ``as a
principle of regulatory issuance that agencies shall endeavor,
consistent with the objective of the rule and of applicable statutes,
to fit regulatory and informational requirements to the scale of the
business, organization, and government jurisdictions subject to
regulation.'' To achieve that principle, the Act requires agencies to
solicit and consider flexible regulatory proposals and to explain the
rationale for their actions. The Act covers a wide-range of small
entities, including small businesses, not-for-profit organizations and
small governmental jurisdictions.
Agencies must perform a review to determine whether a proposed or
final rule will have a significant economic impact on a substantial
number of small entities. If the determination is that it will, the
agency must prepare a regulatory flexibility analysis as described in
the Act.
However, if an agency determines that a proposed or final rule is
not expected to have a significant economic impact on a substantial
number of small entities, section 605(b) of the 1980 act provides that
the head of the agency may so certify and a regulatory flexibility
analysis is not required. The certification must include a statement
providing the factual basis for this determination, and the reasoning
should be clear.
The Small Business Administration (SBA) suggests that ``small''
entities can be identified either on the basis of employees or
revenues. For this rule, small entities are composed of two distinct
groups: aircraft operators and repair stations. The SBA suggests that
aircraft operators with 1,500 or fewer employees are ``small''
entities. The SBA does not provide revenue information for firms with
fewer than 1,500 employees, but does provide data for firms with fewer
than 500 and fewer than 20 employees. To determine the impact of the
proposed rule on the 87 small part 121 operators and the 2,536 small
part 135 operators, the FAA has estimated the annualized cost impact on
these two categories of small entities separately, since the rule's
impacts differ.
The final rule is expected to impose an estimated cost of $2.1
million on the 87 small part 121 operators over the next 10 years. The
average annualized cost per small operator is estimated at $2,600.
However, the FAA estimates that part 121 ``will not carry'' operators
will incur all six cost elements and the annualized cost to each of
these entities is estimated at $3,500. The costs to ``will carry''
operators will be lower since less training will be required. According
to a Small Business Administration analysis of Bureau of Census data
for scheduled air transportation firms, firms with fewer than 500
employees have
[[Page 58821]]
average revenues of $10.8 million. (Source: http://www.SBA/gov/advo/stats.
Data are not available for firms with fewer than 1,500
employees. Presumably, the average revenue for firms with 1,500
employees would be higher than those firms with fewer than 500
employees.) Data are not available for firms with fewer than 1,500
employees. Presumably, the average revenue for firms with 1,500
employees would be higher than those firms with fewer than 500
employees. The estimated cost to each of the ``will not carry''
entities is only .032 of one percent of the average revenue of $10.8
million of these firms. The FAA does not consider a cost of 0.032 of
one percent of revenues to be a significant cost. Thus none of the 87
small part 121 entities will incur a significant economic impact in the
form of higher annual costs as the result of the final rule.
The final rule is expected to impose an estimated cost of $3.1
million on the 2,536 small part 135 operators over the next 10 years.
The average annualized cost per small 135 operator is estimated at
$150. The FAA does not consider $150 costs to be significant. Thus none
of the small part 135 entities will incur a significant economic impact
in the form of higher annual costs as the result of the rule.
Therefore, the FAA has determined that this final rule will not have a
significant impact on a substantial number of small part 121 or part
135 operators.
The SBA suggests that ``small'' repair stations can be identified
as those firms with annual revenues of $5 million or less. Research
conducted for the FAA indicates that approximately 56 percent of all
repair stations meet this criterion. (``An Analysis of International
Trade Flows in Aircraft Repair Services'' GRA Inc. Contract No. DTFA01-
93-C-00066 Work Order 46 Figure 6, page 18.) The final rule is expected
to impose an estimated cost of $876,000 on the 2,006 small independent
domestic part 145 repair stations. The average annualized cost to the
62 small repair stations that incur both cost elements is estimated at
$76. The FAA considers this amount economically insignificant.
Therefore, the FAA has determined that this final rule will not
have a significant impact on a substantial number of small entities.
Accordingly, pursuant to the Regulatory Flexibility Act, 5 U.S.C.
605(b), the Federal Aviation Administration certifies that this final
rule will not have a significant economic impact on a substantial
number of small entities.
VII.5. International Trade Impact Assessment
The Trade Agreement Act of 1979 prohibits Federal agencies from
engaging in any standards or related activities that create unnecessary
obstacles to the foreign commerce of the United States. Legitimate
domestic objectives, such as safety, are not considered unnecessary
obstacles. The statute also requires consideration of international
standards and where appropriate, that they be the basis for U.S.
standards.
In accordance with the above statute, the FAA has assessed the
potential effect of this final rule and has determined that it will
have the same impact on foreign sponsors as on domestic sponsors and,
therefore, creates no obstacles to the foreign commerce of the United
States.
VII.6. Unfunded Mandates Assessment
The Unfunded Mandates Reform Act of 1995 (the Act) is intended,
among other things, to curb the practice of imposing unfunded Federal
mandates on State, local, and tribal governments. Title II of the Act
requires each Federal agency to prepare a written statement assessing
the effects of any Federal mandate in a proposed or final agency rule
that may result in an expenditure of $100 million or more (adjusted
annually for inflation) in any one year by State, local, and tribal
governments, in the aggregate, or by the private sector; such a mandate
is deemed to be a ``significant regulatory action.'' The FAA currently
uses an inflation-adjusted value of $120.7 million in lieu of $100
million.
This final rule does not contain such a mandate. The requirements
of Title II of the Act, therefore, do not apply.
VII.7. Executive Order 13132, Federalism
The FAA has analyzed this final rule under the principles and
criteria of Executive Order 13132, Federalism. The FAA determined that
this action will not have a substantial direct effect on the States, or
the relationship between the national Government and the States, or on
the distribution of power and responsibilities among the various levels
of government, and therefore does not have federalism implications.
VII.8. Environmental Analysis
FAA Order 1050.1E identifies FAA actions that are categorically
excluded from the preparation of an environmental assessment or
environmental impact statement under the National Environmental Policy
Act in the absence of extraordinary circumstances. The FAA has
determined that this rulemaking action qualifies for the categorical
exclusion identified in paragraph 312f of FAA Order 1050.1E and
involves no extraordinary circumstances.
VII.9. Regulations That Significantly Affect Energy Supply,
Distribution, or Use
The FAA has analyzed this final rule under Executive Order 13211,
Actions Concerning Regulations that Significantly Affect Energy Supply,
Distribution, or Use (May 18, 2001). The FAA has determined that it is
not a ``significant energy action'' under the executive order because
it is not a ``significant regulatory action'' under Executive Order
12866, and it is not likely to have a significant adverse effect on the
supply, distribution, or use of energy.
List of Subjects
14 CFR Part 119
Administrative practice and procedure, Air carriers, Aircraft,
Aviation safety, Charter flights, Reporting and recordkeeping
requirements.
14 CFR Part 121
Air carriers, Aircraft, Airmen, Aviation safety, Charter flights,
Reporting and recordkeeping requirements, Safety, Transportation.
14 CFR Part 135
Aircraft, Airmen, Aviation Safety, Reporting and recordkeeping
requirements.
14 CFR Part 145
Aircraft, Aviation safety, Reporting and recordkeeping
requirements.
The Amendments
0
In consideration of the foregoing, the Federal Aviation Administration
amends chapter I of title 14, Code of Federal Regulations as follows:
PART 119--CERTIFICATION: AIR CARRIERS AND COMMERCIAL OPERATORS
0
1. The authority citation for part 119 continues to read as follows:
Authority: 49 U.S.C. 106(g), 1153, 40101, 40102, 40103, 40113,
41721, 44105, 44106, 44111, 44701-44717, 44722, 44901, 44903, 44904,
44906, 44912, 44914, 44936, 44938, 46103, 46105.
0
2. Amend part 119 by adding Special Federal Aviation Regulation No. 99
as follows:
[[Page 58822]]
Special Federal Aviation Regulation No. 99--Hazardous Materials
Regulations Governing Manual and Training Requirements
1. Applicability. This Special Federal Aviation Regulation (SFAR)
applies to all U.S. air carriers and commercial operators that are
issued a certificate under part 119 of this chapter on or before
November 7, 2005 to operate under part 121 or part 135 of this chapter.
For purposes of hazardous materials training, these air carriers and
commercial operators may comply with the provisions of this SFAR until
its expiration. Alternatively, they may comply with the provisions of
part 121, subpart Z, or part 135, subpart K, as applicable. All other
provisions of parts 121 and 135 not affected by this rule remain
applicable.
2. Expiration. This Special Federal Aviation Regulation expires on
February 7, 2007.
3. Definition. The term certificate holder, as used in this SFAR,
means a person certificated in accordance with part 119 subpart C, of
this chapter and operating under part 121 or part 135 of this chapter.
4. Manual Contents. (a) Each manual required by Sec. 121.133 shall
contain procedures and information to assist personnel to identify
packages marked or labeled as containing hazardous materials and, if
these materials are to be carried, stored, or handled, procedures and
instructions relating to the carriage, storage, or handling of
hazardous materials, including the following:
(1) Procedures for determining whether the material is accompanied
by the proper shipper certification required by 49 CFR chapter I,
subchapter C; whether it is properly packed, marked, and labeled;
whether it is accompanied by the proper shipping documents; and whether
requirements for compatibility of materials have been met.
(2) Instructions on the loading, storage, and handling.
(3) Notification procedures for reporting hazardous material
incidents as required by 49 CFR chapter I, subchapter C.
(4) Instructions and procedures for the notification of the pilot
in command when there are hazardous materials aboard, as required by 49
CFR chapter I, subchapter C.
(b) Each manual required by Sec. 135.21 of this chapter shall
contain procedures and instructions to enable personnel to recognize
hazardous materials, as defined in 49 CFR, and if these materials are
to be carried, stored, or handled, procedures and instructions for:
(1) Accepting shipment of hazardous material regulated by 49 CFR to
assure proper packaging, marking, labeling, shipping documents,
compatibility of articles, and instructions for loading, storage, and
handling;
(2) Notification and reporting hazardous material incidents as
required by 49 CFR; and
(3) Notification of the pilot in command when there are hazardous
materials aboard, as required by 49 CFR.
5. Training Program. (a) Each certificate holder required to have a
training program under Sec. 121.401 of this chapter shall establish,
obtain the appropriate initial and final approval of, and provide, a
training program that meets the requirements of part 121, subpart O,
and appendices E and F of part 121 of this chapter. Each certificate
holder required to have a training program under Sec. 121.401 of this
chapter shall ensure that each crewmember, aircraft dispatcher, flight
instructor, and check airman, and each person assigned duties for the
carriage and handling of hazardous materials, is adequately trained to
perform his or her assigned duties.
(b) Each certificate holder required to have a training program
under Sec. 135.341 of this chapter shall establish, obtain the
appropriate initial and final approval of, and provide a training
program that meets the requirements of this SFAR. Each certificate
holder required to have a training program under Sec. 135.341 of this
chapter shall ensure that each crewmember, flight instructor, check
airman, and each person assigned duties for the carriage and handling
of hazardous materials (as defined in 49 CFR 171.8) is adequately
trained to perform their assigned duties.
6. Training requirements: Handling and carriage of hazardous
materials under part 121 of this chapter.
(a) No certificate holder conducting operations under part 121 of
this chapter may use any person to perform and no person may perform,
any assigned duties and responsibilities for the handling or carriage
of hazardous materials governed by 49 CFR, unless within the past year
that person has satisfactorily completed training in a program
established and approved under this SFAR, which includes instructions
regarding the proper packaging, marking, labeling, and documentation of
hazardous materials, as required by 49 CFR, and instructions regarding
their compatibility, loading, storage, and handling characteristics. A
person, who satisfactorily completes training in the calendar month
before, or the calendar month after, the month in which it becomes due,
is considered to have taken that training during the month it became
due.
(b) Each certificate holder conducting operations under part 121 of
this chapter shall maintain a record of the satisfactory completion of
the initial and recurrent training given to crewmembers and ground
personnel who perform assigned duties and responsibilities for the
handling and carriage of hazardous materials.
(c) When a certificate holder conducting operations under part 121
of this chapter operates in a foreign country where the loading and
unloading of aircraft must be performed by personnel of the foreign
country, that certificate holder may use personnel not meeting the
training requirements of paragraphs 5 (a) and 5 (b) of this SFAR if
they are supervised by a person qualified under paragraphs 5 (a) and 5
(b) of this SFAR to supervise the loading, offloading and handling of
hazardous materials.
7. Training requirements: Handling and carriage of hazardous
materials under part 135.
(a) Except as provided in paragraph 7 (d) of this SFAR, no
certificate holder conducting operations under part 135 of this chapter
may use any person to perform, and no person may perform, any assigned
duties and responsibilities for the handling or carriage of hazardous
materials (as defined in 49 CFR 171.8), unless within the past year
that person has satisfactorily completed initial or recurrent training
in an appropriate training program established by the certificate
holder, which includes instruction on--
(1) The proper shipper certification, packaging, marking, labeling,
and documentation for hazardous materials; and
(2) The compatibility, loading, storage, and handling
characteristics of hazardous materials.
(b) Each certificate holder conducting operations under part 135 of
this chapter, shall maintain a record of the satisfactory completion of
the initial and recurrent training given to crewmembers and ground
personnel who perform assigned duties and responsibilities for the
handling and carriage of hazardous materials.
(c) Each certificate holder, conducting operations under part 135
of this chapter, that elects not to accept hazardous materials shall
ensure that each crewmember is adequately trained to recognize those
items classified as hazardous materials.
(d) If a certificate holder conducting operations under part 135 of
this chapter operates into or out of airports at which trained
employees or contract
[[Page 58823]]
personnel are not available, it may use persons not meeting the
requirements of paragraph 7 (a) or 7 (b) of this SFAR to load, offload,
or otherwise handle hazardous materials if these persons are supervised
by a crewmember who is qualified under paragraphs 7 (a) and 7 (b) of
this SFAR.
0
3. Amend Sec. 119.49 by redesignating paragraphs (a)(13), (b)(13), and
(c)(12) as paragraphs (a)(14), (b)(14), and (c)(13) respectively, and
adding new paragraphs (a)(13), (b)(13), and (c)(12) to read as follows:
Sec. 119.49 Contents of operations specifications.
(a) * * *
(13) An authorization permitting, or a prohibition against,
accepting, handling, and transporting materials regulated as hazardous
materials in transport under 49 CFR parts 171 through 180.
* * * * *
(b) * * *
(13) An authorization permitting, or a prohibition against,
accepting, handling, and transporting materials regulated as hazardous
materials in transport under 49 CFR parts 171 through 180.
* * * * *
(c) * * *
(12) An authorization permitting, or a prohibition against,
accepting, handling, and transporting materials regulated as hazardous
materials in transport under 49 CFR parts 171 through 180.
* * * * *
PART 121--OPERATING REQUIREMENTS: DOMESTIC FLAG, AND SUPPLEMENTAL
OPERATIONS
0
4. The authority citation for part 121 continues to read as follows:
Authority: 49 U.S.C. 106(g), 40113, 40119, 41706, 44101, 44701-
44702, 44705, 44709-44711, 44713, 44716-44717, 44722, 44901, 44903-
44904, 44912, 45101-45105, 46105, 46301.
0
5. Amend Sec. 121.135 by revising the section heading and paragraph
(b)(23) to read as follows:
Sec. 121.135 Manual contents.
* * * * *
(b) * * *
(23)(i) Procedures and information, as described in paragraph
(b)(23)(ii) of this section, to assist each crewmember and person
performing or directly supervising the following job functions
involving items for transport on an aircraft:
(A) Acceptance;
(B) Rejection;
(C) Handling;
(D) Storage incidental to transport;
(E) Packaging of company material; or
(F) Loading.
(ii) Ensure that the procedures and information described in this
paragraph are sufficient to assist the person in identifying packages
that are marked or labeled as containing hazardous materials or that
show signs of containing undeclared hazardous materials. The procedures
and information must include:
(A) Procedures for rejecting packages that do not conform to the
Hazardous Materials Regulations in 49 CFR parts 171 through 180 or that
appear to contain undeclared hazardous materials;
(B) Procedures for complying with the hazardous materials incident
reporting requirements of 49 CFR 171.15 and 171.16 and discrepancy
reporting requirements of 49 CFR 175.31
(C) The certificate holder's hazmat policies and whether the
certificate holder is authorized to carry, or is prohibited from
carrying, hazardous materials; and
(D) If the certificate holder's operations specifications permit
the transport of hazardous materials, procedures and information to
ensure the following:
(1) That packages containing hazardous materials are properly
offered and accepted in compliance with 49 CFR parts 171 through 180;
(2) That packages containing hazardous materials are properly
handled, stored, packaged, loaded, and carried on board an aircraft in
compliance with 49 CFR parts 171 through 180;
(3) That the requirements for Notice to the Pilot in Command (49
CFR 175.33) are complied with; and
(4) That aircraft replacement parts, consumable materials or other
items regulated by 49 CFR parts 171 through 180 are properly handled,
packaged, and transported.
* * * * *
0
6. Amend Sec. 121.401 by revising paragraph (a)(1) to read as follows:
Sec. 121.401 Training program: General.
(a) * * *
(1) Establish and implement a training program that satisfies the
requirements of this subpart and appendices E and F of this part and
that ensures that each crewmember, aircraft dispatcher, flight
instructor and check airman is adequately trained to perform his or her
assigned duties. Prior to implementation, the certificate holder must
obtain initial and final FAA approval of the training program.
* * * * *
Sec. 121.433a [Removed]
0
7. Remove Sec. 121.433a.
0
8. Add subpart Z, consisting of Sec. Sec. 121.1001 through 121.1007,
to read as follows:
Subpart Z--Hazardous Materials Training Program
Sec.
121.1001 Applicability and definitions.
121.1003 Hazardous materials training: General.
121.1005 Hazardous materials training required.
121.1007 Hazardous materials training records.
Sec. 121.1001 Applicability and definitions.
(a) This subpart prescribes the requirements applicable to each
certificate holder for training each crewmember and person performing
or directly supervising any of the following job functions involving
any item for transport on board an aircraft:
(1) Acceptance;
(2) Rejection;
(3) Handling;
(4) Storage incidental to transport;
(5) Packaging of company material; or
(6) Loading.
(b) Definitions. For purposes of this subpart, the following
definitions apply:
(1) Company material (COMAT)--Material owned or used by a
certificate holder.
(2) Initial hazardous materials training--The basic training
required for each newly hired person, or each person changing job
functions, who performs or directly supervises any of the job functions
specified in paragraph (a) of this section.
(3) Recurrent hazardous materials training--The training required
every 24 months for each person who has satisfactorily completed the
certificate holder's approved initial hazardous materials training
program and performs or directly supervises any of the job functions
specified in paragraph (a) of this section.
Sec. 121.1003 Hazardous materials training: General.
(a) Each certificate holder must establish and implement a
hazardous materials training program that:
(1) Satisfies the requirements of Appendix O of this part;
(2) Ensures that each person performing or directly supervising any
of the job functions specified in Sec. 121.1001(a) is trained to
comply with all applicable parts of 49 CFR parts 171 through 180 and
the requirements of this subpart; and
(3) Enables the trained person to recognize items that contain, or
may
[[Page 58824]]
contain, hazardous materials regulated by 49 CFR parts 171 through 180.
(b) Each certificate holder must provide initial hazardous
materials training and recurrent hazardous materials training to each
crewmember and person performing or directly supervising any of the job
functions specified in Sec. 121.1001(a).
(c) Each certificate holder's hazardous materials training program
must be approved by the FAA prior to implementation.
Sec. 121.1005 Hazardous materials training required.
(a) Training requirement. Except as provided in paragraphs (b), (c)
and (f) of this section, no certificate holder may use any crewmember
orperson to perform any of the job functions or direct supervisory
responsibilities, and no person may perform any of the job functions or
direct supervisory responsibilities, specified in Sec. 121.1001(a)
unless that person has satisfactorily completed the certificate
holder's FAA-approved initial or recurrent hazardous materials training
program within the past 24 months.
(b) New hire or new job function. A person who is a new hire and
has not yet satisfactorily completed the required initial hazardous
materials training, or a person who is changing job functions and has
not received initial or recurrent training for a job function involving
storage incidental to transport, or loading of items for transport on
an aircraft, may perform those job functions for not more than 30 days
from the date of hire or a change in job function, if the person is
under the direct visual supervision of a person who is authorized by
the certificate holder to supervise that person and who has
successfully completed the certificate holder's FAA-approved initial or
recurrent training program within the past 24 months.
(c) Persons who work for more than one certificate holder. A
certificate holder that uses or assigns a person to perform or directly
supervise a job function specified in Sec. 121.1001(a), when that
person also performs or directly supervises the same job function for
another certificate holder, need only train that person in its own
policies and procedures regarding those job functions, if all of the
following are met:
(1) The certificate holder using this exception receives written
verification from the person designated to hold the training records
representing the other certificate holder that the person has
satisfactorily completed hazardous materials training for the specific
job function under the other certificate holder's FAA approved
hazardous material training program under Appendix O of this part; and
(2) The certificate holder who trained the person has the same
operations specifications regarding the acceptance, handling, and
transport of hazardous materials as the certificate holder using this
exception.
(d) Recurrent hazardous materials training--Completion date. A
person who satisfactorily completes recurrent hazardous materials
training in the calendar month before, or the calendar month after, the
month in which the recurrent training is due, is considered to have
taken that training during the month in which it is due. If the person
completes this training earlier than the month before it is due, the
month of the completion date becomes his or her new anniversary month.
(e) Repair stations. A certificate holder must ensure that each
repair station performing work for, or on the certificate holder's
behalf is notified in writing of the certificate holder's policies and
operations specification authorization permitting or prohibition
against the acceptance, rejection, handling, storage incidental to
transport, and transportation of hazardous materials, including company
material. This notification requirement applies only to repair stations
that are regulated by 49 CFR parts 171 through 180.
(f) Certificate holders operating at foreign locations. This
exception applies if a certificate holder operating at a foreign
location where the country requires the certificate holder to use
persons working in that country to load aircraft. In such a case, the
certificate holder may use those persons even if they have not been
trained in accordance with the certificate holder's FAA approved
hazardous materials training program. Those persons, however, must be
under the direct visual supervision of someone who has successfully
completed the certificate holder's approved initial or recurrent
hazardous materials training program in accordance with this part. This
exception applies only to those persons who load aircraft.
Sec. 121.1007 Hazardous materials training records.
(a) General requirement. Each certificate holder must maintain a
record of all training required by this part received within the
preceding three years for each person who performs or directly
supervises a job function specified in Sec. 121.1001(a). The record
must be maintained during the time that the person performs or directly
supervises any of those job functions, and for 90 days thereafter.
These training records must be kept for direct employees of the
certificate holder, as well as independent contractors, subcontractors,
and any other person who performs or directly supervises these job
functions for or on behalf of the certificate holder.
(b) Location of records. The certificate holder must retain the
training records required by paragraph (a) of this section for all
initial and recurrent training received within the preceding 3 years
for all persons performing or directly supervising the job functions
listed in Appendix O at a designated location. The records must be
available upon request at the location where the trained person
performs or directly supervises the job function specified in Sec.
121.1001(a). Records may be maintained electronically and provided on
location electronically. When the person ceases to perform or directly
supervise a hazardous materials job function, the certificate holder
must retain the hazardous materials training records for an additional
90 days and make them available upon request at the last location where
the person worked.
(c) Content of records. Each record must contain the following:
(1) The individual's name;
(2) The most recent training completion date;
(3) A description, copy or reference to training materials used to
meet the training requirement;
(4) The name and address of the organization providing the
training; and
(5) A copy of the certification issued when the individual was
trained, which shows that a test has been completed satisfactorily.
(d) New hire or new job function. Each certificate holder using a
person under the exception in Sec. 121.1005(b) must maintain a record
for that person. The records must be available upon request at the
location where the trained person performs or directly supervises the
job function specified in Sec. 121.1001(a). Records may be maintained
electronically and provided on location electronically. The record must
include the following:
(1) A signed statement from an authorized representative of the
certificate holder authorizing the use of the person in accordance with
the exception;
(2) The date of hire or change in job function;
(3) The person's name and assigned job function;
(4) The name of the supervisor of the job function; and
[[Page 58825]]
(5) The date the person is to complete hazardous materials training
in accordance with appendix O of this part.
Appendix N--[Reserved]
0
8.A. Add and reserve Appendix N.
0
9. Add Appendix O to read as follows:
Appendix O--Hazardous Materials Training Requirements For Certificate
Holders
This appendix prescribes the requirements for hazardous
materials training under part 121, subpart Z, and part 135, subpart
K of this chapter. The training requirements for various categories
of persons are defined by job function or responsibility. An ``X''
in a box under a category of persons indicates that the specified
category must receive the noted training. All training requirements
apply to direct supervisors as well as to persons actually
performing the job function. Training requirements for certificate
holders authorized in their operations specifications to transport
hazardous materials (will-carry) are prescribed in Table 1. Those
certificate holders with a prohibition in their operations
specifications against carrying or handling hazardous materials
(will-not-carry) must follow the curriculum prescribed in Table 2.
The method of delivering the training will be determined by the
certificate holder. The certificate holder is responsible for
providing a method (may include email, telecommunication, etc.) to
answer all questions prior to testing regardless of the method of
instruction. The certificate holder must certify that a test has
been completed satisfactorily to verify understanding of the
regulations and requirements.
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PART 135--OPERATING REQUIREMENTS: COMMUTER AND ON-DEMAND OPERATIONS
0
10. The authority citation for part 135 continues to read as follows:
Authority: 49 U.S.C. 106(g), 41706, 44113, 44701-44702, 44705,
44709, 44711-44713, 44715-44717, 44722.
0
11. Amend Sec. 135.23 by revising paragraph (p) to read as follows:
Sec. 135.23 Manual contents.
* * * * *
(p)(1) Procedures and information, as described in paragraph (p)(2)
of this section, to assist each crewmember and person performing or
directly supervising the following job functions involving items for
transport on an aircraft:
(i) Acceptance;
(ii) Rejection;
(iii) Handling;
(iv) Storage incidental to transport;
(v) Packaging of company material; or
(vi) Loading.
(2) Ensure that the procedures and information described in this
paragraph are sufficient to assist a person in identifying packages
that are marked or labeled as containing hazardous materials or that
show signs of containing undeclared hazardous materials. The procedures
and information must include:
(i) Procedures for rejecting packages that do not conform to the
Hazardous Materials Regulations in 49 CFR parts 171 through 180 or that
appear to contain undeclared hazardous materials;
(ii) Procedures for complying with the hazardous materials incident
reporting requirements of 49 CFR 171.15 and 171.16 and discrepancy
reporting requirements of 49 CFR 175.31.
(iii) The certificate holder's hazmat policies and whether the
certificate holder is authorized to carry, or is prohibited from
carrying, hazardous materials; and
(iv) If the certificate holder's operations specifications permit
the transport of hazardous materials, procedures and information to
ensure the following:
(A) That packages containing hazardous materials are properly
offered and accepted in compliance with 49 CFR parts 171 through 180;
(B) That packages containing hazardous materials are properly
handled, stored, packaged, loaded and carried on board an aircraft in
compliance with 49 CFR parts 171 through 180;
(C) That the requirements for Notice to the Pilot in Command (49
CFR 175.33) are complied with; and
(D) That aircraft replacement parts, consumable materials or other
items regulated by 49 CFR parts 171 through 180 are properly handled,
packaged, and transported.
* * * * *
0
12. Amend Sec. 135.323 by revising paragraph (a)(1) as follows:
Sec. 135.323 Training program: General.
(a) * * *
(1) Establish and implement a training program that satisfies the
requirements of this subpart and that ensures that each crewmember,
aircraft dispatcher, flight instructor and check airman is adequately
trained to perform his or her assigned duties. Prior to implementation,
the certificate holder must obtain initial and final FAA approval of
the training program.
* * * * *
Sec. 135.333 [Removed]
0
13. Remove Sec. 135.333.
0
14. Add subpart K, consisting of Sec. Sec. 135.501 through 135.507, to
read as follows:
Subpart K--Hazardous Materials Training Program
Sec.
135.501 Applicability and definitions.
135.503 Hazardous materials training: General.
135.505 Hazardous materials training required.
135.507 Hazardous materials training records.
Sec. 135.501 Applicability and definitions.
(a) This subpart prescribes the requirements applicable to each
certificate holder for training each crewmember and person performing
or directly supervising any of the following job functions involving
any item for transport on board an aircraft:
(1) Acceptance;
(2) Rejection;
(3) Handling;
(4) Storage incidental to transport;
(5) Packaging of company material; or
(6) Loading.
(b) Definitions. For purposes of this subpart, the following
definitions apply:
(1) Company material (COMAT)--Material owned or used by a
certificate holder.
(2) Initial hazardous materials training--The basic training
required for each newly hired person, or each person changing job
functions, who performs or directly supervises any of the job functions
specified in paragraph (a) of this section.
[[Page 58830]]
(3) Recurrent hazardous materials training--The training required
every 24 months for each person who has satisfactorily completed the
certificate holder's approved initial hazardous materials training
program and performs or directly supervises any of the job functions
specified in paragraph (a) of this section.
Sec. 135.503 Hazardous materials training: General.
(a) Each certificate holder must establish and implement a
hazardous materials training program that:
(1) Satisfies the requirements of Appendix O of part 121 of this
part;
(2) Ensures that each person performing or directly supervising any
of the job functions specified in Sec. 135.501(a) is trained to comply
with all applicable parts of 49 CFR parts 171 through 180 and the
requirements of this subpart; and
(3) Enables the trained person to recognize items that contain, or
may contain, hazardous materials regulated by 49 CFR parts 171 through
180.
(b) Each certificate holder must provide initial hazardous
materials training and recurrent hazardous materials training to each
crewmember and person performing or directly supervising any of the job
functions specified in Sec. 135.501(a).
(c) Each certificate holder's hazardous materials training program
must be approved by the FAA prior to implementation.
Sec. 135.505 Hazardous materials training required.
(a) Training requirement. Except as provided in paragraphs (b), (c)
and (f) of this section, no certificate holder may use any crewmember
or person to perform any of the job functions or direct supervisory
responsibilities, and no person may perform any of the job functions or
direct supervisory responsibilities, specified in Sec. 135.501(a)
unless that person has satisfactorily completed the certificate
holder's FAA-approved initial or recurrent hazardous materials training
program within the past 24 months.
(b) New hire or new job function. A person who is a new hire and
has not yet satisfactorily completed the required initial hazardous
materials training, or a person who is changing job functions and has
not received initial or recurrent training for a job function involving
storage incidental to transport, or loading of items for transport on
an aircraft, may perform those job functions for not more than 30 days
from the date of hire or a change in job function, if the person is
under the direct visual supervision of a person who is authorized by
the certificate holder to supervise that person and who has
successfully completed the certificate holder's FAA-approved initial or
recurrent training program within the past 24 months.
(c) Persons who work for more than one certificate holder. A
certificate holder that uses or assigns a person to perform or directly
supervise a job function specified in Sec. 135.501(a), when that
person also performs or directly supervises the same job function for
another certificate holder, need only train that person in its own
policies and procedures regarding those job functions, if all of the
following are met:
(1) The certificate holder using this exception receives written
verification from the person designated to hold the training records
representing the other certificate holder that the person has
satisfactorily completed hazardous materials training for the specific
job function under the other certificate holder's FAA approved
hazardous material training program under appendix O of part 121 of
this chapter; and
(2) The certificate holder who trained the person has the same
operations specifications regarding the acceptance, handling, and
transport of hazardous materials as the certificate holder using this
exception.
(d) Recurrent hazardous materials training--Completion date. A
person who satisfactorily completes recurrent hazardous materials
training in the calendar month before, or the calendar month after, the
month in which the recurrent training is due, is considered to have
taken that training during the month in which it is due. If the person
completes this training earlier than the month before it is due, the
month of the completion date becomes his or her new anniversary month.
(e) Repair stations. A certificate holder must ensure that each
repair station performing work for, or on the certificate holder's
behalf is notified in writing of the certificate holder's policies and
operations specification authorization permitting or prohibition
against the acceptance, rejection, handling, storage incidental to
transport, and transportation of hazardous materials, including company
material. This notification requirement applies only to repair stations
that are regulated by 49 CFR parts 171 through 180.
(f) Certificate holders operating at foreign locations. This
exception applies if a certificate holder operating at a foreign
location where the country requires the certificate holder to use
persons working in that country to load aircraft. In such a case, the
certificate holder may use those persons even if they have not been
trained in accordance with the certificate holder's FAA approved
hazardous materials training program. Those persons, however, must be
under the direct visual supervision of someone who has successfully
completed the certificate holder's approved initial or recurrent
hazardous materials training program in accordance with this part. This
exception applies only to those persons who load aircraft.
Sec. 135.507 Hazardous materials training records.
(a) General requirement. Each certificate holder must maintain a
record of all training required by this part received within the
preceding three years for each person who performs or directly
supervises a job function specified in Sec. 135.501(a). The record
must be maintained during the time that the person performs or directly
supervises any of those job functions, and for 90 days thereafter.
These training records must be kept for direct employees of the
certificate holder, as well as independent contractors, subcontractors,
and any other person who performs or directly supervises these job
functions for the certificate holder.
(b) Location of records. The certificate holder must retain the
training records required by paragraph (a) of this section for all
initial and recurrent training received within the preceding 3 years
for all persons performing or directly supervising the job functions
listed in Appendix O of part 121 of this chapter at a designated
location. The records must be available upon request at the location
where the trained person performs or directly supervises the job
function specified in Sec. 135.501(a). Records may be maintained
electronically and provided on location electronically. When the person
ceases to perform or directly supervise a hazardous materials job
function, the certificate holder must retain the hazardous materials
training records for an additional 90 days and make them available upon
request at the last location where the person worked.
(c) Content of records. Each record must contain the following:
(1) The individual's name;
(2) The most recent training completion date;
(3) A description, copy or reference to training materials used to
meet the training requirement;
(4) The name and address of the organization providing the
training; and
[[Page 58831]]
(5) A copy of the certification issued when the individual was
trained, which shows that a test has been completed satisfactorily.
(d) New hire or new job function. Each certificate holder using a
person under the exception in Sec. 135.505(b) must maintain a record
for that person. The records must be available upon request at the
location where the trained person performs or directly supervises the
job function specified in Sec. 135.501(a). Records may be maintained
electronically and provided on location electronically. The record must
include the following:
(1) A signed statement from an authorized representative of the
certificate holder authorizing the use of the person in accordance with
the exception;
(2) The date of hire or change in job function;
(3) The person's name and assigned job function;
(4) The name of the supervisor of the job function; and
(5) The date the person is to complete hazardous materials training
in accordance with Appendix O of part 121 of this chapter.
PART 145--REPAIR STATIONS
0
15. The authority citation for part 145 continues to read as follows:
Authority: 49 U.S.C. 106(g), 40113, 44701-44702, 44707, 44717.
0
16. Revise Sec. 145.53 to read as follows:
Sec. 145.53 Issue of certificate.
(a) Except as provided in paragraph (b), (c), or (d) of this
section, a person who meets the requirements of this part is entitled
to a repair station certificate with appropriate ratings prescribing
such operations specifications and limitations as are necessary in the
interest of safety.
(b) If the person is located in a country with which the United
States has a bilateral aviation safety agreement, the FAA may find that
the person meets the requirements of this part based on a certification
from the civil aviation authority of that country. This certification
must be made in accordance with implementation procedures signed by the
Administrator or the Administrator's designee.
(c) Before a repair station certificate can be issued for a repair
station that is located within the United States, the applicant shall
certify in writing that all ``hazmat employees'' (see 49 CFR 171.8) for
the repair station, its contractors, or subcontractors are trained as
required in 49 CFR part 172 subpart H.
(d) Before a repair station certificate can be issued for a repair
station that is located outside the United States, the applicant shall
certify in writing that all employees for the repair station, its
contractors, or subcontractors performing a job function concerning the
transport of dangerous goods (hazardous material) are trained as
outlined in the most current edition of the International Civil
Aviation Organization Technical Instructions for the Safe Transport of
Dangerous Goods by Air.
0
17. Amend 145.57 by revising paragraph (a) to read as follows:
Sec. 145.57 Amendment to or transfer of certificate.
(a) The holder of a repair station certificate must apply for a
change to its certificate in a format acceptable to the Administrator.
A change to the certificate must include certification in compliance
with Sec. 145.53(c) or (d), if not previously submitted. A certificate
change is necessary if the certificate holder--
(1) Changes the location of the repair station, or
(2) Requests to add or amend a rating.
* * * * *
0
18. Add Sec. 145.165 to subpart D to read as follows:
Sec. 145.165 Hazardous materials training.
(a) Each repair station that meets the definition of a hazmat
employer under 49 CFR 171.8 must have a hazardous materials training
program that meets the training requirements of 49 CFR part 172 subpart
H.
(b) A repair station employee may not perform or directly supervise
a job function listed in Sec. 121.1001 or Sec. 135.501 for, or on
behalf of the part 121 or 135 operator including loading of items for
transport on an aircraft operated by a part 121 or part 135 certificate
holder unless that person has received training in accordance with the
part 121 or part 135 operator's FAA approved hazardous materials
training program.
0
19. Add Sec. 145.206 to read as follows:
Sec. 145.206 Notification of hazardous materials authorizations.
(a) Each repair station must acknowledge receipt of the part 121 or
part 135 operator notification required under Sec. Sec. 121.905(e) and
135.505(e) of this chapter prior to performing work for, or on behalf
of that certificate holder.
(b) Prior to performing work for or on behalf of a part 121 or part
135 operator, each repair station must notify its employees,
contractors, or subcontractors that handle or replace aircraft
components or other items regulated by 49 CFR parts 171 through 180 of
each certificate holder's operations specifications authorization
permitting, or prohibition against, carrying hazardous materials. This
notification must be provided subsequent to the notification by the
part 121 or part 135 operator of such operations specifications
authorization/designation.
Issued in Washington, DC, on September 18, 2005.
Marion C. Blakey,
Administrator.
[FR Doc. 05-19659 Filed 10-6-05; 8:45 am]
BILLING CODE 4910-13-P