{"operation":"document","citation":"22-0066","title":"Ameristar Air Cargo, Inc. — Hazardous Materials Safety Interpretation","source_type":"guidance","agency":"Pipeline and Hazardous Materials Safety Administration","status":"guidance","official":true,"published_on":"2022-11-22","effective_on":null,"summary":"22-0066 response to Ameristar Air Cargo, Inc. concerning 171.8, 172.704.","machine_formats":{"json":"https://regulus.evalyn.ai/document/phmsa-interpretation-22-0066.json","markdown":"https://regulus.evalyn.ai/document/phmsa-interpretation-22-0066.md"},"app_url":"https://regulus.evalyn.ai/document/phmsa-interpretation-22-0066","source_url":"https://www.phmsa.dot.gov/sites/phmsa.dot.gov/files/docs/standards-rulemaking/hazmat/interpretations/76976/220066.pdf","body":"<<>>\n\n1200 New Jersey Avenue, SE\nWashington, DC 20590\nU.S. Department\nof Transportation\nPipeline and Hazardous\nMaterials Safety\nAdministration\nNovember 22, 2022\nMr. Pat Hulsey\nDirector of Operations\nAmeristar Air Cargo, Inc.\n4400 Glenn Curtiss Drive\nAddison, TX 75001\nReference No. 22-0066\nDear Mr. Hulsey:\nThis letter is in response to your June 22, 2022, letter requesting clarification of the Hazardous\nMaterials Regulations (HMR; 49 CFR Parts 171-180) applicable to hazardous materials training\nfor a forklift operator contracted by an air carrier. You state that a forklift operator’s duties are\nlimited to removing hazardous material cargo from a truck and placing that cargo onto an\naircraft’s cargo hold floor, under the direct supervision of a hazardous materials trained\nemployee of the air carrier. Once the cargo has been placed onto the aircraft, the forklift operator\npulls away from the aircraft—which completes their contracted task—and a hazardous materials\ntrained air carrier employee then handles positioning and securing the cargo on the aircraft.\nFurther, it is your understanding that since the forklift operator is not loading the hazardous\nmaterial cargo onto the aircraft by “simply moving cargo from the truck to the aircraft without\npositioning and securing the cargo,” you believe the forklift operator is not a hazmat employee\nas defined in § 171.8 and therefore, not subject to hazardous material training. You reference a\nprevious letter of interpretation (Ref. No. 98-0221) to support your understanding of “incidental\ncontact” with the hazardous material cargo by the forklift operator and you seek confirmation\nthat your understanding is correct.\nYour understanding is incorrect. A hazmat employee includes an individual employed on a full-\ntime, part-time, or temporary basis by a hazmat employer, who directly affects hazardous\nmaterials transportation safety and who—during the course of employment—loads, unloads, or\nhandles hazardous materials (see § 171.8). Further, loading incidental to movement of a\nhazardous material means loading of packaged or containerized hazardous material onto a\ntransport vehicle, aircraft, or vessel for the purpose of transporting it when performed by carrier\npersonnel or in the presence of carrier personnel. Since the forklift operator is handling\nhazardous material cargo by moving it from the truck and then placing it onto the aircraft, this\nwould be considered loading incidental to movement, which is a covered hazardous materials\n\n<<>>\n\nfunction that would make a person subject to hazmat training requirements as prescribed in\n§ 172.704 of the HMR.\nRegarding letter Ref. No. 98-0221, the response PHMSA provided was in the context of a person\nconducting a security-related function—e.g., searching through passenger baggage—that may\nresult in incidental contact with hazardous materials. As stated in Ref No. 98-0221, the training\nrequirements of Part 172, Subpart H, apply to an employee performing a function subject to the\nHMR. A forklift operator handling hazardous material cargo and loading it onto an aircraft is\nperforming a function covered by the HMR.\nFinally, PHMSA notes that in your letter, you reference 14 CFR Part 121 requirements for air\ncarriers; however, the Federal Aviation Administration (FAA) has oversight of 14 CFR Part 121\nand PHMSA defers to the FAA for any interpretation of applicable requirements.\nI hope this information is helpful. Please contact us if we can be of further assistance.\nSincerely,\nDirk Der Kinderen\nChief, Standards Development Branch\nStandards and Rulemaking Division\n\n<<>>\n\nJune 22, 2022\nU.S. Department of transportation\nLegal Interpretation Division\nPipeline and Hazardous Materials Safety Administration\n1200 New Jersey Avenue, SE\nWashington, DC 20590\nAnd\nFederal Aviation Administration\nLegal Interpretation Division\n800 Independence Ave SW, Washington, DC 20591\nTo Whom it May Concern:\nAmeristar Air Cargo, Inc. (AAC) is a 14 CFR Part 121 subject to 14 CFR part 121, subpart Z (HM\nTraining) as a will-carry Hazmat on-demand air carrier operating DC-9 aircraft primarily in the\nUnited States (US) and subject to the training requirements of the Hazmat Materials Regulations\n(HMR). AAC is respectfully requesting a clarification concerning whether or not a forklift operator\nwould require Hazmat (HM) training in its operation (US only) when he/she does not have any\nresponsibility under the HMR. AAC believes that a forklift operator does not fall within the meaning\nof any of the job functions enumerated in 14 CFR section 121.1001 or as a hazmat employee as\ndefined in 49 CFR section 171.8 and would not require HM training for the reasons stated below.\nA forklift operator’s job function in AAC’s operation is limited to, at the most, removing cargo from\na truck and lifting that cargo onto an aircraft’s floor under the direct supervision of AAC HM trained\npersonnel. After the forklift operator has completed this task, he/she then backs the forklift away\nfrom the aircraft completing his/her contracted assignment. Once the cargo is placed in the cargo\ndoor position of the aircraft, the cargo is pushed into position and secured for flight by AAC HM\ntrained personnel.\nNOTE: Any person that helps with the positioning or securing of cargo on the main deck of an AAC\naircraft is required to have HM training.\nAAC personnel are responsible for the applicable functions described 14 CFR section 121.10011\nincluding acceptance/rejection function for any cargo (declared or undeclared HM) that is loaded\non the aircraft including inspecting the cargo for damage, leakage, markings, placards and labeling.\nFor HM shipments, AAC personnel are also responsible for verifying that the HM shipper’s\ndeclaration is correct and that the labels match the commodity being shipped. After the acceptance\nprocedures are completed, the cargo is forklifted onto the aircraft supervised by AAC personnel.\nWhile “Loading” is a job function shown in 14 CFR section 121.1001(a)(6) involving any item for\ntransport on board an aircraft, the word itself is not delineated further to include the key word of\n“responsibility” under the HMR. However, in the final rule for Hazardous Materials Training\nRequirements (HMTR)2, there is guidance for air carriers to determine whether or not HM function\nspecific training is required for an individual, including forklift operators. The following language\nfrom the HMTR addresses the need for training and who is responsible for making this decision:\n“… in the final rule the FAA is clarifying that the part 121 or part 135 operator has the\nresponsibility to determine which employees meet the job function requirement to train…” (70\nFR 58808)\n1 §121.1001 job functions; Acceptance, Rejection, Handling and Loading\n2 Hazardous Materials Training Requirements; Final Rule 70 FR 58801, October 7, 2005\n4400 Glenn Curtiss Drive Addison, Texas 75001\n972-725-9000 ⚫ FAX 972-725-9090\n\n<<>>\n\nRequest for Legal Interpretation Page 2 June 22, 2022\n“…The certificate holder has the responsibility to determine which employees meet the\n‘‘function specific’’ or ‘‘assigned’’ requirements to mandate training. The training requirements\nattach to the actual job function performed or directly supervised…” (70 FR 58813)\n“…If a part 121 or part 135 operator’s truck drivers are accepting property for air transportation,\nthey must be trained in accordance with this rule. However, if another employee performs that\njob function for the part 121 or part 135 operator, then the truck driver would not have to be\ntrained in accordance with this rule. For instance, a truck driver who is required to perform the\nfunction of acceptance of a package for air transport would have to be trained for performing\nthat function. This is the same requirement as for a person at the sort facility performing the\nsame function. In this case, if the truck driver is not responsible for performing the acceptance\nof a package for air shipment, and the certificate holder was relying on the truck driver to\naccept the package for only motor vehicle transport, then the truck driver does not need to be\ntrained in the certificate holder’s program. It is the function being performed or directly\nsupervised that mandates the training requirement, not the job designation.\n” (70 FR 58801)\n(Emphasis added)\nAAC believes that fork lift operators:\n1. Have only incidental contact with the HM in that they are simply moving cargo from a truck to\nthe aircraft without securing or placing cargo into a secured position for flight. Thus, their\ninvolvement in this activity does not directly affect hazardous materials transportation safety\nas stated in a 1998 interpretation from the Office of Hazardous Materials Standards defining\na “Hazmat Employee”.\n3\n2. Do not have the functional relationship to HM in air transportation safety to require HM\ntraining. Rather, they only have an incidental contact with HM in the work place, which is the\nprimary factor in determining whether an individual is a “hazmat employee” subject to the HM\ntraining requirements as show in the text of a 1998 interpretation:\n“An employee’s functional relationship to HM to transportation safety, rather than incidental\ncontact with HM in the work place, is the primary factor in determining whether an individual is\na hazmat employee”.4\n3. Have not been given the responsibility for the job function of loading stated in 14 CFR Section\n121.1001(a)(6) (“Loading”) – this responsibility is placed upon AAC personnel and is based\nupon a January 30,2007 FAA interpretation, where it states in part:\n“...the key to determining who to train is to delineate which party is “responsible” for\naccepting a package for air transportation…”5\nFor the above stated reasons, AAC believes that a forklift operator utilized in its ground operations\nis not required to receive the training required by 14 CFR § 121.1001.\nThank you for your consideration.\nPat Hulsey\nDirector of Operations\n972-725-9006\nphulsey@ameristarjet.com\n3 Clarification of Training Requirements from Edward T. Mazzullo, Director, Office of Hazardous Materials Standards\n(OHMS, August 19, 1998 Ref. No. 98-0221\n4 Clarification of Training Requirements OHMS Ref. No. 98-0221\n5 FAA interpretation from Rebecca B. MacPherson, Assistant Chief Counsel for Regulation, to AGC-200, dated\nJanuary 30, 2007 to Sher & Blackwell representing USAJet and Hazardous Materials Training Requirements; Final\nRule 70 FR 58801, October 7, 2005\n\n<<>>\n\nBaker\nFrom: DerKinderen, Dirk (PHMSA)\nTo: Hazmat Interps\nSubject: FW: Hazmat Interpretation\nDate: Thursday, June 23, 2022 11:37:59 AM\nAttachments: image002.png\nimage001.png\nimage003.png\nimage004.png\nRequest_For_HM_Interpretation.pdf\n22-0066 (formally\n22-0060)\nAlice,\nPlease log this letter into the system and assign to someone in PHH11.\nThanks,\nDirk Der Kinderen\nChief, Standards Development Branch\nPHMSA\n202-366-4460 (desk)\n202-365-4684 (cell)\nFrom: Kelley, Shane (PHMSA) \nSent: Thursday, June 23, 2022 11:32 AM\nTo: DerKinderen, Dirk (PHMSA) \nCc: Nickels, Matthew (PHMSA) ; Foster, Glenn (PHMSA)\n\nSubject: FW: Hazmat Interpretation\nDirk –\nCan your team manage this one as it has port of Portland overtones?\nLet me know who is assigned so that I can be aware and I am sure we will coordinate response with\nFAA.\nShane\nFrom: Cameron, Michael (FAA) \nSent: Thursday, June 23, 2022 11:27 AM\nTo: Kelley, Shane (PHMSA) \nCc: Burger, Donald (PHMSA) ; Bello, Pearl ;\nStrupczewski, William \nSubject: FW: Hazmat Interpretation\nHi Shane,\nI’m not sure where this will land within PHMSA, but one of our air carriers has requested an interp\nfrom PHMSA (attached). If any meetings or coordination are required, please let me know!\n\n<<>>\n\nMichael J. Cameron\nDivision Manager- Policy, Standards & Stakeholder Engagement\nFAA Hazardous Materials Safety Program (AXH)\nOffice of Security and Hazardous Materials Safety, (ASH)\n(786) 494-1710\nVisit PackSafe for Passengers:\nVisit SafeCargo for Shippers and Startups:\nVisit OperateSafe for Air Carriers:\nFrom: Serafin, Paul (FAA) \nSent: Thursday, June 23, 2022 11:19 AM\nTo: Cameron, Michael (FAA) \nCc: Nielson, Jessica (FAA) \nSubject: FW: Hazmat Interpretation\nJust for awareness if PHMSA reaches out. For some reason the carrier opted to send PHMSA an\ninterpretation request for something that is more 14 CFR related.\nFrom: Pohlke, Ryan (FAA) \nSent: Wednesday, June 22, 2022 4:29 PM\nTo: Nielson, Jessica (FAA) ; Serafin, Paul (FAA) \nSubject: Fwd: Hazmat Interpretation\nFYI\nA continuation of discussions where MJYA doesn’t agree that a forklift driver placing cargo /\npallets qualifies for the “loading” and “handling” functions of Title 14CFR 121.1001.\nI look forward to reviewing this with the FAA...\nI’m confused of the submission to “PHMSA”, but ok.....\nThoughts?\nThanks\nRP\nRyan Pohlke | Principal HAZMAT Inspector\nOversight Operations | Air Carrier Safety Assurance Division, AXH-300\nFAA Office of Security & Hazardous Materials Safety, ASH\nSan Antonio, Texas | 210-238-6090\n—\no-\no-Ộ-\no-\no—\n\n<<>>\n\nFrom: Pat Hulsey \nSent: Wednesday, June 22, 2022 4:52 PM\nTo: McMillen, Willard F (FAA)\nCc: Pohlke, Ryan (FAA); Rhodes, James R (FAA); Sweet, Michael (FAA); John Polizzi\nSubject: Hazmat Interpretation\nMac,\nBased upon our conversation last month concerning the training of a forklift driver, I’ve sent a\nrequest for a legal interpretation to the PHMSA and FAA regarding the requirements to train a\nforklift operator in Ameristar Air Cargo, Inc.’s operation.\nWe are currently training the forklift operator as we agreed to do using the training in Appendix B to\nour Hazmat Manual and will continue to do so.\nLet me know if you have any questions.\nPat Hulsey\nDirector of Operations\nAmeristar Air Cargo, Inc.\nphulsey@ameristarjet.com\n972-725-9006\nCell: 972-768-4170","truncated":false,"body_characters":14220}