[Federal Register Volume 70, Number 194 (Friday, October 7, 2005)]
[Rules and Regulations]
[Pages 58796-58831]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-19659]



[[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

  Federal Register / Vol. 70, No. 194 / Friday, October 7, 2005 / Rules 
and Regulations  

[[Page 58796]]


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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://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

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(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

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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