Interpretation Response #22-0066
Below is the interpretation response detail and a list of regulations sections applicable to this response.
Interpretation Response Details
November 22, 2022
Mr. Pat Hulsey
Director of Operations
Ameristar Air Cargo, Inc.
4400 Glenn Curtiss Drive
Addison, TX 75001
Reference No. 22-0066
Dear Mr. Hulsey:
This letter is in response to your June 22, 2022, letter requesting clarification of the Hazardous Materials Regulations (HMR; 49 CFR Parts 171-180) applicable to hazardous materials training for a forklift operator contracted by an air carrier. You state that a forklift operator's duties are limited to removing hazardous material cargo from a truck and placing that cargo onto an aircraft's cargo hold floor, under the direct supervision of a hazardous materials trained employee of the air carrier. Once the cargo has been placed onto the aircraft, the forklift operator pulls away from the aircraft—which completes their contracted task—and a hazardous materials trained air carrier employee then handles positioning and securing the cargo on the aircraft. Further, it is your understanding that since the forklift operator is not loading the hazardous material cargo onto the aircraft by "simply moving cargo from the truck to the aircraft without positioning and securing the cargo," you believe the forklift operator is not a hazmat employee as defined in § 171.8 and therefore, not subject to hazardous material training. You reference a previous letter of interpretation (Ref. No. 98-0221) to support your understanding of "incidental contact" with the hazardous material cargo by the forklift operator and you seek confirmation that your understanding is correct.
Your understanding is incorrect. A hazmat employee includes an individual employed on a full- time, part-time, or temporary basis by a hazmat employer, who directly affects hazardous materials transportation safety and who—during the course of employment—loads, unloads, or handles hazardous materials (see § 171.8). Further, loading incidental to movement of a hazardous material means loading of packaged or containerized hazardous material onto a transport vehicle, aircraft, or vessel for the purpose of transporting it when performed by carrier personnel or in the presence of carrier personnel. Since the forklift operator is handling hazardous material cargo by moving it from the truck and then placing it onto the aircraft, this would be considered loading incidental to movement, which is a covered hazardous materials function that would make a person subject to hazmat training requirements as prescribed in § 172.704 of the HMR.
Regarding letter Ref. No. 98-0221, the response PHMSA provided was in the context of a person conducting a security-related function—e.g., searching through passenger baggage—that may result in incidental contact with hazardous materials. As stated in Ref No. 98-0221, the training requirements of Part 172, Subpart H, apply to an employee performing a function subject to the HMR. A forklift operator handling hazardous material cargo and loading it onto an aircraft is performing a function covered by the HMR.
Finally, PHMSA notes that in your letter, you reference 14 CFR Part 121 requirements for air carriers; however, the Federal Aviation Administration (FAA) has oversight of 14 CFR Part 121 and PHMSA defers to the FAA for any interpretation of applicable requirements.
I hope this information is helpful. Please contact us if we can be of further assistance.
Dirk Der Kinderen
Chief, Standards Development Branch
Standards and Rulemaking Division