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1 DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

Occupational Safety and Health Standa rds for Aircraft Cabin Crewmembers

SUMMARY: This document announces inform ation concerning the Federal Aviation Administration's (FAA's) proposed implementati on of Sec. 829 of the FAA Modernization and Reform Act of 2012 (PL 112-95 – Feb. 14, 2012, 126 STAT. 135) and the regulation by the Occupational Safety and Health Administration of some occ upational safety and health conditions affecting cabin crewmembers on ai rcraft except for fli ght deck crew.

I. Purpose

The purpose of this Policy Statement is to enhance occupational safety and health in the aircraft cabin by establishing the extent to which O ccupational Safety and Health Administration (OSHA) requirements may apply to the working conditions of aircra ft cabin crew while they are onboard aircraft in operation. FAA continues to ex ercise its statutory auth ority to regulate the working conditions of aircraft flight deck crew an d to fully occupy and exha ust the field of flight deck crew occupational safety and health while they are on aircraft in operation.

II. Background

Pursuant to the Federal Aviation Act of 1958 th e Federal Aviation Administration shall promote safe flight of civil aircraft in air commer ce by prescribing . . . regulations and minimum standards for other practices, methods, and proc edures the Administrator finds necessary for safety in air commerce and national s ecurity.” 49 U.S.C. 44701 et seq.

The Occupational Safety and Hea lth Act of 1970 (the OSH Act) wa s promulgated to assure, so far as possible, every working man and woma n in the Nation safe and healthful working conditions. To achieve that goal, Congress delegated broad, general authority to the Secretary of Labor to regulate the working conditions that a ffect the occupational safe ty and health of the Nation’s employees. 29 U.S.C. § 651 et seq. The Secretary of Labor has de legated this authority to the Occupational Safety and Health Administ ration (OSHA) to issue regulations that are related to the occupational safety and heath of employees. 29 U.S.C. § 65 5(b); Secretary’s Order 1-2012, 77 FR 3912 (January 25, 2012).

Congress also recognized that other federal agenci es similarly exercise au thority to regulate the working conditions of specific classes of employ ees. Section 4(b)(1) of the OSH Act provides that nothing in the OSH Act “shall apply to wo rking conditions of empl oyees with respect to which other Federal agencies ... ex ercise statutory author ity to prescribe or enforce standards or regulations affecting occupationa l safety or health.” 29 U.S.C. § 653(b). Thus, OSHA is precluded from exercising its au thority over working conditions th at are regulated by another federal agency acting pursuant to th at agency's own statutory authority.DRAFT

2 On July 10, 1975, FAA published a Notice in th e Federal Register setting forth FAA’s determination that its authority to promote the safety of civil aircraft operations “completely encompass[ed] the safety and health aspects of th e work environments of aircraft crewmembers” (40 FR 29114). FAA concluded that, with respect to civil aircraft in ope ration, the “overall FAA regulatory program ... fully occupies and exhausts the field of ai rcraft crewmember occupational safety and health.”

On August 7, 2000, FAA entered into a Memora ndum of Understanding (MOU) with OSHA, U.S. Department of Labor (DOL). In the MOU, FAA and OSHA agreed to establish a joint team to identify the factors to be considered in determining the circumstances under which OSHA requirements may apply to the working conditions of employees on aircraft in operation (other than flight deck crew). The MOU contemplated that; consistent with the recommendations of the joint FAA-OSHA team, “FAA woul d replace its 1975 Federal Regist er Notice with a new policy statement, published in the Federal Register, setting forth the circumstances under which the regulatory requirements of OSHA will apply to the working conditions of employees on aircraft in operation (other than flight deck crew).”

As an initial step in the MOU process, th e joint team published a report in December 2000 addressing whether and to what extent OSHA 's existing standards and regulations on recordkeeping, bloodborne pathogens, noise, sanitation, hazard communication, antidiscrimination and access to employee exposure/medi cal records could be applied to employees on aircraft in operation without compromising avia tion safety. The joint team concluded that, for the most part, application of these OSHA requi rements would not compromise aviation safety except that engineering and admi nistrative abatement controls c ould implicate aviation safety concerns. Discussions between the agencies have taken place in the intervening years, and we have concluded that some of these OSHA require ments, which are outlined below, could apply and will not compromise aviation safety.

The FAA Modernization and Reform Act of 2012 became law on February 14, 2012. Section 829 of the Act provides in pertinent part:

Not later than 6 months after the date of enact ment of this Act, the Administrator of the Federal Aviation Administration shall . . . initiate development of a policy statement to set forth the circumstances in which requireme nts of the Occupational Safety and Health Administration may be applied to crewme mbers while working in an aircraft.

Pub. Law 112-95, Feb. 14, 2012, 126 STAT. 135

III. Implementation of Section 829 of the F AA Modernization and Reform Act of 2012

This Policy Statement replaces the 1975 Federa l Register notice “Occupational Safety or

Health Standards for Aircraft Crewmember s”. 40 FR 29114 (July 2, 1975). FAA has determined that its regulations do not completely encompass the safety and health aspects of the

work environments of aircraft crewmembers while the aircraft is in operation, and that there are working conditions for which it has not promulgated occupational safety or health standards. As a result, its regulations do not displace OSHA’s with respect to those working conditions, exceptDRAFT

3 that FAA continues to exercise its statutory authority to fully occupy and exhaust the field of flight deck crew occupational safety and health while they are on aircraft in operation. For this purpose, and as explained in the 1975 Notice, an airc raft is “in operation” from the time it is first boarded by a crewmember, preparat ory to a flight, to the time the last crewmember leaves the aircraft after completion of that flight, incl uding stops on the ground dur ing which at least one

crewmember remains on the aircraft, even if the engines are shut down.

In particular, FAA has not promulgated standard s related to the working conditions addressed by OSHA's hazard communication and bloodborne pa thogens standards; therefore OSHA can

enforce those standards for aircraft cabin cr ewmembers. Similarly, although there are FAA regulations governing noise levels outside aircra ft, FAA regulations do not address measures to promote hearing conservation for employees in side the aircraft cabin, so OSHA's hearing conservation standard can apply there. On th e other hand, existing FAA regulations address the same hazards addressed by OSHA's sanitation st andards, so those OSHA standards would not apply on aircraft.

In a subsequent MOU, FAA and OSHA will estab lish procedures to identify any additional working conditions where OSHA requirements may apply. These procedures will ensure that OSHA will not apply any requirements with potential negative effects on aviation safety, and

will also make clear that FAA retains its author ity to preempt application of OSHA requirements that initially were not deemed to interfere with aviation safety if their application is later

determined to create such interference.

Some OSHA requirements are not safety and health standards and do not address working conditions; therefore they have al ways applied to all employees, even those who are subject to another agency's safety and health regulations. These include OSHA's regulations on recordkeeping and access to employee exposure and medi cal records. Also applicable to cabin

crewmembers are OSHA’s anti-discrimination provision, Section 11(c) of the OSH Act, 29 U.S.C. § 660(c), and all air carr ier employees, the anti -discrimination provisions of “AIR 21,” 49

U.S.C. § 42121.

OSHA anticipates that it will respond to and inve stigate complaints or referrals without a need for any inspection of aircraft in operation. OSHA is also able to initiate a process to ensure that airlines will not be subject to multiple different sets of rules as they fly into and out of different states. FAA and OSHA will establish procedures in the MOU for resolving cabin crewmember safety and health issues that relate to aviation safety, with the goal of protecting the safety and

health of cabin crewmembers with out jeopardizing aviation safety.

Issued in Washington, D.C., on

Michael P. Huerta

Acting Administrator