[Federal Register Volume 78, Number 166 (Tuesday, August 27, 2013)]
[Rules and Regulations]
[Pages 52848-52851]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-20841]


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DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Parts 91, 121, 125, and 135

[Docket No.: FAA-2012-0953]


Occupational Safety and Health Standards for Aircraft Cabin 
Crewmembers

AGENCY: Federal Aviation Administration (FAA), DOT.

ACTION: Notice of availability; final policy and disposition of 
comments.

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SUMMARY: This notice announces the availability of a new policy 
statement regarding the regulation of some occupational safety and 
health conditions affecting cabin crewmembers on aircraft by the 
Occupational Safety and Health Administration. This policy statement 
will enhance occupational safety and health in the aircraft cabin by 
establishing the extent to which the Occupational Safety and Health 
Administration requirements may apply to the working conditions of 
aircraft cabin crew while they are onboard aircraft in operation.

DATES: This action becomes effective September 26, 2013.

FOR FURTHER INFORMATION CONTACT: For technical questions concerning 
this policy statement, contact Gene Kirkendall, Part 121 Air Carrier 
Operations Branch (AFS-220), Flight Standards Service, Federal Aviation 
Administration, 800 Independence Avenue SW., Washington, DC 20591; 
telephone (202) 267-8166; email [email protected].

SUPPLEMENTARY INFORMATION: The FAA Policy Statement, Occupational 
Safety and Health Standards for Aircraft Cabin Crewmembers, is 
available at regulations.gov. (See docket number FAA-2012-0953.)

Disposition of Comments

    On December 7, 2012, the FAA published a draft policy statement in 
the Federal Register for public notice and comment regarding the 
regulation of some occupational safety and health conditions affecting 
cabin crewmembers on aircraft in operation by the Occupational Safety 
and Health Administration (OSHA). The FAA

[[Page 52849]]

received 196 comments. Comments fell into broad categories: Flight 
attendants, and their unions were generally in favor of the proposed 
policy statement; air carriers and their trade associations generally 
opposed the policy change, sought clarification of its extent, or 
expressed uncertainty over practical aspects such as compliance with 
certain portions of OSHA standards or how OSHA would enforce the 
standards. The policy statement is also available for review at http://www.faa.gov/about/initiatives/ashp/, as well as the docket for this 
action.
    This document summarizes those comments and provides FAA and OSHA's 
responses.

A. Applicability of Policy Statement

    Avjet Corporation (Avjet) commented that the policy statement does 
not adequately address what type of flight operations will be affected 
by this policy change. The FAA disagrees. The policy does not limit the 
applicability to a specific type of operation. This policy applies to 
the working conditions of aircraft cabin crewmembers while they are 
onboard aircraft in operation. This includes all aircraft operations 
that utilize at least one aircraft cabin crewmember.
    Avjet and the National Air Transportation Association (NATA) 
commented that the policy statement does not address the definition of 
an aircraft cabin crewmember. The FAA agrees with this comment and has 
added the following clarification to the policy statement: For the 
purposes of this policy, an aircraft cabin crewmember means a person 
assigned to perform duty in an aircraft cabin when the aircraft is in 
operation (other than flightcrew members).
    The International Brotherhood of Teamsters (IBT) questioned why 
OSHA standards should not apply to flight deck crew (e.g. flightcrew 
members). The Allied Pilots Association (APA) argued that, since 
Section 829 of the FAA Modernization and Reform Act of 2012 addresses 
``crewmembers while in an aircraft'' without limitation, all 
crewmembers should receive the same protections. On the other hand, the 
Air Line Pilots Association International (ALPA) urged us--without 
involving OSHA--to address flight deck crew safety and health issues, 
such as fatigue, heat, chemical exposure, laser strikes, cosmic 
radiation, ozone exposure, contagious diseases, contamination of oxygen 
masks, and noise on the flight deck. However, the issue of flightcrew 
member safety and health issues are outside the scope of this policy 
change.
    The National Business Aviation Association (NBAA), Avjet, and NATA 
also asked whether OSHA coverage would extend to flight deck crew when 
they perform cabin passenger safety functions. In response, flightcrew 
members are not aircraft cabin crewmembers. Therefore, this policy 
change does not apply to them.
    NATA asked for clarification of how the policy would affect 
personnel who work in the aircraft cabin and are not flight attendants 
(specifically referring to cargo handlers, medical personnel, 
supernumeraries, and evacuation crewmembers). Any person assigned to 
perform duty in an aircraft cabin when the aircraft is in operation 
(other than flightcrew members) would be covered by this policy.
    A few commenters asked whether the new policy will apply to part 
135 air charter operations and part 91 corporate flight operators 
operating business jets, as well as to commercial aircraft operations. 
This policy applies to all aircraft operations that utilize at least 
one aircraft cabin crewmember.

B. General Opposition to the Policy

    Aviation trade groups, including Airlines for America (A4A), the 
Regional Airline Association (RAA), the National Air Carrier 
Association (NACA), NATA, and NBAA opposed the draft policy statement. 
They believed that the draft FAA policy statement should be subject to 
notice-and-comment rulemaking because it calls for a significant, 
substantive change in the regulatory regime affecting air carriers. The 
FAA disagrees and is not promulgating new regulations. However, because 
this has been a long-standing policy, FAA published the draft policy 
statement for public notice and comment.
    Aviation trade groups asserted that the congressional directive was 
not met in the draft policy statement and asserted that the legislation 
does not demand the regulatory action proposed in the draft policy 
statement. The FAA disagrees with this assertion. The congressional 
directive was met by initiating development of a policy statement that 
sets forth the circumstances in which requirements of OSHA may be 
applied to crewmembers while working in an aircraft cabin and by 
publishing the draft policy statement for public notice and comment. 
The FAA is not proposing a regulatory action.
    Aviation trade groups also asserted that an alternative approach 
should be used because of important, unresolved, and outstanding 
issues, concerning such an assumption of regulatory authority. The FAA 
also disagrees with this assertion. OSHA regulations and standards are 
in place now in aviation work environments other than the aircraft 
cabin. Applying the proposed OSHA regulations and standards to the 
aircraft cabin will have minimal implementation impact and will not 
compromise aviation safety.
    Aviation trade groups further believed that a voluntary, data-based 
system or a Safety Management System (SMS)-based approach should be 
implemented instead. US Airways, Inc., did not oppose the application 
of the specific OSHA requirements expressly identified in the draft 
policy statement, but suggested that the goals reflected in the draft 
policy statement could also be achieved through reliance instead on the 
presence of robust, SMS-based airline voluntary safety programs. They 
also encouraged the expansion of the current OSHA industry alliance 
effort to include appropriate participation from flight attendant 
unions. The FAA disagrees. Voluntary programs are valuable for some 
initiatives. In this case, standardized application of OSHA standards 
throughout the aviation industry is good public policy.
    Southwest Airlines opposed the draft policy statement and agreed 
with all of Airlines for America's comments, adding that OSHA 
enforcement authority should be specifically limited to only those 
standards expressly defined in the final policy and Memorandum of 
Understanding (MOU). The FAA agrees with the proposed recommendation. 
OSHA remains preempted from enforcing its standards on aircraft in 
operation, other than the standards specifically addressed in the new 
FAA policy statement.
    Southwest Airlines also requested a statement within the MOU, 
specifically stating that the general duty clause shall not be applied 
to the cabin environment. The FAA will add such language in the new 
MOU. In addition, as noted above, the new policy only includes the 
three listed standards. If the agencies later decide to add any 
additional hazards, including any hazards covered by the General Duty 
Clause, they will use a transparent process including notice and 
comment to adopt such changes.
    Southwest Airlines further requested that FAA/OSHA provide 
clarification regarding enforcement onboard the aircraft. The FAA 
agrees with the proposed recommendation. Specific procedures for 
addressing OSHA enforcement protocols can be developed through 
interagency collaboration.
    ALPA agreed with the Airlines for America comments, adding that it 
has

[[Page 52850]]

concern regarding the requirement for coordination between the FAA and 
OSHA. ALPA urged that appropriate procedures be established before OSHA 
involvement to assure smooth operations. The FAA acknowledges the 
requirement for coordination between the agencies. The FAA and OSHA 
have a procedure for resolving jurisdictional issues, and additional 
procedures can be developed through the new MOU.
    ALPA also wanted FAA to regulate pilots' safety and a host of 
health issues, such as: Fatigue, heat and humidity of the work 
environment, contamination by rain repellant and other chemicals, laser 
strikes, cosmic radiation, ozone, aircraft disinsection, contagious 
disease, contamination of cockpit oxygen masks, smoke-protection masks 
in the cockpit, and ambient flight deck noise. The regulation of 
pilots' safety and health issues are beyond the scope of this policy 
statement.
    In addition, ALPA requested that the FAA establish an office or 
focal point to adequately address the safety and health of flightcrew 
members. The FAA acknowledges this request but does not believe that a 
new office is required at this time.

C. State and International Jurisdiction

    NBAA stated that aviation is an industry designed to cross state 
and national boundaries. As applied to aviation, the proposed notice 
would have created a host of uncertainties regarding the application of 
either State or national OSHA standards. NATA was also concerned that 
the shared jurisdiction policy described by the FAA is ripe for 
confusion and contradiction among FAA, OSHA, and OSHA-approved State 
programs. Essentially, NATA was concerned that the draft policy 
explains only that 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. The FAA agrees with these 
comments. OSHA has assured the FAA that it has already consulted with 
their State Plan Partners, and they have agreed that Federal OSHA will 
cover these working conditions in State Plan States. The FAA will 
continue to work with OSHA to develop that process.
    NATA raised a second jurisdictional issue relating to how any 
applicable OSHA standards might apply to international flight 
operations. OSHA jurisdiction is limited to the boundaries of the 
United States and its territories and possessions). Therefore, the 
proposed OSHA standards would not be applicable on U. S. aircraft 
operations conducted outside the United States.

D. General Support of the Policy

    The Transportation Trades Department, the Association of Flight 
Attendants, the Association of Machinists and Aerospace Workers (IAM), 
the International Brotherhood of Teamsters (IBT) and the Transport 
Workers Union of America generally support the new policy statement. 
The IAM added that flight attendants have not been required to wear 
protective gloves, and stated that some airlines have prohibited Flight 
Attendants from wearing gloves. IAM also stated that other hazards of 
great concern that should be regulated include, hazards related to 
lifting and moving luggage, exposure to extremes of heat and cold as a 
result of cabin temperature, hazards related to opening and closing 
aircraft doors. IAM also stated that cabin air quality is also an 
essential issue to flight attendant occupational health as flight 
attendants have no choice, but to breathe recirculated, pressurized air 
while at work. IAM further stated that in-flight coffee maker hazards 
should be addressed. The FAA acknowledges these recommendations. The 
FAA will consider when FAA and OSHA establish procedures to identify 
any additional working conditions where OSHA requirements may apply.
    IAM stated that more extensive sanitation standards could be 
applied to enhance the working conditions of flight attendants without 
compromising aviation safety. The IBT supported incorporation of the 
OSHA sanitation standard into the policy memo and forthcoming MOU. The 
FAA disagrees. Existing FAA regulations address sanitation standards, 
so OSHA sanitation standards are not being considered.
    The IBT also urged the FAA to reconsider OSHA's role in worksite 
inspections pertaining to the applicable OSHA standards mentioned in 
the policy memo and forthcoming MOU. The FAA and OSHA will explore the 
feasibility of developing interagency procedures to address and 
coordinate workplace inspections if and when they may be required.
    The IBT further urged the FAA to stress the importance of properly 
reporting safety and health issues and encourage employers to utilize 
the OSHA 300/300A injury and illness reports as a means of identifying 
and targeting areas of concern. The IBT also stressed the importance of 
education of both employers and employees on the protections afforded 
by the OSHA Anti-Discrimination Act found in 29 CFR part 1977 (i.e., 
Whistleblower Act 11(c)). The IBT stated that including proper signage 
aboard aircraft will not implicate a concern for aviation safety. In 
response, the FAA will consider these comments when establishing 
interagency procedures.
    The IBT finally urged FAA and OSHA to reconsider inclusion of 
flight deck crewmembers in the discussion on the application of OSHA's 
requirements to employees on aircraft in operation. The FAA is not 
considering including flightcrew members in this policy statement.
    Individual flight attendants support the draft policy statement and 
commented on the need for additional regulation of exposure to noise, 
bloodborne pathogens, chemicals, pesticides, and de-icing fluids; 
sanitation; duty/rest requirements; exposure to radiation; cabin air 
quality issues; food/beverage carts; and ergonomics. OSHA's noise, 
bloodborne pathogens, and hazard communication standards are included 
in the policy statement. Existing FAA regulations address sanitation 
standards, so OSHA sanitation standards are not being considered. Duty 
and rest requirements are aviation safety requirements regulated by the 
FAA. Effects of cosmic, galactic and solar ionizing radiation exposure, 
cabin air quality, food and beverage cart and ergonomic issues are not 
being considered at this time.
    Individual comments believe that pilots should be included. 
However, the FAA is not considering including flightcrew members at 
this time.
    The National Institute for Occupational Safety and Health supported 
the draft policy but believes more research is needed. The FAA will 
consider this recommendation if further research is needed on any 
additional or future regulations.

E. Hazards Addressed

    The selection of the three OSHA standards to apply in aircraft 
cabins--hazard communications, bloodborne pathogens and noise--was also 
questioned. The RAA asserted that the FAA did not identify the most 
critical occupational safety and health concerns and then only transfer 
oversight if such concerns could best be solved, regulated and 
monitored by OSHA. A4A claimed there are no specific or immediate 
safety concerns that require urgent action, asserting that the proposed 
policy resulted from political action and not an underlying safety 
issue that was identified by the FAA.
    Some commenters also questioned the need to apply these standards 
to aircraft cabins and expressed uncertainty about whether additional 
OSHA requirements would apply, as well. For example,

[[Page 52851]]

Southwest, A4A, and the NBAA are concerned that other OSHA standards, 
regulations, or the OSH Act's general duty clause, 29 U.S.C. 654 
(a)(1), could apply and requested clarification.
    In contrast, other commenters argued that OSHA should have 
authority to protect crewmembers from additional hazards. For example, 
the IBT commented that OSHA should enforce its general duty clause to 
protect employees from cosmic radiation, contaminated bleed air 
ventilation systems, heat stress, ergonomic hazards, hazardous agents, 
pinch points, and slip and fall hazards.
    There were also comments from the National Institute for 
Occupational Safety and Health that cited several studies it conducted 
for FAA on reproductive issues for flight attendants, cosmic radiation, 
circadian rhythm disruption, cabin air quality, and infectious 
diseases.
    The Aerospace Medical Association (AsMA) said it assumed that new 
regulations will be drafted to comply with the aircraft environment and 
that those should include aerospace medicine assessment and opinion. 
The new FAA policy statement only applies to OSHA standards for noise, 
bloodborne pathogens, and hazard communication. These standards were 
selected because they were identified in the agencies' 2000 MOU. The 
agencies examined the potential application of these three standards to 
aircraft cabin crewmembers in detail in the year 2000. The joint FAA/
OSHA Occupational Safety and Health Team determined that application of 
these OSHA standards to aircraft cabin crewmembers should not 
compromise aviation safety. These standards also address the hazards of 
greatest concern to aircraft cabin crewmembers.

F. Procedural Issues

    A number of commenters suggested that a full rulemaking process 
should be utilized before applying any OSHA standards to cabin 
crewmembers. According to NATA, for example, the change creates new 
compliance obligations because OSHA promulgated rules after the FAA's 
1975 Policy Statement with the understanding that those rules would not 
apply to aircraft cabins. NATA also claimed that OSHA and FAA need to 
engage in a cost-benefit analysis, a regulatory flexibility 
determination, and a small business impact assessment.
    A few other commenters also asserted that the agencies had not 
adequately considered the effect of the policy change on small and 
medium-sized businesses, citing the Regulatory Flexibility Act and 
Executive Order 12866. Avjet, for example, noted that part 121 airlines 
have resources to implement the changes while these changes will be 
extremely onerous to small-business part 135 air charter operators of 
business jets. And according to NATA, operators will have to test 
interior noise levels of every aircraft in its fleet since some 
identical aircraft types may exhibit different cabin noise levels. NATA 
also asserted that operators who are not required to have a flight 
attendant onboard but elect to place a cabin attendant in the aircraft 
for added service and safety, may no longer employ these workers. NATA 
urged for rulemaking to determine how OSHA rules can be adapted for 
environments not previously considered.
    We do not agree with these comments. In any event, we have provided 
the public and regulated community with notice and an opportunity to be 
heard on this policy change and plan to continue to do so should any 
further policy changes be considered. We have also met with most groups 
affected by this policy. After years of consideration of the 
application of these OSHA standards, FAA has decided that these 
standards should not compromise aviation safety. FAA and OSHA agree 
with the suggestions of some commenters that, to ease implementation of 
the policy, OSHA has expanded its existing industry alliances to 
develop training and job-aids for the safety of aircraft cabin 
crewmembers, as well as aviation personnel and vendors in ground-
support activities, such as fueling, catering and cargo/baggage 
handling.

G. Practical Implementation

    Several comments expressed concerns about how the policy change 
would be implemented in practice. For example, AsMA suggested that OSHA 
and FAA form a coordination group to review the operation of 
regulations and oversee responsibility.
    ALPA also expressed concern about coordination between the two 
agencies. It favors an FAA preemption of OSHA requirements if those 
requirements interfere with aviation safety.
    NATA questioned how the FAA and OSHA will determine which OSHA 
standards have safety implications and whether these determinations 
will include industry representatives. NATA asserted that the FAA 
should apply OSHA standards onboard rather than having OSHA consult 
with FAA on aviation safety implications.
    Others questioned how OSHA will inspect aircraft in operation to 
ensure compliance and how it will respond to complaints. Southwest and 
RAA asked how OSHA would investigate complaints, so as not to interfere 
with flight duties and delay flight operations, consequences which 
could have a substantial economic impact on carriers. Southwest also 
asked about coordination among FAA, OSHA, and the Transportation 
Security Administration to provide access to secure areas, and what 
resources would be required of the carriers (e.g., escorts/seating).
    Although some commenters (IBT, IAM, and APA) recommended that OSHA 
conduct worksite inspections just as FAA inspectors do, others (e.g., 
NATA and RAA) are concerned that OSHA is not precluded from conducting 
inspections of aircraft in operation. APA stated that the FAA should 
require manufacturers and operators to sample the environment on 
aircraft for known hazards. As stated in the draft and final policy 
statements, the FAA and OSHA do not anticipate that OSHA will have to 
conduct inspections onboard aircraft to ensure compliance with the 
three OSHA standards. All three standards require employers to develop 
and implement their own programs. OSHA can examine the programs and 
verify compliance without being onboard aircraft. If there is a 
specific instance in the future where it is determined that compliance 
with one of the standards will have an adverse effect on aviation 
safety, both agencies understand that FAA will take precedence.

    Issued in Washington, DC, on August 21, 2013.
John S. Duncan,
Acting Director, Flight Standards Service.
[FR Doc. 2013-20841 Filed 8-26-13; 8:45 am]
BILLING CODE 4910-13-P