[Federal Register Volume 84, Number 242 (Tuesday, December 17, 2019)]
[Notices]
[Pages 68947-68949]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-27112]
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DEPARTMENT OF LABOR
Occupational Safety and Health Administration
[Docket No. OSHA-2018-0001]
State Plans: Coverage of the Aircrews in Aircraft Regulated by
the Federal Aviation Administration--Changes to Level of Federal
Enforcement for Alaska, Arizona, California, Hawaii, Indiana, Iowa,
Kentucky, Maryland, Michigan, Minnesota, Nevada, New Mexico, North
Carolina, Oregon, Puerto Rico, South Carolina, Tennessee, Utah,
Vermont, Virginia, Washington, and Wyoming
AGENCY: Occupational Safety and Health Administration (OSHA),
Department of Labor.
ACTION: Notice.
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SUMMARY: This document provides notice of the declination of coverage
over the working conditions of aircraft cabin crewmembers onboard
aircraft in operation by all twenty-two (22) OSHA-approved State Plans
which cover the private sector. On March 26, 2014, OSHA began applying
three safety and health standards to the working conditions of aircraft
cabin crewmembers on aircraft in operation. Section 18 of the
Occupational Safety and Health Act of 1970, 29 U.S.C. 667 (OSH Act)
grants the OSHA-approved State Plans the authority to regulate the
working conditions of these employees to the extent consistent with the
Federal Aviation Act. Subsequently, OSHA required the State Plans to
either elect to amend their State Plans to cover aircraft cabin
crewmembers on aircraft in operation, or to decline to exercise such
authority, in which case coverage would remain a Federal OSHA
responsibility. All affected State Plans declined. OSHA is hereby
amending the State Plans' coverage in all of the twenty-two (22) OSHA-
approved State Plans covering the private sector to reflect the
declination of State Plan coverage, and the continuation of Federal
OSHA enforcement authority over the working conditions of aircraft
cabin crewmembers while they are onboard aircraft in operation, and
notifying affected employers and employees of this action.
DATES: December 17, 2019.
FOR FURTHER INFORMATION CONTACT:
For press inquiries: Francis Meilinger, Director, OSHA Office of
Communications; telephone: (202) 693-1999; email:
[email protected].
For general and technical information: Douglas J. Kalinowski,
[[Page 68948]]
Director, OSHA Directorate of Cooperative and State Programs;
telephone: (202) 693-2200; email: [email protected].
SUPPLEMENTARY INFORMATION:
I. Background
Section 18 of the OSH Act provides that State Plans that wish to
assume responsibility for developing and enforcing their own
occupational safety and health standards may do so by submitting and
obtaining federal approval of a State Plan. State Plan approval occurs
in stages that include initial approval under Section 18(c) and final
approval under Section 18(e). The twenty-two (22) OSHA-approved State
Plans that cover the private sector are: Alaska, Arizona, California,
Hawaii, Indiana, Iowa, Kentucky, Maryland, Michigan, Minnesota, Nevada,
New Mexico, North Carolina, Oregon, Puerto Rico, South Carolina,
Tennessee, Utah, Vermont, Virginia, Washington, and Wyoming.\1\
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\1\ Connecticut, New York, New Jersey, Illinois, Maine, and the
Virgin Islands operate State Plans limited in coverage to State and
local government employees and are not affected by this notice.
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II. The Federal Aviation Administration
Section 4(b)(1) of the OSH Act, 29 U.S.C. 653(b)(1) provides that
OSHA cannot regulate working conditions of employees with respect to
which other Federal agencies exercise statutory authority to prescribe
or enforce standards or regulations affecting occupational safety and
health. Pursuant to the Federal Aviation Act of 1958, the Federal
Aviation Administration (FAA) is charged with the promotion of safe
flight of civil aircraft in air commerce by prescribing regulations and
minimum standards for practices, methods, and procedures the FAA
Administrator finds necessary for safety in air commerce and national
security. (49 U.S.C. 44701 et seq.). On July 10, 1975, FAA published a
Notice in the 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 the work
environments of aircraft crewmembers,'' 40 FR 29114. Thus, OSHA was
preempted from regulating the working conditions of aircraft cabin
crewmembers onboard aircraft in operation.
On August 27, 2013, the FAA Administrator published in the Federal
Register a Notice of Availability of a Policy Statement, that states
FAA has not exercised statutory authority to cover all working
conditions affecting aircraft cabin crewmembers while onboard aircraft
in operation, 78 FR 52848. FAA stated that OSHA can apply three of its
occupational safety and health standards to the working conditions of
aircraft cabin crewmembers while they are onboard aircraft in operation
(except flight crew members).
These standards are hazard communication (29 CFR 1910.1200),
bloodborne pathogens exposure (29 CFR 1910.1030), and occupational
noise exposure (29 CFR 1910.95). The working conditions addressed by
these three standards are the only working conditions of aircraft cabin
crewmembers while they are onboard aircraft in operation subject to
OSHA enforcement. FAA continues to exercise its statutory authority
over all other working conditions of aircraft cabin crewmembers while
they are on aircraft in operation, and to fully cover flight deck crew
occupational safety and health issues while they are on aircraft in
operation.
For the purposes of Federal OSHA enforcement authority, an aircraft
cabin crewmember means a person assigned to perform a duty in an
aircraft cabin when the aircraft is in operation (other than flight
crewmembers). For this purpose, an aircraft is ``in operation'' from
the time it is first boarded by a crewmember, in preparation for a
flight, to the time the last crewmember leaves the aircraft after
completion of that flight, including stops on the ground during which
at least one crewmember remains on the aircraft, even if the engines
are shut down.
Separate from this FAA policy change, OSHA already has authority to
enforce its regulations on recordkeeping, 29 CFR part 1904, and access
to employee exposure and medical records, 29 CFR 1910.1020. These
regulations are not subject to preemption by Section 4(b)(1) of the OSH
Act. OSHA also already has the responsibility to investigate employee
complaints of discrimination for engaging in protected activity related
to safety or health in the workplace, under Section 11(c) of the OSH
Act, 29 U.S.C. 660(c). Investigations of employee complaints of
discrimination for providing information about alleged violations of
FAA requirements or of any Federal law relating to air carrier safety
are also OSHA's responsibility under Section 519 of the Wendell H. Ford
Aviation Investment and Reform Act for the 21st Century, Public Law
106-181, 49 U.S.C. 42121, which is the subject of a separate OSHA-FAA
Memorandum of Understanding (MOU), 67 FR 55883 (Aug. 30, 2002).
Accordingly, OSHA assumed this authority for the enforcement of the
hazard communication, bloodborne pathogens, and noise standard with
respect to aircraft cabin crewmembers on aircraft in operation on March
26, 2014. It now enforces these three standards with respect to these
employees. OSHA and FAA also entered into a MOU on August 26, 2014, to
facilitate coordination and cooperation between the two agencies
concerning OSHA's enforcement of these three standards for these
employees.
III. OSHA-Approved State Plans
Section 18 of the OSH Act grants the OSHA-approved State Plans the
authority to regulate the working conditions of employees. Thus, these
agencies might cover aircraft cabin crewmembers while they are onboard
aircraft in operation, to the extent consistent with the Federal
Aviation Act. State Plans also have the ability to have safety and
health standards that differ from Federal OSHA's, as long as those
standards are at least as effective as Federal OSHA's, under Section
18(c)(2) of the OSH Act, 29 U.S.C. 667(c). However, FAA expressed
concern about airlines being subject to different sets of rules as they
fly into and out of different states. (78 FR 52848, 52850).
Subsequently, OSHA required the State Plans to either elect to
amend their State Plans to cover aircraft cabin crewmembers or to
decline to exercise such authority, in which case coverage would remain
a Federal OSHA responsibility. All affected State Plans declined.
IV. Notice of Change in Coverage
OSHA is hereby amending the coverage of approved State Plans to
reflect this declination of State coverage and the continuation of
Federal OSHA enforcement authority over the enforcement of these three
occupational safety and health standards for aircraft cabin crewmembers
while they are onboard aircraft in operation in the twenty-two (22)
OSHA-approved State Plans that cover the private sector. The State Plan
web pages maintained by OSHA have been updated to reflect this notice.
V. Authority and Signature
Loren Sweatt, Principal Deputy Assistant Secretary of Labor for
Occupational Safety and Health, U.S. Department of Labor, authorized
the preparation of this notice. OSHA is issuing this notice under the
authority
[[Page 68949]]
specified by Section 18 of the Occupational Safety and Health Act of
1970 (29 U.S.C. 667), Secretary of Labor's Order No. 1-2012 (77 FR
3912), and 29 CFR parts 1902 and 1953.
Signed in Washington, DC.
Loren Sweatt,
Principal Deputy Assistant Secretary of Labor for Occupational Safety
and Health.
[FR Doc. 2019-27112 Filed 12-16-19; 8:45 am]
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