[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: 
meilinger.francis2@dol.gov.
    For general and technical information: Douglas J. Kalinowski,

[[Page 68948]]

Director, OSHA Directorate of Cooperative and State Programs; 
telephone: (202) 693-2200; email: kalinowski.doug@dol.gov.

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

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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]
 BILLING CODE 4510-26-P


