January 22, 2013
Docket Operations M-30
U.S. Department of Transportation
1200 New Jersey Avenue, SE
Room W12-140
West Building Ground Floor
Washington, DC 20590-0001
Delivered electronically via www.regulations.gov
RE: Docket No. FAA-2012-0953; Policy Statement on Occupational Safety and Health Standards for Aircraft Cabin Crewmembers
The National Air Transportation Association (NATA), the voice of aviation business, is the public policy group representing the interests of aviation businesses before Congress, federal agencies and state governments. NATA’s 2,000 member companies own, operate, and service aircraft. These companies provide for the needs of the traveling public by offering services and products to aircraft operators and others such as fuel sales, aircraft maintenance, parts sales, storage, rental, airline servicing, flight training, Part 135 on-demand air charter, fractional aircraft program management and scheduled commuter operations in smaller aircraft. NATA members are a vital link in the aviation industry providing services to the general public, airlines, general aviation, and the military.
NATA appreciates the opportunity to comment on behalf of our members operating aircraft that are impacted by this proposed action. Following our review of the proposed policy statement, we conclude that the intended course of action, i.e. imposing Occupational Safety and Health Administration (OSHA) regulations for any person whose work environment includes duties within an aircraft cabin while the aircraft is in operation, will impact our members conducting passenger and cargo flights in a commercial on-demand capacity and noncommercial flights under the operational control of an aircraft owner[1].
We conclude after our evaluation that the proposed course of action is ill-advised with respect to both commercial and noncommercial aircraft operations in that it fails to consider the safety ramifications this drastic shift could create and that it remains extremely unclear in the how the Federal Aviation Administration (FAA) proposes to develop and enact these new requirements.
The lack of clarity makes it difficult to determine the true purpose behind the draft statement. If this policy is a document to explain that the FAA intends to move forward collaboratively with OSHA but that no actual changes to current practices are intended, NATA expects that prior to making any changes the FAA will evaluate and give public hearing to the issues articulated within these comments. If in fact this draft policy statement is actionable and intended to modify, replace or nullify the FAA’s 1975 notice wherein the agency asserted its sole authority over the aircraft cabin environment, then FAA cannot proceed until a full and proper rulemaking occurs.
Absent statements to the contrary, NATA must presume that the draft policy statement is indeed actionable and we are especially concerned that the proposed policy does not indicate how OSHA and the FAA will determine which OSHA standards may or may not have safety implications and whether such determinations will include industry representation from operators.
FAA Should Retain Primacy Role
While we respect the statutory obligation the FAA has under Section 829 of the FAA Modernization and Reform Act of 2012 (Pub. Law 112-95), it is still well within the purview of the FAA to retain sole oversight for the in-aircraft environment rather than cede oversight and enforcement responsibilities to OSHA. OSHA does not have the appropriate skills to ensure that its regulations, policies and guidance do not have adverse airworthiness or operational safety implications for aircraft operations. Any OSHA activity will require substantial on-going interaction with the FAA to prevent such negative consequences and is more appropriately addressed by the FAA consulting with OSHA in the development of regulations promulgated by the FAA rather than what the FAA appears to propose; i.e. that the OSHA will take the lead in regulating.
This is supported by the FAA assertion in the draft policy statement that “[o]n the other hand, existing FAA regulations address the same hazards addressed by OSHA's sanitation standards, so those OSHA standards would not apply on aircraft.” The FAA is clear that when it has promulgated rules addressing an existing OSHA standard the FAA rules are adequate and there is no need to change course and apply the OSHA rules instead. Our recommendation is that the FAA continue on this course of pursuing its own rulemaking as appropriate rather than engage in a complex process to determine the necessity of OSHA rules and how to adapt them for environments that were not previously taken into consideration.
Jurisdictional Confusion
NATA is concerned that the shared jurisdiction policy described by the FAA is ripe for confusion and contradiction between FAA, OSHA and OSHA-approved state programs. As articulated in the FAA/OSHA Aviation Safety and Health Team Report published in December 2000 (hereafter referred to as the 2000 Report)[2], the OSHA Act encourages states to develop and operate their own job safety and health programs. This is in stark contrast to aviation oversight wherein no state may regulate aircraft operations and airworthiness standards. According to the OSHA website, there are now 26 states that operate OSHA-approved plans. The 2000 Report explains that while states may not impose standards that are less than the equivalent OSHA rule they may impose more stringent standards. When and if the FAA permits an OSHA requirement to apply to an aircraft cabin and a more stringent state OSHA regulation exists, it is unclear who will evaluate the state rule to determine that it is not in conflict with FAA safety requirements and ensure that compliance is not necessary in such cases.
The 2000 Report notes that these areas require evaluation:
- There is a need to determine the effect that state jurisdiction and state plans (pursuant to 29 U.S.C. § 667) would have on FAA’s ability to assure aviation safety.
- There is a need to determine the effect that state jurisdiction and state plans (pursuant to 29 U.S.C. § 667) would have on OSHA’s ability to enforce standards applicable on aircraft that operate in, and over, a number of States.
While this review was submitted in 2000, NATA is concerned that the draft policy explains only that “OSHA is also able to initiate [emphasis added] 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.” Our concern with this statement is two-fold; first, stating that OSHA is “able” to do this as opposed to OSHA “is” creating this process implies that it is not necessarily deemed as a mandatory and essential item, and, second, it seems that OSHA has not yet even begun such a process despite the looming intended application of OSHA rules. These matters need to reach a final resolution prior to any action by the FAA to impose OSHA rules on aircraft cabins.
A second jurisdictional issue relates to how any applicable OSHA standards might apply to international flight operations. Again, the 2000 Report noted this item; the draft policy statement does not address it. Given the significant number of international flight operations conducted, it is imperative to resolve such issues prior to the imposition of the new requirements.
Rulemaking Issues
The FAA properly asserted its authority over the aircraft cabin environment in 1975, and OSHA promulgated every subsequent rule with an understanding that it did not apply to aircraft cabins. While the draft statement is presented as policy-based, it is de facto rulemaking. It is dangerous and disconcerting for the FAA and OSHA to presume to impose regulations in such a way as to avert every legal requirement imposed on rulemaking. The FAA must evaluate and determine that new standards are necessary in accordance with required rulemaking procedures. Any change to the long-standing policy of the FAA that they are solely empowered to create and enforce regulations regarding aircraft operation will result in operational and financial impacts to each operator that the formal rulemaking must address.
The 2000 Report noted these concerns:
- There is a need to determine whether it would be necessary for the respective agencies to engage in notice and comment rulemaking prior to applying the enumerated OSHA standards or regulations to employees on aircraft in operation, and, if so, the manner in which to most expeditiously promulgate standards that are applicable to aircraft in operation.
- There is a need to determine the manner in which OSHA and FAA would cooperate to assure that standards applicable to employees on aircraft in operation (other than flight deck crew), which may be promulgated at a future date, would not be written or enforced in a manner that could compromise the safe operation of an aircraft.
Should the FAA follow the path articulated in the draft policy statement, a population of affected entities will hereafter have regulatory compliance responsibilities that do not presently exist. A proper rulemaking including a review of the need for these new regulations, a cost/benefit evaluation, and regulatory flexibility determination (to include a small business impact assessment) and notice and comment opportunities for the affected aircraft operators is required.
The FAA did not provide the parties that are now subject to imminent regulatory obligations any opportunity to offer constructive comments on these otherwise required analyses or to recommend revisions to the regulations. Yet it is unclear from the draft policy whether any formal rulemaking processes are planned.
Because, with respect to the aircraft cabin environment, the OSHA regulations were developed absent compliance with the rules governing creation of new regulations, NATA expects that the FAA and/or OSHA will fully meet those rulemaking obligations prior to the application of new or existing regulations on our members and the aviation industry at large.
In addition to the overall need for rulemaking, NATA has identified a specific shortcoming that necessitates rulemaking: defining “aircraft cabin crewmember.” The aviation industry has many positions other than “flight attendant” that may work in an aircraft cabin. These include cargo handlers, medical personnel, supernumeraries, and, in the case of certain aircraft, evacuation crewmembers (as required by the FAA aircraft Type Certificate Data Sheet). While the FAA defines “crewmember” in Part 1 of its regulations, the agency does not define the term “Aircraft Cabin Crewmember.” This term requires formal regulatory definition to determine applicability of any proposed policy or regulations thereof.
Inspection and Enforcement
NATA is also troubled by the limited information on enforcement inspections. That the entirety of the discussion regarding inspection and enforcement consumes only one sentences is concerning. The draft policy states, “OSHA anticipates that it will respond to and investigate complaints or referrals without a need for any inspection of aircraft in operation.” This statement does not preclude OSHA (or a state-based OSHA entity) from conducting inspections of aircraft in operation, it merely conveys that it is not anticipated at this time. The policy is silent on the power imparted to OSHA inspectors to delay an aircraft departure or “ground” an aircraft during the course of their investigations. Good governance practices require establishment of such standards and informing regulated parties as to the rights, roles and responsibilities of all parties. NATA asks that the FAA provide specific detail on what powers and rights it intends OSHA inspectors to have with regard to boarding and/or restricting the movement of aircraft.
What Applies and When
The draft statement enumerates three areas where the FAA will allow application of existing OSHA regulations. Within the draft policy, the FAA states that with regard to hazard communications and bloodborne pathogen rules “OSHA can enforce those standards” and that “OSHA's hearing conservation standard can apply.”
These statements appear to give immediate authority to require compliance with the applicable OSHA regulations upon issuance of this policy as a final document. No compliance timetable or transitional period is noted. The FAA goes explains that “[i]n a subsequent MOU, FAA and OSHA will establish procedures to identify any additional working conditions where OSHA requirements may apply.” This further reinforces construing the statements related to hazard communications, bloodborne pathogens and hearing conservation to intend that they are effective immediately upon issuance of a final policy statement. NATA strongly objects to this course of action. As previously stated, our position is that the proposed actions constitute rulemaking and proper notice and comment is required.
Difficulties complying with existing hearing conservation requirements offer a practical example of why rulemaking is necessary. The ability of an operator to determine interior noise levels of different aircraft in its fleet is highly problematic. The interior cabin noise of an aircraft is based on numerous factors, which include but are not limited to: altitude, pressure, temperature, phase of flight, passenger load, and aircraft systems operation. In addition, adoption of the current OSHA noise standard will require noise testing of each aircraft in the operator’s fleet (since some identical aircraft types may exhibit different cabin noise levels), ongoing monitoring of those noise levels, and yearly audiometric testing of all persons determined to fall within the definition of aircraft cabin crewmembers. This will create a significant expense to operators, and such expense can only be captured and evaluated within the formal rulemaking process.
Negative Safety Consequence
In pursuing this course of action, the FAA has not fully considered the negative safety consequence for operations where a flight attendant is not required. The proposed policy appears directed specifically at Part 121 scheduled airline operations, but it is never stated as such. The commercial on-demand and noncommercial operators do not appear exempt from the requirements of the draft policy.
The vast majority of aircraft operated by on-demand air charter operators and noncommercial aircraft owners do not require the presence of a flight attendant. FAA regulations require a flight attendant only when 20 or more passenger seats are present for on-demand Part 135 operations and for fractional program operations and traditional private operations conducted under Part 91 (see §§ 91.533, 135.107). For a multitude of reasons, many operators and customers elect to place a “cabin attendant” in the aircraft. These persons are known by a variety of names (e.g. cabin attendant, cabin service agent, cabin safety agent), and they serve myriad roles, including safety briefings, food and beverage service, passenger comfort roles and interfacing between the flight crew and the passengers. In some cases, they may be treated by regulation as crewmembers (but not flight attendants as there is no regulatory requirement) or may be treated as an additional passenger. This designation is solely at the discretion of the operator. Their presence on the aircraft is purely voluntary but they serve a valuable safety-enhancing role.
Given the expected burden of compliance (both in costs and administratively) with an entirely new regime of regulations imposed by another government agency, it is highly likely that the continued use of non-required cabin attendants will undergo a critical review to determine the feasibility of continuing to staff the aircraft cabin in this manner. We expect that in many instances the aircraft owner or operator will elect to forgo non-required cabin attendants should the FAA proceed down its current path. NATA requests that the FAA more fully examine and respond to this negative safety consequence. NATA strongly believes that any creation of FAA policy related to the applicability of OSHA standards should, therefore, apply only to operations where the FAA requires flight attendants by regulation.
NATA appreciates the FAA’s willingness to receive comments on this complex issue and looks forward to the agency’s response.
Sincerely,
Jacqueline E. Rosser
Director, Regulatory Affairs
[1] Such noncommercial activities include, but are not limited to, Part 91 corporate flight operators and Part 91K fractional program operations.
[2] FAA/OSHA Aviation Safety and Health Team (First Report), Application of OSHA’s Requirements to Employees on Aircraft in Operation, December 2000.