VOLUME 11 FLIGHT STANDARDS PROGRAMS
CHAPTER 3 WHISTLEBLOWER PROTECTION PROGRAM (AIR CARRIER)
Section 2 Responsibilities and Procedures
11-117 THE OFFICE OF AUDIT AND EVALUATION (AAE). The Federal Aviation
Administration (FAA) National Whistleblower Protection Program (WBPP) Office is responsible for:
• Developing national WBPP policy;
• Serving as liaison on all matters concerning the WBPP;
• Developing and implementing WBPP-related Memorandums of Understanding (MOU) with other agencies;
• Developing and administering the FAA interagency procedures with
the Department of Labor (DOL) and the Occupational Health and Safety Administration (OSHA);
• Providing guidance for the FAA investigations;
• Managing the WBPP Hotline;
• Providing WBPP information to Hotline callers;
• Screening WBPP complaints;
• Assigning a unique WBPP tracking number and opening a WBPP case file;
• Tracking the status of all WBPP complaints;
• Coordinating assignment of WBPP complaints;
• Referring claims that are not covered by the Wendell H. Ford Aviation
Investment and Reform Act for the 21st Century, Section 519 of Public Law 106181 (AIR21);
• Notifying OSHA of WBPP complaints in accordance with the FAA/OSHA
MOU (Figure 11-18);
• Preparing and sending assignment and notification letters;
• Monitoring progress of investigations;
• Reviewing and approving time extension requests for the FAA investigators,
• Reviewing Reports of Investigation (ROI);
• Remanding ROIs for modification or further investigation, if necessary;
• Preparing and sending findings and notification letters;
• Closing WBPP case files; and
• Destroying WBPP case files three years after the case is closed, through completion of enforcement/Compliance Action(s) (CA),
11-118 EXECUTIVE DIRECTOR, FLIGHT STANDARDS SERVICE. The Executive Director is responsible for:
• Assigning investigations to the Quality Control and Investigations Branch;
• Tracking the progress of investigations;
• Overseeing the investigation process;
• Reviewing investigation memos from the Quality Control and Investigations Branch.
Memos should include details of the investigation, including the dates and names of persons interviewed, whether the allegations were substantiated, whether
corrective or enforcement action is taken or planned, what the corrective action will entail, or why the allegations were not substantiated; and
• Forwarding memos with attachments (ROI and copy of administrative action) to AAE
within 45 business‑days of assignment.
11-119 MANAGER, QUALITY CONTROL AND INVESTIGATIONS BRANCH A. The manager is responsible for:
• Reviewing WBPP complaints assigned to Flight Standards Service;
• Determining the appropriate office for assignment of the investigation;
• Preparing the transmittal memo;
• Transmitting the assignment package to the investigating office;
• Reviewing ROIs; and
• Forwarding completed reports to the Deputy Executive Director
or remanding reports for further investigation or clarification, if necessary.
11-120 MANAGER, QUALITY CONTROL AND INVESTIGATIONS BRANCH B. The manager is responsible for:
• Assigning investigations to an appropriate office/personnel;
• Tracking the progress of investigations;
• Overseeing the investigation process;
• Reviewing and signing the ROI. The ROI should include details of the investigation,
including the dates and names of persons interviewed. If substantiated, the
memo should include whether corrective action, enforcement action, or CA was
taken or planned, and what that action will entail. If not substantiated, include the reasons; and
• Forwarding the Quality Control and Investigations Branch B memo with the attached ROI.
11-121 INSPECTOR/INVESTIGATOR, QUALITY CONTROL AND INVESTIGATIONS BRANCH B. The inspector/investigator is responsible for:
• Serving as the focal point on all matters concerning WBPP complaints;
• Providing WBPP assistance to OSHA investigators and covered employees;
• Receiving, assigning, tracking, coordinating, and reviewing assigned WBPP complaints;
• Sharing information in accordance with the FAA/OSHA MOU (Figure 11-18);
• Providing technical information and guidance to the FAA front line office personnel
to understand their WBPP investigation responsibilities;
• Ensuring that the ROI safety allegations have been adequately
investigated and responded to, including appropriate corrective action; and
• Preparing a memorandum from Quality Control and Investigations Branch B to Quality
Control and Investigations Branch A, when the ROI is deemed acceptable.
11-122 INSPECTOR/INVESTIGATOR DUTIES.
• Investigating the air carrier-related safety component of WBPP
complaints in accordance with national WPBB policy and 49 U.S.C. § 42121;
• Keeping employee identities (and any information relating to the
whistleblower aspect of the complaint) confidential;
• Sharing information with OSHA investigators in accordance with national policy;
• Reporting preliminary findings, identified as immediate safety concerns, through
their office management to the appropriate office and division manager; and
• Completing tracking in Program Tracking and Reporting System (PTRS), if applicable.
11-123 INVESTIGATION PROCEDURES.
A. Receiving a Complaint. A potentially covered employee may
submit a formal complaint through the FAA WBPP Headquarters, or they may contact the FAA personnel
directly with whistleblower information regarding an alleged violation relating
to air carrier safety. Flight Standards personnel receiving a complaint directly
should immediately tell the complainant about the WBPP. Clearly advise them
that they should contact OSHA as soon as possible, within a 90-calendar-day period from the date they learn of their discrimination.
If they intend to pursue a personal remedy for discrimination, or anti-discrimination
programs, the WBPP may be available. When a complaint is received directly from
any source, it should be referred to Quality Control and Investigations Branch
A, who will contact AAE to determine whether it falls within WBPP guidelines.
If so, AAE will assign a unique tracking number and forward it to Quality Control
and Investigations Branch A.
B. Initiating an Investigation. The FAA may receive complaints
that are referred from the DOL, received from any other Federal source, or reported directly to FAA personnel.
The Executive Director, through Quality Control and Investigations Branch A,
will assign the investigation to Quality Control and Investigations Branch B.
Quality Control and Investigations Branch B will assign investigating personnel.
Complaints can also be sent directly to AAE from individuals, either electronically or by mail.
NOTE: WBPP tracking numbers are composed of “EWB,” the last two numbers
of the fiscal year (FY), and the individual sequence number of complaints received
in that FY. There are no spaces between characters. (Example: EWB0301 = whistleblower, FY03, first complaint received.)
C. Conducting an Investigation. Use the following general steps to conduct a WBPP investigation:
1) Contact complainant by the most expeditious means possible
(phone, email, etc.). Document details of the interview.
2) Confirm information provided in the complaint. Determine if
there is additional supporting evidence. If so, document and safeguard it.
3) Determine if there are corroborating witnesses. Interview
them and document the details.
4) Determine if other employees are experiencing the same or
similar problems. Interview them, if necessary and appropriate.
5) Interview pertinent company personnel and other persons that
may have relevant information. Review pertinent company manuals and records.
NOTE: Do not divulge the complainant’s identity. It is imperative
to keep the complainant’s identity confidential. Investigators should not reveal
that they are investigating a whistleblower complaint. Investigators are only
authorized to investigate safety issues and should not divulge the source of the complaint.
6) Collect and document evidence; make copies of all relevant
documentation; and keep accurate records of names, dates, times, etc. The investigating inspector
will inform the certificate-holding district office (CHDO) of any safety concern
findings substantiated in the WBPP investigation. Any high-probability and high-severity
safety concern will be forwarded immediately to the CHDO.
7) The CHDO will take the appropriate action, (e.g., Enforcement
Investigative Report (EIR) per FAA Order
FAA Compliance and Enforcement
Program; CA in accordance with the Compliance Philosophy (CP); or Safety Assurance
(SA) corrective action) based on the WBPP investigation findings. The enforcement
actions and CAs are Office of General Aviation Safety Assurance (AFG) and Office
of Air Carrier Safety Assurance (AFC) functions, because of the required follow-up
surveillance/Safety Assurance System (SAS) oversight and Safety Management System (SMS) activities.
D. Preparing the Report.
1) Address only actual or alleged safety violations of the FAA
orders, standards, regulations, or other Federal law relating to air carrier
safety. Do not address discrimination allegations. Assignment memos will normally
specify the initial safety issues to be investigated. When contacting the complainant,
other related issues may arise that also need to be investigated.
2) Report on allegations specified in the assignment memo as
well as any related issues that develop during the investigation. Include the
WBPP tracking number on all reports. For each allegation:
a) Summarize the investigation process (e.g., persons interviewed, records/manuals reviewed).
b) Provide a complete explanation of results.
c) Specify enforcement action, CA, or corrective action taken or contemplated. State
what the corrective action will entail. Alternatively, explain why no action
was taken or contemplated. The memo states what the investigation found, which
violations were substantiated, proposed sanctions, and the concurrence of the Quality Control and
Investigations Branch B manager. Attach the ROI to the memo.
3) The investigating inspector prepares a memo from the manager
of Quality Control and Investigations Branch B to the manager of Quality Control
and Investigations Branch A, summarizing the results. Specify details including
dates, names of persons interviewed, and whether the investigation findings
substantiated the alleged violations. Include a statement that indicates what
legal or administrative enforcement action is planned. If an EIR is processed,
summarize the violations and recommended sanctions. If administrative action
is taken or contemplated, attach a copy of the administrative action letter. For legal enforcement
action, CA, or corrective action, cite the reference number. If no action is taken, explain why.
4) Complete PTRS entries, if applicable. For all WBPP-associated
activities, Operations and cabin safety inspectors enter PTRS code 1737, maintenance
inspectors enter PTRS code 3740, and avionics inspectors enter PTRS code 5740.
Enter the WBPP tracking number (e.g., WBXXXX) in the National Use Field. Enter
WHISTLE in the Misc. Data field. When the complaint is closed, enter the results
of the investigation in the comments section. Enter the WBPP tracking number
in the National Use Field on all associated PTRS actions (e.g., EIR).
E. Quality Control and Investigations Branch B Review. The Quality Control
and Investigations Branch B manager reviews the preliminary results for completeness
of the investigation and sufficiency of the action taken.
1) When the Quality Control and Investigations Branch B manager concurs, they will
sign the ROI cover memo accompanying the report and send the concurrence to Quality Control and Investigations Branch A.
2) If the Quality Control and Investigations Branch B manager
does not concur, the manager returns the report to the investigating inspector for further investigation or clarification.
11-124 SPECIAL ENFORCEMENT CONSIDERATION. Order
Chapter 4, Paragraph 12 contains the FAA policy and procedures for providing immunity from
enforcement action to persons who provide information about violations. Information
regarding regulatory violations is occasionally offered to the FAA with a request
for “immunity from prosecution” in exchange for potentially incriminating information.
The phrase “immunity from prosecution” ordinarily applies only to criminal matters.
In whistleblower matters, the individual is usually seeking mitigation of the
FAA civil enforcement action for admitted violations. The term “Special Enforcement
Consideration” is used in lieu of “immunity from the FAA civil enforcement action”
and applies to any mitigation of sanctions as well as a potential determination
that no enforcement action is warranted. Where the employee may have committed
a violation under duress, it is possible that the FAA may not have received
the safety information had the complainant not reported it through the WBPP.
This factor must be given major consideration in any recommended sanction.
11-125 CIVIL PENALTY. The FAA is specifically authorized by 49 U.S.C.
§ 46301 to impose an additional civil penalty for a violation of 49 U.S.C. §
42121 based on the DOL Final Order of Relief (i.e., when all appeals have been
exhausted). This penalty is distinct from, and in addition to, any enforcement
action that the FAA may impose as well as any abatement action that DOL may order.
11-126 CONFIDENTIALITY AND THE PRIVACY ACT. Whistleblower complaints
contain confidential information intended only for the use of agency personnel
on a “need-to-know” basis. Unauthorized disclosure of confidential information
may constitute a violation of the Privacy Act (Title 5 of the United States
Code (5 U.S.C.) § 552a), or agency rules of conduct, and may be protected from
disclosure under the Freedom of Information Act (FOIA). Questions concerning
disclosure of information contained in whistleblower complaints should be directed
to the responsible Regional Counsel. The Regional Counsel may wish to contact
the Office of the Chief Counsel, Enforcement Division (AGC-300) for legal enforcement national policy questions.
A. Confidential Information. The FAA/OSHA MOU (Figure 11-18)
requires protection of information deemed confidential by either agency. Names
and identifying information about complainants must be kept confidential unless
disclosure is required for enforcement purposes.
1) Complainant’s Identity. The FAA shall not disclose the identity of an individual who submits a complaint
or information concerning a possible violation of an order, a regulation, or
any other provision of Federal law relating to aviation safety, unless:
a) The individual consents to the disclosure in writing; or
b) The FAA determines, in the course of an investigation, that the disclosure
is required by regulation, statute, or court order, or is otherwise unavoidable,
in which case the FAA shall provide the individual reasonable advance notice of the disclosure.
2) Application of Policy. During the course of an investigation,
if an Investigator-in-Charge (IIC) determines that one or more safety allegations
cannot be properly investigated without the disclosure of the complainant’s identity, the IIC will either:
a) Obtain the complainant’s permission (in writing) and provide it to AAE; or
b) Contact AAE, who will make the notification referenced above, if appropriate.
B. Disciplinary Action. Prior instances when FAA employees failed
to protect confidential information (including the identity of informants) have
been referred to the FAA Office of Investigation or to the DOT/OIG for appropriate disciplinary action.
11-127 FOIA REQUESTS.
A. Complaint Investigations. All FOIA requests concerning whistleblower
complaint investigations must be sent to the FAA Headquarters, FOIA Office (ARC-40),
FOIA Staff, FAA, 800 Independence Ave. S.W., Washington, D.C. 20591.
B. OPR. The Office of Primary Responsibility (OPR) for the FAA
external WBPP (air carrier employees, air carrier contractor employees, and air carrier subcontractor employees) is AAE.
C. Request Steps. AAE will:
1) Gather responsive records,
2) Determine whether the records are releasable, and
3) Prepare responses for Office of Audit and Evaluation Director (AAE-1) signature.
D. Processing Division. The Audit and Evaluation Staff (AAE-100)
processes FOIA requests and reviews EIRs if administrative enforcement action
(warning notice or letter of correction) was taken.
E. Legal Enforcement Actions. A whistleblower complaint that
involves EIR records recommending legal enforcement action (certificate action
or civil penalties) is handled as follows:
1) If the FOIA request is received at Headquarters, the request is assigned to AAE to determine
if EIR records exist. If so, AAE notifies ARC-40 within 24 hours to do a multiple
assignment to the appropriate AGC office for action. Action by the regional
legal office will address only EIR legal records.
2) If the FOIA request is received at AAE, AAE consults the associated legal office.
If complaint‑related EIR legal enforcement records exist, the request should
be multiple assigned to the associated legal office and to Headquarters (for
assignment to the Quality, Integration, and Process Division (AQS-100)). Assignments
to associated legal offices should specify that ONLY actions regarding legal
enforcement EIR records be addressed. AQS-100 will address all other records
relating to the complaint. If there are no complaint‑related EIR legal enforcement
records, or if the EIR resulted in administrative enforcement action, the request
should be reassigned only to Headquarters for assignment to AQS-100.
F. Forwarding Records. If your office possesses records of the
subject whistleblower investigation, photocopy all records and forward the entire package to AAE-100.
11-128 SHARING OF INFORMATION WITH OSHA. Upon request, an agent of
OSHA may review the investigative file and request copies of any supporting
documents. The documents must be requested in writing (an electronic message
is adequate) and should include a statement that the documents will not be disseminated
outside OSHA without the FAA authorization.
Figure 11-18. FAA/OSHA MOU
MEMORANDUM OF UNDERSTANDING
THE FEDERAL AVIATION ADMINISTRATION
U.S. DEPARTMENT OF TRANPORTATION
THE OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION U.S. DEPARTMENT OF LABOR
Wendell H. Ford Aviation Investment and Reform Act for the 21st Century Coordination
The purpose of
this Memorandum of Understanding (MOU) is to facilitate coordination and cooperation
concerning the protection of employees who provide air safety information under
the provisions of Section 519 of the Wendell H. Ford Aviation Investment and
Reform Act for the 21st Century, 49 U.S.C. § 42121.
The Wendell H. Ford Aviation Investment and Reform
Act for the 21st Century, 49 U.S.C. § 42121, prohibits air carriers, air carrier
contractors, and air carrier subcontractors from discharging an employee or
otherwise discriminating against an employee with respect to compensation, terms,
conditions, or privileges of employment because the employee (or any person
acting pursuant to a request of the employee)(1) provided, caused to be provided,
or is about to provide (with any knowledge of the employer) or cause to be provided
to the employer or Federal Government information relating to any violation
or alleged violation of any order, regulation, or standard of the Federal Aviation
Administration (FAA) or any other provision of Federal law relating to air carrier
safety under this subtitle or any other law of the United States; (2) has filed,
caused to be filed, or is about to file (with any knowledge of the employer)
or cause to be filed a proceeding relating to any violation or alleged violation
of any order, regulation, or standard of FAA or any other provision of Federal
law relating to air carrier safety under this subtitle or any other law of the
United States; (3) testified or is about to testify in such a proceeding; or
(4) assisted or participated or is about to assist or participate in such a
FAA and the Secretary
of Labor, through the Occupational Safety and Health Administration (OSHA),
both have responsibilities related to 49 U.S.C. § 42121. FAA has responsibility
to investigate complaints related to air carrier safety and has authority under
the FAA's statute to enforce air safety regulations and issue sanctions to airmen
and air carriers for noncompliance with these regulations. FAA enforcement action
may include air carrier and/or airman certificate suspension and/or revocation
and/or the imposition of civil penalties. Additionally, FAA may issue civil
penalties for violations of 49 U.S.C. § 42121. OSHA has the responsibility to
investigate employee complaints of discrimination and may order a violator to
take affirmative action to abate the violation, reinstate the complainant to
his or her former position with back pay, and award compensatory damages, including
Although FAA and
OSHA will carry out their statutory responsibilities independently, the agencies
agree that administrative efficiency and sound enforcement policies will be
maximized by cooperation and the timely exchange of information in areas of mutual interest.
III. SUBSTANCE OF THE AGREEMENT
FAA and OSHA agree
to cooperate with each other to the fullest extent possible in every case of alleged discrimination involving an employee of an air
carrier or air carrier contractor or subcontractor. FAA and OSHA will establish
a procedure for coordinating and supporting enforcement of 49 U.S.C. § 42121.
A. Process for Coordination
For the purposes
of accuracy and timeliness, both agencies agree to transmit and receive documents
and other information electronically. Each agency will designate an email address,
website address, or other mutually acceptable means to be used by the other for communication.
OSHA agrees to
promptly notify FAA of any discrimination complaints filed with the Department
of Labor (DOL) under 49 U.S.C. § 42121. OSHA will promptly provide FAA with
a copy of the complaint, including contact information for the individual filing
the complaint. FAA will confirm receipt of this information via return email.
OSHA will also provide FAA all investigative findings and preliminary orders,
investigation reports, and orders associated with any hearing or administrative
appeal related to the complaint. OSHA will also keep FAA informed of the status
of any administrative or judicial proceeding seeking review of an order of DOL
issued under 49 U.S.C. § 42121.
When an individual
directly notifies FAA of alleged discrimination that involves air carrier safety,
FAA will promptly provide OSHA with a copy of the complaint, including contact
information for the individual filing the complaint. OSHA will confirm receipt
of this information via return email. FAA will inform the individual that a
personal remedy for discrimination is available only through DOL and that the
individual should personally contact DOL. FAA will advise the individual that
the law requires that complaints be filed with OSHA within ninety (90) days
of the alleged discrimination. FAA will also provide OSHA the general results
of any investigation conducted, to include whether or not FAA concluded there
was a violation of a federal regulation, order, or standard relating to air
B. Process Measurement
To ensure the coordination
process is working as intended and that all complaints have been properly forwarded
between agencies, the parties agree to the following:
• At least once per quarter, each
agency will provide a summary of all complaints received under 49 U.S.C. § 42121
in the current fiscal year, to include the agency's internal tracking number,
identity of individual making the complaint, and identity of the air carrier,
contractor or sub-contractor alleged to have violated 49 U.S.C. § 42121.
• At least once per fiscal year,
representatives from each agency will meet to discuss performance under this
MOU, investigation coordination issues, and other potential whistleblower investigation
improvements beneficial to both agencies.
Each agency acknowledges
the mutual benefit of training, briefings, and other opportunities for information
sharing involving both agencies. Whenever possible, OSHA and FAA agree to offer
personnel of the other agency invitations as students, instructors or subject
matter experts in areas involving investigation of complaints under 49 U.S.C.
§ 42121, or other areas of expertise by each agency. Any travel expenses for
employees participating in such opportunities will be borne by that employee's
agency, unless other arrangements are agreed upon prior to travel.
IV. INFORMATION SHARING
Each agency agrees
to share all information it obtains related to each complaint made under 49
U.S.C. § 42121, upon request by the other agency. If an agency that has received
information under this MOU receives a Freedom of Information Act (FOIA) request
for which records that it received pursuant to this MOU are responsive, the
agency will comply with provisions in its FOIA regulations governing the handling
of referrals and consultations. For DOL those provisions are found at 29 C.F.R.
§ 70.20(b). For FAA those provisions are found at 49 C.F.R. § 7.28(c).
In such cases,
the agency making the referral will notify the requestor that a referral has
been made and that a response will issue directly from the other agency.
V. EFFECT OF AGREEMENT
is an internal Government agreement and is not intended to confer any right
upon any private person. This MOU represents the broad outline of the Parties'
present intent to collaborate in areas of mutual interest to FAA and OSHA. It
does not create binding, enforceable obligations against either agency. This
MOU does not alter, amend, or affect in any way the statutory or regulatory
authority of the FAA or OSHA. This MOU and all associated agreements will be
subject to the applicable policies, rules, regulations, and statutes under which
FAA and OSHA operate.
undertaken pursuant to this MOU are subject to the availability of personnel,
resources, and funds. Nothing in this MOU shall obligate FAA and OSHA to any
current expenditure or future expenditure of resources in advance of the availability
of appropriations from Congress.
This MOU replaces
the agencies' MOU of March 22, 2002. This MOU does not alter the agencies' MOU
dated August 26, 2014, concerning the occupational safety and health standards
for aircraft cabin crewmembers. This MOU does not affect the ability of the
parties to enter into other agreements or arrangements related to this MOU.
VI. LIAISON OFFICERS
To facilitate the
activities carried out under this MOU, each agency will establish a single agency
liaison. The liaison will be:
For OSHA: Directorate of Whistleblower Protection
Programs, OSHADOL 200 Constitution Ave, NW, Room N-4618, Washington, D.C. 20210;
For FAA: Office of Audit and Evaluation, AAE-100
800 Independence Ave, SW, Washington, D.C. 20591
Each agency may
designate a new liaison at any time by notifying the other in writing. If at
any time, an individual designated as a liaison under this agreement becomes
unavailable to fulfill those functions, the agency will name a new liaison and
notify the other agency through the designated liaison.
VII. EFFECTIVE DATE
is effective upon signature by both parties. It may be amended at any time by
mutual agreement of the agencies and may be terminated by either agency upon
sixty (60) days written notice.
RESERVED. Paragraphs 11-129 through 11-142.