3/19/09

 

8900.1 CHG 33

VOLUME 11  FLIGHT STANDARDS PROGRAMS

CHAPTER 3  WHISTLEBLOWER PROTECTION PROGRAM (AIR CARRIER)

Section 2  Responsibilities and Procedures

Indicates new/changed information.

11-117    QUALITY, INTEGRATION AND PROCESS DIVISION (AQS-100). 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 inter-agency 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 106–181 (AIR21),

·    Notifying the OSHA of WBPP complaints in accordance (IAW) 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, if appropriate,

·    Reviewing investigative reports,

·    Remanding investigative reports 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.

11-118    DIRECTOR, FLIGHT STANDARDS SERVICE (AFS-1). AFS-1 is responsible for:

·    Assigning investigations to a region other than the certificate holding region,

·    Tracking progress of investigations,

·    Overseeing investigation process,

·    Reviewing investigation memos from regional division managers. Memos should include details of the investigation including dates, times, and names of persons interviewed; whether the allegations were substantiated; whether corrective or enforcement action is taken or planned, or why the allegations were not substantiated; and

·    Forwarding memos with attachments (investigation report and copy of administrative action) to AQS-1 within 45 days of assignment.

11-119    EXECUTIVE FLIGHT STANDARDS (AFS-10). The Headquarters point of contact for AFS, AFS-10, is responsible for:

·    Reviewing WBPP complaints assigned to AFS,

·    Determining appropriate office for assignment of the investigation,

·    Preparing transmittal memo,

·    Transmitting assignment package to investigating office,

·    Reviewing investigation reports, and

·    Forwarding completed reports to AFS-1 or remanding reports for further investigation or clarification, if necessary.

11-120    REGIONAL DIVISION MANAGER. Each regional division manager is responsible, within their region, for:

·    Assigning investigations to an appropriate office,

·    Tracking progress of investigations,

·    Overseeing investigation process,

·    Reviewing and signing regional division manager’s memo to AFS-1. Memo should include details of the investigation, including dates, times, and names of persons interviewed; whether the allegations were substantiated; whether corrective or enforcement action is taken or planned, or why the allegations were not substantiated; and

·    Forwarding regional division manager’s memo with attached investigation report and copy of administrative action to AFS-1.

11-121    REGIONAL WHISTLEBLOWER COORDINATOR (RWBC). Each RWBC is responsible, within their region, for the following:

·    Serving as the focal point on all matters concerning WBPP complaints,

·    Providing WBPP assistance to the 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 field personnel to ensure that investigators understand their WBPP investigation responsibilities,

·    Responding to public inquires about the Whistleblower Program,

·    Reviewing investigative reports to ensure that each safety allegation has been adequately investigated and responded to, including appropriate corrective action and

·    Preparing a memorandum from the regional division manager to AFS-1, ATTN: AFS-10, when the investigative report is deemed acceptable.

11-122    INSPECTOR/INVESTIGATOR DUTIES.

·    Immediately notifying RWBC when a complaint is received directly. The RWBC will forward the complaint to AFS-10 who will contact AQS-100 to determine whether it falls within WBPP guidelines. If so, AQS-100 will assign a unique tracking number, forward it to AFS-1. The assigned Region will determine the investigating office;

·    Informing potentially covered employees, when contacted directly about employer discrimination or anti-discrimination programs, that the WBPP may be available;

·    Explaining, when a complaint is received directly, that OSHA must received a written complaint within 90 days;

·    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 results through your office manager and regional office to the Director of Flight Standards (AFS-1), Attn: AFS-10; 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 Headquarters or they may contact the FAA personnel directly with whistleblower information regarding an alleged violation relating to air carrier safety. AFS personnel receiving a complaint directly should immediately tell the complainant about the WBPP. Clearly advise them that they should contact the OSHA as soon as possible if they intend to pursue a personal remedy for discrimination. Promptly contact your Regional Whistleblower Coordinator and forward the written complaint to them.

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. AFS personnel receiving a potential whistleblower complaint directly should immediately notify their RWBC. The RWBC will forward the complaint to AFS-10 who will contact AQS-100 to determine whether it falls within the WBPP guidelines. However received, AQS-100 will assign a unique tracking number and forward appropriate complaints to AFS-1 for assignment. AFS-1 through AFS-10, will assign the investigation to the appropriate region. The assigned region will determine the investigating office.

NOTE:  WBPP tracking numbers are composed of “WB,” 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: WB0301 = 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 complainant’s identity. It is imperative to keep 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.
7)    Take appropriate enforcement or corrective action, if necessary, or close the matter out with no action.

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 taken or contemplated. Alternatively, explain why no enforcement action was taken or contemplated.
3)    Prepare a memo from the manager of the investigating office to the regional division manager summarizing the preliminary results. Specify details including dates, times, and 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 Enforcement Investigative Report (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, cite the reference number. If no action is taken, explain why not.
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.    Regional Office Review. The regional division manager and RWBC review preliminary results for completeness of the investigation and sufficiency of the action taken.

1)    When the regional division manager concurs, the RWBC will send the report, report summary, and concurrence to AFS-1, ATTN: AFS-10.
2)    If the regional division manager does not concur, the RWBC returns the report to the investigating office for further investigation or clarification.

NOTE:  The RWBC will notify AQS‑100 when each enforcement action is closed in order to facilitate the processing of Freedom of Information Act (FOIA) requests.

11-124    SPECIAL ENFORCEMENT CONSIDERATION The FAA Order 2150.3 Compliance and Enforcement Program (current edition), 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 (5 U.S.C. § 552a) or agency rules of conduct and may be protected from disclosure under the FOIA. Questions concerning disclosure of information contained in whistleblower complaints should be directed to the responsible Regional Counsel. Regional Counsel may wish to contact 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.

B.    Disciplinary Action. Prior instances when the 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 and 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 AQS-100.

C.    Request Steps. AQS-100 will:

1)    Gather responsive records,
2)    Determine whether the records are releasable, and
3)    Prepare responses for AQS-1 signature.

D.    Processing Division. AQS-100 processes all WBPP 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) are handled as follows:

1)    If the FOIA request is received at Headquarters, the request is assigned to AQS‑100 to determine if EIR records exist. If so, AQS-100 notifies ARC-40 within 24 hours to do a multiple assignment to the appropriate region for action. Action by the regional legal office will address only EIR legal records.
2)    If the FOIA request is received at a Regional Office, the RWBC 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 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 them to your RWBC who will add copies of any records the regional office may have and forward the entire package to AQS‑100.

11-128    SHARING OF INFORMATION WITH OSHA. Upon request, an agent of the 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 the OSHA without the FAA authorization.

Figure 11‑18, FAA/OSHA MOU

MEMORANDUM OF UNDERSTANDING

between

THE FEDERAL AVIATION ADMINISTRATION

U.S. DEPARTMENT OF TRANSPORTATION

and

THE OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION

U.S. DEPARTMENT OF LABOR

I. PURPOSE
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.
II. BACKGROUND
The Aviation Whistleblower Protection Program, 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 the 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 proceeding.
The FAA and the Secretary of Labor, through the Occupational Safety and Health Administration (OSHA), both have responsibilities related to 49 U.S.C. § 42121. The 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. The FAA enforcement action may include air carrier and/or airman certificate suspension and/or revocation and/or the imposition of civil penalties. Additionally, the FAA may issue civil penalties for violations of 49 U.S.C. § 42121. The 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 attorney fees.
Although the FAA and the 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. PROCESS FOR COORDINATION
This MOU sets forth a process that the FAA and the OSHA agree to follow.
The FAA and the OSHA will establish a procedure for coordinating and supporting enforcement of 49 U.S.C. § 42121. The OSHA agrees to promptly notify the FAA national headquarters Whistleblower Protection Program point of contact of any discrimination complaints filed with the Department of Labor (DOL) under 49 U.S.C. § 42121. The OSHA will promptly provide the FAA with a copy of the complaint, findings and preliminary orders, investigation reports, and orders associated with any hearing or administrative appeal related to the complaint. The OSHA will also keep the FAA currently 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 the FAA of alleged discrimination that involves air carrier safety, the FAA will investigate the safety complaint and will provide the OSHA with a copy of the individual’s allegations. The FAA will inform the individual that a personal remedy for discrimination is available only through DOL and that the individual should personally contact DOL. The FAA will provide the individual with the local address and telephone number of the nearest OSHA office and advise the individual that the law requires that complaints be filed with the OSHA within ninety (90) days of the alleged discrimination.
The FAA and the OSHA agree to cooperate with each other to the fullest extent possible in every case of alleged discrimination involving an employee of air carrier or air carrier contractor or subcontractor of an air carrier. Each agency agrees to share all information it obtains relating to each complaint of discrimination and will adopt mutually agreeable procedures for the protection of information that either agency deems confidential.
Each agency shall designate and maintain points of contact within its national headquarters and regional offices for purposes of implementation of this MOU and continued program oversight. A national headquarters Aviation Whistleblower Protection Program point of contact will be established and identified by each agency within ten (10) days after the effective date of this agreement. Regional office points of contact for each agency will be identified within six (6) months after the effective date of this agreement. Matters affecting program procedures and policy issues will be handled by the respective national headquarters office of each agency.
IV. IMPLEMENTATION
The FAA official responsible for implementation of this Agreement is the FAA Administrator; the DOL official responsible for implementation of this Agreement is the OSHA Assistant Secretary.
V. AMENDMENT AND TERMINATION
This Agreement may be amended or modified upon written agreement by both parties to the Agreement. The Agreement may be terminated upon ninety (90) days written notice by either party.
VI. LEGAL EFFECT
Nothing in this MOU is intended to diminish or otherwise affect the authority of either agency to implement its respective statutory functions, including the OSHA authority under the Occupational Safety and Health Act, 29 U.S.C. 651 et seq., nor is it intended to create any right or benefit, substantive or procedural, enforceable at law by a party against the United States, its agencies, its officers, or any other person. This MOU is effective upon signature by both parties.

/S/

Jane F. Garvey

Administrator

Federal Aviation Administration

U.S Department of Transportation

/S/

John L. Henshaw

Assistant Secretary

Occupational Safety and Health Administration

U.S. Department of Labor

Date:   03-11-02

Date:   03-22-02

RESERVED. Paragraphs 11‑129 through 11‑142.