8/1/18

 

8900.1 CHG 607

VOLUME 11  FLIGHT STANDARDS PROGRAMS

CHAPTER 3  WHISTLEBLOWER PROTECTION PROGRAM (AIR CARRIER)

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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 106–181 (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, if appropriate;

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    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

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    Destroying WBPP case files three years after the case is closed, through completion of enforcement/Compliance Action(s) (CA), if necessary.

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;

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    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;

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    Reviewing ROIs; and

    Forwarding completed reports to the Deputy Executive Director or remanding reports for further investigation or clarification, if necessary.

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11-120    MANAGER, QUALITY CONTROL AND INVESTIGATIONS BRANCH B. The manager is responsible for:

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    Assigning investigations to an appropriate office/personnel;

    Tracking the progress of investigations;

    Overseeing the investigation process;

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    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);

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    Providing technical information and guidance to the FAA front line office personnel to understand their WBPP investigation responsibilities;

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    Ensuring that the ROI safety allegations have been adequately investigated and responded to, including appropriate corrective action; and

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    Preparing a memorandum from Quality Control and Investigations Branch B to Quality Control and Investigations Branch A, when the ROI is deemed acceptable.

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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;

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    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.

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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.

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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.

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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.

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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 2150.3, 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.
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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.
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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).
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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.

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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 2150.3, 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.

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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.
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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.

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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
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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:

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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.
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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.
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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

between

THE FEDERAL AVIATION ADMINISTRATION

U.S. DEPARTMENT OF TRANPORTATION

and

THE OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION U.S. DEPARTMENT OF LABOR

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Wendell H. Ford Aviation Investment and Reform Act for the 21st Century Coordination

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

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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 proceeding.

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 attorney fees.

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.

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III. SUBSTANCE OF THE AGREEMENT

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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.

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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 carrier safety.

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.

C. Training

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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

This 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.

All activities 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, OSHA—DOL 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.

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This Memorandum 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.

Signature Block

RESERVED. Paragraphs 11-129 through 11-142.