Memorandum of Understanding
between the
United States Department of Labor
Occupational Safety and Health Administration
and the
National Transportation Safety Board

1. PURPOSE AND SCOPE

   The purpose of this Memorandum of Understanding (MOU) is to set forth the working relationship between the National Transportation Safety Board (NTSB) and the United States Department of Labor's Occupational Safety and Health Administration (OSHA) in the area of transportation accident and incident investigations. This MOU, entered into under the authority of 49 U.S.C. § 1131 and the Occupational Safety and Health Act of 1970 (OSH Act), 29 U.S.C. § 651 et seq., establishes the general procedures for cooperation and coordination between the two agencies in order to facilitate each agency's efficient and effective execution of its respective responsibilities.

   The scope of this MOU is limited to parallel investigations conducted by the NTSB and OSHA. In cases where OSHA is a party to an NTSB investigation, OSHA agrees to be bound by 49 CFR Part 831 and to take all necessary steps to ensure its enforcement activities remain separate and distinct from its participation in the NTSB's party process.

   Additionally, this MOU is not intended to and does not affect or govern any criminal investigation. If the potential for criminal prosecution exists with respect to a particular accident or incident, OSHA and NTSB will coordinate to ensure the maximum amount of cooperation with criminal investigators. Likewise, this MOU does not apply in the case of an investigation conducted by the Federal Bureau of Investigation under the provisions of 49 U.S.C. § 1131(a)(2)(B).

2. BACKGROUND AND RESPONSIBILITIES

   1. OSHA

      OSHA is the federal agency authorized by the OSH Act to promulgate and enforce mandatory safety and health standards for the purpose of assuring, so far as possible, safe and healthful working conditions for every worker in the United States.

      OSHA conducts inspections of workplaces to determine compliance with the OSH Act and specific OSHA standards. When violations of the OSH Act or OSHA standards are found, OSHA is authorized to issue citations to employers, propose penalties, and require abatement of hazards.

      Under section 18 of the OSH Act, states may elect to administer their own occupational safety and health programs, or "State Plans," which must be approved and monitored by federal OSHA. As such, OSHA does not delegate authority to the states, but rather removes the bar of preemption through State Plan approval. Other federal and state government agencies are expected to work with and interact with State Plans in a similar manner as they would with federal OSHA and State Plans are encouraged to work cooperatively with NTSB. However, only OSHA and NTSB are parties to this memorandum of understanding and the State Plans are not bound by the terms contained herein.

   2. NTSB

      The National Transportation Safety Board (NTSB) is an independent federal agency charged with investigating every civil aviation accident in the United States and significant accidents in the other modes of transportation: railroad, highway, marine, pipeline and hazardous materials. Following an investigation, the NTSB issues an official determination regarding probable cause and, as appropriate, safety recommendations to prevent future accidents. The NTSB also investigates certain incidents that present significant safety issues. Safety recommendations are based on findings of the investigation and may address deficiencies that do not pertain directly to what is ultimately determined to be the probable cause of the accident. The NTSB may issue safety recommendations before the completion of a specific investigation and may designate some recommendations as "urgent."

3. PRINCIPLES OF COORDINATION

   Except in cases involving an intentional criminal act and certain major marine casualties, the NTSB's investigation of a transportation accident has "priority over any investigation by another department, agency, or instrumentality of the Unites States Government." 49 U.S.C. § 1131(a)(2)(A). In the immediate aftermath of a transportation accident, the NTSB is thus the presumptive lead federal investigative agency and has first right to access wreckage, information, and resources, and to interview pertinent witnesses. While this investigative priority does not affect the authority of another federal agency "to investigate an accident under applicable law or to obtain information directly from the parties involved in, and witnesses to, the accident," advance coordination between the NTSB and the relevant agency is critical to avoid unnecessary interference with or complication of either agency's investigation. Indeed, Congress has mandated that "[t]he Board and other departments, agencies, and instrumentalities shall ensure that appropriate information developed about the accident is exchanged in a timely manner."

   The NTSB will accommodate OSHA's needs to the extent practical, consistent with the needs of the NTSB investigation. Additionally, NTSB and OSHA investigators will, to the extent permitted by law, coordinate with other federal, state, and local investigatory and response groups to minimize duplication of efforts and to ensure that response and investigative activities do not compromise worker safety and health.

   1. Investigation of accidents and incidents

      As the lead Federal agency, the NTSB will assume control of on-scene investigation activities of accidents and incidents falling under its jurisdiction. NTSB's primary goal will be to determine the probable cause(s) of the accident or incident. Consistent with the OSH Act, OSHA may need to conduct enforcement activities in parallel with an NTSB investigation. OSHA's primary goal following an incident will be to determine whether the employer was in compliance with the OSH Act and any applicable OSHA standards or regulations.

      NTSB recognizes that OSHA, pursuant to the statutory requirements of the OSH Act, has its own statutory investigative requirements and is required to issue any potential citations for violations of the Act or OSHA standards within six months of exposure to a hazard. OSHA personnel will coordinate in advance with the NTSB Investigator-in-Charge (IIC) all OSHA activity on-scene, as well as any OSHA fact-finding conducted elsewhere. This procedure is intended to ensure that neither NTSB nor OSHA investigative activities unnecessarily compromise the other agency's investigation. NTSB investigations will be conducted pursuant to NTSB policies and procedures (including 49 CFR Part 831).

   2. Access to Wreckage and Information, Testing, and Interviews

      The NTSB shall have first right to access wreckage, information, and resources, and to interview witnesses the NTSB deems pertinent to its investigation. Likewise, NTSB shall have exclusive authority to decide when and how testing and examination of evidence will occur. NTSB shall provide for appropriate participation by OSHA in witness interviews, document collection, testing and examination of evidence, and other investigative activities which OSHA deems pertinent to its investigation.

      OSHA enforcement interviews separate from the NTSB investigation shall be coordinated in advance by OSHA with the NTSB IIC. OSHA must notify the IIC of any special requirements dictated by the circumstances of the OSHA investigation so that any issues can be resolved without undue delay. The NTSB IIC will notify OSHA if the NTSB has no interest in a particular interview or class of witnesses in order to minimize potential delays to OSHA interviews necessitated by NTSB-OSHA coordination. NTSB recognizes that OSHA places a high priority on maintaining the confidentiality of employee witnesses because of the danger of retaliation. Each agency will follow its respective procedure for the handling and protection of interview transcripts.

      In the event that a site security agreement is needed for a complex investigation, NTSB and OSHA will ensure that any agreement allows OSHA full access to the site, as well as any relevant evidence, to ensure timely completion of the OSHA investigation.

      During an NTSB investigation, to avoid duplication of effort, OSHA must coordinate with the NTSB IIC prior to requesting information from other individuals or entities (whether or not such individuals or entities are parties to the NTSB investigation.). Each agency reserves the right to approve any request to review or copy documents or evidence in its possession that was not obtained through the party process prior to release of the documents or evidence.

   3. Release of Information

      The NTSB is responsible for the public release of information resulting from an investigation. Any public announcements by OSHA during the course of an investigation must be coordinated in advance through the NTSB Member present at the accident scene or the NTSB's IIC.

      OSHA and NTSB will coordinate their fact-finding efforts consistent with each agency's statutory responsibilities under the OSH Act and 49 U.S.C. § 1131. NTSB's on-site representatives may discuss factual data pertaining to an incident with other on-site agencies. OSHA's regulatory enforcement investigation and information collected shall remain separate from the 49 U.S.C. § 1131 investigation led by the NTSB.

      Each agency will be responsible for properly maintaining the information that it has collected. Each agency will respond to requests for disclosure of material, including Freedom of Information Act (FOIA) requests, and will coordinate with the other agency as necessary to ensure proper application of disclosure and exemption criteria.

   4. Training, Technical and Professional Assistance

      NTSB and OSHA will make their incident and related training programs available to personnel from both agencies.

   5. Accident and Incident Investigation Reports

      Except for OSHA enforcement actions, which must be completed within 6 months of exposure to a hazard, OSHA agrees that it will not release any public reports, studies or findings related to an accident or incident investigated by the NTSB until such time as the NTSB releases its final report on the accident or incident, or such earlier time as may be approved by the NTSB.

      In addition to agency reports, both NTSB and OSHA may use other methods for disseminating information gained from their incident investigations. Such alternative methods can consist of special notices, accident data summaries for relevant industry sectors and presentations to industry trade associations, as well as the posting of findings and lessons learned on NTSB's or OSHA's Internet Home Pages. Methods of addressing the dissemination of information or reports will be agreed upon by both parties to ensure that each agency's respective authorities are not hindered.

      OSHA's separate regulatory enforcement investigation under the OSH Act may lead to report findings that may be released at OSHA's discretion. Information contained in any release by OSHA will be related to data obtained from this separate investigation and will be confined to the regulatory enforcement action. Any information released by OSHA will also be coordinated with the NTSB prior to publication.

   6. Inter-Agency Assistance

      In certain instances, NTSB may decide against sending a team to investigate the site of an incident, instead opting to collect incident information from other on-site agencies. The NTSB may use this information, as well as data that it has collected from other sources, to analyze the incident and determine whether further actions by NTSB are necessary. The use of such incident information by the NTSB in no manner diminishes its own independence nor the separate nature of its investigation.

      If the NTSB requests information from on-site OSHA officials, OSHA will cooperate to the extent permitted by law and provide information to NTSB regarding its investigative activities. OSHA shall furnish such information without expense to the NTSB. The NTSB will not ask OSHA to investigate events that OSHA has not independently chosen to investigate, nor will the NTSB request OSHA to perform investigative activities outside the scope of OSHA's normal practice and statutory authority.

4. OSHA-APPROVED STATE PLANS

   Under section 18 of the OSH Act, states may elect to administer their own occupational safety and health programs, or "State Plans," which must be approved and monitored by federal OSHA. In the 22 comprehensive State Plans, the state covers safety and health enforcement and whistleblower protection in both private sector and state and local government workplaces.¹ OSHA exercises no enforcement authority in these states except in limited areas, such as providing safety and health coverage for federal agencies, maritime facilities, and military bases. Six State Plans cover enforcement and whistleblower protection for state and local government workplaces only, and in these states, OSHA exercises authority over the private sector.² State Plans must be at least as effective as OSHA, but may have more stringent standards or standards covering additional hazards. State Plans may also have some insignificant differences in enforcement procedure and in their anti-retaliation rules. The operations of State Plans, including the release of agency records, documents, and other information, are governed by state law. Other federal and state government agencies are expected to work with and interact with State Plans in a similar manner as they would with federal OSHA, and State Plans are encouraged to work cooperatively with NTSB. However, only OSHA and NTSB are parties to this memorandum of understanding and the State Plans are not bound by the terms contained herein.

5. RESOURCES

   Unless otherwise agreed to in writing in a separate funding document, each agency will bear responsibility for the costs of its activity in any investigation and/or participation in training.

6. DISPUTE RESOLUTION

   In the event of a dispute between NTSB and OSHA investigators during the course of activities covered by this MOU, the NTSB IIC and the OSHA point of contact should endeavor to resolve the matter. If an agreement cannot be reached, unresolved issues should be expeditiously referred to the Points of Contact designated in Section VII for resolution.

7. POINTS OF CONTACT

   The following personnel are designated as the key policy officials for their respective agencies for the purpose of investigations. These key officials are the principal points of contact between the parties in the performance of this MOU.

   NTSB
   Brian Curtis
   Deputy Managing Director for Investigations

   OSHA
   Scott Ketcham
   Director of Construction

8. PERIOD OF AGREEMENT, MODIFICATION, AND TERMINATION

   This agreement is effective for five years upon signature by both parties. Modifications to this MOU must be in writing and signed by both parties. Either party may terminate this MOU upon 90 days advance written notice to the other. In all cases, the confidentiality requirements set forth herein will survive cancellation of this MOU.

   This MOU does not preclude either agency from entering into further agreements setting forth procedures for additional programs that can be addressed more efficiently and expeditiously by special agreement.

9. IMPLEMENTATION

   Nothing in this agreement is intended to diminish or otherwise affect the authority of either agency to implement its respective statutory functions, 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 agreement will be reviewed annually and will be re-signed by all parties every fifth year, unless a requirement requires an updated, signed document prior to the fifth year.

¹ The 22 comprehensive State Plans are: Alaska, Arizona, California, Hawaii, Indiana, Iowa, Kentucky, Maryland, Michigan, Minnesota, Nevada, New Mexico, North Carolina, Oregon, Puerto Rico, South Carolina, Tennessee, Utah, Vermont, Virginia, Washington, and Wyoming.

² The 6 state and local government only State Plans are: Connecticut, Illinois, New Jersey, New York, Maine, and the Virgin Islands.