AAM-09-192-E 

 

 Exemption No. 9927 

UNITED STATES OF AMERICA 

DEPARTMENT OF TRANSPORTATION 

FEDERAL AVIATION ADMINISTRATION 

WASHINGTON, DC 20591 

 

In the matter of the petition of 

 

DELTA AIR LINES, INC. Regulatory Docket No. FAA-2009-0308

 

for an exemption from part 121, 

appendices I and J 

of Title 14, Code of 

Federal Regulations 

 

GRANT OF EXEMPTION 

 By letter dated March 23, 2009, Mr. Robert L. Kight, Vice President-Compensation, 

Benefits & Services, Delta Air Lines, Inc. (Delta), P.O. Box 20706, Atlanta, GA 30320 

petitioned the Federal Aviation Administration (FAA) on behalf of Delta for an exemption 

from part 121, appendices I and J of Title 14, Code of Federal Regulations (14 CFR). The 

proposed exemption, if granted, would permit Delta to operate its drug and alcohol testing 

program in unison with Northwest Airlines, Inc’s., drug and alcohol testing program. 

The petitioner requests relief from the following regulation:

Part 121, appendices I and J of Title 14, prescribes, in pertinent part, that the drug and 

alcohol testing program is designed to prevent accidents and injuries that result from 

the use of prohibited drugs and the misuse of alcohol by any employee who performs 

safety-sensitive functions for a part 119 certificate holder with authority to operate 

under parts 121 and/or 135 or an operator as defined in § 91.147. 
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The petitioner supports its request with the following information:

Delta petitioned the FAA for an exemption from the regulatory requirements to 

maintain two separate drug and alcohol testing programs prior to issuance of a single 

operating certificate for its merger with Northwest. Delta and Northwest merged into 

one corporate structure on October 29, 2008. Although both companies have operated 

separately since the merger, Northwest is now a wholly owned subsidiary of Delta. On 

November 19, 2008, the FAA Administrator officially approved “operations in 

common” for all Northwest and Delta domestic, flag, and supplemental operations. 

Delta anticipates the issuance of the single operating certificate on or before 

December 31, 2009, and wishes to operate both Delta and Northwest’s drug and 

alcohol testing programs in unison prior to the final single operating certificate 

issuance date. Delta contends that both air carriers have long, established Department 

of Transportation (DOT) mandated drug and alcohol testing programs where both 

carriers meet or exceed FAA regulatory requirements. Delta claims that granting 

exemptions from the FAA’s drug and alcohol testing regulations (part 121, appendices 

I and J) in the areas of pre-employment testing, random testing accounting, education 

and training, and administration will “increase the testing safety net while providing an 

effective, unified, and credible detection and deterrence program across the two 

merging certificates.” 

Delta states that a grant of exemption would be in the public interest. Northwest 

employees who perform safety-sensitive functions are subject to a robust and 

comprehensive FAA-approved testing program. This testing ensures that active 

substance abusers are detected and prevented from performing safety-sensitive 

functions. In addition, Northwest employees who perform safety-sensitive functions 

have been screened for any prior drug and alcohol testing violations at actual and 

potential employers. 

The petitioner states that Delta, Northwest, and the FAA have invested significant 

resources to ensure a seamless transition during the merger and integration process for 

the safety of customers and the general public. A grant of exemption would be in the 

public interest by the on-going implementation of an orderly and compliant transition 

plan. 

The petitioner further states that a grant of exemption would not adversely affect 

safety. Delta contends that the Northwest employees who perform safety sensitive 

functions already have been, and continue to be, screened for substance use for prior 

employment-related drug and alcohol testing violations. 

Delta states that granting the exemption would likely provide an extra margin of safety 

in many situations. Although program operations would remain separate during the 

entire merger process, relief from some burdens of separate program administration 

would promote the use of combined resources. Delta states that these combined 
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resources would act as a resource and safety multiplier (especially in the crossutilization of awareness training and trained supervisors) throughout both carrier 

networks. The petitioner states this extra margin of safety could not otherwise be 

obtained if Delta and Northwest are burdened with functioning as fully separate 

administrative entities during the merger process. 

 The FAA has determined that good cause exists for waiving the requirement for Federal 

Register publication because the exemption, if granted, would not set a precedent, and any 

delay in acting on this petition would be detrimental to Delta. 

The FAA's analysis is as follows:

The FAA has considered fully the petitioner’s request and supporting materials and 

finds that a grant of exemption would be in the public interest and would maintain a 

level of safety equivalent to that provided by the current regulations. 

The FAA’s drug and alcohol testing regulations require employers to conduct preemployment testing before hiring or transferring individuals into safety-sensitive 

functions. Delta requests relief from performing pre-employment drug testing on 

individuals that transfer from the Northwest certificate to the existing Delta and/or 

new Delta operating certificate. Delta is not seeking relief from conducting preemployment testing for individuals that are hired. Delta contends that Northwest 

employees have been screened for substance use and are subject to a robust, on-going, 

and comprehensive DOT mandated drug and alcohol testing program. Additionally, 

Delta states that individuals transferred from Northwest to Delta will perform the same 

functions as prior to the merger. The FAA has issued a grant of exemption in 

circumstances similar in all material respects to those presented in the request for relief 

from the pre-employment testing requirement. Delta’s reasons do not differ materially 

from those presented by the findings of the precedent setting grant of Exemption 

No. 6960. That exemption allowed individuals to be transferred from one operating 

certificate to the other without performing pre-employment testing. The FAA finds a 

grant of exemption from the pre-employment testing requirement does not adversely 

impact safety and is in the public interest. 

The FAA’s drug and alcohol testing regulations require employers to submit 

Management Information System (MIS) annual report data relating to the statistics of 

random testing conducted within the calendar year for their programs. Delta requests 

immediate temporary relief to extend one year past the issuance of their single 

operating certificate for possible MIS statistical anomalies. Delta contends that if the 

actual completion date of the single operating certificate issuance fails to coincide with 

the normal MIS reporting period, its MIS reports may falsely indicate a level of 

insufficient testing. The FAA recognizes employees that perform work under the 

Delta certificate will increase exponentially as Northwest employees are transferred. 

Additionally, the FAA understands statistical data relating to random selections may 
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be affected if MIS reporting dates do not directly correlate with the date of the single 

operating certificate issuance. The FAA finds a grant of exemption from adherence to 

the MIS annual report data does not adversely impact safety when the following 

conditions and limitations are imposed: 

1. Delta and Northwest must submit MIS annual report data that is within 2 

percent of the Administrator’s minimum annual rate. Specifically, the 

amount to be tested for drugs is no less than 24.5 percent (2 % of 25%) and 

for alcohol no less than 9.8 percent (2 % of 10 %). 

2. Northwest must continue to submit MIS annual report data for each year or 

portion thereof for which they are in operation. 

The FAA’s drug and alcohol regulations require each employer’s Employee Assistance 

Program (EAP) to display and distribute informational material containing a 

community hot-line telephone number for employee assistance. Delta requests 

immediate temporary relief to extend one year past the issuance of their single 

operating certificate from the requirement to display and distribute informational 

material. The regulations require distribution of the employer’s policy regarding drug 

and alcohol use in the workplace. Delta requests permanent relief from redistributing 

its company policy on drug and alcohol use in the workplace to employees that transfer 

from Northwest. The regulations require that each employer’s EAP educate and train 

employees on drug and alcohol use and train supervisory personnel that make 

determinations for testing based on reasonable cause/suspicion. Delta requests 

permanent relief from the training requirement for employees and initial training in 

determining reasonable cause/suspicion testing for supervisors that transfer from the 

Northwest operating certificate. Delta contends that Northwest’s drug and alcohol 

testing program bears remarkable similarities in all aspects to that of Delta’s. Also, 

Delta explains that honoring the training and education of the Northwest supervisory 

personnel, trained in the signs and symptoms detection will create an immediate, 

credible, and effective deterrent throughout the combined operating system. The FAA 

realizes that both Delta and Northwest drug and alcohol testing programs are similar in 

content and administration. The FAA agrees with Delta’s contention that honoring the 

training and education of the Northwest supervisory personnel creates an immediate, 

significant deterrent. The FAA finds a grant of exemption from the requirement to redistribute Delta’s company policy on drug and alcohol use in the workplace to 

employees that are transferred from the Northwest certificate does not adversely 

impact safety. The FAA finds a grant of exemption from requiring Delta to re-educate 

former Northwest employees and re-train former Northwest supervisory personnel 

does not adversely impact safety. The FAA finds a grant of exemption from the 

requirement of displaying informational materials and hotline numbers does not 

adversely impact safety when the following condition and limitation is met: 

 All Delta locations must be in compliance with the requirement to display 

informational materials and hotline numbers within 6 months of the single 

operating certificate issuance date. The FAA finds that further delay in 
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complying with this requirement would affect the FAA’s drug and alcohol 

testing inspection process and may adversely impact the safety of the flying 

public. 

The FAA’s drug and alcohol testing regulations require that employers have at least 

two of an employee’s supervisors, one trained in the detection of the symptoms of 

possible drug use, substantiate and concur in the decision to test the employee who is 

reasonably suspected of drug and/or alcohol use. Delta requests temporary 

modification to the requirement that both supervisors that concur to make reasonable 

cause/suspicion determinations be employed under the same carrier/certificate. Delta 

requests a grant of exemption that allows the determination be made by supervisors 

from either the Delta or Northwest certificate to be able to concur on reasonable 

cause/suspicion testing until a single operating certificate is issued. Delta contends 

cross utilization of supervisors would enhance safety by creating a force multiplier of 

program surrogates available to ensure program integrity. The FAA recognizes that a 

larger pool of supervisors available to make timely reasonable cause/suspicion 

determinations increases the flying public’s level of safety. A larger pool of 

supervisors can be created by allowing one or both supervisors from either the Delta or 

Northwest certificate to make reasonable cause/suspicion testing determinations. The 

FAA finds a grant of exemption from the two supervisor reasonable cause/suspicion 

requirement does not adversely impact safety and is in the public interest. 

The FAA’s drug and alcohol testing regulations, in accordance with the Department of 

Transportation’s (DOT) procedural regulation 49 CFR part 40, require employers to 

keep confidential the drug and alcohol testing records of its employees. Delta requests 

temporary relief from confidentiality requirements so that information pertaining to 

each certificate’s employees’ drug and alcohol testing records can be shared between 

Delta and Northwest. Delta contends that immediate and temporary exemption from 

confidentiality requirements would allow better management of merged, single-source 

laboratory and MRO resources. Delta contends that safety will be enhanced by 

allowing multiple program managers to make corrections to appropriate certificate 

files. The FAA finds a grant of exemption from the confidentiality requirements may 

be either favorable or unfavorable, based on the DOT’s determination of Delta’s 

request for exemption to 49 CFR part 40. Therefore, the following condition and 

limitation is applied: 

The FAA’s confidentiality requirements are regulated by the DOT’s procedural 

regulation 49 CFR part 40, specifically, § 40.25. The FAA concurs with the 

DOT’s determination regarding confidentiality requirements. Delta must refer 

to the DOT decision.

The FAA’s drug and alcohol testing regulations require, for the purposes of 

examination, employers must have the ability to produce all records at the employer’s 

place of business. Delta requests temporary relief from the requirement and wishes to 

store historical records at different locations prior to and for one year after the issuance 

of the single operating certificate. The FAA recognizes that each carrier stores records 
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in different locations. The FAA finds a grant of exemption from the requirement to 

produce all testing records at one central employer location will not adversely impact 

safety when the following condition and limitation is applied: 

All drug and alcohol testing records for the combined programs (Delta and 

Northwest) must be produced at one central employer location within 6 months 

of the single certificate issuance date. The FAA finds that further delay in 

complying with this requirement would affect the FAA’s drug and alcohol 

testing inspection process and may adversely impact the safety of the flying 

public. 

Delta’s request for exemption includes relief from the DOT’s procedural regulation, 

49 CFR part 40. The Department’s Office of Drug & Alcohol Policy & Compliance 

will address the part 40 exemption parts. 

The FAA’s Decision 

 In consideration of the foregoing, I find that a grant of exemption is in the public interest. 

Therefore, pursuant to the authority contained in 49 U.S.C. §§ 40113 and 44701, delegated to 

me by the Administrator, Delta Air Lines, Inc., is granted an exemption from part 121, 

appendices I and J to the extent necessary to allow Delta Airlines, Inc., to permit Delta to 

operate its drug and alcohol testing program in unison with Northwest Airlines, Inc., drug and 

alcohol testing program, subject to the conditions and limitations listed below. 

Conditions and Limitations 

1. Delta and Northwest must submit MIS annual report data that is within 2 percent of 

the administrator’s minimum annual rate. Specifically, the amount to be tested for 

drugs is no less than 24.5 percent (2% of 25%) and for alcohol no less than 9.8 percent 

(2% of 10%). 

2. Northwest must continue to submit MIS annual report data for each year or portion 

thereof for which they are in operation. 

3. All Delta locations must be in compliance with the requirement to display 

informational materials and hotline numbers within 6 months of the single operating 

certificate issuance date. 

4. All drug and alcohol testing records for the combined programs (Delta and Northwest) 

must be produced at one central employer location within 6 months of the single 

certificate issuance date. 
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5. The FAA’s confidentiality requirements are regulated by the DOT’s procedural 

regulation 49 CFR part 40, specifically § 40.25. The FAA concurs with the DOT’s 

determination regarding confidentiality requirements. Delta must refer to the DOT 

decision.

This exemption terminates on May 31, 2010, unless sooner superseded or rescinded. 

Issued in Washington, DC, on September 2, 2009. 

/s/ 

James R. Fraser 

Deputy Federal Air Surgeon