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 Marc h 23, 2009, Mr. Robert L. Kight, Vice President-Compensation, Benefits & Services, Delta Air Lines, In c. (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, C ode of Federal Regula tions (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 alc ohol testing program.

The petitioner requests relief from the following regulation:

Part 121, appendices I and J of Title 14, prescribes, in pertin ent part, that the drug and alcohol testing program is designed to pr event 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 cer tificate holder with authority to operate under parts 121 and/or 135 or an ope rator as defined in § 91.147.2

The petitioner supports its request with the following information:

Delta petitioned the FAA for an exemption from the regulatory requirements to maintain two separa te drug and alcohol testing progra ms 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 compan ies have operated separately since the merger, Northwest is now a wholly owned subsidiary of Delta. On November 19, 2008, the FAA Administrator officially approve d “operations in

common” for all Northwest and Delta domes tic, 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, es tablished Department of Transportation (DOT) ma ndated drug and alcohol te sting 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 testin g accounting, education and training, and administration will “increase the testing safety net while providing an effective, unified, and credible detec tion and deterrence program across the two merging certificates.”

Delta states that a grant of exemption w ould 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 a nd 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 implementati on 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 woul d likely provide an extra margin of safety in many situations. Although program ope rations would remain separate during the entire merger process, relief from some bur dens of separate pr ogram administration would promote the use of combined resources. Delta states that these combined3

resources would act as a resource and safety multiplier (especially in the crossutilization of awareness trai ning and trained supervisor s) throughout both carrier networks. The petitioner states this extra margin of safety could not otherwise be

obtained if Delta and Northw est are burdened with functi oning 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 gr anted, 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 petitione r’s request and suppor ting materials and finds that a grant of exemption would be in the public interest and would maintain a level of safety e quivalent to that provided by the current regulations.

The FAA’s drug and alcohol testing regu lations require empl oyers to conduct preemployment testing before hiring or transferring individuals into safety-sensitive functions. Delta requests relief from performing pre-em ployment drug testing on individuals that transfer from the Northwest certificate to the existing Delta and/or new Delta operating certificat e. Delta is not seekin g relief from conducting preemployment testing for individuals that ar e hired. Delta contends that Northwest employees have been screened for substance use and are s ubject to a robust, on-going, and comprehensive DOT mandate d drug and alcohol testin g 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 testin g requirement. Delta’s reas ons do not differ materially from those presented by the findings of the precedent setting grant of Exemption No. 6960. That exemption allowed individua ls to be transfe rred from one operating certificate to the other without performing pr e-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 re gulations require employers to submit Management Information System (MIS) annual report data re lating to the statistics of random testing conducted within the calendar year for th eir 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 re ports 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 ra ndom selections may4

be affected if MIS reporting da tes do not directly correlate w ith 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 annua l report data that is within 2 percent of the Administrator’s min imum 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 re port data for each year or portion thereof for which they are in operation.

The FAA’s drug and alcohol regulations require each empl oyer’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 re quire distribution of the empl oyer’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 pe rsonnel that make

determinations for testin g based on reasonable cause/s uspicion. 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 No rthwest’s drug and alcohol testing program bears remarkable similarities in all aspects to that of Delta’s. Also, Delta explains that honoring the training a nd education of the Northwest supervisory personnel, trained in the signs and symp toms detection will create an immediate, credible, and effective dete rrent throughout the combined operating system. The FAA realizes that both Delta and Northwest drug and alcohol testing pr ograms 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 gran t 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 ex emption from requiring Delta to re-educate former Northwest employees and re-train former Nort hwest supervisory personnel does not adversely impact safety. The F AA 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. Th e FAA finds that further delay in5

complying with this requirement woul d 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 te sting regulations require that employers have at least two of an employee’s supervisors, one trai ned 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 al cohol use. Delta requests temporary modification to the requirement that both s upervisors that concur to make reasonable cause/suspicion determinations be employed under the same carrier/c ertificate. Delta requests a grant of exemption that allows the determination be made by supervisors

from either the Delta or Northwest certifi cate 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 cau se/suspicion testing de terminations. The FAA finds a grant of exemption from the two supervisor reasonable cause/suspicion requirement does not adversely impact sa fety and is in the public interest.

The FAA’s drug and alcohol te sting regulations, in accordan ce with the Department of Transportation’s (DOT) procedural regula tion 49 CFR part 40, require employers to keep confidential the drug a nd alcohol testing records of its employees. Delta requests temporary relief from confidentiality requirements so that information pertaining to each certificate’s employees’ dr ug 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 unf avorable, 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 re gulations 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 diffe rent locations prior to and fo r one year after the issuance of the single operating certificate. The FAA recognizes that each carrier stores records6

in different locations. The FAA finds a gr ant 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 fo r the combined programs (Delta and Northwest) must be produced at one centr al employer location within 6 months of the single certificate issuance date. The FAA finds that further delay in complying with this requirement woul d 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 re lief 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 th at a grant of exemption is in the public interest. Therefore, pursuant to the authority contai ned 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 alc ohol testing program in unison with Northwest Airlines, Inc., drug and alcohol testing program, subject to th e conditions and limitations listed below.

Conditions and Limitations

1. Delta and Northwest must submit MI S annual report data that is within 2 percent of the administrator’s minimum annual rate. Sp ecifically, 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 a nnual 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.7

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