Exemption No. 11852

UNIT E D STATES OF AMERICA DEPARTMENT OF TRANSPORTATION FEDERAL AVIATION ADMINISTRATION WASHINGTON , D C 20591

In th e matter of th e petition of
LAST FRONTIER AVIATION GROUP
for certain exemptions from part 120 ofTitle 14 , Co d e of Federal Regulations 

### Regulatory Docket No. 

### FAA-2015-0561

DENIAL OF EXEMPTION
By letter dated March 3 , 2015 , Mr. David King , Presid e nt , Last Frontier Aviation Group (LFAG) , 1415 N. Local 302 Road , Suite G , Palmer , AK 99645 , petitioned the Federal Aviation Administration (FAA) on behalf of LF AG for an exemption from certain FAA dru g and alcohol testing regulations in part 120 ofTitle 14 ofthe Code of Federal Regulations ( 14 CFR). The propo sed exemption , if granted , would allow two part 135 operators , Last Frontier Air Ventures , Ltd. op e rating under part 135 Certificate No. L49A498I and Prism He licopte rs , Inc. operating under part 135 Certificate No. EOOA6341 (which already operates a combined program with its Part 145 repair station und er the same name and operating Certificate No. EOOR634D) to combine both drug and alcohol pro g ram s into one program.


### The petitioner requested relief from the following regulations: Section 120. 3 prescribes , in pertinent part , that th e purpos e of part 120 is to es tablish a program d es ign e d to he lp preven t accidents and injuri es res ulting from the use of prohibited dru gs or th e misus e of alcohol by e mployees who perform safety-sensitive function s in aviation.

AAM-15-80 1- ESection 120.7 , in pertin e nt part , for the purpo ses of part 120 , defin es 

### E mplo ye r as a part 119 certificate holder with authority to operate under parts 121 and/or 135 ; an op e rator as defined in § 91.147 , or an air traffic control facility not operated by the FAA, or b y, or under contract to th e U.S. Militar y.
Sect ions 120.111 a nd 120.2 19 state , in pertinent part , that an emplo yer is pro hibite d from re le asing cert a in e mpl oyee information co nt ained in drug and alcohol records. In a ddition to th ese s p ec ifi c req uireme nt s, man y pru1 120 regulations require 

### each e mplo yer to ha ve it s 

### own dru g and alcohol t est in g program. 

### The petitioner supports its request with the following information: 2

Th e petition e r s tates that th e two part 135 operations and one part 145 r e pair s tation at issue in this petition are a ffili ated throu g h ownership und e r o ne business g ro up , LFAG. Both co mp a ni es shar e th e sam e pro p e rty and e mplo yees perfo rm safety-sensitive duties for both com pani es u s in g business agree m ent s
. T he co mpani es ha ve operated separate p art 135 Certific ates and the Departm e nt of Transportation (DOT) mandate d dru g a nd a lco hol testing programs a re re m arkab l y s imilar in f unction and ad mini s tration. Granting thi s petition would allow the companies in this g roup (LF AG) to uni fy th e ir drug and alcohol tes tin g program s w hil e continuin g to operate two separate part 1 35 operations and one part 145 r e pair station. LF AG states that g rantin g this exemption from th e FAA's drug and alcoho l testing regulations and a llowing a unifi ed prog ram among the two p art 1 35 operators ( including the part 145 repair station) w ill be in the public interes t due to a decrease in paperwork , s tati stical ano m a li es, ad mini st rati ve costs a nd wo ul d provide a leve l of safety b ecau se the co mpani es co uld s hare inf o rm ation , procedures and processes in a d vanc e of a s ingle s har ed prog ram. This co ll abo rati on w ill a ll ow LF A G to s tre n gthe n the end

- stat e pro gra m by a d o pting a program that covers a ll e mpl oyees
. A s ummary of LFAG ' s petition was publishe d in th e Fed e ral Register on W e dnesday , April 29,2 015 (80 FR 2384 7) with a closin g comment p eriod of May 19 , 2015. No comments were rece iv e d.


### The FAA 's analysis i s as follow s: The FAA caref ull y co n s idered all inform ati on presented by th e pet it io ner and find s that g r

a nting the petition fo r exe mption wou ld n o t provide a leve l of safe ty e qui va le n t to that pro v id ed by th e rul e 

### fi
· 01n which it seeks exe mption a nd, th e r ef

or e, wo uld not b e in the public int e rest.
As defined in § 120.7, eac h e mplo ye r or part 119 ce rtific ate holder w ith authority to operate und e r parts 12 1 or 1 35 and eac h operator as d e fined in § 91.147 mu st h ave it s own drug and a lcoh o l testing progra m. The FAA r egu latio n s do n o t co n s ider g rou p s o r corpo rations as e mpl oyers, and a g roup or corpo ration may not acce pt respo n si bilit y for drug and alcohol tes tin g pro gram compliance. One of the F AA ' s uses of th e air carrier cer tifi cate i s to r ecord

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an air carrier's compliance history. The premise that each employer (i.e. certificate holder) must have its own drug and alcohol testing program assists the agency in its effort to have an accurate image of air carriers ' drug and alcohol testing program compliance. Allowing a business with two air carrier certificates to maintain a unified drug and alcohol testing program could allow the business to present an inaccurate image of compliance for one or both of the certificates. For example , LF AG corporation could decide to align all potential violation history to one of the pat1 135 certificates , regardless of which operating certificate incurs violations. Under this circumstance , the public would be unaware of the true magnitude of a specific air carrier ' s compliance under the regulations created to ensure safety. For this reason , among others, it is imperative for the safety of the flying public that each certificate holder's operating history remains separate.
The FAA has issued grants of exemption to allow a unified drug and alcohol testing program between two employers in expectation of a merger to a single operating certificate. The FAA has not granted an exemption to allow a unified drug and alcohol testing program to two part 135 operators without the benefit of a merger to surrender one of the certificates. The FAA regulation does allow a part 121 or 135 operator to include its employees operating under its pat1 145 repair station certificate , similar to that of Prism Helicopters. This is a common practice and ultimately makes the part 135 operation responsible for all compliance and enforcement issues for the part 145 repair station. Furthermore, current FAA drug and alcohol testing program regulations allow air carriers operating under a part 121 or 135 certificate , and a§ 91.147 operation , to maintain a unified drug and alcohol testing program. Under this circumstance , the incentive to present an accurate image o'f compliance between the air carrier and 

### § 91.147 operator is simpler to achieve since the air carrier must accept that the 

### § 91.14 7 operation will be held to a higher standard of safety, compliance , and potential subsequent violation penalty. LFAG owns and operates two part 135 operations and a part 145 repair station with business agreements in place to allow for a shared safety-sensitive workforce. Many aviation corporations own two or more certificated companies and engage in business agreements to share safety-sensitive workers. Therefore , the FAA does not find LF AG ' s business structure unique. The petition for exemption that LFAG submitted for consideration does not provide an exceptional circumstance that would warrant an exemption to the requirement to maintain separate drug and alcohol testing programs , as each is considered a separate employer.
As previously stated , 

### §§ 120.111 and 120.219 , prohibit an employer from releasing the drug and alcohol testing records of its employees. The LFAG requests relief from these confidentiality requirements in order to share employees ' drug and alcohol testing records among the companies involved. In addition , LFAG contends that an exemption from confidentiality requirements would allow better management and reduce administrative costs. While the petitioner states relief from the confidentiality requirements would reduce costs, the FAA finds that relief would compromise employees' drug and alcohol testing record information. The FAA does not find that a grant of exemption fi·om the confidentiality requirements in 

### §§ 120.111 and 120.219 is in the public interest.

### The FAA recognizes th at the compan ies· drug and alc ohol testi ng programs ar e s imilar in content and adminis tration due t o the i r LFAG affiliation. However, the regu lations r equi re each emp loyer to impleme nt and maint ain separate and distinct drug and alcoho l testi ng prog rams to en sur e pr oper admini s t rati on and s tric t co nfid

. c ntiali ty of em pl oyees' dru g and alc o hol t es ti ng r ecords.
T he F AA's Deci s i o n : 

### In co n sideration of the fo r egoing, I fi nd that a grant of exemption wou ld not be in the publi c in terest. Therefo r e, pursuant t o the au th ority con t ained in 49 U.S.C

. §§ 

### l 06(f), 40 11 3 and 4470 I , de l egat ed to m e by th e Adm in is trato r , the petiti on of th e LFAG for an exe m pt io n from 14 CFR §§ 

### 120.7 , 120. 1 I 1 , and 120.2 19 , and from any other parts of 120 to operate a un i fied drug and alco hol testing program for Last Frontier Ai r Ventures and Prism Hel icopters , Inc. is h ereby denied.
Issued in Washingto n , D.C. , o n 

# JUN 1 7 2015

James R

. Fraser Federal Air Surgeon 

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