Exem ption No. 10324

UNITED STATES OF AMERICA

DEPARTMENT OF TRANSPORTATION

FEDERAL AVIATION ADMINISTRATION WASHINGTON, DC 20591

In the matter of the petition of

ATLANTIC SOUTHEAST AIRLINES, INC. Regulatory Docket No. FAA-2011-0423

for an exemption from part 120 of Title 14, Code of Federal Regulations

GRANT OF EXEMPTION

By letter dated April 19, 2011 and am ended petition dated May 5, 2011, Ms. Cathy Harris, Vice President, People Resources, Atlantic Southeast Airlines Inc. (ASA), 990 Toffie Terrace, Atlanta, GA, 30354 petitioned the Federal Aviation Administration (FAA) on behalf of ASA for an exemption from part 120 of Title 14, Code of Federal Regulations (14 CFR). The proposed exemption, if granted, would permit ASA to operate its drug and alcohol testing program in unison with ExpressJet Airlines’ (ExpressJet) drug and alcohol program.

The petitioner requests relief from the following regulations:

Section 120.109(a)(1) prescribes, in pertinent part, that each employer shall conduct the types of testing described in this section in accordance with the procedures set forth in this subpart and the DOT “Procedures for Transportation Workplace Drug Testing Programs” (49 CFR part 40).

(a) Pre-employment drug testing

. (1) No employer may hire any individual for asafety-sensitive function listed in §120.105 unless the employer first conducts a preemployment test and receives a verified negative drug test result for that individual.

Section 120.109(d) prescribes in pertinent part, that each employer must test each employee who performs a safety-sensitive function and who is reasonably suspected of having used a prohibited drug. The decision to test must be based on a reasonable

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and articulable belief that the employee is using a prohibited drug on the basis of specific contemporaneous physical, behavioral , or performance indicators of probable drug use. At least two of the employee's supervisors, one of whom is trained in detection of the symptoms of possible drug use, must substantiate and concur in the decision to test an employee who is reasonably suspected of drug use; except that in the case of an employer, other than a part 121 certificate holder, who employs 50 or fewer employees who perform safety-sensitive functions, one supervisor who is trained in detection of symptoms of possible drug use must substantiate the decision to test an employee who is reasonably suspected of drug use.

Section 120.111(a)(2) and (c), prescribes, in pertinent part, that:

(a) Medical Review Officer record retention requirements. (1) Records concerning drug tests confirmed positive by the laboratory shall be maintained by the MRO for 5 years. Such records include the MRO copies of the custody and control form, medical interviews, documentation of the basis for verifying as negative test results confirmed as positive by the laboratory, any other documentation concerning the MRO's verification process.

(2) Should the employer change MROs for any reason, the employer shall ensure that the former MRO forwards all records maintained pursuant to this rule to the new MRO within ten working days of receiving notice from the employer of the new

MRO's name and address.

(c) Release of drug testing information. An employer shall release information regarding an employee's drug testing results, evaluation, or rehabilitation to a third party in accordance with 49 CFR part 40. Except as required by law, this subpart, or 49 CFR part 40, no employer shall release employee information.

Section 120.115, prescribes, in pertinent part, that:

(a) The employer shall provide an EAP for employees. The employer may establish the EAP as a part of its internal personnel services or the employer may contract with an entity that will provide EAP services to an employee. Each EAP must include education and training on drug use for employees and training for supervisors making determinations for testing of employees based on reasonable

cause.

(b) EAP education program. (1) Each EAP education program must include at least the following elements:

(i) Display and distribution of informational material;

(ii) Display and distribution of a community service hot-line telephone number for employee assistance; and3

(iii) Display and distribution of the employer's policy regarding drug use in the workplace.

(2) The employer's policy shall include information regarding the consequences under the rule of using drugs while performing safety-sensitive functions, receiving a verified positive drug test result, or refusing to submit to a drug test required under

the rule.

(c) EAP training program. (1) Each employer shall implement a reasonable program of initial training for employees. The employee training program must include at least the following elements:

(i) The effects and consequences of drug use on individual health, safety, and work environment;

(ii) The manifestations and behavioral cues that may indicate drug use and abuse; and

(iii) Documentation of training given to employees and employer's supervisory personnel.

(2) The employer's supervisory personnel who will determine when an employee is subject to testing based on reasonable cause shall receive specific training on specific, contemporaneous physical, behavioral, and performance indicators of probable drug use in addition to the training specified in §120.115 (c).

(3) The employer shall ensure that supervisors who will make reasonable cause determinations receive at least 60 minutes of initial training.

(4) The employer shall implement a reasonable recurrent training program for supervisory personnel making reasonable cause determinations during subsequent

years.
(5) The employer shall identify the employee and supervisor for EAP training in the employer's drug testing plan submitted to the FAA for approval.

Section 120.117(d)(iv) prescribes, in pertinent part, that:

(d) Obtaining an Antidrug and Alcohol Misuse Prevention Program Operations Specification. (1) To obtain an Antidrug and Alcohol Misuse Prevention Program Operations Specification, you must cont act your FAA Principal Operations Inspector or Principal Maintenance Inspector. Provide him/her with the following

information:

(iv) Address where your drug and alc ohol testing program records are kept.4

Section 120.217(d)(2) prescribes, in pertinent part, that:

(d) Reasonable suspicion alcohol testing. (1) An employer shall require a covered employee to submit to an alcohol test when the employer has reasonable suspicion to believe that the employee has violated the alcohol misuse prohibitions in §§ 120.19 or 120.37.

(2) The employer's determination that reasonable suspicion exists to require the covered employee to undergo an alcohol test shall be based on specific, contemporaneous, articulable observations concerning the appearance, behavior, speech or body odors of the employee. The required observations shall be made by a supervisor who is trained in detecting the symptoms of alcohol misuse. The supervisor who makes the determination that reasonable suspicion exists shall not conduct the breath alcohol test on that employee.

Section 120.223 (a) and (b) prescribes, in pertinent part, that:

(a) Employer obligation to promulgate a policy on the misuse of alcohol. (1) General requirements. Each employer shall provide educational materials that explain these alcohol testing requirements and the employer's policies and procedures with respect to meeting those requirements.

(b) Training for supervisors. Each employer shall ensure that persons designated to determine whether reasonable suspicion exists to require a covered employee to undergo alcohol testing under §120.217(d) of this subpart receive at least 60 minutes of training on the physical, behavioral, speech, and performance indicators of probable alcohol misuse.

The petitioner supports its request with the following information:

ASA 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 ExpressJet.

ASA 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.

ASA asserts that their request for exemption does not differ from exemptions previously granted by the FAA, specifically Exemption No. 6960 (for American Airlines in August 1999) and Exemption No. 9927 (for Delta Air Lines in September 2009). ASA claims that Delta’s request for relief, including supporting materials, that was presented to the FAA is similar in most aspects to those presented by ASA. Finally, ASA closely reviewed Exemption No. 10233 (for Continental Airlines in April 2011) and determined that Continental’s request for relief is similar to what is presented by ASA.5

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 ASA.

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 is in the public interest and would maintain a level of safety equivalent to that provided by the current regulations.

In response to Delta Air Lines’ request for exemption for areas of 49 CFR part 40, the DOT’s Office of Drug and Alcohol Policy and Compliance provided a response dated July 29, 2009, stating that they do not consider business mergers, take-overs, purchases or buy-outs to be unusual in the transportation industry. It further stated that the DOT considers the gaining company should own and have access to the merged employees’ records. We concur with the DOT’s determination and defer to their response, dated July 29, 2009, to address ASA’s request for exemption from part 40. Therefore, the following analysis only addresses areas of part 120.

The FAA’s drug and alcohol testing regulation requires employers to conduct preemployment testing before hiring or transferring individuals into safety-sensitive functions. ASA requests relief from pe rforming pre-employment drug testing on individuals that transfer from the ExpressJet certificate to the existing ASA operating certificate. ASA is not seeking relief from conducting pre-employment testing for individuals that are hired. ASA contends that ExpressJet employees have been continuously covered under an FAA drug and alcohol testing program since they were hired, and have been subject to random testing as required. ASA asserts that individuals transferred from ExpressJet to ASA will perform the same functions as prior to the merger. The FAA has issued a grant of exemption in circumstancessimilar in all material respects to those presented in the request for relief from the preemployment testing requirement. ASA’s reasons do not differ materially from those presented by the findings of the precedent setting grant of Exemption No. 6960 that 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 regulation requires that each employer’sEmployee Assistance Program (EAP) include education and training for all safetysensitive employees on drug and alcohol use, as well as training supervisory personnel who make determinations for testing based on reasonable cause/suspicion. ASA requests permanent relief from the training requirement for employees and initial training in determining reasonable cause/suspicion testing for supervisors that transfer from the ExpressJet operating certificate. ASA contends that ExpressJet’s drug and alcohol testing program bears remarkable similarities in all aspects to that of ASA’s.6

Also, ASA explains that honoring the tr aining and education of the ExpressJet supervisory personnel, trained in the signs and symptoms detection, will significantly increase the level of safety by allowing the use of supervisors from across operating certificates to make reasonable cause/suspicion testing-determinations. The FAA realizes that both ASA and ExpressJet drug a nd alcohol testing programs are similar in content and administration. The FAA agrees with ASA’s contention that honoring the training and education of the ExpressJet supervisory personnel creates an immediate, significant deterrent.

In regards to training for supervisors, the regulation requires that employers have at least two 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. ASA requests temporary modification to the requirement that both supervisors that concur to make reasonable cause/suspicion determinations be employed under the same carrier/certificate. ASA requests a grant of exemption that allows the determination be made by supervisors from either the ASA or ExpressJet certificate to be able to concur on reasonable cause/suspicion testing until a single operating certificate is issued. ASA contends cross utilization of supervisors would significantly increase the level of safety. 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 ASA or ExpressJet 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.

Another element of an employer’s EAP is to display and distribute informational material containing a community hot-line telephone number for employee assistance. ASA claims that ASA and ExpressJet’s company policy on drug and alcohol use in the workplace is identical. ASA requests permanent relief from redistributing its company policy on drug and alcohol use in the workplace to employees that transfer from ExpressJet.

The FAA finds a grant of exemption from requiring ASA to re-educate former ExpressJet employees and re-train former ExpressJet supervisory personnel does not adversely impact safety. The FAA finds a grant of exemption from the requirement to re-distribute ASA’s company policy on drug and alcohol use in the workplace to employees that are transferred from the ExpressJet certificate 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:7

1. All ASA 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 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 regulations require employers to keep confidential the drug and alcohol testing records of its employees. ASA requests immediate and temporary relief from confidentiality requirements so that information pertaining to each certificate’s employees’ drug and alcohol testing records can be shared between ASA and ExpressJet. ASA contends that immediate and temporary exemption from confidentiality requirement would allow better management of merged, single-source laboratory and MRO resources. The FAA finds a grant of exemption from confidentiality requirements would not adversely impact safety of the flying public.

To allow DOT Agency employees access to employer’s records for examination, the regulation requires each employer to store or have the ability to produce all records at the employer’s place of business. ASA requests temporary relief from the requirement and wishes to store historical r ecords at different locations prior to and for six months after the issuance of the single operating certificate. The FAA recognizes that each carrier stores records 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:

1. All drug and alcohol testing records for the combined programs (ASA and ExpressJet) 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.

We agree with ASA that there are similarities with their request for exemption and the previously granted exem ptions for American Airlines, Delta Air Lines, and Continental. However, there are distinct differences in all of these requests. American Airlines’ exemption for relief from the pre-employment drug testing requirements was general, whereas Delta Air Lines’ request was very specific and included over 26 different areas of 49 CFR part 40 and 14 CFR part 120. Continental’s exemption was identical in nature to Delta, therefore, resulted in a Summary Grant. Due to these differences, including the conditions, we establish this as a distinct exemption and cannot submit for a summary grant. Therefore, we have developed a new analysis and provided specific areas for consideration and analysis.8

Finally, we believe that ASA’s exemption request meets the threshold for good cause in determining a grant would not adversely impact safety and is in the public interest.

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, Atlantic Southeast Airlines, Inc., is granted an exemption from 14 CFR part 120 to the extent necessary to permit ASA to operate its drug and alcohol testing program in unison with ExpressJet’s drug and al cohol program, subject to the conditions and

limitations listed below.

Conditions and Limitations

1. All ASA locations m ust be in compliance with the requirement to display informational materials and hotline numbers within 6 months of the single operating certificate

issuance date.

2. All drug and alcohol testing records for the combined programs (ASA and ExpressJet) must be produced at one central employer location within 6 months of the single

certificate issuance date.

This exemption terminates on August 31, 2013, unless sooner superseded or rescinded.

Issued in Washington, DC, on July 29, 2011.

/s/ Frederick E. Tilton, M.D. Federal Air Surgeon