West Bend Air, Inc. 

Post Office Box. 409 

West Bend. WI 53095 

262.334.5603 phone 

262.334.5662 fax. 

July 11, 2013 

Fond du Lac Skyport 

N6308 Rolling Meadows Dr. 

Fond du Lac. WI 54937 

920.922.6000 phone 

920.922.8706 fax. 

U.S. Dept. of Transportation 

DocketOperations, M-JO 

West BuildingGround Floor, Room Wl2-140 

1200 New Jersey Ave, SE 

Washington, D.C. 20590 . 

Ladies and Gentlemen: 

Exemption No. 9965A 

Regulatory Docket No. F AA-2009-0990 

RE: Extension Request 

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West Bend Air, Inc. would like to apply for an extension to our Exemption No. 9965A, 

Regulatory Docket No. F AA-2009~0990 for a period of two;.. years (from the expiration date of 

11-30-2013) out to I r-30-2015, for the same reasons sighted in our original petition (encl.). 

We have included, for your convenience, a copy of: (I.) your letter approving our original 

exemption request and (2.) our original petition for exemption. 

R ards~ ·~~-.. ·.· (. . -

4~. . 

Craig Devenport 

President · 

West Bend Air, Inc. 
u.s. Depcl'tment 

of 1anspcr1alion 

FedM'aiAIMitoli 

AclrNnlsttallan 

N()vember 16, 2009 

Mr. John M. Morris 

Director of Operations 

West Bend Air, Inc. 

P.O. Box409 

WestBend. WI 53095 

Dear Mr. Morris: 

Exemption No. 9965 

BOO Independence Ave . S W 

WaslungiOI'I. DC 20591 

Regulatory Docket No. F AA-2009-0990 

COP~' 

This Jetter is to infonn you that we have granred your request for exemption. It transmits our 

decision, explains its basis, and gives you the conditions and limitations of the exemption, 

including the date it ends. 

The Basis for Our Decision 

By letter dated October 12, 2009, you petitioned the Federal Aviation Administration (FAA) 

on behalf of West Bend Air, Inc. (WB Air), for an exemption from part 120 ofTitle 14, Code 

ofFederal Regulations (14 CFR). That exemption, if granted, would allow WB Air, which is 

operating under separate parts of the regulations, to cover its safety-sensitive employees 

Wlder one testing program. 

The FAA has determined that good cause exists for not publishing a swnmary of the petition 

in the Fed.eral Reeister because the requested exemption would not set a precedent, and any 

delay in acting on this petition would be detrimental to WB Air. 

The FAA has issued a grant of exemption in circumstances similar in all material respects to 

those presented in your petition. In Grant of Exemption No. 9703 (copy enclosed). the FAA 

found that Solid Edge's § 91.147 air tour operations were closely connected to its part 135 

operations. The FAA also fotmd that combining the petitioner's two testing programs into 

one would be in the public interest and would maintain an equivalent level of safety to that 

provided by the current regulations. Thus, the FAA concluded it was unnecessary to burden 

the petitioner by requiring it to conduct two separate testing programs. 

AAM-I 0-038-E 
'\ 

.,,, 

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1 

Having reviewed your reasons for requesting an exemption, I fmd that-

• they do not differ materially from those presented by the petitioner in the enclosed grant 

of exemption; 

• the reasons stated by the FAA for granting the enclosed exemption also apply to the 

situation you present; and 

• a grant of exemption is in the public interest. 

Our Decision 

Under the authority contained in 49 U.S.C. 40113 and 44701, which the FAA Administrator 

has delegated to me, I hereby grant WB Air an exemption from part 120 to the extent 

necess81)' to allow WB Air, which is operating under separate parts of the regulations, to 

cover its safety-sensitive employees under one testing program, subject to the conditions and 

limitations described beJow. 

Conditions and Limitations 

1. Employees ofWB Air are subject to the drug and alcohol regulations at aJI times 

while conducting operations tmder part 135 or part 91. 

2. The drug and aJcohol testing program must be implemented under the auspices of 

the WB Air part 135 operation, not under the part 91. 

This exemption terminates on No~·ember 30, 2011, unless sooner superseded or rescinded. 

Sincerely, 

Is/ 

Frederick E. Tilton, M.D. 

Federal Air Surgeon 

Enclosure 

COpy 

2 
..... AJr.Jac. 

r'olr Officr 'Box .of()C) "'e.r Bend. WI S309, 

fond ni.M Sltypon 

f'o/6308 Rolli .. M~M Dr. 

fonddu w. WI ~?J7 

,;!62.)3.4.~) P'w-

;tG2.334.S66:Z f.u 

'120. 922.6000 p"'-" 

920.921.11706 fax 

October 12, 2009 • • I ·" ,-,- ' . ' • .,1 •• ' I 

U.S. Department ofTnwsportation 

Docket Management System 

1200 New Jersey Ave. SE 

West Building Ground Floor, Rm. Wl2-140 

Washington, DC 20590 

Ladies and Gentl~en: 

COPY 

West Bend Air, Inc. is seeking relieffrom 14 CFR Part 120.117 (b) (2). Formerly 14 

CFR 121 Appendix I (IX) (b) (2). as it is currently being interpreted. which is requiring 

us to maintain two (2) completely separate Random Drug and Alcohol Testing Programs. 

West Bend Air is in complete agreement with the regulations to eliminate Drug and 

alcohol abuse through implementation of a Random Drug and Alcohol Testing Program 

which has been accomplished through its Charter operation under Part 135 for both pilots 

and mechanics. .tlowever. West Bend Air believes it is an unnecessary burden for the 

company to cmy a second Random Drug and Alcohol Testing Program to cover the Air 

Tour operation under Part 91.147. 

Even though West Bend Air utilizes different classes of aircraft for each operation, (Multi 

Engine for its Part 135 operation and Single Engine for its Part 91.147 operation) all the 

aircraft are flown by the same pilots and maintained by the same mechanics, all of whom 

are covered by West Bend Air's Random Drug and Alcohol Testing Program under its 

Part 135 certificate as mentioned above. 

After careful consideration of the regulations and literature distributed by the U.S. 

Department ofTnmsportation. (DOT) West Bend Air is also of the opinion that, as noted 

below. the impleutentation of a duplicate Random Drug and Alcohol Testing Program is 

not required. 

The publication "!lest Practices for DOT Random Drug and Alcohol Testing" (actually 

written and published prior to the drug rule being switched from 14 CFR Part 121 to 14 

CFR Part 120, yet still current on the DOT Web Sight) from the U.S Department of 

Transportation-Office of the Seaetary-O.ffice of Drug and Alcohol Policy and 

Compliance asks the question on page two (2) in section IV. "{SetdD.g-Up a Random 

Pool of Employees}". Under item B. '"Can an employer regulated by different DOT 

agencies put its mnplones in tbe same random pools?"'. The answers is .. YES. 

Employen and Consortiaffbird Party Admillbtraton (CffPAs) sobjed to more 

than one DOT Atency drug and alcohol testing rule may combble covered DOT 

safety-sensitive eJDployees iDto a single random pool." 
COP"' 

Surely if employees of the same company that are covered by different DOT agencies 

such as FAA, FMCSA, FRA, FT A, PHMSA, USCG, are allowed to be eombiDed into a 

single random pool, wouldn»t it also stand tbe test of reason (be logical) for company 

employees covered under just one DOT agency namely the FAA even though operating 

under two (2) different regulations (such as 14 CFR Part13.5 and 14 CFR Part 91) to be 

given the same allowance? I can't think of anything more "Regulation Number 

Different" than FMCSA -(Motor Carrier) operating under 49 CFR Part 382 and FRA -

(Railroad) operating under 49 CFR Part 219 as given in their example. 

So what is the ''drug" diffenmce in operations under Part 135 Vs Part 91 in comparison to 

Part 382 Vs Part 219? Unless 14 CPR and 49 CFR are totally unrelated and warrant 

different coosidcrations, which is highly doubttbl. 

PJease also note that if an Employer, West Bend Air is a "Cornpany•• yet 1 believe tbat it 

would also tit the de1inition of an Employer, has two (2) employees, one covered by Jets 

say the FAA- (Aviation}, and the other covered by lets say the FMCSA- (Motor 

Carrier), that Employer, according to their example. is still considered to be One (1) 

Employer "Company" and NOT Two (2) different Employers "Companies"! I point this 

out only because the FAA's position on the subject is contrary to what has been placed in 

writing by the DOT. 

On page 3 of the same pamphlet in Section C. The question is asked: "Don au 

employee performfag duties eovered by more than one DOT Ageney deed to be iD 

multiple pools?" 

The answer is: "AD employee perforadllg dudes subject to more thu one DOT 

Ageney's regulations mast be randomly tetted at the percentage nte estabUshecl for 

the c.lendar year by the DOT Ageney regulating more than 50 perceat of the 

employee's funetiou. So ifyoa have u employee who drives your ttaeks 75 peneut 

of tbe t:lmf and operates your traDJJt buues 25 pereeat of the dme, ttaat employee 

Deeds to be iD die FMCSA-regulated pooL" 

Please note, as indicated from the above example. should West Bend Air choose on its 

own to incorporate two separate .Random Testing Programs, the employee would still 

only need to be placed in one (1) random pool not both. 

1'he U.S. Department of transportation- Office of the SecretBiy- Office of Drug and 

Alcohol Policy and Compliance has r~issued another publication, ftom August of2009 

which makes it current for this situation, called ~what employen Deed to know about 

DOT Drug 11Dd Alcohol Testlug (Guidance ud Best Pradfees)" 

On page 17 in that booklet under the heading of Random. 

The seventh (7., paragraph ftom the top States: 

~Employers aud CtrP As subject to more th11D oae DOT Aaeacy clrua ud alcohol 

tesdag rule may combiDe covered DOT nfety-leDS.itive e.mpJoyftl iato a siDgl.e 

random pool (for e:umple, trabl encfneen ad track driven)." 
.... COPY 

What is the purpose, or the intent if you will, of the regulation requiring Random Drug 

and Alcohol testing? 

Although not stated directly anywhere but alluded to many times, the regulation is in 

place to .. deter drug and alcohol use by safety-sensitive employees in the work place". 

The real "deterrent fac:to.r" is not having dual drug testing programs but rather having the 

safety-sensitive employee understand that regardless of past testing that employee is 

eligible for a random selection at any time. In the pamphlet Best Practices for DOT 

Random Drug and Alcohol Testing (mentioned above) on page 3 under section E. t6How 

ofteu should aeledion1 a~~d tests take plaee?" it states: '"What makes random tadag 

so effective JJ the eleJBeut of surprile." 

I have taken the liberty ofbreaking down a small portion of the New Regulation 14 CFR 

Part J 20 for ease of exploration. 

The new regulation 14 CFRPart 120.117 (d) (3) (formerly 14 CFR 121 Appendix I 

(IX)(d) (3)) is quoted below. 

14 CFR Part 120.117 States: .. Implementing a drug testing program ... 

Section (d) States: "Obtaining an Antidrug and Alcohol Misuse Prevention Program 

Operations Specification."' 

Sub-Section (3) States: "Yoa are reqa.lrecl to obtala oaly oae Autidrug and Alcohol 

MJsase Preventioa Program Operations Spedficadon to ndsfy this requlreme.at 

uuder tbfs part." 

West Bend Air has maintained a safe drug and alcohol free operation since its inception 

some 20 years ago and has no intention of letting up on its vigilance. 

With this petition West Bend Air respectfully requests an exemption from canying a 

second Random Drug and Alcohol Test.ins Program. 

West Bend Air would prefer uti1izing this entire request as a summary should it be 

necessary to place something in the Federal Registry. 

Thank you for your considerations . 

.,~ 

AY! 

rJJ~. 

est a1.~ ~Inc. John M. Morris 

~ectorof~tions 

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