Exemption No. 6960

UNITED STATES OF AMERICA

DEPARTMENT OF TRANSPORTATION

FEDERAL AVIATION ADMINISTRATION WASHINGTON, DC 20591

* * * * * * * * * * * * * * * * * * *

* In the matter of the petition of *

* AMERICAN AIRLINES, INC. * Regulatory Docket

* No. 29706 for an exemption from *

section V.A.1. of * appendix I to part 121 * of Title 14, Code of * Federal Regulations *

*

* * * * * * * * * * * * * * * * * * *

GRANT OF EXEMPTION

By letter dated August 13, 1999, Ms. Tamara S. Wright, Program Manager, Drug & Alcohol Testing, American Airlines, Inc. (American), 4333 Amon Carter Boulevard, Mail Drop 5238, Fort Worth, Texas 76155, petitioned the Federal Aviation Administration (FAA) on behalf of American for an exemption from section V, paragraph (a)(1) of appendix I to part 121 of Title 14, Code of Federal Regulations (14 CFR). The proposed exemption, if granted, would permit each employee performing safety-sensitive functions for Reno Air, Inc. (Reno) as of August 30, 1999, to perform similar functions for American beginning August 31, 1999, without being subject to a pre-employment drug

test.

The petitioner requests relief from the following regulation:

Section V.A.1. of appendix I to part 121 prescribes that prior to the first time an individual performs a safety- sensitive function for an employer, the employer shall require the individual to undergo testing for prohibited drug use.

Although the petitioner requests an exemption from section V.A.1 of appendix I to part 121, the FAA finds that the petitioner also requires relief from the following regulation:

Section 121.457(a) prescribes that each certificate holder or operator shall test each of its employees who performs a function listed in appendix I to part 121 in accordance with that appendix.

AAM-99-528-EThe petitioner supports its request with the following

information:

The petitioner states that American has been testing employees for illicit drug use in accordance with Department of Transportation (DOT) and FAA regulations since 1989. The petitioner adds that it employs approximately 40,000 individuals who perform safety-sensitive functions and that

it maintains its own internal Medical Review Officers.

The petitioner states that American maintains all records in accordance with the applicable requirements of appendix I to part 121.

The petitioner states that Reno has been a wholly owned subsidiary of American since December 23, 1998. After August 31, 1999, Reno's drug and alcohol testing program will be merged with American's. The petitioner indicates that Reno employs approximately 1,000 individuals who perform safety-sensitive functions and, therefore, require drug tests in accordance with appendix I to part 121.

The petitioner states that Reno has been testing employees for drugs in accordance with DOT and FAA regulations since the carrier commenced operations in 1992. The petitioner further states that unlike some other carriers that employ individuals who were not given a pre-employment drug test because they were "grandfathered" when the regulation was promulgated, all Reno employees performing safety-sensitive functions had a verified negative pre-employment drug test.

The petitioner states that Reno maintains all the records for drug testing in accordance with applicable requirements of appendix I to part 121. The petitioner further states that all records will be available immediately to American, thereby providing a verifiable drug test history for each employee.

The petitioner further states that during the transition all covered employees would be continuously subject to an FAA-approved anti-drug and alcohol testing program without interruption. The petitioner adds that in accordance with American's program, employees who were not previously performing safety-sensitive functions or had a break in service will be given pre-employment drug tests. The petitioner also states that American will continue to follow FAA-approved drug and alcohol plan A-SW-00014-S.

The petitioner also states that Reno has no history of FAA enforcement actions regarding its drug testing program. In addition to administering a pre-employment drug test to all employees performing safety-sensitive functions, the petitioner states that Reno has maintained a zero-tolerancepolicy regarding pre-employment drug test failures. Reno does not permit conditional reinstatements for individuals who subsequently might pass a drug test.

In view of these facts, the petitioner contends that requiring American to administer a pre-employment drug test to each Reno employee who performs a safety-sensitive function is unduly burdensome and inconsistent with the intent of the regulations.

The petitioner also contends that granting the proposed exemption would not adversely affect the level of safety. The petitioner states that although Reno employees would be absorbed by American, Reno's airplanes, routes, and airports would be maintained by the current Reno employees who have been continually subject to random drug testing as required by appendix I to part 121 and Reno's approved drug testing

program.

Additionally, the petitioner states that both carriers have a proven documented history of effective and compliant drug testing programs and individual employee records would be immediately available and verifiable. In conclusion, the petitioner states that the fact that both programs are combined does not fundamentally change the level of safety or subvert the purpose of the regulations.

A summary of this petition was published in the Federal Register on August 27, 1999 (64 FR 46965). The comment period closes on September 5, 1999. No comments have been received as

of this date.

The FAA's analysis/summary is as follows:

The FAA has given careful consideration to the facts presented by the petitioner. The FAA finds that a grant of exemption from certain provisions of the drug testing regulations is in the public interest based on the specific facts provided by the petitioner.

The FAA finds that the merger of Reno into petitioner's company is extremely unique with respect to Reno's history of pre-employment testing. FAA inspected Reno twice on routine full-scale inspections and found no failures by the air carrier to pre-employment test its employees. Pre-employment testing is one of the most common violations discovered during inspections, therefore the absence of any such violations is not only rare, but lends credibility to the petitioner's arguments that Reno's safety-sensitive employees had been properly pre-employment tested.

Petitioner has stated that all Reno employees performing a safety-sensitive function had a verified negative pre-employment drug test result because no one was"grandfathered" when the drug testing regulations were promulgated. This is significant because it means that all Reno employees were required to take a pre-employment drug test and received a negative drug test result. As stated above, during inspections, FAA found no failures to conduct pre-employment testing by Reno. These facts make this a very unique situation in which it appears that Reno has met its burden to ensure that individuals crossing its threshold into safety-sensitive functions have been consistently, and without exception, screened for drug use. Therefore, the public interest in ensuring that active drug users are detected and prevented from entering safety-sensitive aviation positions was met diligently by Reno.

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. Sections 40113 and 44701, delegated to me by the Administrator (14 CFR Section 11.53), American Airlines, Inc., is granted an exemption from 14 CFR Section 121.457(a) and section V.A.1. of appendix I to part 121 to the extent necessary to allow each employee performing safety- sensitive functions for Reno Air, Inc., to perform safety- sensitive functions as employees of American without being subject to a pre-employment drug test.

Issued in Washington, DC, on August 27, 1999.

/s/ Robert S. Poole, M.D. Acting Federal Air Surgeon