AAM

- 15

- 142

- E Exemption No. 11391

UNITED STATES OF AMERICA

DEPARTMENT OF TRANSPORTATION

FEDERAL AVIATION ADMINISTRATION WASHINGTON, DC 20591

In the matter of the petition of

STERLIN G AVIATION d.b.a. Regulatory Docket No. FAA

- 20 14

- 0948

LANDMARK AVIATION

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

GRANT OF EXEMPTION

By letter dated November 10, 2014 , Mr. Robert J. Rufli

, Director of Flight Operations

, Sterling Aviation d.b.a. Landmark Aviation (Sterling)

, 5480 South Howell Avenue, Milwaukee, WI 53207 , operating under certificate # DBCA868D, petitioned the Federal Aviation Administration (FAA) for an exemption from certain FAA drug and alcohol testing regulations in part 120 of Title 14 of the Code of Federal Regulations (14 CFR)

, to the extent necessary to allow five part 135 operators

— Sterling

, Piedmont Ha wthorne Aviation LLC (Piedmont) , Galvin Flying Service Inc. (Galvin) , Midlantic Jet Charters Inc. (Midlantic) , and

Daedalus Inc. (Daedalus )

— to unify their drug and alcohol testing programs into a single

program

. For the reasons described below, we grant t he exemption subject to conditions and

limitations

.

The petitioner requests relief from the following regulation:

As stated in § 120.3, the purpose of p art 120 is “to establish a program designed to help prevent accidents and injuries result ing from the u se of prohibited drugs or the misuse of alcohol by employee s who perform safety

- sensitive function s in aviation.” Section 120.109 require s an employer to conduct pre

- employment drug screening of all new employees.

Section 120.115 requires each employer t o provide an Employee Assistance Program for drug and alcohol abuse, and establishes standards for each such program

. Section s 120. 111 and

120. 219 , among other things, prohibit an employer from releasing certain employee

information contained in drug and alcohol records

. In addition to these specific requirements

, many part 120 regulations require each employer or part 119 certificate holder with authority2

to operate under parts 121 or 135

, and each operator as defined in § 91.147 , to have its own drug an d alcohol testing program

.

The petitioner supports its request with the following information:

The petitioner states that the five companies at issue in this petition are affiliated as subsidiaries of the Landmark Aviation Corporation but have operated wi th separate part 135 certificates and Department of Transportation (DOT) mandated drug and alcohol testing programs. Sterling anticipat es that a single operating certificate will be issued for all five companies’ operations on or before December 31, 2015

. Granting this petition would allow the companies to unify their drug and alcohol testing programs prior to the FAA’s issuance of a single certificate . Sterling states that all of the air carriers have long

- established drug and alcohol testing programs

, a ll meet ing or exceed ing our regulatory requirements. Sterling

states that granting exemptions from the FAA’s drug and alcohol testing regulation s to allow a unified program will “increase the testing safety net while providing an effective, unified, and

c redible detection and deterrence program to all merging certificates.”

We published a summary of the petition in the Federal Register on January 20, 2015 ( 80 FR 2775 ). We received n o comments.

The FAA’ s analysis is as follows:

Section 120.109 require s a n employer to conduct pre

- employment testing before hiring or transferring individuals into safety

- sensitive functions. Sterling requests relief from these requirements for all employee s transfer ring from Piedmont Hawthorne Aviation, Galvin Flying Service , Midlantic Jet Charters, and Daedalus to Sterling’s existing or new operating

certificate. 1 Sterling is not seeking relief with respect to new hires from outside the merging companies . Sterling states that each of the merging compan ies ’ existing

, safety

- sensitive employees has already been screened for substance use and is subject to a robust, on

- going

, and comprehensive drug and alcohol testing program. Furthermore, Sterling states that any individual transferr ing among the five companies will perform the same functions before and

after the merger.

T he FAA has previously issued similar grants in expectation of two companies unifying under a single operating certificate

— most recently in Exemption No. 9927

— but has never issued a n exemption for relief u nder circumstances in which five companies would merge into one.
However, the rationale in our prior grants applies equally here. There, as here, the FAA recognized the public interest in facilitating an orderly and compliant transition towards a

unified drug and alcohol testing program, and found that the exemption had no adverse effect on safety.

1 Sterling also requested relief from a similar provision, § 120.217, conce rning pre

- employment alcohol testing. We need not consider that request here, however, because §120.217 provides that an employer “ may , but [is] not required to, conduct pre

- employment alcohol testing. . . .” (Emphasis added.)3

Section 120.115 require s each employer to maintain an Employee Assistance Program (EAP)

. As part of that program, § 120.115(b)(iii ) and ( c) require, respec tively, each employer to

distribute an employer policy regarding drug and alcohol use in the workplace

, and to provide initial training for employees on the effects and consequences of drug and alcohol use on individual health, safety, and work environment . Sterling requests relief from its obligation to
redistribut e its policy to and retrain any employees transfer ring from Piedmont, Galvin, Midlantic, or Daedalus . Sterling states that all of the companies’ drug and alcohol testing programs will come toge ther into one program maintained through Sterling’s partnership with National Air Transportation Association Compliance S ervices (NATA CS ). Sterling states

that NATA CS will facilitate a seamless transition during the merger and integration process

that is to protect the customer and general public. The FAA recognizes that all of the companies’ drug and alcohol testing programs are similar in content and administration due to

the ir Landmark Aviation affiliation. The FAA also acknowledges Sterling’s forethou ght in
partner ing with NATA CS to create a seamless transition to one drug and alcohol testing

program. Again, t he FAA finds that a grant of exemption from the requirement to re

- distribute Sterling’s policy and re train employees transferr ing from the other four companies is in the public interest and would not adversely affect safety.

Section s 120.111 and 120.219 , among other things, prohibit an employer from releasing the drug and alcohol testing records of its employees. Sterling requests relief from t hese confidentiality requirements in order to share or transfer employees ’ drug and alcohol testing

records among the companies involved . Sterling contends that an exemption from confidentiality requirements would allow better management of a merged, sing le

- source laboratory and Medical Review Officer resources. The FAA finds that a grant of exemption from the confidentiality requirements in § § 120.111 and 120.219

, only to the extent necessary to allow the five affected companies to consolidate employees’ information, does not adversely affect safety and is in the public interest

.

In accordance with our prior exemptions , the FAA finds that a grant would be in the public

interest and would not adversely affect safety

. However, a lso in accordance with our prior exemptions, the FAA finds that certain conditions and limitations are necessary to maintain public safety. First, we do not exempt Sterling or the other companies from the requirements in §§ 120.109(b)(6), 120.119(b), 120.217(c)(6), 120.219(b)(2), w hich collectively require each
company to continue randomly testing at least a minimum percentage of employees and to

continue submit ting Management Information System (MIS) reports in accordance with part 40 of Title 49 of the Code of Federal Regulations (49 CFR)

. Second, all drug and alcohol testing records for the combined programs must be produced at a single central employer location within six months of the issuance of a single operating certificate. Any further delay would affect the FAA’s drug and alcohol inspection process and could adversely impact public safety. Finally, because Sterling did not include the part 145 repair stations associated

with Mid lantic and Daedalus in its petition for exemption, we do not grant those repair

stations relief from our regulations.4

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. §§ 106(f), 40113 and 44701, delegated to me by the Admini strator, Sterling Aviation d.b.a. Landmark Aviation (certificate

# DBCA868D) is granted an exemption from 14 CFR §§ 120.109, 120.111, 120.217, 120.115,

and 120.219, and from other part 120 regulations requiring each employer or certificate holder

to mainta in its own drug and alcohol program, to the extent necessary to allow Sterling to
operate one drug and alcohol testing program in unison with Piedmont Hawthorne Aviation (certificate # I5WA933J) , Galvin Flying Service (certificate # HUNA846E) , Midlantic Je t
Charters (certificate # EGQA525D) , and Daedalus (certificate # DDNA793K) drug and alcohol testing programs , subject to the conditions and limitations listed below. None of these companies is exempted from §§ 120.109(b)(6), 120.119(b), 120.217(c)(6) and 120.219(b)(2), which require each company to randomly test a percentage of its employees at least equal to the minimum required amount, and to submit annual MIS reports in accordance with 49 CFR part 40

.

Conditions and Limitations

1. All drug and alcohol te sting records for the combined programs must be produced at one central employer location within six ( 6 ) months of the single operating certificate

issuance date.

2. The part 145 repai r stations associated with Mid lantic Charters and Daedalus are not granted relief from part 120 requirements.

This exemption terminates on April 30, 201 7 , unless sooner superseded or rescinded.

Issued in Washington, D

. C

. , on April 20, 2015

. .

/s/
James R. Fraser, M.D.

Federal Air Sur g eon