Exem ption No. 10264

UNITED STATES OF AMERICA

DEPARTMENT OF TRANSPORTATION

FEDERAL AVIATION ADMINISTRATION WASHINGTON, DC 20591

In the matter of the petition of

PINNACLE AIRLINES Regulatory Docket No. FAA-2011-0049

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

DENIAL OF EXEMPTION

By letter dated January 7, 2011, Mr. Craig L. Chilcote, Vice President Safety, Security and

Com pliance, Pinnacle Airlines (Pinnacle), 1689 Nonconnoh Boulevard, Suite 111, Memphis, Tennesee 38132 petitioned the Federal Aviation Administration (FAA) on behalf of Pinnacle for an exemption from part 120 of Title 14, Code of Federal Regulations (14 CFR). The proposed exemption, if granted, would permit Pinnacle to operate its drug and alcohol testing program in unison with Mesaba Aviation, Inc. d.b.a. Mesaba Airlines (Mesaba), 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(b)(1) prescribes, in pertinent part, that except as provided in paragraphs (b)(2) through (b)(4) of this section, the minimum annual percentage rate for random drug testing shall be 50 percent of covered employees.

AFS-11-130-E2

Section 120.217(c) prescribes, in pertinent part, that except as provided in paragraphs (c)(2) through (c)(4) of this section, the minimum annual percentage rate for random alcohol testing will be 25 percent of the covered employees.

Section 120.115(a) prescribes, in pertinent part, that the employer shall provide an employee assistance program (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.

Section 120.223(a)(1) and (a)(1)(i) 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.

(i) The employer shall ensure that a copy of these materials is distributed to eachcovered employee prior to the start of alcohol testing under the employer's FAAmandated alcohol testing program and to each individual subsequently hired for or transferred to a covered position.

The petitioner supports its request with the following information:

The petitioner states in July 2010, Pinnacle purchased Mesaba Airlines, a Regional Airline based out of Minneapolis, MN. Due to the purchase, there is a planned transfer

of assets from Mesaba Airlines to Pinnacle. The asset transfer will include an estimated 1,000 “Safety Sensitive” employees as well as aircraft and other equipment. It would not be practical for Pinnacle to comply with these regulations and still meet the operational requirements of this asset transfer. Since both airlines have been operating safely under the listed regulations, any exemption from these regulations would not affect the safety of airlines and would still meet the intent of the regulations.

Although the petitioner requested that action on its petition not be delayed for publication in

the Federal Register , the FAA found that the petition, if granted, would set a precedent. Therefore, to allow an opportunity for the public to comment on the petition, a summary of this petition was published in the Federal Register on February 24, 2011 (76 FR 10429).

No comments were received.

The FAA's analysis is as follows:

Pinnacle Airlines, Inc., (Pinnacle) a part 121 air carrier, petitioned the Federal Aviation Administration (FAA) for an exemption to re gulatory requirements for pre-employment drug testing, program training, and drug and alcohol records checks for safety-sensitive employees of Mesaba Airlines, Inc. (Mesaba), a separate part 121 air carrier, following an asset transfer. Additionally, Pinnacle is seeking relief from confidential restrictions, statistical anomalies,3

record retention compliance, and temporary relief for their service agents relating to the asset transfer of an estimated 1,000 safety-sensitive employees.

In July, 2010, Pinnacle purchased Mesaba. Due to the purchase, there is a planned transfer of some of the assets which will include an estimated 1,000 safety-sensitive employees as well as aircraft and other equipment. The planned transfer will occur no later than May 7, 2011.

Craig L. Chilcote, Vice President of Pinnacle’s Safety, Security and Compliance, stated that following this transfer, Mesaba’s certificate and operation will remain active. Mr. Chilcote stated that employees received pre-employment drug test, drug and alcohol records checks and training when the employees were originally hired at Mesaba. Mr. Chilcote claims that the safety-sensitive employees transferring from Mesaba to Pinnacle will be conducting the same duties and all will have been included in Mesaba’s DOT/FAA testing program. Mr. Chilcote states that the expected surge of approximately 1,000 employees (an increase of nearly 38 percent) would be an administrative burden imposed on Pinnacle and would not be financially practical.

Mr. Chilcote explains that the FAA has an established precedent in previous airline mergers, and therefore, conducting drug testing and drug and alcohol records checks on former Mesaba employees would not further contribute to aviation safety, and would merely serve as an unnecessary administrative and financial burden to Pinnacle. Thus, as Mr. Chilcote finally states, with respect to the pre-employment process, precedent provides clear justification for approval.

The FAA has considered fully the petitioner’s request and finds that a grant of exemption would not be in the public interest and fails to maintain a level of safety equivalent to that provided by the current regulations.

The FAA's drug and alcohol testing regulation requires each employer to conduct a preemployment drug test and receive a negative result prior to hiring him or her for a safetysensitive function. Pinnacle contends that Mesaba’s employees have been screened for substance use and are subject to a robust, on-going and comprehensive DOT mandated drug and alcohol testing program. Additionally, Pinnacl e states that individuals transferred from Mesaba will perform the same functions as prior to the merger. Pinnacle is describing this as an asset transfer when it is purely one part 121 air carrier hiring individuals from another part 121 air carrier. Although we do have precedence in granting relief when two air carriers merge, this is not a merger and is not a unique situation. Many aviation corporations own two or more air carriers. Therefore, this business relationship between the two airlines owned by Pinnacle Airlines Corporation does not call for an exemption to the regulations and is not supported by precedence.

Pinnacle is also requesting relief from the requirement to conduct the drug and alcohol records check required by the DOT’s 49 CFR part 40, §40.25. The regulation requires that each employer conduct the drug and alcohol records check for each employee seeking to4

begin performing safety-sensitive duties for the first time (i.e., a new hire). As with the preemployment drug testing requirements, Pinnacl e has not demonstrated how not performing this critical records check prior to hiring these individuals for safety-sensitive functions would be in the public interest and maintain an equivalent level of safety. In the Department of Transportation’s response to Delta Airlines, Inc. concerning a request for exemption following a merger, the Director of the Office of Drug and Alcohol Policy and Compliance advised that they did not consider the need for merged companies to obtain background information (49 CFR §40.25) on employees being merged because the gaining company should own and have access to the merged employees’ records. In the situation with Pinnacle, this is not a merger. Therefore, the DOT’s precedent-setting letter does not apply.

Pinnacle is also requesting relief from requirements for training employees covered under their DOT/FAA testing program, claiming it is similar in nature to Mesaba’s training. We disagree. Each employer has specific informa tion pertaining to their testing program, which is why we require all employers to conduct this training upon hiring new employees. Many employees move from one air carrier to the other, and each hire requires similar training. There is nothing extraordinary in this circumstance that would permit Pinnacle not to re-train the 1,000 new employees they hire from Mesaba under Pinnacle’s testing program.

Finally, Pinnacle has made a request for exemption to the FAA’s expectation for compliance with submitting future management information system (MIS) reports (which are not due until March 2012), meeting the random testing rates by the end of 2011, and general confidentiality requirements to share information between carriers. We believe that there is no basis for these requests. As it relates to ensuring Pinnacle meets its annual testing rate by the end of 2011, this is not impossible. Just as we would expect an operator who hires several thousand employees within a calendar year to ensure they meet their annualized rate, we would do the same with Pinnacle. This includes correct reporting of their statistics at the end of the year. The request concerning confidentiality is unnecessary. When Pinnacle hires these individuals, their drug and alcohol records check will include a written release by each employee to allow Mesaba to release their records. Therefore, no confidentiality relief is necessary. The request for temporary relief from any public interest exclusion if a service agent is not compliant is unwarranted. We expect service agent compliance and find this relief to not be a benefit to safety.

Although the petitioner contends in the petition that an exemption would enhance public safety, the FAA can find no benefit to safety that would accrue as a result of safety-sensitive employees being hired from one carrier to the other without a negative pre-employment drug test. Furthermore, we believe a drug and alcohol testing records check is necessary to ensure confidential measures are taken and afforded to the newly hired employees. The FAA finds the petitioner has failed to explain how a level of safety equivalent to that provided by the rule from which relief is sought would be maintained if part 121 certificate holders were not required to comply with regulatory requirements of pre-employment drug testing, drug and alcohol training and drug and alcohol history records checks. Finally, the petitioner has failed to show how it is5

unique from the general class of regulated persons so as to justify relief through an exemption rather than through the general rulemaking process.

It appears that the sole purpose of Pinnacle’s request is to achieve an economic savings. An exemption is not appropriate, and no public benefit would result from an exemption.

The FAA’s Decision:

In consideration of the foregoing, I find that a grant of exem ption would not be in the public interest. Therefore, pursuant to the authority contained in 49 U.S.C. §§ 40113 and 44701, delegated to me by the Administrator, the petition of Pinnacle Airlines, Inc. for an exemption from 14 CFR part 120 is hereby denied.

Issued in Washington, D.C., on May 16, 2011.

/s/
James R. Fraser, M.D. Deputy Federal Air Surgeon .