pg. 1 March 7, 2011

U.S. Department of Transportation

Docket Management System

400 7th Street, SW

Room PL 401 Washington, DC 20591

‐ 0001

Via electronic submission: http://dms.dot.gov/ Subject In advance of the conversion to a Single Oper ating Certificate, Con tinental Airlines, in accordance with 14 CFR § 11.61(b) is petitioning the Federal Aviation Administration (FAA) for an exemption from Part 120, Code of Federa l Regulations (14 CFR) and Department of Transportation (DOT) procedural regulations, 49 CFR Part 40. Approval of this exemption would permit United Airlines (UAL) to migrate its drug and alcohol testing program into the existing FAA approved Continental Airlines’ (CAL ) drug and alcohol testing program. It is assumed that employees covered under Continen tal’s current operating certificate will not require the need for this exemption. At SOC th e name reflected on the Continental certificate

will be revised to read as United Airlines. Granting an exemption in the areas of pre-empl oyment requirements, education and training, and administration will significantly im prove the oversight of both corporations. The capability to share program administration combines valuable resources and reduces the burden of managing separate programs. The ability to cross-utili ze supervisors that are trained to detect the symptoms of drug and alcohol us e increases the availability of this valuable resource. The availability of additional supervisors will ha ve a positive impact on the timeliness of making

these determinations and will increase the leve l of safety for both operating certificates. Drug and Alcohol Testing Programs Both Continental and United recogni ze that many of the critical processes and procedures used by each corporation are closely aligned. The best practices that are al ready in use by each corporation will further enhance the Con tinental Single Operating Certificate.

Both Continental and United have well-estab lished drug and alcohol testing programs as mandated by the Department of Transportation. Both Continental’s and United’s drug and alcohol testing programs exceed FAA regulator y requirements. Both corporation’s FAAapproved programs comply with 14 CFR Part 120, which states in part: the drug and alcohol testing program is designed to prevent accidents and injuries that result from the use of prohibited drugs and the misuse of alcohol by any employee who performs safety-sensitive

functions for a Part 119 certificate holder with authority to operate under Parts 121 and/or 135, or an operator as defined in § 91.147. Continental submits a petition for an exemption from the regulatory requirements to maintain two separate drug and alcohol te sting programs prior to issuance of a single operating certificate for its merger with United. Pre-Employment Requirements Continental Airlines and United comply with th e pre-employment requirements set forth by Part 120. All new hire employees have successfully completed pre-employment drug screening and background checks. These employees have been continually covered under an FAA drug and Safety & Regulatory Compliance
Post Office Box 4607 HQSSY Houston, TX 77210-4607

Tel 713 324 8598

Fax 713 324 8538

continental.compg. 2 alcohol testing program since th ey were hired, and have been subjected to random testing as required.

• Continental requests relief from performing pre

‐ employment drug testing on individuals

that transfer from the United certificate to the Continental Single Operating Certificate.

New

‐ hires will continue to be screened through pre

‐ employment drug testing as required. (item 10)

Continental and United comply with the Depa rtment of Transportation (DOT) procedural regulations 49 CFR Part 40, specifically § 40.25, th at requires the employer to verify drug and alcohol testing records of its employees prior to the employee performing safety-sensitive duties. This regulation applies only to employees seekin g to begin performing safe ty-sensitive duties for

the first time.

• Continental requests relief from performing drug and alcohol violation checks as required by § 40.25 on individuals that transfer from the United certificate to the

Continental Single Operating Certificate. New

‐ hires will continue to be subject to the
requirements of § 40.25. (item 1)

Service Agents

Both Continental and United use various collection sites, on-s ite collectors, and vendors to perform drug screen collections and breath alco hol testing across our systems. Both companies are aware of the requirements in 49 CFR Part 40 for service agents, including collectors and breath alcohol technicians, to have the proper DER contact info rmation, and realize the link to ensuring the safety of the airline relies on co mmunication between the DER and service agents. Prior to and up through commencement of a single operating certificate, all service agents will be advised through written corres pondence of the changes in the DER name, phone numbers, mailing addresses, and additional contact informa tion. This correspondence will be distributed to primary service agents in person to ensure compliance with the regulations. However, replacement of the chain of custody forms (CCF) a nd breath alcohol testin g forms (ATF) that are currently distributed to the service agents will take time and would be next to impossible to accomplish on the exact day of the issuance of a single operating certificate.

• Continental requests immediate temporary relief to extend twelve months from the

issuance of Continental’s Single Operating Certificate from providing chain of custody forms or breath

‐ alcohol testing forms which list correct DER contact information.
Furthermore, Continental requests immediate temporary relief of the restriction to modify the CCF and ATF during the transition phase of programs.(item 2, 3, 4, 5, 6, 7, )

Education and Training United employees will continue to perform the sa me safety-critical functions after migrating to the Continental Single Operating Certificate, when issued. United employees performing safetycritical functions have been previously edu cated and trained through the comprehensive FAAapproved drug testing program.pg. 3 FAA drug and alcohol regulations require an Employee Assistance Program to educate and train employees on drug and alcohol use. Regulations also require th at supervisory personnel be

trained to make determinations for te sting based on reasonable cause/suspicion.

• Continental requests permanent relief from the education and training requirements for

United employees who are currently trained and transfer to the Continental Airlines Single Operating Certificate. (item 14, 18)

United’s supervisory personnel are trained as re quired by the FAA to detect the signs and symptoms of drug and/or alcohol abuse. Granting permanent relief for United’s currently trained supervisors for training in determining reasona ble cause/suspicion tes ting would demonstrate

confidence in the effectiveness of Unite d’s drug and alcohol testing program.

• Continental requests permanent relief for United’s supervisors who are currently trained

in determining reasonable cause/suspicion testing. (item 11, 14 )

The level of safety for Continental and United w ould significantly increase by allowing the use of supervisors from across operating certificates to make reasonable cause/suspicion testingdeterminations until the issuance of the Single Op erating Certificate. The increased number of supervisors that would be available to make timely reasonable cause/suspicion determinations would increase the level of safety a nd is in the public’s best interest. FAA drug and alcohol regulations require that employers have at least two of the employee’s supervisors to substantiate and concur in the decision to test the employee who is reasonably suspected of drug use. One of the two supervis ors must be trained in the detection of the symptoms of possible drug use.

• Continental requests temporary modification to the requirement that both supervisors

that concur to make reasonable cause determinations be employed under the same carrier/certificate. Continental requests a grant of exemption that allows the

determination be made by supervisors from either the Continental or United certificate

to be able to concur on reasonable cause/suspicion testing. (item 11,16)

In accordance with 14 CFR Part 120.115, the FAA drug and alcohol regulations require distribution of the employer’s policy regard ing drug and alcohol use in the workplace.

• Continental contends that United’s company policy on drug and alcohol use in the
workplace is very closely aligned to that in place at Continental and therefore should not require redistribution by Continental. Therefore, Continental requests permanent relief from redistributing its company policy on drug and alcohol use in the workplace to employees that transfer from United. (item 17)

Confidentiality and Administrative Rules Continental and United comply with the FAA drug and alcohol testing regulations, which requires that employees’ drug and alcohol tes ting records be kept confidential. The FAA confidentiality requirements ar e regulated by the DOT’s proce dural regulation 49 CFR Part 40, specifically § 40.321 and § 120.111. Continental c ontends that allowi ng confidentiality requirements to be extended across both operating certificates would allow for better management of shared laboratory and Medical Review Officer resources.pg. 4 • Continental requests immediate relief and temporary exemption from confidentially
requirements so that information pertaining to each employee’s drug and alcohol testing

records can be shared between Continental and United. (item 8, 13)

FAA drug and alcohol testing regula tions require that employers mu st have the ability to produce all records, for the purpose of exam ination, at the employer’s workplace.

• Continental requests temporary relief from this requirement. Continental and United will

store historical records at different locations prior to and for 12 months after the

Continental Single Operating Certificate is issued. All drug and alcohol testing records for

both Continental and United will be produced at one central employer location within 12

months of the issuance of the Single Operating Certificate. (item 10, 12, 15)

Conclusion The FAA has previously issued a precedent-set ting grant of exemption (number 6960) in which

individuals were allowed to tr ansfer from one operating cert ificate to the other without performing pre-employment testing. Continental’ s requests for relief from pre-employment testing requirements do not differ materially from those of the precedent-setting grant of exemption number 6960.

In addition, a grant of relief wa s issued to Delta Airlines dur ing the merger of Delta and Northwest Airlines. Continental closely revi ewed the FAA’s public document “Grant of Exemption Number 9927” that was issued to Delta Airlines on September 2, 2009. The FAA agreed with Delta Airlines’ statement that employ ees of Northwest Airlines that perform safety sensitive functions had already been, and continue to be, screened for substance use. Each of Delta’s requests for relief, in cluding supporting materials, that was presented to the FAA is similar in most aspects to those pres ented here by Continental Airlines.

Most recently, a grant of relief was issued to Continental Airlines dur ing the integration of

Continental Micronesia. Each of Continental’s requests for relief, including supporting materials, that was presented to the FAA is similar to those presented here.

In each of the three instances cited above, the FAA found that a grant of exemption would not adversely impact safety and was in the public in terest. Continental contends that good cause exists for not publishing a summary of the petition in the Federal Register because the requested exemption would not set a precedent, and a ny delay in acting on th is petition would be

detrimental to Continental and United’s efforts. Continental also conten ds that good cause exists for waiving the requirement for the 120 day adva nced notice of request and associated Federal Register publication, in accordance with Sec tion 11.87 of the Federal Aviation Regulations.

Continental further contends there would be no ri sk to safety and any delay in acting on this petition would be detrimental to the flying public and Continental. The following table contains a detailed list of each regulation fr om which Continental seeks relief.
Request

Number Regulation Summary of Requirement Exemption Requested Type of

Relief Duration

of Reliefpg. 5 Request

Number Regulation Summary of Requirement Exemption Requested Type of

Relief Duration

of Relief

1 49 CFR

40.25 Drug and

alcohol

violation

checks Waive requirement to conduct drug and alcohol

records checks on current employees covered by UAL

program. Permanent n/a

2 49 CFR

40.35 DER Contact

Information Waive requirement to provide appropriate DER contact

information to collectors on pre-printed forms. Temporary 12

moths past SOC

issuance

3 49 CFR 40.45.(c) (2) CCF Required

Information Waive the restriction to modify and revise the CCF during program transition phase. Temporary 12

months past SOC

issuance

4 49 CFR 40.209(c) Corrective

Action Waive enforcement action

based on lack of documentation correcting administrative errors on drug

tests. Temporary 12

months past SOC

issuance

5 49 CFR

40.215 DER Contact

Information Waive requirement to provide appropriate DER contact

information to collectors on pre-printed forms. Temporary 12

months past SOC

issuance

6 49 CFR

40.225 Breath

Alcohol Testing ATF Waive the restriction to modify and revise the ATF during program transition phase. Temporary 12

months past SOC

issuance

7 49 CFR

40.275 Corrective

Action –

BAT Waive enforcement action

based on lack of documentation correcting

administrative errors on

alcohol tests. Temporary 12

months past SOC

issuance

8 49 CFR

40.321 Confidentiali ty of Records Waive requirement of employee consent to release

information between employers to allow sharing of personnel information

between UAL and CAL. Temporary Until

issuance

of SOC

9 49 CFR

40 Subpart Q Service Agents Waive restrictions of service agents so that each airline can be mutually used as a service agent to each other. Temporary Until

issuance

of SOCpg. 6 Request

Number Regulation Summary of Requirement Exemption Requested Type of

Relief Duration

of Relief

10 14 CFR

Part

120.109 (a) PreEmployment Testing Waive pre-employment drug test requirements for active and inactive employees currently covered under UAL approved programs. Permanent n/a

11 14 CFR

Part

120.109 (d) Reasonable

Cause Testing Waive requirement of employee’s supervisor to

determine reasonable cause to allow for supervisors of CAL

or UAL to make

determination of need to conduct testing. Temporary Until

issuance

of SOC

12 14 CFR

Part

120.111 (a)(2) MRO Record

Retention Waive requirement to move MRO records within 10 days. Temporary 12

months past SOC

issuance

13 14 CFR

Part 120.111(c) Release of drug testing

information Waive restrictions for releasing employee

information between CAL and UAL during transition of programs but prior to SOC. Temporary Until

issuance

of SOC

14 14 CFR

Part

120.115 EAP Training Programs Waive requirements for employee and supervisor training. Allow for all currently trained employees and supervisors to transition training records to

Continental. Permanent n/a

15 14 CFR

Part

120.117 (d)(iv) Ops Specs

address requirement Waive requirement to list a specific location for all testing records. Temporary 12

months past SOC

issuance

16 14 CFR

Part

120.217 (d) (2) Reasonable Suspicion

Alcohol Testing Waive requirement of employee’s supervisor to

determine reasonable suspicion to allow for supervisors of CAL or UAL

to make determination of need to conduct testing. Temporary Until

issuance

of SOCpg. 7 Request

Number Regulation Summary of Requirement Exemption Requested Type of

Relief Duration

of Relief

17 14 CFR

Part

120.223 (a) Policy on

Alcohol

Misuse Waive requirements to distribute policy to employees. Permanent n/a

18 14 CFR

Part

120.223 (b) Supervisor Training Waive requirements for employee and supervisor training. Allow for all currently trained employees and supervisors to transition training records to new

company. Permanent n/a

If you need assistance or further clarification on any of the matters list ed above, please contact Pat Claiborne, Manager – Drug Abatement at 713-324-5295. Sincerely,

Captain Donald L. Gunther Staff Vice President - Safety

DLG/PAT/rmc