AAM-10-261-E

Exemption No. 10094

UNITED STATES OF AMERICA

DEPARTMENT OF TRANSPORTATION

FEDERAL AVIATION ADMINISTRATION WASHINGTON, DC 20591

In the matter of the petition of

HAWAIIAN AIRLINES, INC. Regulatory Docket No. FAA-2010-0462

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

GRANT OF EXEMPTION

By letter dated April 20, 2010 Mr. Jonathan B. Hill, Esq., Dow Lohnes, PLLC, Counsel for Hawaiian Airlines, Inc. (Hawaiian), 1200 New Hampsh ire Avenue, NW., Suite 800, Washington, DC 20036 petitioned the Federal Aviatio n Administration (FAA) on behalf of Hawaiian for an exemption from part 120 of Title 14 , Code of Federal Regulations (14 CFR). The proposed exemption, if granted, would allow Haw aiian, which is operating under separate parts of the regulations, to cover its safety-sensi tive employees under one drug and alcohol testing program.

The petitioner request relief from the following re gulation:

Section 120.117(a)(2), states, in pertinent part: I mplementing a drug testing program. If you are an operator as defined in § 91.147 of this chapter you must register with the FAA, by contacting the Flight Standards District Of fice nearest to your principle place

of business.

Section 120.117(b)(2) states, in pertinent part, th at if you intend to begin operations as defined by § 91.147 of this chapter you must:

i. Register with the FAA by contacting the Flight Stan dards District Office nearest to your principle place of business prior to starting operations.2

ii. Implement an FAA drug testing program no later than the date you start operations, and

iii. Meet the requirements of this subpart

Section 120.225(a)(2), states, in pertinent part: How to implement an alcohol testing program. If you are an operator as defined in § 91 .147 of this chapter you must register with the FAA, by contacting the Flight Standards Di strict Office nearest to your principle place of business.

Section 120.225(b)(2) states, in pertinent part, th at if you intend to begin operations as defined by § 91.147 of this chapter you must:

i. Register with the FAA by contacting the Flight Stan dards District Office nearest to your principle place of business prior to starting operations.

ii. Implement an FAA alcohol testing program no later t han the date you start operations, and

iii. Meet the requirements of this subpart

The petitioner supports its request with the follow ing information:

Hawaiian petitioned the FAA for an exemption from t he regulatory requirements to implement and maintain two separate drug and alcoho l testing programs for its part 121 air carrier operations and part 91 air tour operations. Hawaiian has implemented and maintains a drug and alcohol testing program for its part 121 a ir carrier operations and has recently

obtained a letter of authorization to use a histori cal aircraft (Bellanca) to supply air tour operations under § 91.147. Hawaiian has not commen ced its part 91 air tour operations and contends that the requirement to implement an addit ional drug and alcohol program would pose unnecessary costs and administrative burdens. Hawaiian claims it can adequately subject all of its safety-sensitive employees, for both ope rations, to testing under its existing drug and alcohol testing program for the part 121 operations and meet the FAA’s requirements.

The FAA has determined that good cause ex ists for waiving the requirement for Federal Register publication because the exemption, if granted, wou ld not set a precedent, and any delay in acting on this petition would be detriment al to Hawaiian.

The FAA's analysis is as follows:

The FAA has considered the petitioner’s request and supporting materials and finds that a grant of exemption would be in the public interest and would provide a level of safety equivalent to that provided by the current regulati ons.

The FAA’s drug and alcohol testing regulation (part 120) requires a part 119 certificate holder with authority to operate under parts 121 and/or 13 5, or an operator as defined in § 91.147, to3

implement a drug and alcohol testing program. Unde r the regulation, when a company, such as Hawaiian conducts both 121 air carrier operation s and part 91 air tour operations, it is required to implement separate and distinct testing programs, as if each certificate holder were an individual employer. This means that all the te sting requirements, such as pre-employment testing, confidentiality of results, designated emp loyer representative, training programs, etc., must be separate. Therefore, the FAA concurs that Hawaiian requires an exemption from part 120 in order to conduct all of its drug and al cohol testing under one program.

The FAA has granted an exemption to an employer (So lid Edge Aviation, LLC, FAA-2007- 0181) who operates under parts 135 and § 91.147 of the regulations, to cover its safetysensitive employees under one testing program. Con sequently, it is reasonable to conclude that a company, who wants to cover its § 91.147 saf ety-sensitive employees under its part 121 testing program, can do so with a level of safety t hat is equal to that which is achieved by the aforementioned regulated employers.

Requiring separate drug and alcohol testing program s would unnecessarily create duplicative testing programs and impose burdens to Hawaiian’s a dministrative processes. This, in turn, increases Hawaiian’s cost of operation without an i ncrease in safety. Therefore, the FAA finds that, in this case, § 91.147 air tour operati ons by Hawaiian will be in the public interest and maintain a level of safety equivalent to that p rovided by the current regulations. Under one testing program, all of Hawaiian’s safety-sensi tive employees will still be subject to drug and alcohol testing in accordance with part 120. I t is simply unnecessary to burden Hawaiian by requiring them to conduct two separate testing p rograms when one testing program will suffice to ensure the level of safety required by t he rules.

Finally, the FAA finds that Hawaiian’s petition to be exempt from the regulatory requirement to implement two drug and alcohol testing programs would not adversely affect safety.

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 4 9 U.S.C. §§ 40113 and 44701, delegated to me by the Administrator, Hawaiian Airlines, Inc., i s granted an exemption from part 120 to the extent necessary to allow Hawaiian, which is op erating under separate parts of the regulations, to cover its safety-sensitive employee s under one testing program, subject to the conditions and limitations listed be low.4

Conditions and Limitations

1. Employees of Hawaiian are subject to the drug and a lcohol regulations at all times while conducting operations under part 121 or part 91.

2. The drug and alcohol testing program must be implem ented under the auspices of the Hawaiian part 121 operation, not under part 91.

This exemption terminates on July 31, 2012, unless sooner superseded or rescinded.

Issued in Washington, DC, on July 14, 2010.

/s/ Dr. Frederick e. Tilton, M.D. Federal Air Surgeon .5

Project No.: AAM-10-261-E

Project Officer: _______________

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Statistics: HawaiinAirlines.doc, 1,144 words Original, 07 May 2010 10:55 Style Index 34 Good for a Regulation Average Sentence Length 26 Fair

Passive Index 8 Excellent