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 Hampshire Avenue, NW., Suite 800, 

Washington, DC 20036 petitioned the Federal Aviation 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 Hawaiian, which is operating under separate 

parts of the regulations, to cover its safety-sensitive employees under one drug and alcohol 

testing program. 

The petitioner request relief from the following regulation:

Section 120.117(a)(2), states, in pertinent part: Implementing 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 Office nearest to your principle place 

of business. 

Section 120.117(b)(2) states, in pertinent part, that 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 Standards District 

Office nearest to your principle place of business prior to starting 

operations. 
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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 District Office nearest to your 

principle place of business. 

Section 120.225(b)(2) states, in pertinent part, that 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 Standards District 

Office nearest to your principle place of business prior to starting 

operations. 

ii. Implement an FAA alcohol testing program no later than the date you 

start operations, and 

iii. Meet the requirements of this subpart 

The petitioner supports its request with the following information:

Hawaiian petitioned the FAA for an exemption from the regulatory requirements to 

implement and maintain two separate drug and alcohol 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 air carrier operations and has recently 

obtained a letter of authorization to use a historical aircraft (Bellanca) to supply air tour 

operations under § 91.147. Hawaiian has not commenced its part 91 air tour operations and 

contends that the requirement to implement an additional 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 operations, 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 exists for waiving the requirement for Federal 

Register publication because the exemption, if granted, would not set a precedent, and any 

delay in acting on this petition would be detrimental 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 regulations.

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 135, or an operator as defined in § 91.147, to 
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implement a drug and alcohol testing program. Under the regulation, when a company, such 

as Hawaiian conducts both 121 air carrier operations 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 testing requirements, such as pre-employment 

testing, confidentiality of results, designated employer 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 alcohol testing under one program. 

The FAA has granted an exemption to an employer (Solid 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. Consequently, it is reasonable to conclude 

that a company, who wants to cover its § 91.147 safety-sensitive employees under its part 121 

testing program, can do so with a level of safety that is equal to that which is achieved by the 

aforementioned regulated employers. 

Requiring separate drug and alcohol testing programs would unnecessarily create duplicative 

testing programs and impose burdens to Hawaiian’s administrative processes. This, in turn, 

increases Hawaiian’s cost of operation without an increase in safety. Therefore, the FAA 

finds that, in this case, § 91.147 air tour operations by Hawaiian will be in the public interest 

and maintain a level of safety equivalent to that provided by the current regulations. Under 

one testing program, all of Hawaiian’s safety-sensitive employees will still be subject to drug 

and alcohol testing in accordance with part 120. It is simply unnecessary to burden Hawaiian 

by requiring them to conduct two separate testing programs when one testing program will 

suffice to ensure the level of safety required by the 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 49 U.S.C. §§ 40113 and 44701, delegated to 

me by the Administrator, Hawaiian Airlines, Inc., is granted an exemption from part 120 to 

the extent necessary to allow Hawaiian, which is operating under separate parts of the 

regulations, to cover its safety-sensitive employees under one testing program, 

subject to the conditions and limitations listed below. 
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Conditions and Limitations 

1. Employees of Hawaiian are subject to the drug and alcohol regulations at all times 

while conducting operations under part 121 or part 91. 

2. The drug and alcohol testing program must be implemented 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 . 
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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