Drug & Alcohol Request - May 5, 2011

Page 1 of 9 May 5, 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 Operating Certificate, Atlantic Southeast Airlines, in

accordance with 14 CFR § 11.61(b) is petitioning the Federal Aviation Administration (FAA) for an

exemption from Part 120, Code of Federal Regulations (14 CFR) and Department of Transportation

(DOT) procedural regulations, 49 CFR Part 40. Approval of this exemption would permit ExpressJet

Airlines (XJT) to migrate its drug and alcohol testing program into the existing FAA approved

Atlantic Southeast Airlines’ (ASA) drug and alcohol testing program. It is assumed that employees

covered under Atlantic Southeast Airlines’ current operating certificate will not require the need

for this exemption.

Granting an exemption in the areas of pre

‐ employment requirements, education and training, and

administration will significantly improve 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

‐ utilize supervisors that are trained to detect the

symptoms of drug and alcohol use increases the availability of this valuable resource. The

availability of additional supervisors will have a positive impact on the timeliness of making these

determinations and will increase the level of safety for both operating certificates.

Drug and Alcohol Testing Programs

Both Atlantic Southeast Airlines and ExpressJet recognize that many of the critical processes and

procedures used by each corporation are closely aligned. The best practices that are already in use

by each corporation will further enhance the Atlantic Southeast Airlines Single Operating

Certificate.

Both Atlantic Southeast Airlines and ExpressJet have well

‐ established drug and alcohol testing

programs as mandated by the Department of Transportation. Both Atlantic Southeast Airlines and

ExpressJet’s drug and alcohol testing programs exceed FAA regulatory requirements. BothDrug & Alcohol Request - May 5, 2011

Page 2 of 9 corporation’s FAA

‐ approved 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.

Atlantic Southeast Airlines submits a petition for an exemption from the regulatory requirements

to maintain two separate drug and alcohol testing programs prior to issuance of a single operating

certificate for its merger with ExpressJet.

Pre

‐ Employment Requirements

Atlantic Southeast Airlines and ExpressJet comply with the 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 alcohol testing program since they were hired, and have been subjected to random

testing as required.

• Atlantic Southeast Airlines requests relief from performing pre

‐ employment drug testing on

individuals that transfer from the ExpressJet certificate to the Atlantic Southeast Airlines

Single Operating Certificate. New

‐ hires will continue to be screened through pre

‐ employment drug testing as required. (item 10)

Atlantic Southeast Airlines and ExpressJet comply with the Department of Transportation (DOT)

procedural regulations 49 CFR Part 40, specifically § 40.25, that 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 seeking to begin performing safety

‐

sensitive duties for the first time.

• Atlantic Southeast Airlines requests relief from performing drug and alcohol violation

checks as required by § 40.25 on individuals that transfer from the ExpressJet certificate to

the Atlantic Southeast Airlines Single Operating Certificate. New

‐ hires will continue to be

subject to the requirements of § 40.25. (item 1)

Service Agents

Both Atlantic Southeast Airlines and ExpressJet use various collection sites, on

‐ site collectors, and

vendors to perform drug screen collections and breath alcohol testing across our systems. Both

companies are aware of the requirements in 49 CFR Part 40 for service agents, including collectorsDrug & Alcohol Request - May 5, 2011

Page 3 of 9 and breath alcohol technicians, to have the proper DER contact information, and realize the link to

ensuring the safety of the airline relies on communication 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 correspondence of the changes in the DER name, phone numbers, mailing

addresses, and additional contact information. 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) and breath alcohol testing 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.

• Atlantic Southeast Airlines requests immediate temporary relief to extend six months from

the issuance of Atlantic Southeast Airlines’ Single Operating Certificate from providing chain

of custody forms or breath

‐ alcohol testing forms that list correct DER contact information.

Furthermore, Atlantic Southeast Airlines 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, 9)

Education and Training

ExpressJet employees will continue to perform the same safety

‐ critical functions after migrating to

the Atlantic Southeast Airlines Single Operating Certificate, when issued. ExpressJet employees

performing safety

‐ critical functions have been previously educated and trained through the

comprehensive FAA

‐ approved drug testing program.

FAA drug and alcohol regulations require an Employee Assistance Program to educate and train

employees on drug and alcohol use. Regulations also require that supervisory personnel be trained

to make determinations for testing based on reasonable cause/suspicion.

• Atlantic Southeast Airlines requests permanent relief from the education and training

requirements for ExpressJet employees who are currently trained and transfer to the

Atlantic Southeast Airlines Single Operating Certificate. (item 14, 19)

ExpressJet’s supervisory personnel are trained as required by the FAA to detect the signs and

symptoms of drug and/or alcohol abuse. Granting permanent relief for ExpressJet’s currently

trained supervisors for training in determining reasonable cause/suspicion testing would

demonstrate confidence in the effectiveness of ExpressJet’s drug and alcohol testing program.

• Atlantic Southeast Airlines requests permanent relief for ExpressJet’s supervisors who are

currently trained in determining reasonable cause/suspicion testing. (item 11, 14, 16)Drug & Alcohol Request - May 5, 2011

Page 4 of 9 The level of safety for Atlantic Southeast Airlines and ExpressJet would significantly increase by

allowing the use of supervisors from across operating certificates to make reasonable

cause/suspicion testing

‐ determinations until the issuance of the Single Operating Certificate. The

increased number of supervisors that would be available to make timely reasonable

cause/suspicion determinations would increase the level of safety and 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 supervisors must be trained in the detection of the

symptoms of possible drug use.

• Atlantic Southeast Airlines requests temporary modification to the requirement that both

supervisors that concur to make reasonable cause determinations be employed under the

same carrier/certificate. Atlantic Southeast Airlines requests a grant of exemption that

allows the determination be made by supervisors from either the Atlantic Southeast Airlines

or ExpressJet certificate to be able to concur on reasonable cause/suspicion testing. (item

11,17)

In accordance with 14 CFR Part 120.115, the FAA drug and alcohol regulations require distribution

of the employer’s policy regarding drug and alcohol use in the workplace.

• Atlantic Southeast Airlines contends that ExpressJet’s company policy on drug and alcohol

use in the workplace is identical to that in place at Atlantic Southeast Airlines and therefore

should not require redistribution by Atlantic Southeast Airlines. Therefore, Atlantic

Southeast Airlines requests permanent relief from redistributing its company policy on drug

and alcohol use in the workplace to employees that transfer from ExpressJet. (item 17)

Confidentiality and Administrative Rules

Atlantic Southeast Airlines and ExpressJet comply with the FAA drug and alcohol testing

regulations, which requires that employees’ drug and alcohol testing records be kept confidential.

The FAA confidentiality requirements are regulated by the DOT’s procedural regulation 49 CFR

Part 40, specifically § 40.321 and § 120.111. Atlantic Southeast Airlines contends that allowing

confidentiality requirements to be extended across both operating certificates would allow for

better management of shared laboratory and Medical Review Officer resources.

• Atlantic Southeast Airlines requests immediate relief and temporary exemption from

confidentially requirements so that information pertaining to each employee’s drug andDrug & Alcohol Request - May 5, 2011

Page 5 of 9 alcohol testing records can be shared between Atlantic Southeast Airlines and ExpressJet.

(item 8, 13)

FAA drug and alcohol testing regulations require that employers must have the ability to produce

all records, for the purpose of examination, at the employer’s workplace.

• Atlantic Southeast Airlines requests temporary relief from this requirement. Atlantic

Southeast Airlines and ExpressJet will store historical records at different locations prior to

and for six months after the Atlantic Southeast Airlines Single Operating Certificate is

issued. All drug and alcohol testing records for both Atlantic Southeast Airlines and

ExpressJet will be produced at one central employer location within six months of the

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

Conclusion

The FAA has previously issued a precedent

‐ setting grant of exemption (number 6960) in which

individuals were allowed to transfer from one operating certificate to the other without

performing pre

‐ employment testing. Atlantic Southeast Airlines request for relief from pre

‐ employment testing requirements does not differ materially from those of the precedent

‐ setting

grant of exemption number 6960.

In addition, a grant of relief was issued to Delta Air Lines during the merger of Delta and

Northwest Airlines. Atlantic Southeast Air Lines closely reviewed the FAA’s public document

“Grant of Exemption Number 9927” that was issued to Delta Air Lines on September 2, 2009. The

FAA agreed with Delta Air Lines’ statement that employees 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, including supporting materials, that was presented to the FAA is

similar in most aspects to those presented here by Atlantic Southeast Airlines.

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

Continental Airlines and United Airlines. Atlantic Southeast Airlines closely reviewed the FAA’s

public document “Grant of Exemption Number 10233” that was issued to Continental Airlines on

April 6, 2011. Each of Continental’s requests for relief, including supporting materials, that was

presented to the FAA is similar to those presented here. The FAA found that a grant of exemption

would not adversely impact safety and was in the public interest.

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 interest. Atlantic Southeast Airlines contends that

good cause exists for not publishing a summary of the petition in the Federal Register because theDrug & Alcohol Request - May 5, 2011

Page 6 of 9 requested exemption would not set a precedent, and any delay in acting on this petition would be

detrimental to Atlantic Southeast Airlines and ExpressJet’s efforts.

Atlantic Southeast Airlines contends that good cause exists for waiving the requirement for the

120 day advanced notice of request and associated Federal Register publication, in accordance

with FAR 11.87. Atlantic Southeast Airlines contends there would be no risk to safety and any

delay in acting on this petition would be detrimental to the flying public and Atlantic Southeast

Airlines. The following table contains a detailed list of each regulation from which Atlantic

Southeast Airlines seeks relief.

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 XJT 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 Until

issuance

of SOC

3 49 CFR

40.45.(c)

(2) CCF Required

Information Waive the restriction to modify

and revise the CCF during

program transition phase. Temporary 6 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 6 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 6 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 6 months

past SOC

issuanceDrug & Alcohol Request - May 5, 2011

Page 7 of 9 Request

Number Regulation Summary of

Requirement Exemption Requested Type of

Relief Duration

of Relief

7 49 CFR

40.275 Corrective

Action

– BAT Waive enforcement action

based on lack of documentation

correcting administrative errors

on alcohol tests. Temporary 6 months

past SOC

issuance

8 49 CFR

40.321 Confidentiality

of Records Waive requirement of

employee consent to release

information between employers

to allow sharing of personnel

information between XJT and

ASA. 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 SOC

10 14 CFR Part

120.109 (a) Pre

‐ Employment

Testing Waive pre

‐ employment drug

test requirements for active and

inactive employees currently

covered under XJT 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 ASA or

XJT 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 6 months

past SOC

issuance

13 14 CFR Part

120.111(c) Release of

drug testing

information Waive restrictions for releasing

employee information between

ASA and XJT during transition of

programs but prior to SOC. Temporary Until

issuance

of SOCDrug & Alcohol Request - May 5, 2011

Page 8 of 9 Request

Number Regulation Summary of

Requirement Exemption Requested Type of

Relief Duration

of Relief

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 Atlantic

Southeast Airlines. 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 6 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 ASA

or XJT to make determination of

need to conduct testing. Temporary Until

issuance

of SOC

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/aDrug & Alcohol Request - May 5, 2011

Page 9 of 9 If you need assistance or further clarification on any of the matters listed above, please contact

Ron Kolsky, Drug Abatement Manager, 832

‐ 353

‐ 3162.

Sincerely,

Cathy Harris

Vice President, People Resources