West Bend AJr< Inc. 

Post OlTice Bo* 400 

West Bend, Wl 53095 

262.334.5603 phone 

262.334.5662 (ax 

Fond du Lac Skyport 

N6308 Rolling Meadows Or 

F.md du Uc. Wl 5493"" 

920.922.6U00 phone 

920.922.S70()fa.T 

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rOM> DU U C •rrrOMT « DFMDOH OF IW*T ttWO « » 

July 11,2011 

U.S. Dept. of Transportation 

Docket Operations, M-30 

West Building Ground Floor, Room W12-140 

1200 New Jersey Ave., SE 

Washington D.C. 20590 

Ladies and Gentlemen: 

Exemption No. 9965 

Regulatory Docket No. FAA-2009-0990 

RE: Extension Request 

West Bend Air, Inc. would like to apply for an extension to our Exemption No. 9965, Regulatory 

Docket No. FAA-2009-0990 for a period of two-years (from the original expiration date of 11-

30-2011) out to 11-30-2013, for the same reasons sighted in our original petition (end.). 

We have included, for your convenience, a copy of: (1.) your letter approving our exemption 

request and (2.) our original petition for exemption. 

CO^^tVK ^ 

Craig Devenport 

Director of Operations 

West Bend Air, Inc. 
& 

U.SLDepariment 800 independence Ave . S W 

Of fonsporlafon Wastimgron. D C 20591 

A4nilnl(lrQtlon 

November 16, 2009 

Exemption No. 9965 

Regulatory Docket No. FAA-2009-0990 

Mr. John M. Morris 

Director of Operations 

West Bend Air, Inc. 

P.O. Box 409 

West Bend, Wl 53095 

Dear Mr. Morris: 

COPY 

This letter is to inform you that we have granted your request for exemption. It transmits our 

decision, explains its basis, and gives you the conditions and limitations of the exemption, 

including the date it ends. 

The Basis for Our Decision 

By letter dated October 12, 2009, you petitioned the Federal Aviation Administration (FAA) 

on behalf of West Bend Air, Inc. (WB Air), for an exemption from part 120 of Title 14, Code 

of Federal Regulations (14 CFR). Thai exemption, if granted, would allow WB Air, which is 

operating under separate parts of the regulations, to cover its safety-sensitive employees 

under one testing program. 

The FAA has determined 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 any 

delay in acting on this petition would be detrimental to WB Air. 

The FAA has issued a grant of exemption in circumstances similar in all material respects to 

those presented in your petition. In Grant of Exemption No. 9703 (copy enclosed), the FAA 

found that Solid Edge's § 91.147 air tour operations were closely connected to its part 135 

operations. Tlie FAA also found that combining the petitioner's two testing programs into 

one would be in the public interest and would maintain an equivalent level of safety to that 

provided by the current regulations. Thus, the FAA concluded it was unnecessary to burden 

the petitioner by requiring it to conduct two separate testing programs. 

AAM-10-038-E 
Having reviewed your reasons for requesting an exemption, I fmd that— 

• they do not differ materially from those presented by the petitioner in the enclosed grant 

of exemption; 

• the reasons stated by the FAA for granting the enclosed exemption also apply to the 

situation you present; and 

• a grant of exemption is in the public interest. 

Our Decision 

Under the authority contained in 49 U.S.C. 40113 and 44701, which the FAA Administrator 

has delegated to me, I hereby grant WB Air an exemption from part 120 to the extent 

necessary to allow WB Air, which is operating under separate parts of the regulations, to 

cover its safety-sensitive employees under one tesring program, subject to the conditions and 

limitations described below. 

Conditions and Limitations 

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

while conducting operations under part 135 or part 91. 

2. The drug and alcohol testing program must be implemented under the auspices of 

the WB Air part 135 operation, not under the part 91. 

This exemption terminates on November 30, 2011, unless sooner superseded or rescinded. 

Sincerely, 

/s/ 

Frederick E. Tilton, M.D. 

Federal Air Surgeon 

Copy 

Enclosure 
SIkat Bcod Air, Inc. Fond du Uc Skjrpon 

post Office Box 409 N6308 Rolling! Mt^adowi I>. 

Weu Bend. Wl 53095 Fond .lu Uc. Wl 54937 

262.334.5603 phnne 920.922.6000 phonC UtPl OF TRA'VSPOflTATiOM 

262.334.5662 fu 920.922.8706 fkx DO^. Cl 3 

October 12.2009 .>:'* :T ; ^ ^ ':Z.' 

U.S. Department of Transportation 

Docket Management System 

1200 New Jersey Ave. SE 

West Building Ground Floor, Rm. W12-140 

Washmgton, DC 20590 

Lanties and Getitlcmen: 

COPY 

West Bend Air, Inc. is seeking relief from 14 CFR Part 120.117 (b) (2). Fonnerly 14 

CFR 121 Appendix I (DC) (b) (2). as it is currently being interpreted, which is requiring 

us to maintain two (2) completely separate Random Drug and Alcohol Testing Programs. 

West Bend Air is in complete agreement with the regulations to eliminate Drug and 

alcohol abuse through implementation of a Random Drug and Alcohol Testing Program 

which has been accomplished through its Charter operation under Part 135 for both pilots 

and mechanics. However, West Bend Air believes it is an unnecessary burden for the 

company to cany a second Random Drug and Alcohol Testing Program to cover the Air 

Tour operation under Part 91.147. 

Even though West Bend Air utilizes different classes of aircraft for each operation, (Multi 

Engine for its Part 135 operation and Single Engineforits Part 91.147 operation) all the 

aircraft are flown by the same pilots and maintained by the same mechanics, all of whom 

are covered by West Bend Air's Random Drug and Alcohol Testing Program under its 

Part 135 certificate as mentioned above. 

After carefiil consideration of the regulations and literature distributed by the U.S. 

Department of Transportation, (DOT) West Bend Air is also of the opinion that, as noted 

below, the implementation of a duplicate Random Drug and Alcohol Testing Program is 

not required. 

The publication '"Best Practices for DOT Random Drug and Alcohol Testing" (actually 

written and published prior to the drug rule being switched from 14 CFR Part 121 to 14 

CFR Part 120, yet still current on the DOT Web Sight) from the U.S Department of 

Transportation-Office of the Secretary-Office of Drug and Alcohol Policy and 

Compliance asks the question on page two (2) in section IV. "(Sett4ng-Up a Random 

Pool of Employees)". Under item B. "Can an employer regulated bv different DOT 

agencies put its employees in the same random pools?". The answers is "YES. 

Employers and Consortia/Third Party Administrators (C/TPAs) subject to more 

than one DOT Agency drug and alcohol testing rule may combine covered DOT 

safety-sensitive employees into a single random pool." 
copv 

Surely if employees of the same company that are covered by different DOT agencies 

such as FAA, FMCSA, FRA, FTA, PHMSA, USCG, are allowed to be combined into a 

single random pool, wouldn't it ^so stand the test of reason (be logical) for company 

employees covered under just one DOT agency namely the FAA even though operating 

under two (2) different regulations (such as 14 CFR Parti 35 and 14 CFR Part 91) to be 

given the same allowance? I can't think of anything more "Regulation Number 

Different" than FMCSA - (Motor Carrier) operating under 49 CFR Part 382 and FRA -

(Raifroad) operating under 49 CFR Part 219 as given in their example. 

So what is the "drug" difference in operations under Part 135 Vs Part 91 in comparison to 

Part 382 Vs Part 219? Unless 14 CFR and 49 CFR are totally unrelated and warrant 

different considerations, which is highly doubtful. 

Please also note that if an Employer, West Bend Air is a "Company" yet 1 beUeve that it 

would also fit the definition of an Employer, has two (2) employees, one covered by lets 

say the FAA - (Aviation), and the other covered by lets say the FMCSA - (Motor 

Carrier), that Employer, according to their example, is still considered to be One (1) 

Enq)loyer "Company" and NOT Two (2) different Employers "Companies"! I point this 

out only because the FAA*s position on the subject is contrary to what has been placed in 

writing by the DOT. 

On page 3 of the same pamphlet in Section C. The question is asked: "Does an 

employee performing duties covered by more than one DOT Agency need to be in 

multiple pools?^ 

The answer is: "An employee perforndng duties subject to more than one DOT 

Agency's regulations must be randomly tested st the percenUge rate established for 

the calendar year by the DOT Agency regulating mor« than 50 percent of the 

employee's function. So if you have an employee who drives your trucks 75 percent 

of the time and operates your transit busses 25 percent of the time, that employee 

needs to be in the FMCSA-regulated pooL" 

Please note, as indicated from the above example, should West Bend Air choose on its 

own to incorporate two separate Random Testing Programs, the employee would still 

only need to be placed in one (1) random pool not both. 

The U.S. Department of transportation - Office of the Secretary - Office of Drug and 

Alcohol Policy and Compliance has re-issued another publication, from August of 2009 

which makes it ciatent for this situation, called **What employers need to know about 

DOT Drug and Alcohol Testing [Guidance and Best Practices]" 

On page 17 in that booklet under the heading of Random. 

The sevaith (7**^ paragraph from the top States: 

*^Employers and C/TPAs subject to more than one DOT Agency drug and alcohol 

testing rule may combine covered DOT safety-sensitive employees into a single 

random pciol (for example, train engineers and truck driver^}.'' 
COPY 

What is the purpose, or the intent if you will, of the regulation requiring Random Drug 

and Alcohol testing? 

Although not stated directly anywhere but alluded to many times, the regulation is in 

place to "deter drug and alcohol use by safety-sensitive employees in the work place". 

The real "deterrent factor" is not having dual drug testing programs but rather having the 

safety-sensitive employee understand that regardless of past testing that employee is 

eligible for a random selection at any time. In the pamphlet Best Practices for DOT 

Random Drug and Alcohol Testing (mentioned above) on page 3 under section £. "How 

ofiten should selections and tests take place?** it states: "What makes random testing 

so effective is the element of surprise." 

1 have taken the liberty of breaking down a small portion of the New Regulation 14 CFR 

Part 120 for ease of exploration. 

The new regulation 14 CFR Part 120.117 (d) (3) {formerly 14 CFR 121 Appendix! 

(IX)(d) (3)) is quoted below. 

14 CFR Part 120.117 States: "Implemaiting a drug testing program." 

Section (d) States: ^'Obtaining an Antidrug and Alcohol Misuse Prevention Program 

Operations Specification." 

Sub-Section (3) States: "You are required to obtain only one Antidrug and Alcohol 

Misuse Prevention Program Operations Specification to satisfy this requirement 

under this part** 

West Bend Air has maintained a safe drug and alcohol free operation since its inception 

some 20 years ago and has no intention of letting up on its vigilance. 

With this petition West Bend Air respectftilly requests an exemption from carrying a 

second Random Drug and Alcohol Testing Program. 

West Bend Air would prefer utilizing this entire request as a summary should it be 

necessary to place something in the Federal Registry. 

Thank you for your considerations. 

'^est Bend Air Inc. 

John M. Morris 

Director of Operations