The controversy lies within the rules regarding adulterated samples. There are products on the market that can mask or have a chemical effect on drug metabolites, Dickstein explains. "There is a regulatory assumption that if you put an adulterant in your sample, then there is no reason to adulterate your sample unless you are trying to mask drug metabolites. The problem lies in that if there is an adulterant in your sample then it's assumed you put it in there," he states.
It is possible that a sample can be contaminated with other things once it is in the laboratory, Dickstein says. He explains that some of the adulterants that are appearing in samples are soap and chlorine, both found in cleaning agents used in laboratories. "Unfortunately, while you are given a sterile sample jar, the jar is not the only thing that touches the sample," he states.
Samples are split into two when the laboratory receives them, Dickstein explains. A person who tests positive for drugs has the right to have the remainder of their sample tested at another lab. "Right now, if the test shows adulterants, you lose all your rights and it is treated as a failure to provide a viable sample. We are definitely getting into a situation where individuals are being considered guilty until proven innocent. And people's individual rights are being trounced upon," he states.
McNair is also frustrated with the "guilty until proven innocent" rule. "The whole notion that an adulterated action ends a career is wrong and contrary to due process," states McNair.
An Emergency Revocation Notice will be mailed to any person whose sample is adulterated, in which the recipient has ten days to appeal their suspension, Dickstein says. The catch, however, is that the appeal must be filed within ten days of when the notice was mailed, not when received, he explains.
Dickstein warns maintenance professionals of this rule and offers the example of Linda Corrigen, an A&P technician at Federal Express whose sample was deemed adulterated. "It is ridiculous to believe that this woman had any drugs in her system," he says. "She'd gone through twenty random tests over the years prior." Dickstein explains the situation: Corrigen appealed the suspension and the administrative law judge ruled that it was more likely that adulterants had been added to the sample due to mishandling. However, the government appealed the decision to the National Transportation Safety Board (NTSB) on the grounds that Corrigen's appeal was not filed within ten days of when the notice was mailed on Sept.17. Corrigen received the notice on Sept. 22 and filed her appeal on Sept. 30. The government brought back the case on a technicality; technically Corrigen's appeal was due Sept. 27. In a split decision, the NTSB ruled 3-2 that Corrigen had not filed in a timely fashion, a three day difference, Dickstein notes.
Dickstein indicates that what makes this case even more interesting is that there is rarely ever a split decision among the NTSB. A member of the board filed a descent with the FAA indicating that the interest of justice was not being served, he states. "Here is a woman who could prove on the merit that she did not have drugs in her systemÉ And the FAA is attacking the emergency revocation on this ten-day basis and is using it to their advantage."
McNair shares Dickstein's frustrations over the ten-day appeal rule. The ten-day process was originally designed to keep the FAA moving forward, McNair says. "The FAA is hanging people on it and is using the rule meant to keep them moving forward against people," he states.
A new Notice of Proposed Rulemaking was issued by the Department of Transportation on the rules regarding adulterated samples. The deadline for comment was Apr. 7.
NATA: Managing 145
For NATA, Part 145 is also an issue. Part 145 includes the rules that govern the facility including types of staffing, management structure, types of access equipment, etc., explains Ric Peri, manager of technical services for NATA. Just like PAMA, NATA disagrees with many parts of the rule, stating, "The proposed rule was taking it from a generic standard to an extremely micro-managed standard." Peri is frustrated with the rule, questioning what the purpose of Part 145 really is "The FAA never clearly identified what was wrong and it wasn't real clear what they were trying to fix," he says. According to Peri the FAA has spent 10 years working on this change during which time the idea of total quality management (TQM) was introduced to the government. "I see elements of juvenile TQM. Part of the philosophy is that you go to performance-based rules," he states.
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