[Federal Register Volume 76, Number 6 (Monday, January 10, 2011)]
[Rules and Regulations]
[Pages 1349-1351]
[FR Doc No: 2010-33336]

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DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Part 39

[Docket No. FAA-2010-1297; Directorate Identifier 2010-CE-068-AD;
Amendment 39-16569; AD 2010-26-54]
RIN 2120-AA64

Airworthiness Directives; Cessna Aircraft Company (Cessna) (Type
Certificate A00003SE Previously Held by Columbia Aircraft Manufacturing
(Previously The Lancair Company)) Models LC41-550FG and LC42-550FG
Airplanes

AGENCY: Federal Aviation Administration (FAA), DOT.

ACTION: Final rule; request for comments.

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SUMMARY: We are adopting a new airworthiness directive (AD) for the
products listed above. This emergency AD was sent previously to all
known U.S. owners and operators of these airplanes. This AD requires
obtaining written approval from the Manager, Wichita Aircraft
Certification Office (ACO), to operate the airplane. This written
approval must clearly state that operation is approved per Emergency AD
2010-26-54. This AD was prompted by a Cessna Model LC41-550FG airplane
that suffered a significant structural failure in the wing during a
production acceptance flight test. We are issuing this AD to prevent
catastrophic failure of the wing due to disbonding of the wing skin
from the wing spar.

DATES: This AD is effective January 10, 2011 to all persons except
those persons to whom it was made immediately effective by Emergency AD
2010-26-54, issued on December 17, 2010, which contained the
requirements of this amendment.
    We must receive comments on this AD by February 24, 2011.

ADDRESSES: You may send comments by any of the following methods:
     Federal eRulemaking Portal: Go to http://www.regulations.gov. Follow the instructions for submitting comments.
     Fax:<PHONE_NUMBER>.
     Mail: U.S. Department of Transportation, Docket
Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New
Jersey Avenue, SE., Washington, DC 20590.
     Hand Delivery: Deliver to Mail address above between 9
a.m. and 5 p.m., Monday through Friday, except Federal holidays.

Examining the AD Docket

    You may examine the AD docket on the Internet at http://www.regulations.gov; or in person at the Docket Operations Office
between 9 a.m. and 5 p.m., Monday through Friday, except Federal
holidays. The AD docket contains this AD, the regulatory evaluation,
any comments received, and other information. The street address for

the Docket Operations Office (phone:<PHONE_NUMBER>) is in the ADDRESSES
section. Comments will be available in the AD docket shortly after
receipt.

FOR FURTHER INFORMATION CONTACT: Gary Park, Aerospace Engineer, Wichita
ACO, FAA, 1801 Airport Road, Wichita, KS 67209; phone:<PHONE_NUMBER>;
fax:<PHONE_NUMBER>; e-mail<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION:

Discussion

    On December 10, 2010, we issued Emergency AD 2010-26-53, which
requires obtaining written approval from the Manager, Wichita ACO, to
operate the airplane. The written approval must clearly state that
operation is approved per Emergency AD 2010-26-53. This action was
prompted by a Cessna Model LC41-550FG airplane that suffered a
significant structural failure in the wing during a production
acceptance flight test. The wing skin disbonded from the upper forward
wing spar. The length of the disbond was approximately 7 feet.
    Since issuing AD 2010-26-53, we determined the need to increase the
serial numbers in the Applicability section and to correct a serial
number in the Applicability section. We issued Emergency AD 2010-26-54,
dated December 17, 2010, which retains the actions of the previous AD,
adds serial numbers to the Applicability section, and corrects a serial
number in the Applicability section.
    This condition, if not corrected, could result in catastrophic
failure of the wing due to disbonding of the wing skin from the wing
spar.

FAA's Determination

    We are issuing this AD because we evaluated all the relevant
information and determined the unsafe condition described previously is
likely to exist or develop in other products of the same type design.

AD Requirements

    This AD requires obtaining written approval from the Manager,
Wichita ACO, to operate the airplane. The written approval must clearly
state that operation is approved per Emergency AD 2010-26-54.

Interim Action

    We consider this AD interim action.

FAA's Determination of the Effective Date

    An unsafe condition exists that requires the immediate adoption of
this AD. The FAA has found that the risk to the flying public justifies
waiving notice and comment prior to adoption of this rule because
disbonding of the wing skin from the wing spar could result in
catastrophic failure of the wing. Therefore, we find that notice and
opportunity for prior public comment are impracticable and that good
cause exists for making this amendment effective in less than 30 days.

Comments Invited

    This AD is a final rule that involves requirements affecting flight
safety and was not preceded by notice and an opportunity for public
comment. However, we invite you to send any written data, views, or
arguments about this AD. Send your comments to an address listed under
the ADDRESSES section. Include the docket number FAA-2010-1297 and
Directorate Identifier 2010-CE-068-AD at the beginning of your
comments. We specifically invite comments on the overall regulatory,
economic, environmental, and energy aspects of this AD. We will
consider all comments received by the closing date and may amend this
AD because of those comments.
    We will post all comments we receive, without change, to http://www.regulations.gov, including any personal information you provide. We
will also post a report summarizing each substantive verbal contact we
receive about this AD.

Costs of Compliance

    We estimate that this AD affects 13 airplanes of U.S. registry.
    There are no labor or parts costs associated with this AD action.

Authority for This Rulemaking

    Title 49 of the United States Code specifies the FAA's authority to
issue rules on aviation safety. Subtitle I, section 106, describes the
authority of the FAA Administrator. Subtitle VII: Aviation Programs
describes in more detail the scope of the Agency's authority.
    We are issuing this rulemaking under the authority described in
subtitle VII, part A, subpart III, section 44701: ``General
requirements.'' Under that section, Congress charges the FAA with
promoting safe flight of civil aircraft in air commerce by prescribing
regulations for practices, methods, and procedures the Administrator
finds necessary for safety in air commerce. This regulation is within
the scope of that authority because it addresses an unsafe condition
that is likely to exist or develop on products identified in this
rulemaking action.

Regulatory Findings

    This AD will not have federalism implications under Executive Order
13132. This AD will not have a substantial direct effect on the States,
on the relationship between the national government and the States, or
on the distribution of power and responsibilities among the various
levels of government.
    For the reasons discussed above, I certify that this AD:
    (1) Is not a ``significant regulatory action'' under Executive
Order 12866,
    (2) Is not a ``significant rule'' under DOT Regulatory Policies and
Procedures (44 FR 11034, February 26, 1979),
    (3) Will not affect intrastate aviation in Alaska, and
    (4) Will not have a significant economic impact, positive or
negative, on a substantial number of small entities under the criteria
of the Regulatory Flexibility Act.

List of Subjects in 14 CFR Part 39

    Air transportation, Aircraft, Aviation safety, Safety.

Adoption of the Amendment

    Accordingly, under the authority delegated to me by the
Administrator, the FAA amends 14 CFR part 39 as follows:

PART 39--AIRWORTHINESS DIRECTIVES

0
1. The authority citation for part 39 continues to read as follows:

    Authority:  49 U.S.C. 106(g), 40113, 44701.

Sec.  39.13  [Amended]

0
2. The FAA amends Sec.  39.13 by adding the following new airworthiness
directive (AD):

2010-26-54 Cessna Aircraft Company (Type Certificate A00003SE
previously held by Columbia Aircraft Manufacturing (previously The
Lancair Company)): Amendment 39-16569; Docket No. FAA-2010-1297;
Directorate Identifier 2010-CE-068-AD.

Effective Date

    (a) This AD is effective January 10, 2011 to all persons except
those persons to whom it was made immediately effective by Emergency
AD 2010-26-54, issued on December 17, 2010, which contained the
requirements of this amendment.

Affected ADs

    (b) None.

Applicability

    (c) This AD applies to the following Cessna Aircraft Company
(Cessna) (Type Certificate A00003SE previously held by Columbia
Aircraft Manufacturing (previously The Lancair Company)) airplanes
certified in any category, as identified in table 1 of this AD:

                         Table 1--Applicability
------------------------------------------------------------------------
                  Model                             Serial Nos.
------------------------------------------------------------------------
LC41-550FG..............................  41028, 41705, 411114, 411160,
                                           411161, 411162, 411163,
                                           411164, 411165, 411167,
                                           411170, and 411171.
LC42-550FG..............................  42517.
------------------------------------------------------------------------

Subject

    (d) Joint Aircraft System Component (JASC)/Air Transport
Association (ATA) of America Code 57, Wings.

Unsafe Condition

    (e) This AD was prompted by a Cessna Model LC41-550FG airplane
that suffered a significant structural failure in the wing during a
production acceptance flight test. The wing skin disbonded from the
upper forward wing spar. The length of the disbond was approximately
7 feet. We are issuing this AD to prevent catastrophic failure of
the wing due to disbonding of the wing skin from the wing spar.

Compliance

    (f) Comply with this AD within the compliance times specified,
unless already done.

Operation Restriction

    (g) As of the effective date of this AD, do not operate the
airplane without written approval from the Manager, Wichita Aircraft
Certification Office (ACO). This written approval must clearly state
that operation is approved per AD 2010-26-54.

Special Flight Permit

    (h) A special flight permit requires written approval from the
Manager, Wichita ACO. This written approval must clearly state that
operation is approved per AD 2010-26-54.

Alternative Methods of Compliance (AMOCs)

    (i)(1) The Manager, Wichita ACO, FAA, has the authority to
approve AMOCs for this AD, if requested using the procedures found
in 14 CFR 39.19. In accordance with 14 CFR 39.19, send your request
to your principal inspector or local Flight Standards District
Office, as appropriate. If sending information directly to the
manager of the ACO, send it to the attention of the person
identified in the Related Information section of this AD.
    (2) Before using any approved AMOC, notify your Principal
Maintenance Inspector or Principal Avionics Inspector, as
appropriate, or lacking a principal inspector, your local Flight
Standards District Office.

Related Information

    (j) For further information about this AD, contact: Gary Park,
Aerospace Engineer, Wichita ACO, FAA, 1801 Airport Road, Wichita, KS
67209; phone:<PHONE_NUMBER>; fax:<PHONE_NUMBER>; e-mail:
<EMAIL_ADDRESS>
    Issued in Kansas City, Missouri, on December 27, 2010.
Earl Lawrence,
Manager, Small Airplane Directorate, Aircraft Certification Service.
[FR Doc. 2010-33336 Filed 1-7-11; 8:45 am]
BILLING CODE 4910-13-P


[Federal Register Volume 84, Number 26 (Thursday, February 7, 2019)]
[Proposed Rules]
[Pages 2479-2483]
[FR Doc No: 2019-01468]

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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket Number USCG-2018-0007]
RIN 1625-AA87

Security Zones; Port of Palm Beach, Port Everglades, Port of
Miami, and Port of Key West, Florida

AGENCY: Coast Guard, DHS.

ACTION: Supplemental notice of proposed rulemaking.

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SUMMARY: On September 16, 2016, the Coast Guard published a notice of
proposed rulemaking (NPRM) to establish security zones on the navigable
waters of the Seventh Coast Guard District to allow the Coast Guard to
restrict vessels from entering or transiting certain waters. The Coast
Guard proposes amendments to its regulation by modifying the security
zones in the Port of Palm Beach, Port Everglades, Port of Miami, and
Port of Key West, Florida and updating definitions throughout the
regulation. This action is necessary for clarification of terms and
geographic application of security zones in Sector Key West and Sector
Miami ports allowing for more effective implementation of these
regulations to protect the public and ports from potential subversive
acts. We invite your comments on this proposed rulemaking.

DATES: Comments and related material must be received by the Coast
Guard on or before March 11, 2019.

ADDRESSES: You may submit comments identified by docket number USCG-
2018-0007 using the Federal eRulemaking Portal at http://www.regulations.gov. See the ``Public Participation and Request for
Comments'' portion of the SUPPLEMENTARY INFORMATION section for further
instructions on submitting comments.

FOR FURTHER INFORMATION CONTACT: If you have questions about this
proposed rulemaking, call or email Lieutenant Samuel Rodriguez-
Gonzalez, Sector Miami Waterways Management Division, U.S. Coast Guard;
telephone<PHONE_NUMBER>, email<EMAIL_ADDRESS>or
BMC Greg Bergstrom, Sector Key West Waterways Management Division, U.S.
Coast Guard; telephone<PHONE_NUMBER>, email<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION:

I. Table of Abbreviations

CFR Code of Federal Regulations
DHS Department of Homeland Security
FR Federal Register
NPRM Notice of proposed rulemaking
Sec.  Section
U.S.C. United States Code

II. Background, Purpose, and Legal Basis

A. Regulatory History and Information

    The purpose of this proposed amendment is to protect the public and
ports from potential subversive acts. The amendments establish a new
section for Sector Key West security zones that previously were
annotated as belonging to Sector Miami; clarify when the Port
Everglades fixed security zones will be in effect, modify and lengthen
a portion of one Port Everglades fixed security zone; and update
language and definitions throughout the regulation.

B. Discussion of Comments on NPRM and Changes

    On September 16, 2016, the Coast Guard published a notice of
proposed rulemaking (NPRM) entitled ``Security Zones; Port of Palm
Beach, Port Everglades, Port of Miami, and Port of

Key West, Florida'' (see 81 FR 63728). The purpose of the proposed
security zone was to mitigate the aforementioned potential subversive
acts at various ports in the Seventh Coast Guard District. During the
comment period, we received two comments.
    One comment, received by telephone, asked that security calls be
placed on Channels 13 and 16. The Coast Guard will not be implementing
this requested change because our broadcasts are exclusively done on
Channel 16.
    The second comment expressed concern that the proposed zone does
not offer enough security ``standoff'' distance for those three berths
using the coordinates listed in Sec.  165.760 (b) (3) of the proposed
rule. The commenter also recommended shifting the coordinates in this
berth area further east of the pier face to provide a larger security
``standoff'' distance. To address those concerns, we made minute
changes to specific coordinates of the security zone and nomenclature
updates to the geographic features listed in the NPRM. The geographic
features we updated in the SNPRM are the name of the state park from
John U Lloyd State Park to Von D. Mizell--Eula Johnson State Park and
the description of the location from ``Pier'' to ``Berth.'' We are
seeking comments for these changes from the NRPM comments. The Coast
Guard proposes this rulemaking under authority in 33 U.S.C. 1231.

III. Discussion of the SNPRM Proposed Rule

    The fixed security zone from Mid-Port to North-Port (Berth 7 to the
northern-most section of the Port) including all waters westward at
Port Everglades would be an established permanent fixed security zone
that will be in effect at all times. Berthing from Berth 7 to North-
Port Port Everglades regularly serves passenger vessels, vessels
carrying cargoes of particular hazards, and vessels carrying liquefied
hazardous gas. This permanent fixed security zone, which parallels the
Intracoastal Waterway, would not limit persons or vessels from using
the main entrance channel (Bar Cut) or from using the Intracoastal
Waterway. This zone would not restrict persons and vessels authorized
to be in the zone from maneuvering around the berths within Port
Everglades between Mid-Port and North-Port. This proposed amendment
clarifies that all persons and vessels not authorized to be in the zone
shall remain out of the zone in order to protect the public and Port
from potential subversive acts.
    The fixed security zone that runs from Mid-Port south to Berth 29,
just south of the Von D. Mizell--Eula Johnson State Park launching
ramps, along Port Everglades and the Intracoastal Waterway, would be
decreased in size to encompass only the waters westward of the
Intracoastal Waterway extending to and including the pier face of Port
Everglades. The fixed security zone would also lengthen southward from
Berth 29, just south of the Von D. Mizell--Eula Johnson State Park
launching ramps to the northern tip of the Dania Cut-Off Canal. Persons
and vessels would be allowed to operate along the Intracoastal
Waterway, as they are now; however, persons and vessels would not be
authorized to enter the security zone westward of the Intracoastal
Waterway between Mid-Port and the northern tip of the Dania Cut-Off
Canal without authorization. When a passenger vessel, vessel carrying
cargoes of particular hazards, or vessel carrying liquefied hazardous
gas moors along this section of Port Everglades, vessels transiting
along the Intracoastal Waterway would be required to transit eastward
of law enforcement vessels. This extension is needed to provide
continuous protection for the public and Port because Port Everglades
has expanded the entrance of the Dania Cut-Off Canal and its operations
south over the years.
    The term ``cruise ship tenders'' would be removed from the entire
regulation because cruise ship tenders no longer provide security zone
assistance.
    The term ``cruise ship'' would be removed and ``passenger vessels''
will be redefined. Also, a ``vessel carrying cargoes of particular
hazards'' and a ``vessel carrying liquefied hazardous gas'' will be
defined.
    As discussed above, since the implementation of Sector Miami
security zones in 2003, Sector Key West was delegated its own Captain
of the Port authority. Therefore, a separate section would be
implemented by this proposed regulation to establish the security zone
authority for Sector Key West.
    These amendments are necessary for administrative reasons as noted
above and to protect the public and Ports from potential subversive
acts.

IV. Regulatory Analyses

    We developed this proposed rule after considering numerous statutes
and Executive orders related to rulemaking. Below we summarize our
analyses based on a number of these statutes and Executive orders and
we discuss First Amendment rights of protestors.

A. Regulatory Planning and Review

    Executive Orders 12866 and 13563 direct agencies to assess the
costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select regulatory approaches that maximize
net benefits. Executive Order 13771 directs agencies to control
regulatory costs through a budgeting process. This NPRM has not been
designated a ``significant regulatory action,'' under Executive Order
12866. Accordingly, the NPRM has not been reviewed by the Office of
Management and Budget (OMB), and pursuant to OMB guidance it is exempt
from the requirements of Executive Order 13771.
    The economic impact of these updates and modifications to the
proposed rule are not significant for the following reasons: (1)
Persons and vessels would still be able to operate in waters
surrounding security zones; (2) the permanent fixed security zone
encompassing Port Everglades from Mid-Port to North-Port is within the
natural boundaries of the Port and is limited in size; (3) notification
of the security zones will be made to the local maritime community via
posted signs and Broadcast Notice to Mariners on VHF-FM marine channels
16 when applicable; and (4) persons and vessels may operate within the
security zone if authorized by Captain of the Port Miami, Captain of
the Port Key West, or a designated representative.

B. Impact on Small Entities

    The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, as
amended, requires Federal agencies to consider the potential impact of
regulations on small entities during rulemaking. The term ``small
entities'' comprises small businesses, not-for-profit organizations
that are independently owned and operated and are not dominant in their
fields, and governmental jurisdictions with populations of less than
50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this
proposed rule would not have a significant economic impact on a
substantial number of small entities.
    This rule may affect the following entities, some of which may be
small entities: People and the owners or operators of vessels intending
to transit or remain within the security zone(s) when they are in
effect. For reasons discussed in section IV. A. Regulatory Planning and
Review above, this rule will not have a significant economic impact on
a substantial number of small entities.
    If you think that your business, organization, or governmental

jurisdiction qualifies as a small entity and that this rule would have
a significant economic impact on it, please submit a comment (see
ADDRESSES) explaining why you think it qualifies and how and to what
degree this rule would economically affect it.
    Under section 213(a) of the Small Business Regulatory Enforcement
Fairness Act of 1996 (Pub. L. 104-121), we want to assist small
entities in understanding this proposed rule. If the rule would affect
your small business, organization, or governmental jurisdiction and you
have questions concerning its provisions or options for compliance,
please contact the person listed in the FOR FURTHER INFORMATION CONTACT
section. The Coast Guard will not retaliate against small entities that
question or complain about this proposed rule or any policy or action
of the Coast Guard.

C. Collection of Information

    This proposed rule would not call for a new collection of
information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-
3520).

D. Federalism and Indian Tribal Governments

    A rule has implications for federalism under Executive Order 13132,
Federalism, if it has a substantial direct effect on the States, on the
relationship between the national government and the States, or on the
distribution of power and responsibilities among the various levels of
government. We have analyzed this proposed rule under that Order and
have determined that it is consistent with the fundamental federalism
principles and preemption requirements described in Executive Order
13132.
    Also, this proposed rule does not have tribal implications under
Executive Order 13175, Consultation and Coordination with Indian Tribal
Governments, because it would not have a substantial direct effect on
one or more Indian tribes, on the relationship between the Federal
Government and Indian tribes, or on the distribution of power and
responsibilities between the Federal Government and Indian tribes. If
you believe this proposed rule has implications for federalism or
Indian tribes, please contact the person listed in the FOR FURTHER
INFORMATION CONTACT section.

E. Unfunded Mandates Reform Act

    The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538)
requires Federal agencies to assess the effects of their discretionary
regulatory actions. In particular, the Act addresses actions that may
result in the expenditure by a State, local, or tribal government, in
the aggregate, or by the private sector of $100,000,000 (adjusted for
inflation) or more in any one year. Though this proposed rule would not
result in such an expenditure, we do discuss the effects of this rule
elsewhere in this preamble.

F. Environment

    We have analyzed this proposed rule under Department of Homeland
Security Directive 023-01 and Commandant Instruction M16475.1D, which
guides the Coast Guard in complying with the National Environmental
Policy Act of 1969 (42 U.S.C. 4321-4370f), and have made a preliminary
determination that this action is one of a category of actions that do
not individually or cumulatively have a significant effect on the human
environment. This proposed rule involves amending security zones and
lengthening part of a security zone. It is categorically excluded from
further review under paragraph L60(a) of Appendix A, Table 1 of DHS
Instruction Manual 023-01-001-01, Rev. 01. We seek any comments or
information that may lead to the discovery of a significant
environmental impact from this rule.

G. Protest Activities

    The Coast Guard respects the First Amendment rights of protesters.
Protesters are asked to contact the person listed in the FOR FURTHER
INFORMATION CONTACT section to coordinate protest activities so that
your message can be received without jeopardizing the safety or
security of people, places, or vessels.

V. Public Participation and Request for Comments

    We view public participation as essential to effective rulemaking,
and will consider all comments and material received during the comment
period. Your comment can help shape the outcome of this rulemaking. If
you submit a comment, please include the docket number for this
rulemaking, indicate the specific section of this document to which
each comment applies, and provide a reason for each suggestion or
recommendation.
    We encourage you to submit comments through the Federal eRulemaking
Portal at http://www.regulations.gov. If your material cannot be
submitted using http://www.regulations.gov, contact the person in the
FOR FURTHER INFORMATION CONTACT section of this document for alternate
instructions.
    We accept anonymous comments. All comments received will be posted
without change to http://www.regulations.gov and will include any
personal information you have provided. For more about privacy and the
docket, visit http://www.regulations.gov/privacyNotice.
    Documents mentioned in this SNPRM as being available in the docket,
and all public comments, will be in our online docket at http://www.regulations.gov and can be viewed by following that website's
instructions. Additionally, if you go to the online docket and sign up
for email alerts, you will be notified when comments are posted or a
final rule is published.

List of Subjects in 33 CFR Part 165

    Harbors, Marine safety, Navigation (water), Reporting and
recordkeeping requirements, Security measures, Waterways.

    For the reasons discussed in the preamble, the Coast Guard proposes
to amend 33 CFR part 165 as follows:

PART 165--REGULATED NAVIGATION AREAS AND LIMITED ACCESS AREAS

0
1. The authority citation for part 165 continues to read as follows:

    Authority:  33 U.S.C. 1231; 50 U.S.C. 191; 33 CFR 1.05-1, 6.04-
1, 6.04-6, and 160.5; Department of Homeland Security Delegation No.
0170.1.

PART 165--REGULATED NAVIGATION AREAS AND LIMITED ACCESS AREAS

0
2. Add Sec.  165.760 to read as follows:

Sec.  165.760  Security Zones; Port of Palm Beach, Port Everglades, and
Port of Miami, Florida.

    (a) Definition. (1) As used in this section, passenger vessel is a
vessel greater than 100 feet in length and over 100 gross tons that is
authorized to carry more than 12 passengers for hire making voyages
lasting more than 24 hours, except for a ferry.
    (2) As used in this section, a vessel carrying cargoes of
particular hazard is defined in 33 CFR part 126 and a vessel carrying
liquefied hazardous gas (LHG) is defined in 33 CFR part 127.
    (b) Location. The following areas are security zones. All
coordinates are North American Datum 1983.
    (1) Fixed and moving security zones around vessels in the Port of
Palm Beach, Port Everglades, and Port of Miami Florida. Moving security
zones are established 100 yards around all passenger vessels, vessels
carrying cargoes of particular hazard, or vessels carrying liquefied
hazardous gas (LHG) during transits entering or departing the

Port of Palm Beach, Port Everglades, or Port of Miami. These moving
security zones are activated when the subject vessel passes: Lake Worth
Lighted Buoy LW, at approximate position 26[deg]46'22'' NN,
80[deg]00'37'' W, when entering the Port of Palm Beach; passes Port
Everglades Lighted Buoy PE, at approximate position 26[deg]05'30'' N,
080[deg]04'46'' W, when entering Port Everglades; and passes Miami
Lighted Buoy M, at approximate position 25[deg]46'05'' N,
080[deg]05'01'' W, when entering Port of Miami. These moving security
zones remain active whenever a passenger vessel, vessels carrying
cargoes of particular hazard, or vessels carrying LHG is underway
westward of the above mentioned buoys. Fixed security zones are
established 100 yards around all passenger vessels, vessels carrying
cargoes of particular hazard, or vessels carrying LHG, while the vessel
is moored in the Port of Palm Beach, Port Everglades, or Port of Miami,
Florida. Persons and vessels may pass within 100 yards of a moored
passenger vessel, vessel carrying cargoes of particular hazard, or
vessel carrying LHG that is moored within or alongside a federal
channel as long as the passage occurs outside of the on scene law
enforcement vessel. Persons and vessels shall pass north of the on
scene law enforcement vessel when north of the Port of Miami, south of
the on scene law enforcement vessel when south of the Port of Miami and
east of the on scene law enforcement vessel in Port Everglades.
    (2) Fixed security zone in Port of Miami, Florida. A fixed security
zone encompasses all waters between Watson Park and Star Island from
the MacArthur Causeway south to Port of Miami. The western boundary is
formed by an imaginary line from points 25[deg]46'45'' N,
080[deg]10'52'' W, northwest to 25[deg]46'46'' N, 080[deg]10'54'' W,
northeast to 25[deg]46'53'' N, 080[deg]10'50'' W, and extending
northeast ending at Watson Island at 25[deg]47'00'' N, 080[deg]10'40''
W. The eastern boundary is formed by an imaginary line approximately
100 yards west of the Fisher Island Ferry terminal, in approximate
position 25[deg]46'20'' N, 080[deg]09'07'' W, extending southwest
across the Main Channel to Port of Miami, at 25[deg]46'16'' N,
080[deg]09'11'' W. The fixed security zone is in effect when two or
more passenger vessels, vessels carrying cargoes of particular hazard,
or vessels carrying LHG, enter or moor within this zone.
    (i) When the security zone is in effect, persons and vessels shall
not enter or transit the security zone along the Miami Main Channel
unless authorized by Captain of the Port of Miami or a designated
representative.
    (ii) Persons and vessels may transit the Miami Main Channel when
only one passenger vessel, one vessel carrying cargoes of particular
hazard or one vessel carrying LHG is berthed.
    (iii) Law enforcement vessels can be contacted on VHF Marine Band
Radio, Channel 16 (156.8 MHz).
    (3) Fixed security zones in Port Everglades. A fixed security zone
encompasses Mid-Port to North-Port in Port Everglades and includes all
waters west of an imaginary line starting at the southernmost point
26[deg]05'24'' N, 080[deg]06'57'' W, on the northern tip of Berth 22,
to the northernmost point 26[deg]06'01'' N, 080[deg]07'09'' W, near the
west side of the 17th Street Bridge and then move west to the
northwestern most point at 26[deg]06'01'' N, 080[deg]07'10'' W. An
additional fixed security zone encompasses the waters west of the
Intracoastal Waterway to the pier face of Port Everglades from Mid-Port
south to the northern tip of the Dania Cut-Off Canal and includes the
waters westward of the line connecting the following points to the pier
face of Port Everglades: starting at 26[deg]05'25'' N, 080[deg]06'58''
W, on the northern tip of Berth 22 at Mid-Port, to a point directly
east along the Intracoastal Waterway, 26[deg]05'25'' N, 080[deg]06'54''
W, then southeast along the Intracoastal Waterway to 26[deg]05'10'' N,
080[deg]06'49'' W, then southwest along the Intracoastal Waterway to
26[deg]04'43'' N, 080[deg]06'53'' W, then south along the Intracoastal
Waterway to 26[deg]03'54'' N, 080[deg]06'52'' W, and then west to the
Port Everglades pier face just north of the Dania Cut-Off Canal at
26[deg]03'54'' N, 080[deg]06'55'' W.
    (i) Persons and vessels may transit the Intracoastal Waterway;
however, persons and vessels are not authorized to enter the fixed
security zone westward of the Intracoastal Waterway without
authorization from Captain of the Port Miami or a designated
representative. On occasion, a passenger vessel, vessel carrying
cargoes of particular hazard, or vessel carrying LHG may moor and
encroach into the Intracoastal Waterway. When this occurs, persons and
vessels shall transit the Intracoastal Waterway east of the on scene
law enforcement vessel.
    (ii) Periodically, vessels may be required to temporarily hold
their positions while large commercial traffic operates in this area.
Vessels near the security zone must follow the orders of the Captain of
the Port or the designated representative.
    (iii) Law enforcement vessels can be contacted on VHF Marine Band
Radio, Channel 16 (156.8 MHz).
    (c) Regulations. (1) Prior to commencing any movement, the person
directing the movement of a passenger vessel, a vessel carrying cargoes
of particular hazard, or a vessel carrying LHG is encouraged to make a
security broadcast on VHF Marine Band Radio Channel 16 (156.8 MHz) to
advise mariners of the moving security zone activation and intended
transit.
    (2) In accordance with the general regulations Section 165.33 of
this part, entry into these zones is prohibited, except as authorized
by the Captain of the Port of Miami or a designated representative.
Vessels such as pilot boats, tug boats, and contracted security vessels
may assist the Coast Guard Captain of the Port by monitoring these
zones strictly to advise mariners of the restrictions. The Captain of
the Port will notify the public of the security zone via signs or by
Marine Safety Radio Broadcasts on VHF Marine Band Radio Channel 16
(156.8 MHz) when applicable.
    (3) Persons and vessels desiring to enter or transit the fixed or
moving security zones may contact the Captain of the Port Miami at
(305) 535-4472 or on VHF Marine Band Radio Channel 16 (156.8 MHz) to
seek permission to transit the area. If permission is granted, all
persons and vessels must comply with the instructions of the Captain of
the Port or the designated representative.
    (4) The Captain of the Port Miami may waive any of the requirements
of this subpart for any vessel upon finding that the vessel or class of
vessel, operational conditions, or other circumstances are such that
application of this subpart is unnecessary or impractical for the
purpose of port security, safety, or environmental safety.
0
3. Revise Sec.  165.761 to read as follows:

Sec.  165.761   Security Zones; Port of Key West, Florida.

    (a) Definition. (1) As used in this section, passenger vessel is a
vessel greater than 100 feet in length and over 100 gross tons that is
authorized to carry more than 12 passengers for hire making voyages
lasting more than 24 hours, except for a ferry.
    (2) As used in this section, a vessel carrying cargoes of
particular hazard is defined in 33 CFR part 126 and a vessel carrying
liquefied hazardous gas (LHG) is defined in 33 CFR part 127.
    (b) Location. The following area is a security zone. Fixed and
moving security zones around vessels in the Port of Key West, Florida.
A moving security zones is established 100 yards around all passenger
vessels, vessels carrying cargoes of particular hazard, or

vessels carrying liquefied hazardous gas (LHG) during transits entering
or departing the Port of Key West, Florida. A moving security zones is
activated when the subject vessel passes Key West Entrance Lighted
Whistle Buoy KW, at approximate position 24[deg]27'26'' N,
081[deg]48'00'' W. This moving security zone remains active whenever a
passenger vessel, vessels carrying cargoes of particular hazard, or
vessels carrying LHG is underway westward of the above mentioned buoys.
Fixed security zones are established 100 yards around all passenger
vessels, vessels carrying cargoes of particular hazard, or vessels
carrying LHG, while the vessel is moored in the Port of Key West,
Florida.
    (c) Regulations. (1) Prior to commencing any movement, the person
directing the movement of a passenger vessel, a vessel carrying cargoes
of particular hazard, or a vessel carrying LHG, is encouraged to make a
security broadcast on VHF Marine Band Radio, Channel 16 (156.8 MHz) to
advise mariners of the moving security zone activation and intended
transit.
    (2) In accordance with the general regulations Section 165.33 of
this part, entry into these zones is prohibited except as authorized by
the Captain of the Port of Key West or a designated representative.
Vessels such as pilot boats, tug boats, and contracted security vessels
may assist the Coast Guard Captain of the Port by monitoring these
zones strictly to advise mariners of the restrictions. The Captain of
the Port will notify the public of the security zone via signs or by
Marine Safety Radio Broadcasts on VHF Marine Band Radio, Channel 16
(156.8 MHz) when applicable.
    (3) Persons and vessels desiring to enter in, transit through,
anchor in, or remain within the fixed or moving security zones may
contact the Captain of the Port Key West at<PHONE_NUMBER> or on VHF
Marine Band Radio Channel 16 (156.8 MHz) to seek permission to transit
the area. If permission is granted, all persons and vessels must comply
with the instructions of the Captain of the Port or the designated
representative.
    (4) The Captain of the Port Key West may waive any of the
requirements of this subpart for any vessel upon finding that the
vessel or class of vessel, operational conditions, or other
circumstances are such that application of this subpart is unnecessary
or impractical for the purpose of port security, safety, or
environmental safety.

    Dated: February 4, 2019.
P.J. Brown,
Rear Admiral, U.S. Coast Guard, Commander, Seventh Coast Guard
District.
[FR Doc. 2019-01468 Filed 2-6-19; 8:45 am]
 BILLING CODE 9110-04-P


you have any type of prosthetic or other device that could be used to
interfere with the collection process;
    (10) Possess or wear a prosthetic or other device that could be
used to interfere with the collection process; or
    (11) Admit to the collector or MRO that you adulterated or
substituted the specimen.
* * * * *
    (c) As an employee, if you refuse to take a drug test, you incur
the consequences specified under DOT agency regulations for a violation
of those DOT agency regulations. The consequences specified under DOT
agency regulations for a refusal cannot be overturned or set aside by
an arbitration, grievance, State court or other non-Federal forum that
adjudicates the personnel decisions the employer has taken against the
employee.
    (d) * * *
    (1) As the collector, you must note the actions that may constitute
a refusal in the ``Remarks'' line (Step 2), and sign and date the CCF.
The collector does not make the final decision about whether the
employee's conduct constitutes a refusal to test; the employer has the
sole responsibility to decide whether a refusal occurred, as stated in
Sec.  40.355(i), the employer has a non-delegable duty to make the
decision about whether the employee has refused to test.
* * * * *

0
78. Revise Sec.  40.193 to read as follows:

Sec.  40.193  What happens when an employee does not provide a
sufficient amount of specimen for a drug test?

    (a) If an employee does not provide a sufficient amount of specimen
to permit a drug test (i.e., 45 mL of urine in a single void, or 2mL
oral fluid in a single sampling, as applicable) you, as the collector,
must provide another opportunity to the employee to do so. In
accordance with the employer's instructions, this can be done using the
same specimen type as the original collection or this can be done by a
collector qualified to use an alternate specimen collection for this
purpose.
    (1) If you change to an alternate specimen collection at this point
(i.e., from urine to oral fluid; or from oral fluid to urine), the next
collection begins under Sec.  40.61(e) for urine or Sec.  40.72 for
oral fluid collection.
    (i) If you proceed with an alternate specimen collection, discard
the insufficient specimen and proceed with the next specimen
collection.
    (ii) If you proceed with an alternate specimen collection, discard
the CCF for the insufficient specimen and begin a new CCF for the next
specimen collection with a notation in the remarks section of the new
CCF.
    (b)(1) As the collector, you must do the following when continuing
with a urine specimen collection under this section:
    (i) Discard the insufficient specimen, except where the
insufficient specimen was out of temperature range or showed evidence
of adulteration or tampering (see Sec.  40.65(b) and (c)).
    (ii) Urge the employee to drink up to 40 ounces of fluid,
distributed reasonably through a period of up to three hours, or until
the individual has provided a sufficient urine specimen, whichever
occurs first. It is not a refusal to test if the employee declines to
drink. Document on the Remarks line of the CCF (Step 2), and inform the
employee of the time at which the three-hour period begins and ends.
    (iii) If the employee refuses to make the attempt to provide a new
urine specimen or leaves the collection site before the collection
process is complete, you must discontinue the collection, note that
fact on the ``Remarks'' line of the CCF (Step 2), and immediately
notify the DER of the conduct as provided in Sec.  40.191(e)(1); the
employer decides whether the situation is deemed to be a refusal.
    (iv) If the employee has not provided a sufficient specimen within
three hours of the first unsuccessful attempt to provide the specimen,
you must discontinue the collection, note the fact on the ``Remarks''
line of the CCF (Step 2), and immediately notify the DER. You must also
discard any specimen the employee previously provided, including any
specimen that is ``out of temperature range'' or shows signs of
tampering. In the remarks section of the CCF that you will distribute
to the MRO and DER, note the fact that the employee provided an ``out
of temperature range specimen'' or ``specimen that shows signs of
tampering'' and that it was discarded

because the employee did not provide a second sufficient specimen.
    (2) As the collector, you must do the following when continuing
with an oral fluid specimen collection under this section:
    (i) If the employee demonstrates an inability to provide a specimen
after 15 minutes of using the collection device, and if the donor
states that he or she could provide a specimen after drinking some
fluids, urge the employee to drink (up to 8 ounces) and wait an
additional 10 minutes before beginning the next specimen collection (a
period of up to one hour must be provided, or until the donor has
provided a sufficient oral fluid specimen, whichever occurs first). If
the employee simply needs more time before attempting to provide an
oral fluid specimen, the employee is not required to drink any fluids
during the one-hour wait time. It is not a refusal to test if the
employee declines to drink. The employee must remain at the collection
site, in a monitored area designated by the collector, during the wait
period.
    (ii) If the employee has not provided a sufficient specimen within
one hour of the first unsuccessful attempt to provide the specimen, you
must discontinue the collection, note the fact on the ``Remarks'' line
of the CCF (Step 2), and immediately notify the DER.
    (3) Send Copy 2 of the CCF to the MRO and Copy 4 to the DER. You
must send or fax these copies to the MRO and DER within 24 hours or the
next business day.
    (c) As the DER, if the collector informs you that the employee has
not provided a sufficient amount of specimen (see paragraph (b) of this
section), you must, after consulting with the MRO, direct the employee
to obtain, within five days, an evaluation from a licensed physician,
acceptable to the MRO, who has expertise in the medical issues raised
by the employee's failure to provide a urine (see paragraph (b)(1) of
this section) or oral fluid (see paragraph (b)(2) of this section)
sufficient specimen, but not both. The evaluation and MRO determination
required by this section only applies to the oral fluid or the urine
insufficient specimen that was the final methodology at the collection
site. (The MRO may perform this evaluation if the MRO has appropriate
expertise.)
    (1) As the MRO, if another physician will perform the evaluation,
you must provide the other physician with the following information and
instructions:
    (i) That the employee was required to take a DOT drug test, but was
unable to provide a sufficient amount of specimen to complete the test;
    (ii) The consequences of the appropriate DOT agency regulation for
refusing to take the required drug test;
    (iii) That the referral physician must agree to follow the
requirements of paragraphs (d) through (g) of this section.
    (2) [Reserved]
    (d) As the referral physician conducting this evaluation, you must
recommend that the MRO make one of the following determinations:
    (1) A medical condition has, or with a high degree of probability
could have, precluded the employee from providing a sufficient amount
of specimen. As the MRO, if you accept this recommendation, you must:
    (i) Check ``Test Cancelled'' (Step 6) on the CCF; and
    (ii) Sign and date the CCF.
    (2) There is not an adequate basis for determining that a medical
condition has, or with a high degree of probability could have,
precluded the employee from providing a sufficient amount of specimen.
As the MRO, if you accept this recommendation, you must:
    (i) Check the ``Refusal to Test'' box and ``Other'' box in Step 6
on Copy 2 of the CCF and note the reason next to the ``Other'' box and
on the ``Remarks'' lines, as needed.
    (ii) Sign and date the CCF.
    (e) For purposes of this paragraph, a medical condition includes an
ascertainable physiological condition (e.g., a urinary system
dysfunction in the case of a urine test or autoimmune disorder in the
case of an oral fluid test), or a medically documented pre-existing
psychological disorder, but does not include unsupported assertions of
``situational anxiety'' or dehydration.
    (f) As the referral physician making the evaluation, after
completing your evaluation, you must provide a written statement of
your recommendations and the basis for them to the MRO. You must not
include in this statement detailed information on the employee's
medical condition beyond what is necessary to explain your conclusion.
    (g) If, as the referral physician making this evaluation in the
case of a pre-employment, return-to-duty, or follow-up test, you
determine that the employee's medical condition is a serious and
permanent or long-term disability that is highly likely to prevent the
employee from providing a sufficient amount of specimen for a very long
or indefinite period of time, you must set forth your determination and
the reasons for it in your written statement to the MRO. As the MRO,
upon receiving such a report, you must follow the requirements of Sec.
40.195, where applicable.
    (h) As the MRO, you must seriously consider and assess the referral
physician's recommendations in making your determination about whether
the employee has a medical condition that has, or with a high degree of
probability could have, precluded the employee from providing a
sufficient amount of specimen. You must report your determination to
the DER in writing as soon as you make it.
    (i) As the employer, when you receive a report from the MRO
indicating that a test is cancelled as provided in paragraph (d)(1) of
this section, you take no further action with respect to the employee.
If the test reason was `random', the employee remains in the random
testing pool.

0
79. Amend Sec.  40.195 by revising the section heading to read as
follows:

Sec.  40.195  What happens when an individual is unable to provide a
sufficient amount of specimen for a pre-employment, follow-up, or
return-to-duty test because of a permanent or long-term medical
condition?

* * * * *

0
80. Amend Sec.  40.197 by revising the section heading to read as
follows:

Sec.  40.197  What happens when an employer receives a report of a
dilute urine specimen?

* * * * *

0
81. Amend Sec.  40.199 by revising paragraph (b)(7) and adding
paragraphs (b)(8) and (9) to read as follows:

Sec.  40.199  What problems always cause a drug test to be cancelled?

* * * * *
    (b) * * *
    (7) Because of leakage or other causes, there is an insufficient
amount of specimen in the primary specimen bottle for analysis and the
specimens cannot be re-designated (see Sec.  40.83(h)).
    (8) For an oral fluid collection, the collector used an expired
device at the time of collection.
    (9) For an oral fluid collection, the collector failed to enter the
expiration date in Step 4 of the CCF and the laboratory confirmed that
the device was expired.
* * * * *

Sec.  40.201  [Amended]

0
82. Amend Sec.  40.201 in the first sentence of paragraph (f) by
removing the word ``urine'' and adding in its place the word
``specimen''.

0
83. Amend Sec.  40.207 by adding paragraph (d) to read as follows:

Sec.  40.207  What is the effect of a cancelled drug test?

* * * * *

    (d) If a test is cancelled for a correctible flaw (i.e., Sec.
40.203 or Sec.  40.205), only the MRO who cancelled the test can
reverse the cancellation and must do so within 60 days of the
cancellation. After 60 days, the MRO who cancelled the test cannot
reverse the cancellation without the permission of ODAPC. For example,
if an MRO cancels a test because the MRO did not receive a copy of the
CCF, but later receives a copy of the CCF, the MRO may reverse the
decision to cancel the test within 60 days. After 60 days, the MRO must
contact ODAPC for permission to reverse the cancellation. An MRO must
not reverse the cancellation of a test that the laboratory has reported
as rejected for testing, as described in Sec.  40.83(g). A laboratory
is not authorized to reverse a cancellation due to a fatal flaw, as
described in Sec.  40.199.

0
84. Revise Sec.  40.208 to read as follows:

Sec.  40.208  What problems require corrective action but do not result
in the cancellation of a test?

    (a) If, as a laboratory, collector, employer, or other person
implementing the DOT drug testing program, you become aware that any of
the following omissions listed in paragraphs (a)(1) through (3) of this
section occurred, you must take corrective action, including securing a
memorandum for the record explaining the problem and taking appropriate
action to ensure the problem does not recur:
    (1) For a urine collection, the specimen temperature on the CCF was
not checked and the ``Remarks'' line did not contain an entry regarding
the temperature being out of range; or
    (2) For an oral fluid collection, the collector failed to check the
box in Step 2 of the CCF that indicates ``Each Device was Within
Expiration Date'' but the collector entered the ``Split Specimen Device
Expiration Date'' in Step 4 of the CCF.
    (3) For an oral fluid collection, the collector erred by entering
the expiration date as the ``Primary/Single Specimen Device Expiration
Date'' instead of entering the date as the ``Split Specimen Device
Expiration Date'' in Step 4 of the CCF.
    (b) The errors listed in paragraph (a) of this section do not
result in the cancellation of the test.
    (c) As an employer or service agent, the errors listed in paragraph
(a) of this section, even though not sufficient to cancel a drug test
result, may subject you to enforcement action under DOT agency
regulations or subpart R of this part.
0
85. Amend Sec.  40.209 in paragraph (b)(1) by removing ``social
security number'' and adding in its place ``SSN or Employee ID No.'',
in paragraph (b)(3) by removing ``(see Sec.  40.33)'' and adding in its
place ``(see Sec. Sec.  40.33 or 40.35)'', in paragraph (b)(7) by
removing ``Sec.  40.41'' and adding in its place ``Sec.  40.42'', and
by adding paragraph (b)(11).
    The addition reads as follows:

Sec.  40.209  What procedural problems do not result in cancellation of
a test and do not require correction?

* * * * *
    (b) * * *
    (11) The failure to use a new CCF for a second collection after an
insufficient specimen was conducted under a different methodology
(e.g., failing to use a new CCF for an oral fluid test after an
insufficient quantity of urine was produced on a urine test.)
* * * * *

0
86. Revise Sec.  40.210 to read as follows:

Sec.  40.210  What kinds of drug tests are permitted under the
regulations?

    Both urine and oral fluid specimens are authorized for collection
and testing under this part. An employer can use one or the other, but
not both at the beginning of the testing event. For example, if an
employee is sent for a test, either a urine or oral fluid specimen can
be collected, but not both simultaneously. However, if there is a
problem in the collection that necessitates a second collection (e.g.,
insufficient quantity of urine, temperature out of range, or
insufficient saliva), then a different specimen type could be chosen by
the employer (i.e., through a standing order or a discussion with the
collector) or its service agent (i.e., if there is no standing order
and the service agent cannot contact the DER) to complete the
collection process for the testing event. Only urine and oral fluid
specimens screened and confirmed at HHS-certified laboratories (see
Sec.  40.81) are allowed for drug testing under this part. Point-of-
collection (POC) urine, POC oral fluid drug testing, hair testing, or
instant tests are not authorized.

Sec.  40.225  [Amended]

0
87. Amend Sec.  40.225 in paragraph (a) by removing ``Appendix G'' and
adding in its place ``appendix I''.

0
88. Amend Sec.  40.261 by revising paragraphs (a)(2) and (3) and (b),
redesignating paragraph (c) as paragraph (c)(1), and adding paragraph
(c)(2)
    The revisions and addition read as follows.

Sec.  40.261  What is a refusal to take an alcohol test?

* * * * *
    (a) * * *
    (2) Fail to remain at the testing site until the testing process is
complete. Provided that an employee who leaves the collection site
before the testing process commences (see Sec.  40.243(a)) for a pre-
employment test is not deemed to have refused to test. The BAT or STT
is not required to inform an employee that the failure to remain at the
collection site is a refusal. If an employee leaves prior to the
completion of the testing process, per Sec.  40.355(i) the employer
must decide whether the employee's actions constitute a refusal;
    (3) Fail to provide an adequate amount of saliva or breath for any
alcohol test required by this part or DOT agency regulations; Provided
that an employee who does not provide an adequate amount of breath or
saliva because he or she has left the testing site before the testing
process commences (see Sec.  40.243(a)) for a pre-employment test is
not deemed to have refused to test. The BAT or STT is not required to
inform an employee that the failure to remain at the collection site is
a refusal. If an employee leaves prior to the completion of the testing
process, per Sec.  40.355(i) the employer must decide whether the
employee's actions constitute a refusal;
* * * * *
    (b) As an employee, if you refuse to take an alcohol test, you
incur the same consequences specified under DOT agency regulations for
a violation of those DOT agency regulations. The consequences specified
under DOT agency regulations for a refusal cannot be overturned or set
aside by an arbitration, grievance, State court or other non-Federal
forum that adjudicates the personnel decisions the employer has taken
against the employee.
    (c) * * *
    (2) As the BAT or STT, you must note the actions that may
constitute a refusal in the ``Remarks'' line (Step 3), and sign and
date the ATF. The BAT or STT does not make the final decision about
whether the employee's conduct constitutes a refusal to test; the
employer has the sole responsibility to decide whether a refusal
occurred, as stated in Sec.  40.355(i), the employer has a non-
delegable duty to make the decision about whether the employee has
refused to test.
* * * * *

0
89. Amend Sec.  40.281 by adding paragraph (f) to read as follows:

Sec.  40.281  Who is qualified to act as a SAP?

* * * * *
    (f) Limitation. If you are an otherwise qualified SAP under this
part, you must abide by the geographic limitations applicable to your
credential when performing remote evaluations. You must not conduct an
evaluation that exceeds your geographic limitations.

Sec.  40.283  [Amended]

0
90. Amend Sec.  40.283 in paragraph (c) by removing ``Appendix E'' and
adding in its place ``appendix G''.

Sec.  40.285  [Amended]

0
91. Amend Sec.  40.285 in paragraph (b) by removing the word ``urine''.

0
92. Amend Sec.  40.291 by revising paragraphs (a)(1) and (3) to read as
follows:

Sec.  40.291  What is the role of the SAP in the evaluation, referral,
and treatment process of an employee who has violated DOT Agency drug
and alcohol testing regulations?

    (a) * * *
    (1) Making a clinical assessment and evaluation to determine what
assistance is needed by the employee to resolve problems associated
with alcohol and/or drug use. At the SAP's discretion, this assessment
or evaluation may be performed face-to-face in-person or remotely. If a
SAP is not prohibited from using technology within the parameters of
the SAP's State-issued license or other credential(s), a remote
evaluation must be must be conducted in accordance with the following
criteria:
    (i) The technology must permit real-time audio and visual
interaction between the SAP and the employee; and
    (ii) The quality of the technology (e.g., speed of the internet
connection and clarity of the video display) must be sufficient to
allow the SAP to gather all the visual and audible information the SAP
would otherwise gather in an in-person face-to-face interaction, while
providing security to protect the confidentiality of the communications
at the level expected by industry standards for remote substance abuse
evaluations.
* * * * *
    (3) Conducting a follow-up evaluation to determine if the employee
has actively participated in the education and/or treatment program and
has demonstrated successful compliance with the initial assessment and
evaluation recommendations. This assessment or evaluation may be
performed face-to-face in-person or remotely. A face-to-face remote
evaluation must meet the criteria in paragraphs (a)(1)(i) and (ii) of
this section.
* * * * *

0
93. Amend Sec.  40.293 by:
0
a. Removing the words ``face-to-face'', and after the words ``clinical
evaluation,'' adding the words ``meeting the requirements of Sec.
40.291(a)(1)'' in paragraph (a);
0
b. Redesignating paragraphs (e) through (g) as paragraphs (f) through
(h); and
0
c. Adding new paragraph (e).
    The addition reads as follows:

Sec.  40.293  What is the SAP's function in conducting the initial
evaluation of an employee?

* * * * *
    (e) You must assess and clinically evaluate each employee on an
individual basis and use your professional judgment to determine
education and/or treatment, as well as a follow-up testing plan unique
to the needs of the individual employee. For example, do not require
the same and/or substantially similar education, treatment, and/or
follow-up testing plan for most of the employees you assess.
* * * * *

0
94. Amend Sec.  40.297 by adding paragraph (c) to read as follows:

Sec.  40.297  Does anyone have the authority to change an SAP's initial
evaluation?

* * * * *
    (c) The SAP, who is otherwise fully qualified under this subpart,
must not perform evaluations outside the geographic jurisdiction for
their credential(s). If the SAP who made the evaluation exceeds their
geographic jurisdiction, the employee will not be required to seek the
evaluation of a second SAP.

Sec.  40.301  [Amended]

0
95. Amend Sec.  40.301 in paragraph (b)(2) by removing the words
``face-to-face'', and after the words ``clinical interview'', adding
the words ``meeting the requirements of Sec.  40.291(a)(1)''.

0
96. Amend Sec.  40.305 by adding paragraph (d) to read as follows:

Sec.  40.305  How does the return-to-duty process conclude?

* * * * *
    (d) As the employer, if a SAP who is otherwise fully qualified
under this subpart performed a remote evaluation of the employee
outside the geographic jurisdiction for their credential(s), the
employee who they evaluated will not be required to seek the evaluation
of a second SAP. If you decide that you want to permit the employee to
return to the performance of safety-sensitive functions, you will
proceed with the requirements of paragraph (a) of this section.

0
97. Amend Sec.  40.307 by adding paragraph (g) to read as follows:

Sec.  40.307  What is the SAP's function in prescribing the employee's
follow-up tests?

* * * * *
    (g) As the employer, SAP, or other service agent, you must not
provide to the employee a copy of their drug and/or alcohol follow-up
testing schedule prescribed by the SAP. No employer, SAP, or other
service agent will indicate to the employee what the frequency or
duration of the employee's follow-up testing schedule will be. The SAP
can require follow-up testing for either or both drugs and alcohol for
a drug-related or an alcohol-related violation.

Sec.  40.311  [Amended]

0
98. Amend Sec.  40.311 in paragraphs (c)(4), (d)(4), and (e)(4) after
the word ``Date(s)'' by adding the words ``and format (i.e., face-to-
face or remote)'' and in paragraphs (c)(1), (d)(1), and (e)(1) by
removing ``SSN'' and adding in its place ``SSN or employee ID No.''.

0
99. Amend Sec.  40.327 by:
0
a. Removing the reference ``paragraph (c)'' and adding in its place
``paragraph (d)'' in paragraph (a) introductory text;
0
b. Redesignating paragraph (c) as paragraph (d); and
0
c. Adding a new paragraph (c).
    The addition reads as follows:

Sec.  40.327  When must the MRO report medical information gathered in
the verification process?

* * * * *
    (c) The MRO must not report such medical information using the CCF.
Instead, the MRO must provide the information in a separate written
communication (e.g., letter, secure email). The information must state
the specific nature of the MRO's safety concern (e.g., the effects of a
medication the employee is taking, the employee's underlying medical
condition that the employee disclosed to the MRO).
* * * * *

Sec.  40.345  [Amended]

0
100. Amend Sec.  40.345 in paragraph (b) by removing ``Appendix F'' and
adding in its place ``appendix H''.

Sec.  40.355  [Amended]

0
101. Amend Sec.  40.355 in Example 3 to paragraph (n) by removing the
word ``urine''.

Sec.  40.365  [Amended]

0
102. Amend Sec.  40.365 in paragraph (b)(8) by removing the words
``face-to-

face interviews'' and adding in their place the words ``without
interviews meeting the requirements of Sec.  40.291(a)(1)''.

Appendices E Through H to Part 40 [Redesignated as Appendices G Through
J to Part 40]

0
103. Redesignate appendices E through H to part 40 as appendices G
through J to part 40.

Appendix C to Part 40 [Redesignated as Appendix E to Part 40]

0
104. Redesignate appendix C to part 40 as appendix E to part 40.

Appendix C to Part 40 [Reserved]

0
105. Add reserved appendix C to part 40.

Appendix D to Part 40 [Redesignated as Appendix F to Part 40]

0
106. Redesignate appendix D to part 40 as appendix F to part 40.

Appendix B to Part 40 [Redesignated as Appendix D to Part 40]

0
107. Redesignate appendix B to part 40 as appendix D to part 40.

0
108. Add new appendix B to part 40 to read as follows:

Appendix B to Part 40--Oral Fluid Collection Kit Contents

1. Oral Fluid Collection Device

    a. A single device, which can be subdivided in the employee's
presence into an ``A'' specimen and a ``B'' split specimen bottle
sufficient for laboratory testing, that is either of the following:
    (1) An oral fluid collection device made to collect a sufficient
amount of oral fluid to permit an HHS-certified laboratory to
analyze the specimen(s). For example, a device that directs the oral
fluid into two separate collection bottles.
    (2) A device that uses buffering solution that collects a
specimen using a single pad or dual pads joined for insertion
together into the same region of the mouth, which can be subdivided
into two separate collection bottles. Such a buffered device may use
a diluent (or other component, process, or method that modifies the
volume of the testable specimen). The volume specifications for the
device must be consistent with those set by HHS.
    b. Must have unit markings or other indicators that demonstrate
the adequacy of the volume of oral fluid specimen collected.
    c. Must be sufficiently transparent to permit a visual
assessment of the contents without opening the specimen bottle.
    d. Must be individually packaged in an easily visible tamper-
evident system.
    e. Must have the device's expiration date on the specimen
bottles sent to the laboratory (i.e., the shortest expiration date
of any component).
    f. Must not have components that substantially affect the
composition of drugs and/or drug metabolites in the oral fluid
specimen and/or interfere with an accurate analysis of the specimen.
    g. Must maintain the integrity of the specimen during storage
and transport so the specimen can be tested in an HHS-certified
laboratory.
    h. Must be designed so that the required tamper-evident bottle
seals made available on the CCF fit without concealing the
expiration date on the bottles, without damage to the seal when the
collector dates and the employee initials it.
    i. Must be approved by HHS for use by the specific HHS-certified
laboratory that will test the specimen gathered by this device.

2. Instructions

    Must include the manufacturer's instructions within the device's
packaging. The instructions must provide sufficient detail to allow
for an error-free collection when the instructions are followed.

3. Leak-Resistant Plastic Bag

    a. Must have two sealable compartments or pouches that are leak-
resistant; one large enough to hold two specimen bottles and the
other large enough to hold the CCF paperwork, as applicable.
    b. The sealing methodology must be such that once the
compartments are sealed, any tampering or attempts to open either
compartment will be evident.

4. Absorbent Material

    Each kit must contain enough absorbent material to absorb the
entire contents of both specimen bottles. Absorbent material must be
designed to fit inside the leak-resistant plastic bag pouch into
which the specimen bottles are placed.

5. Shipping Container

    a. Must be designed to adequately protect the specimen bottles
from damage during shipment of the specimens from the collection
site to the laboratory (e.g., standard courier box, small cardboard
box, plastic container).
    b. May be made available separately at collection sites rather
than being part of an actual collection device sent to collection
sites.
    c. A shipping container is not necessary if a laboratory courier
hand-delivers the specimen bottles in the leak-resistant plastic
bags from the collection site to the laboratory.

0
109. Revise the newly redesignated appendix D to read as follows:

Appendix D to Part 40--DOT Drug Testing Semi-Annual Laboratory Report
to Employers

    The following items are required on each laboratory report:

Reporting Period: (inclusive dates)
Laboratory Identification: (name and address)
Employer Identification: (name; may include Billing Code or ID code)
C/TPA Identification: (where applicable; name and address)

A. Urine Specimens

1. Urine Specimen Results Reported (Total Number) By Test Reason

(a) Pre-employment (number)
(b) Post-Accident (number)
(c) Random (number)
(d) Reasonable Suspicion/Cause (number)
(e) Return-to-Duty (number)
(f) Follow-up (number)
(g) Type of Test Not Noted on CCF (number)

2. Urine Specimens Reported

(a) Negative (number)
(b) Negative and Dilute (number)

3. Urine Specimens Reported as Rejected for Testing (Total Number)
by Reason

(a) Fatal flaw (number)
(b) Uncorrected Flaw (number)

4. Urine Specimens Reported as Positive (Total Number) by Drug

(a) Marijuana Metabolite (number)
(b) Cocaine Metabolite (number)
(c) Opioids (number)
    (1) Codeine (number)
    (2) Morphine (number)
    (3) 6-AM (number)
    (4) Hydrocodone (number)
    (5) Hydromorphone (number)
    (6) Oxycodone (number)
    (7) Oxymorphone (number)
(d) Phencyclidine (number)
(e) Amphetamines (number)
    (1) Amphetamine (number)
    (2) Methamphetamine (number)
    (3) MDMA (number)
    (4) MDA (number)

5. Urine Adulterated (Number)

6. Urine Substituted (Number)

7. Urine Invalid Result (Number)

B. Oral Fluid Specimens

1. Oral Fluid Specimen Results Reported (Total Number) by Test
Reason

(a) Pre-employment (number)
(b) Post-Accident (number)
(c) Random (number)
(d) Reasonable Suspicion/Cause (number)
(e) Return-to-Duty (number)
(f) Follow-up (number)
(g) Type of Test Not Noted on CCF (number)

2. Oral Fluid Specimens Reported

(a) Negative (number)
(b) Negative and Dilute (number)

3. Oral Fluid Specimens Reported as Rejected for Testing (Total
Number) by Reason

(a) Fatal flaw (number)
(b) Uncorrected Flaw (number)

4. Oral Fluid Specimens Reported as Positive (Total Number) by Drug

(a) Marijuana (number)
(b) Cocaine and/or Cocaine Metabolite (number)
(c) Opioids (number)
    (1) Codeine (number)
    (2) Morphine (number)
    (3) 6-AM (number)
    (4) Hydrocodone (number)
    (5) Hydromorphone (number)
    (6) Oxycodone (number)

    (7) Oxymorphone (number)
(d) Phencyclidine (number)
(e) Amphetamines (number)
    (1) Amphetamine (number)
    (2) Methamphetamine (number)
    (3) MDMA (number)
    (4) MDA (number)

5. Oral Fluid Adulterated (Number)

6. Oral Fluid Substituted (Number)

7. Oral Fluid Invalid Result (Number)

0
110. Revise newly redesignated appendix E to part 40 to read as
follows:

Appendix E to Part 40--Drug Testing Semi-Annual Laboratory Report to
DOT

    Mail, fax or email to: U.S. Department of Transportation, Office
of Drug and Alcohol Policy and Compliance, 1200 New Jersey Avenue
SE, Washington, DC 20590.
    Fax:<PHONE_NUMBER>.
    Email: [email protected]
    The following items are required on each report:

Reporting Period: (inclusive dates)
Laboratory Identification: (name and address)
1. Specimen Type:
    --oral fluid or urine
2. DOT agency
    --FMCSA, FAA, FRA, FTA, PHMSA, or USCG
3. Test Reason
    --Pre-Employment, Random, Reasonable Suspicion/Cause, Post-
Accident, Return-to-Duty, Other, and Follow-up
A. DOT Specimen Results Reported (total number)
B. Negative Results Reported (total number)
    1. Negative (number)
    2. Negative-Dilute (number)
C. Rejected for Testing Results Reported (total number) By Reason
    1. Fatal flaw (number)
    2. Uncorrected Flaw (number)
D. Positive Results Reported (total number) By Drug
    1. Marijuana or Marijuana Metabolite (number)
    2. Cocaine and/or Cocaine Metabolite (number)
    3. Opioids (number)
    a. Codeine (number)
    b. Morphine (number)
    c. 6-AM (number)
    d. Hydrocodone (number)
    e. Hydromorphone (number)
    f. Oxycodone (number)
    g. Oxymorphone (number)
    4. Phencyclidine (number)
    5. Amphetamines (number)
    a. Amphetamine (number)
    b. Methamphetamine (number)
    c. MDMA (number)
    d. MDA (number)
E. Adulterated Results Reported (total number) By Reason (number)
F. Substituted Results Reported (total number)
G. Invalid Results Reported (total number) By Reason (number)

0
111. Revise newly redesignated appendix F to part 40 to read as
follows:

Appendix F to Part 40--Report Format: Split Specimen Failure To
Reconfirm

    Mail, fax, or submit electronically to: U.S. Department of
Transportation, Office of Drug and Alcohol Policy and Compliance,
1200 New Jersey Avenue SE, Washington, DC 20590.
    Fax:<PHONE_NUMBER>.
    Submit Electronically: https://www.transportation.gov/odapc/mro-split-specimen-cancellation-notification.
    The following items are required on each report:
    1. MRO name, address, phone number, and fax number.
    2. Collection site name, address, and phone number.
    3. Date of collection.
    4. Specimen I.D. number.
    5. Specimen type.
    6. Laboratory accession number.
    7. Primary specimen laboratory name, address, and phone number.
    8. Date result reported or certified by primary laboratory.
    9. Split specimen laboratory name, address, and phone number.
    10. Date split specimen result reported or certified by split
specimen laboratory.
    11. Primary specimen results (e.g., name of drug, adulterant) in
the primary specimen.
    12. Reason for split specimen failure-to-reconfirm result (e.g.,
drug or adulterant not present, specimen invalid, split not
collected, insufficient volume).
    13. Actions taken by the MRO (e.g., notified employer of failure
to reconfirm and requirement for re-collection).
    14. Additional information explaining the reason for
cancellation.
    15. Name of individual submitting the report (if not the MRO).

Appendix H to Part 40 [Amended]

0
112. Amend newly redesignated appendix H under ``Drug Testing
Information'' by removing the reference ``Sec.  40.129(d)'' and adding
in its place the reference ``Sec.  40.129(e)''.

PART 219--CONTROL OF ALCOHOL AND DRUG USE

0
113. The authority citation for part 219 continues to read as follows:

    Authority: 49 U.S.C. 20103, 20107, 20140, 21301, 21304, 21311;
28 U.S.C. 2461 note; Div. A, Sec. 412, Public Law 110-432, 122 Stat.
4889 (49 U.S.C. 20140 note); Sec. 8102, Public Law 115-271, 132
Stat. 3894; and 49 CFR 1.89.

Sec.  219.4  [Amended]

0
114. Amend Sec.  219.4 in paragraphs (a) introductory text and (b)(1)
and (2) by removing the term ``return-to-service'' and adding in its
place the term ``return-to-duty'' and in paragraph (b)(2) by removing
``paragraph (d) of this section'' and adding ``Sec.  219.104(d)''.

Sec.  219.11  [Amended]

0
115. Amend Sec.  219.11 in paragraph (a)(2) by removing the word
``urine'' and adding in its place ``body fluid'' and in paragraph (h)
by removing the words ``urine or blood'' and adding in their place the
words ``body fluid'' and by adding ``or oral fluid from a sampling''
after the word ``void''.

Sec.  219.617  [Amended]

0
116. Amend Sec.  219.617 in paragraph (b)(2) by removing the word
``urine'' and adding in its place ``body fluid''.

Sec.  219.619  [Amended]

0
117. Amend Sec.  219.619 by removing the word ``urine'' and adding in
its place ``body fluid'' in two places.

Sec.  219.621  [Amended]

0
118. Amend Sec.  219.621 in paragraph (a) by removing the word
``urine'' and adding in its place ``body fluid''.

Sec.  219.903  [Amended]

0
119. Amend Sec.  219.903 in paragraph (a) by removing the word
``urine'' and adding in its place ``body fluid''.

PART 240--QUALIFICATION AND CERTIFICATION OF LOCOMOTIVE ENGINEERS

0
120. The authority citation for part 240 continues to read as follows:

    Authority:  49 U.S.C. 20103, 20107, 20135, 21301, 21304, 21311;
28 U.S.C. 2461 note; and 49 CFR 1.89.

Sec.  240.119  [Amended]

0
121. Amend Sec.  240.119 in paragraphs (e)(4)(iv)(A) and (f)(1)(iii) by
removing the word ``urine'' and adding in its place ``body fluid''.

PART 242--QUALIFICATION AND CERTIFICATION OF CONDUCTORS

0
122. The authority citation for part 242 continues to read as follows:

    Authority:  49 U.S.C. 20103, 20107, 20135, 20138, 20162, 20163,
21301, 21304, 21311; 28 U.S.C. 2461 note; and 49 CFR 1.89.

Sec.  242.115  [Amended]

0
123. Amend Sec.  242.115 in paragraphs (e)(4)(iv)(A) and (f)(1)(iii) by
removing the word ``urine'' and adding in its place ``body fluid''.

PART 382--CONTROLLED SUBSTANCES AND ACOHOL USE AND TESTING

0
124. The authority citation for part 382 continues to read as follows:

    Authority:  49 U.S.C. 31133, 31136, 31301 et seq., 31502; sec.
32934 of Public Law 112-141, 126 Stat. 405, 830; and 49 CFR 1.87.

Sec.  382.107  [Amended]

0
128. Amend Sec.  382.107:
0
a. In the definitions of ``Confirmation (or confirmatory) drug test''
and ``Confirmation (or confirmatory) validity'' by adding ``or oral
fluid'' after the word ``urine'';
0
b. In the definition of ``Controlled substances'' by removing ``Sec.
40.85'' and adding in its place ``Sec.  40.82'';
0
c. In paragraphs (3) and (5) to the definition of ``Refuse to submit
(to an alcohol or controlled substances test'' by adding ``or oral
fluid'' after the word ``urine'' each place it appears; and
0
d. In paragraph (1) to the definition of ``Screening test (or initial
test)'' by adding ``or oral fluid'' after the word ``urine''.

Sec.  382.401  [Amended]

0
129. Amend Sec.  382.401 in paragraph (b)(3) by adding the words ``and
MRO reversal of canceled controlled substances test results'' after the
words ``canceled controlled substances test results'' and in paragraph
(c)(1)(vii) by adding ``or oral fluid'' after the word ``urine''.

Sec.  382.403  [Amended]

0
130. Amend Sec.  382.403 in the third sentence of paragraph (b) by
removing ``appendix H'' and adding in its place ``appendix J''.

Sec.  382.409  [Amended]

0
131. Amend Sec.  382.409 in paragraph (b) by adding the words ``and MRO
reversal of cancelled controlled substances test results'' after the
words ``test results''.

Sec.  382.705  [Amended]

0
132. Amend Sec.  382.705 in paragraph (a)(2)(vii)(D) by adding ``or
oral fluid'' after the word ``urine''.

PART 655--PREVENTION OF ALCOHOL MISUSE AND PROHIBITED DRUG USE IN
TRANSIT OPERATIONS

0
133. The authority citation for part 655 continues to read as follows:

    Authority:  49 U.S.C. 5331; 49 CFR 1.91.

Sec.  655.5  [Amended]

0
134. Amend Sec.  655.5 in paragraph (c) by removing ``400 Seventh
Street SW'' and adding in its place ``1200 New Jersey Ave. SE''.

Sec.  655.15  [Amended]

0
135. Amend Sec.  655.15 in paragraph (e) by removing the word
``illegal'' and adding in its place the word ``prohibited''.

Sec.  655.44  [Amended]

0
136. Amend Sec.  655.44 in paragraph (a)(1)(i) by removing
``389.303(a)(1) or (b)(1)'' and adding in its place ``Sec.  382.303''.

Sec.  655.47  [Amended]

0
137. Amend Sec.  655.47 by adding the word ``covered'' before the word
``employee''.

Sec.  655.53  [Amended]

0
138. Amend Sec.  655.53 by removing the words ``collection person'' and
by adding ``or oral fluid collector'' after the word ``urine''.

Sec.  655.61  [Amended]

0
139. Amend Sec.  655.61 in paragraph (a)(3) by removing the words ``an
employee'' and adding in their place the words ``a covered employee''.

Sec.  655.71  [Amended]

0
140. Amend Sec.  655.71 in paragraph (c)(1)(v) by adding the words ``or
oral fluid'' after the word ``urine'' and removing the word ``breathe''
and adding in its place ``breath''.

    Signed in Washington, DC, on or around April 7, 2023.
Peter Paul Montgomery Buttigieg,
Secretary of Transportation.
    Signed in Washington, DC, on or around April 7, 2023.
Billy Nolen,
Acting Administrator, Federal Aviation Administration.
[FR Doc. 2023-08041 Filed 5-1-23; 8:45 am]
BILLING CODE 4910-9X-P