Federal Register / Vol. 75, No. 157 / Monday, August 16, 2010 / Rules and Regulations 49849 

zone, all vessels shall operate at the 

minimum speed necessary to maintain a 

safe course. 

This notice is issued under authority 

of 33 CFR 165.935 Safety Zone, 

Milwaukee Harbor, Milwaukee, WI and 

5 U.S.C. 552(a). In addition to this 

notice in the Federal Register, the Coast 

Guard will provide the maritime 

community with advance notification of 

these enforcement periods via Broadcast 

Notice to Mariners or Local Notice to 

Mariners. The Captain of the Port, 

Sector Lake Michigan, will issue a 

Broadcast Notice to Mariners notifying 

the public when enforcement of the 

safety zone established by this section is 

suspended. If the Captain of the Port, 

Sector Lake Michigan, determines that 

the safety zone need not be enforced for 

the full duration stated in this notice, he 

or she may use a Broadcast Notice to 

Mariners to grant general permission to 

enter the safety zone. The Captain of the 

Port, Sector Lake Michigan, or his or her 

on-scene representative may be 

contacted via VHF–FM Channel 16. 

Dated: July 30, 2010. 

L. Barndt 

Captain, U.S. Coast Guard, Captain of the 

Port, Sector Lake Michigan. 

[FR Doc. 2010–20124 Filed 8–13–10; 8:45 am] 

BILLING CODE 9110–04–P 

DEPARTMENT OF DEFENSE 

Defense Acquisition Regulations 

System 

48 CFR Part 252 

Defense Federal Acquisition 

Regulation Supplement; Excessive 

Pass-Through Charges (DFARS Case 

2006–D057) 

AGENCY: Defense Acquisition 

Regulations System, Department of 

Defense (DoD). 

ACTION: Final rule; technical 

amendment. 

SUMMARY: DoD issued a final rule in the 

Federal Register on August 10, 2010, 

under DFARS Case 2006–D057, 

Excessive Pass-Through Charges. That 

final rule incorrectly removed and 

reserved two CFR sections. DoD is 

issuing this technical amendment to 

correct that error in the final rule. 

DATES: Effective Date: August 16, 2010. 

FOR FURTHER INFORMATION CONTACT: Ms. 

Ynette R. Shelkin, Defense Acquisition 

Regulations System, OUSD (AT&L) 

DPAP (DARS), Room 3B855, 3060 

Defense Pentagon, Washington, DC 

20301–3060. Telephone 703–602–8384; 

facsimile 703–602–0350. 

SUPPLEMENTARY INFORMATION: DoD 

issued a final rule in the Federal 

Register on August 10, 2010 (75 FR 

48278), under DFARS Case 2006–D057, 

Excessive Pass-Through Charges. That 

final rule deleted obsolete DFARS 

language regarding excessive passthrough charges on contracts and 

subcontracts that are entered into for or 

on behalf of DoD. The final rule 

incorrectly removed and reserved 

sections 252.217–7003 and 252.217– 

7004, respectively. DoD is issuing this 

technical amendment to add these 

sections back in and correctly remove 

and reserve sections 252.215–7003 and 

252.215–7004, respectively. 

List of Subjects in 48 CFR Part 252 

Government procurement. 

Ynette R. Shelkin, 

Editor, Defense Acquisition Regulations 

System. 

■ Therefore 48 CFR part 252 is amended 

as follows: 

PART 252—SOLICITATION 

PROVISIONS AND CONTRACT 

CLAUSES 

■ 1. The authority citation for 48 CFR 

part 252 continues to read as follows: 

Authority: 41 U.S.C. 421 and 48 CFR 

chapter 1. 

■ 2. Section 252.215–7003 is removed 

and reserved. 

252.215–7003 [Removed and Reserved] 

■ 3. Section 252.215–7004 is removed 

and reserved. 

252.215–7004 [Removed and Reserved] 

■ 4. Add sections 252.217–7003 and 

252.217–7004 to read as follows: 

252.217–7003 Changes. 

As prescribed in 217.7104(a), use the 

following clause: 

CHANGES (DEC 1991) 

(a) The Contracting Officer may, at any 

time and without notice to the sureties, by 

written change order, make changes within 

the general scope of any job order issued 

under the Master Agreement in— 

(1) Drawings, designs, plans, and 

specifications; 

(2) Work itemized; 

(3) Place of performance of the work; 

(4) Time of commencement or completion 

of the work; and 

(5) Any other requirement of the job order. 

(b) If a change causes an increase or 

decrease in the cost of, or time required for, 

performance of the job order, whether or not 

changed by the order, the Contracting Officer 

shall make an equitable adjustment in the 

price or date of completion, or both, and 

shall modify the job order in writing. 

(1) Within ten days after the Contractor 

receives notification of the change, the 

Contractor shall submit to the Contracting 

Officer a request for price adjustment, 

together with a written estimate of the 

increased cost. 

(2) The Contracting Officer may grant an 

extension of this period if the Contractor 

requests it within the ten day period. 

(3) If the circumstances justify it, the 

Contracting Officer may accept and grant a 

request for equitable adjustment at any later 

time prior to final payment under the job 

order, except that the Contractor may not 

receive profit on a payment under a late 

request. 

(c) If the Contractor includes in its claim 

the cost of property made obsolete or excess 

as a result of a change, the Contracting 

Officer shall have the right to prescribe the 

manner of disposition of that property. 

(d) Failure to agree to any adjustment shall 

be a dispute within the meaning of the 

Disputes clause. 

(e) Nothing in this clause shall excuse the 

Contractor from proceeding with the job 

order as changed. 

(End of clause) 

252.217–7004 Job Orders and 

Compensation. 

As prescribed in 217.7104(a), use the 

following clause: 

JOB ORDERS AND COMPENSATION (MAY 

2006) 

(a) The Contracting Officer shall solicit 

bids or proposals and make award of job 

orders. The issuance of a job order signed by 

the Contracting Officer constitutes award. 

The job order shall incorporate the terms and 

conditions of the Master Agreement. 

(b) Whenever the Contracting Officer 

determines that a vessel, its cargo or stores, 

would be endangered by delay, or whenever 

the Contracting Officer determines that 

military necessity requires that immediate 

work on a vessel is necessary, the Contracting 

Officer may issue a written order to perform 

that work and the Contractor hereby agrees 

to comply with that order and to perform 

work on such vessel within its capabilities. 

(1) As soon as practicable after the issuance 

of the order, the Contracting Officer and the 

Contractor shall negotiate a price for the 

work and the Contracting Officer shall issue 

a job order covering the work. 

(2) The Contractor shall, upon request, 

furnish the Contracting Officer with a 

breakdown of costs incurred by the 

Contractor and an estimate of costs expected 

to be incurred in the performance of the 

work. The Contractor shall maintain, and 

make available for inspection by the 

Contracting Officer or the Contracting 

Officer’s representative, records supporting 

the cost of performing the work. 

(3) Failure of the parties to agree upon the 

price of the work shall constitute a dispute 

within the meaning of the Disputes clause of 

the Master Agreement. In the meantime, the 

Contractor shall diligently proceed to 

perform the work ordered. 

(c)(1) If the nature of any repairs is such 

that their extent and probable cost cannot be 

ascertained readily, the Contracting Officer 

may issue a job order (on a sealed bid or 

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49850 Federal Register / Vol. 75, No. 157 / Monday, August 16, 2010 / Rules and Regulations 

negotiated basis) to determine the nature and 

extent of required repairs. 

(2) Upon determination by the Contracting 

Officer of what work is necessary, the 

Contractor, if requested by the Contracting 

Officer, shall negotiate prices for 

performance of that work. The prices agreed 

upon shall be set forth in a modification of 

the job order. 

(3) Failure of the parties to agree upon the 

price shall constitute a dispute under the 

Disputes clause. In the meantime, the 

Contractor shall diligently proceed to 

perform the work ordered. 

(End of clause) 

[FR Doc. 2010–20168 Filed 8–13–10; 8:45 am] 

BILLING CODE 5001–08–P 

DEPARTMENT OF TRANSPORTATION 

Office of the Secretary 

49 CFR Part 40 

[Docket OST–2010–0026] 

RIN 2105–AD95 

Procedures for Transportation 

Workplace Drug and Alcohol Testing 

Programs 

AGENCY: Office of the Secretary, DOT. 

ACTION: Final rule. 

SUMMARY: The Department of 

Transportation (the Department or DOT) 

is amending certain provisions of its 

drug testing procedures dealing with 

laboratory testing of urine specimens. 

Some of the changes will also affect the 

training of and procedures used by 

Medical Review Officers. The changes 

are intended to create consistency with 

many, but not all, of the new 

requirements established by the U.S. 

Department of Health and Human 

Services. 

DATES: This rule is effective October 1, 

2010. 

FOR FURTHER INFORMATION CONTACT: 

Mark Snider, Senior Policy Advisor (S– 

1), Office of Drug and Alcohol Policy 

and Compliance, 1200 New Jersey 

Avenue, SE., Washington, DC 20590; 

telephone number 202–366–3784 

(voice), 202–366–3897 (fax), or 

mark.snider@dot.gov (e-mail). 

SUPPLEMENTARY INFORMATION: 

Background and Purpose 

On November 25, 2008 (73 FR 7185), 

the U.S. Department of Health and 

Human Services (HHS) Substance 

Abuse and Mental Health Services 

Administration (SAMHSA) issued a 

Final Notice of Revisions to the HHS 

Mandatory Guidelines for Federal 

Workplace Drug Testing Programs (HHS 

Mandatory Guidelines) that included 

changes to the procedures for collection 

and testing of urine specimens, creation 

of and requirements for the certification 

of Instrumented Initial Test Facilities 

(IITFs), collection site oversight 

requirements, and changes to the role of 

and standards for collectors and 

Medical Review Officers (MROs). The 

HHS Mandatory Guidelines were to 

become effective May 1, 2010, but on 

April 30, 2010 (75 FR 22809), HHS 

postponed implementation until 

October 1, 2010. 

On February 4, 2010, DOT published 

a Notice of Proposed Rulemaking 

(NPRM) (75 FR 5722) seeking comments 

about changing part 40 to be consistent 

with certain aspects of the HHS 

Mandatory Guidelines. The final rule 

responds to the comments and makes a 

number of changes to the existing rules 

governing the Department’s drug testing 

program. 

Principal Policy Issues 

Requirements of the Omnibus 

Transportation Employee Testing Act of 

1991 

Several commenters questioned 

whether and to what extent the 

Department must follow the HHS 

Mandatory Guidelines. Some 

commenters urged the Department to 

choose a different approach from the 

HHS regarding the drugs for which 

testing occurs, the initial testing of all 

specimens for 6–Acetylmorphine (6– 

AM), and the use of IITFs. Although 

since its passage, the Department has 

cited the Omnibus Transportation 

Employee Testing Act of 1991, 49 U.S.C. 

31300, et seq., 49 U.S.C. 20100, et seq., 

49 U.S.C. 5330, et seq., and 49 U.S.C. 

45100, et seq. (Omnibus Act), as the 

definitive authority for our reliance on 

the HHS Mandatory Guidelines for 

scientific testing issues, several of the 

commenters have challenged this or 

otherwise asked the Department to 

clarify what the Omnibus Act requires. 

Even before the Omnibus Act, the 

Department looked to the HHS 

Mandatory Guidelines for guidance on 

scientific matters. In a 1988 Interim 

Final Rule (IFR) the Department relied 

upon the HHS for testing methodologies 

to determine the drugs for which testing 

would be done and which laboratories 

to use. Specifically, the Department 

noted that under ‘‘the HHS Guidelines, 

a Federal agency may test a urine 

sample only for certain specified drugs. 

The Department’s Procedures echo this 

requirement.’’ (53 FR 47002, Nov. 21, 

1988; emphasis in the original) In the 

same IFR, the Department required 

regulated transportation employers to 

use only laboratories certified under the 

HHS Mandatory Guidelines for Federal 

Workplace Drug Testing Programs. 

While deciding to utilize many aspects 

of the HHS Mandatory Guidelines, the 

Department acknowledged ‘‘that the 

Guidelines, as written by HHS to apply 

to testing by Federal agencies, do not fit 

perfectly the circumstances of 

employers regulated by DOT * * *. 

Obviously, the circumstances of 

industries regulated by DOT are very 

different from those of Federal 

agencies.’’ (53 FR 47002) Thus, the 

Department began to lay the foundation 

for using the technical expertise of the 

HHS for the scientific aspects of DOT’s 

testing program while relying upon the 

Department’s own authority and that of 

DOT agencies to tailor many procedural 

aspects of DOT testing to fit the 

transportation industries. 

In a 1989 final rule, we discussed the 

applicability of the Fourth Amendment 

of the United States Constitution to both 

the Federal agency programs covered by 

the HHS Mandatory Guidelines and the 

testing that transportation employers 

would conduct in response to the 

Department’s requirements. The 

Department acknowledged that the HHS 

Mandatory Guidelines had passed 

Constitutional scrutiny by the Federal 

courts, all the way up to the Supreme 

Court of the United States. The Federal 

courts concluded that HHS had met the 

Fourth Amendment balancing of the 

Federal need to ensure safety by drug 

testing versus individuals’ strong 

interests in their right to privacy. The 

HHS Mandatory Guidelines had set up 

a testing system with sound 

methodology that ensured privacy and 

accuracy. Given these considerations, 

the Department decided to rely on HHS 

for the science of DOT’s testing program 

and for the drugs for which we test, the 

testing methodologies, and the integrity 

of the HHS certified laboratories. (54 FR 

49854, Dec. 1, 1989) 

Congress endorsed the Department’s 

decision by explicitly directing, in the 

Omnibus Act, the Department to 

incorporate the HHS scientific and 

technical guidelines for laboratories and 

testing procedures for controlled 

substances. The Omnibus Act 

specifically requires that we incorporate 

the HHS scientific and technical 

guidelines that ‘‘establish 

comprehensive standards for all aspects 

of laboratory controlled substances 

testing’’ in order to ensure full reliability 

and accuracy in testing. [49 U.S.C. 

31306(c)(2)(A), 49 U.S.C. 20140(c)(2)(A), 

49 U.S.C. 5331(d)(2)(A) and 49 U.S.C. 

45104(2)(A)] The legislative history for 

the Omnibus Act indicates the following 

intent: ‘‘Incorporating the HHS 

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