08/08/2016 – Today the Department of Transportation published in the Federal Register a change in the definition of the term “Service Agent”. This was published as a Final rule with the requirement for advance notice being waived as it is not a significant rule change in accordance with the “Good Cause Exemption From Delayed Effect Date and Notice and Comment in accordance with Section 553(b)(3)(B) of title 5, U.S. Code.” This also means that the change is effective immediately.
What brought this change about was the passage and implementation of Moving Ahead for Progress in the 21st Century Act (MAP-21). This requires Federal Motor Carrier Safety Administration (FMCSA) to establish a new database for drivers that hold a Commercial Driver’s License (CDL) to be reported if a driver has a 49 CFR Part 40 drug or alcohol test violation. This reporting violation is in place even if a CDL holder is working for Federal Transit Administration (FTA) regulated entity.
MAP-21 defines “service agent as “a person or entity, other than an employee of the employer, who provides services to employers or employees under the [DOT-wide drug and alcohol] testing program” (49 U.S.C. 31306a(m)(8)). The definitions in MAP-21 and 40 CFR part 40.3 will mirror each other thereby reducing any conflicts between what is being stated.
This change in the wording of service agent was also brought with the role of service agents taking on more responsibility for keeping their clients in regulatory compliance. This is coupled with the increasing widespread use of electronic data keeping and means of providing compliant services to employers by service agents.
Given below is the new definition and the old definition for comparison purposes.
New 49 CFR Part 40 language:
Service Agent: Any person or entity, other than an employee of the employer, who provides services to employers and/or employees in connection with DOT drug and alcohol testing requirements. This includes, but is not limited to, collectors, BATs and STTs, laboratories, MROs, substance abuse professionals, and C/TPAs. To act as service agents, persons and organizations must meet DOT qualifications, if applicable. Service agents are not employers for purposes of this part.
Old 49 CFR Part 40 language:
Service agent. Any person or entity, other than an employee of the employer, who provides services specified under this part to employers and/or employees in connection with DOT drug and alcohol testing requirements. This includes, but is not limited to, collectors, BATs and STTs, laboratories, MROs, substance abuse professionals, and C/TPAs. To act as service agents, persons and organizations must meet the qualifications set forth in applicable sections of this part. Service agents are not employers for purposes of this part.
The following is an excerpt from the Federal Register Notice published today August 8, 2016.
“In this final rule, we are deleting from the current definition of ‘‘service agent’’ the phrases ‘‘specified under this part’’ and ‘‘set forth in applicable sections of this part’’ (both of which refer to 49 CFR part 40). We have also inserted the language ‘‘if applicable’’ to the definition because we believe that it is important to continue to note that if a DOT regulation requires specific qualifications, then the service agent must comply. In so doing, we are conforming to MAP–21 and clarifying that the expanding range of drug and alcohol program services has been included in this definition.
While the Federal Register Website states that comments are welcome, this should be an open and very clarifying statement from DOT.
