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Final Rule Change to Service Agent

08 Aug 2016

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.

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Article by:Bob Schoening

Robert Schoening is well renowned for his knowledge and influence in the drug-testing arena. As the Drug and Alcohol Program Manager for the US Coast Guard (December 2001-March 2013) he developed and managed a successful drug testing program for the marine industry nationwide and internationally.  During this time he developed and implemented a new compliance audit checklist as well as the writing and publishing a new Marine Employers Guidebook for Drug Testing.  He is also the author of the federal regulation commonly known as the two-hour alcohol testing for maritime incidents. 

Robert’s drug testing career began in the Navy Medical Department, where he received the Navy Achievement Medal for his work on development of the Navy drug-testing program which was the first major workplace drug-testing program in the country. He retired in 1985 after serving 24 years. 

Upon his retirement, Robert established his own drug testing consulting company assisting other companies to establish drug-free workplaces and drug testing programs, concentrating primarily on the marine industry. His knowledge of regulations and policy helped build his company to be one of the premier providers of drug testing services for the marine industry. During this time he was instrumental in establishing many of the current federal policies that are in place. 

Robert has served on the Board of Directors of the Substance Abuse Program Administrators Association (SAPAA) as well as chairing the Governmental and Legislative Affairs committee. He was one of the first individuals to be recognized as an expert in the Drug and Alcohol testing industry and to receive designation as a Certified Substance Abuse Program Administrator (1996). 

Robert is active participant in community service.  He recently served on the Policy Board for the Alcohol Safety Action Program in Fairfax, VA (January 1989-December 2012).  Since moving to Whidbey Island in Washington, he has been named to serve on the Substance Abuse Committee and recently been named to serve on the Ferry Advisory Committee both of these committees are located in Island County, WA. 

Robert is currently a consultant for Workplace Drug Testing and Drug Abuse Prevention Programs.