81 FR 52364 - Technical Amendment

DEPARTMENT OF TRANSPORTATION
Office of the Secretary

Federal Register Volume 81, Issue 152 (August 8, 2016)

Page Range		52364-52365
FR Document		2016-18328
This final rule amends the U.S. Department of Transportation's (DOT) regulation to conform to recent legislation that changed the definition of the term ``service agent'' in the DOT drug and alcohol testing regulations. The final rule also revises the definition of ``service agent'' to include all entities that provide services for DOT mandated drug and alcohol programs.
Federal Register, Volume 81 Issue 152 (Monday, August 8, 2016)
[Federal Register Volume 81, Number 152 (Monday, August 8, 2016)]
[Rules and Regulations]
[Pages 52364-52365]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2016-18328]



[[Page 52364]]

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DEPARTMENT OF TRANSPORTATION

Office of the Secretary

49 CFR Part 40

RIN 2105-AE54


Technical Amendment

AGENCY: Office of the Secretary of Transportation (OST), U.S. 
Department of Transportation (DOT).

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: This final rule amends the U.S. Department of Transportation's 
(DOT) regulation to conform to recent legislation that changed the 
definition of the term ``service agent'' in the DOT drug and alcohol 
testing regulations. The final rule also revises the definition of 
``service agent'' to include all entities that provide services for DOT 
mandated drug and alcohol programs.

DATES: This final rule is effective on August 8, 2016.

FOR FURTHER INFORMATION CONTACT: Patrice M. Kelly, Acting Director, 
Office of Drug and Alcohol Policy and Compliance, 1200 New Jersey 
Avenue SE.; Washington, DC 20590; telephone: (202) 366-3784; email: 
[email protected].

SUPPLEMENTARY INFORMATION: 

Good Cause Exemption From Delayed Effect Date and Notice and Comment

    Section 553(b)(3)(B) of title 5, U.S. Code, authorizes agencies to 
dispense with notice and comment procedures for rules when the agency 
for ``good cause'' finds that those procedures are ``impracticable, 
unnecessary, or contrary to the public interest.'' In this instance, 
the Moving Ahead for Progress in the 21st Century Act (MAP-21) required 
the Federal Motor Carrier Safety Administration (FMCSA) to create a 
database for records pertaining to drug and alcohol program violations 
by commercial motor vehicle operators. As part of that legislative 
mandate, MAP-21 included a definition of the term ``service agent'' 
that is inconsistent with the current definition of ``service agent'' 
in DOT's drug and alcohol testing regulation at 49 CFR 40.3. This final 
rule amends the DOT regulation so that it is consistent with MAP-21 and 
clarifies the scope of the definition of service agent, as the term 
applies throughout the DOT Agencies that utilize 49 CFR part 40, 
including FMCSA. Since the definition of ``service agent'' found in 49 
CFR part 40 is now inconsistent with MAP-21, DOT finds that notice and 
public comment to this final rule, as well as any delay in its 
effective date, is unnecessary as the change is already effective under 
the statute.

I. Authority for This Rulemaking

    This rulemaking is promulgated pursuant to the Omnibus 
Transportation Employee Testing Act (OTETA) of 1991 (Pub. L. 102-143, 
105 Stat. 952, (Oct. 28, 1991)) and MAP-21 (Pub. L. 112-141, 126 Stat. 
802, (July 6, 2012).

II. Background

    Historically, service agents have played an integral role in many 
DOT-regulated employers' drug and alcohol testing programs. Many 
employers use their service agents as advisors and rely on their 
services to maintain compliance with DOT regulations. Service agents 
who are focused on compliance typically increase efficiencies and 
contribute to the safety of the traveling public.
    MAP-21 is a transportation reauthorization bill signed into law on 
July 6, 2012. In response to section 32402 of the bill, codified at 49 
U.S.C. 30106a, FMCSA issued a proposed rule, 79 FR 9703 (Feb. 20, 
2014), to create the Commercial Driver's License Drug and Alcohol 
Clearinghouse (Clearinghouse) under 49 CFR part 382. The Clearinghouse 
would be a database containing drug and alcohol test program violations 
by the holders of commercial driver's licenses (CDLs) subject to 49 CFR 
part 382. The proposal contained, among other things, a provision that 
would permit motor carrier employers to designate service agents to 
perform various tasks on their behalf within the Clearinghouse (e.g., 
reporting employees' drug and alcohol violations to the Clearinghouse). 
MAP-21 defines a 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)).
    For more than sixteen years, the term ``service agent'' has been 
defined as, ``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 
[Breath Alcohol Technicians] and STTs [Saliva Testing Technicians], 
laboratories, MROs [Medical Review Officers], substance abuse 
professionals, and C/TPAs [Consortia/Third Party Administrators]. 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.'' (49 CFR 40.3)
    In addition, over the years, the service agent industry has grown 
and it provides many services to DOT-regulated employers. As technology 
has grown, service agents have branched into providing electronic 
services. As the sophistication of the drug and alcohol testing 
industry has grown, we have seen service agents offer auditing services 
to DOT-regulated employers. Given the fact that additional services 
have been offered to employers related to DOT's drug and alcohol 
program, the types of providers that fall into the definition of 
service agent have evolved.
    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.

III. Regulatory Analyses and Notices

    Changes to Federal regulations must undergo several analyses. 
First, Executive Orders 12866 and 13563 direct that each Federal agency 
shall propose or adopt a regulation only upon a reasoned determination 
that the benefits of the intended regulation justify its costs. Second, 
the Regulatory Flexibility Act of 1980 (Pub. L. 96-354), as codified in 
5 U.S.C. 601 et seq., requires agencies to analyze the economic impact 
of regulatory changes on small entities. The Paperwork Reduction Act of 
1995 (PRA) (44 U.S.C. 3501 et seq.) requires that DOT consider the 
impact of paperwork and other information collection burdens imposed on 
the public and, under the provisions of PRA section 3507(d), obtain 
approval from OMB for each collection of information it conducts, 
sponsors, or requires through regulations. Section (a)(5) of division H 
of the Fiscal Year 2005 Omnibus Appropriations Act, Public Law 108-447, 
118 Stat. 3268 (Dec. 8, 2004) and section 208 of the E-Government Act 
of 2002, Public Law 107-347, 116 Stat. 2889 (Dec. 17, 2002) requires 
DOT to conduct a Privacy Impact Assessment (PIA) of a regulation that 
will affect the privacy of individuals. Finally, the National 
Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321 et seq.) 
requires

[[Page 52365]]

DOT to analyze this action to determine whether it will have an effect 
on the quality of the environment. This portion of the preamble 
summarizes the DOT's analyses of these impacts with respect to this 
final rule.

Executive Order 12866 and 13563 and DOT's Regulatory Policies and 
Procedures

    This final rule is not a significant regulatory action under 
Executive Order 12866 and 13563, as well as the Department's Regulatory 
Policies and Procedures. This rule deletes a term used in the current 
definition of ``service agent'' in 49 CFR part 40. Its provision 
conforms to MAP-21 and includes entities that provide additional 
services with respect to DOT mandated drug and alcohol testing. This 
rule does not propose any major policy changes or impose significant 
new costs or burdens.

Regulatory Flexibility Analysis

    The Regulatory Flexibility Act of 1980 (Pub. L. 96-354, ``RFA''), 5 
U.S.C. 601 et seq., establishes ``as a principle of regulatory issuance 
that agencies shall endeavor, consistent with the objectives of the 
rule and of applicable statutes, to fit regulatory and informational 
requirements to the scale of the businesses, organizations, and 
governmental jurisdictions subject to regulation. To achieve this 
principle, agencies are required to solicit and consider flexible 
regulatory proposals and to explain the rationale for their actions to 
assure that such proposals are given serious consideration.'' The RFA 
covers a wide-range of small entities, including small businesses, not-
for-profit organizations, and small governmental jurisdictions.
    Agencies must perform a review to determine whether a rule will 
have a significant economic impact on a substantial number of small 
entities. If the agency determines that it will, the agency must 
prepare a regulatory flexibility analysis as described in the RFA. 
However, if an agency determines that a rule is not expected to have a 
significant economic impact on a substantial number of small entities, 
section 605(b) provides that the head of the agency may so certify, and 
a regulatory flexibility analysis will not be required. The 
certification must include a statement providing the factual basis for 
this determination, and the reasoning should be clear.
    Service agents provide useful services that employers may use in 
order to maintain compliance with DOT regulations. This rule creates no 
additional burdens for service agents or the DOT-regulated employers 
that utilize their services. DOT has long interpreted its regulation in 
part 40 to encompass all services ``in connection with DOT drug and 
alcohol testing requirements'' performed by service agents. See 49 CFR 
40.3. Thus, in accordance with 5 U.S.C. 605(b), I certify that this 
rule will not have a significant economic impact on a substantial 
number of small entities.

Paperwork Reduction Act

    The PRA requires that the DOT consider the impact of paperwork and 
other information collection burdens imposed on the public. The rule 
does not create an impact of paperwork and other information collection 
burdens.

Privacy Act

    The revised definition of ``service agent'' does not have any 
impact with respect to the Privacy Act.

National Environmental Policy Act

    The agency has analyzed the environmental impacts of this proposed 
action pursuant to the National Environmental Policy Act of 1969 (NEPA) 
(42 U.S.C. 4321 et seq.) and has determined that it is categorically 
excluded pursuant to DOT Order 5610.1C, Procedures for Considering 
Environmental Impacts (44 FR 56420, Oct. 1, 1979). Categorical 
exclusions are actions identified in an agency's NEPA implementing 
procedures that do not normally have a significant impact on the 
environment and therefore do not require either an environmental 
assessment (EA) or environmental impact statement (EIS). See 40 CFR 
1508.4. In analyzing the applicability of a categorical exclusion, the 
agency must also consider whether extraordinary circumstances are 
present that would warrant the preparation of an EA or EIS. Id. 
Paragraph 3.c.5 of DOT Order 5610.1C incorporates by reference the 
categorical exclusions for all DOT Operating Administrations. This 
action is covered by the categorical exclusion listed in the Federal 
Highway Administration's implementing procedures, ``[p]romulgation of 
rules, regulations, and directives.'' 23 CFR 771.117(c)(20). The 
purpose of this rulemaking is to revise the regulation to conform to 
recent legislation that changed the definition of the term ``service 
agent'' in the DOT drug and alcohol testing regulations. The agency 
does not anticipate any environmental impacts, and there are no 
extraordinary circumstances present in connection with this rulemaking.

V. How To Obtain Additional Information

A. Rulemaking Documents

    An electronic copy of a rulemaking document may be obtained by 
using the Internet--
    1. Search regulations.gov (http://www.regulations.gov) for the 
docket number listed at the beginning of this document; or
    2. Search the Office of the Federal Register's Web page (https://www.federalregister.gov) for the RIN listed at the beginning of this 
document.

List of Subjects in 49 CFR Part 40

    Administrative practice and procedure, Drug testing, Laboratories, 
Reporting and recordkeeping requirements, Safety, Transportation.

The Amendment

    In consideration of the foregoing, the Department of Transportation 
amends part 40 of Title 49, Code of Federal Regulations, as follows:

PART 40--PROCEDURES FOR TRANSPORTATION WORKPLACE DRUG AND ALCOHOL 
TESTING PROGRAMS

0
1. The authority citation for part 40 continues to read as follows:

    Authority:  49 U.S.C. 101, 102, 301, 322, 5331, 20140, 31306, 
and 45101 et seq.


0
2. In Sec.  40.3, revise the definition of ``Service agent'' to read as 
follows:


Sec.  40.3   What do the terms of this part mean?

* * * * *
    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.
* * * * *

    Issued in Washington, DC, on July 25, 2016.
Anthony R. Foxx,
Secretary of Transportation.
[FR Doc. 2016-18328 Filed 8-5-16; 8:45 am]
 BILLING CODE 4910-9X-P
52364 Federal Register / Vol. 81, No. 152 / Monday, August 8, 2016 / Rules and Regulations

DEPARTMENT OF TRANSPORTATION effective date, is unnecessary as the agents are not employers for purposes of
change is already effective under the this part.’’ (49 CFR 40.3)
Office of the Secretary statute. In addition, over the years, the service
agent industry has grown and it
49 CFR Part 40 I. Authority for This Rulemaking provides many services to DOT-
This rulemaking is promulgated regulated employers. As technology has
RIN 2105–AE54 pursuant to the Omnibus Transportation grown, service agents have branched
Technical Amendment Employee Testing Act (OTETA) of 1991 into providing electronic services. As
(Pub. L. 102–143, 105 Stat. 952, (Oct. 28, the sophistication of the drug and
AGENCY: Office of the Secretary of 1991)) and MAP–21 (Pub. L. 112–141, alcohol testing industry has grown, we
Transportation (OST), U.S. Department 126 Stat. 802, (July 6, 2012). have seen service agents offer auditing
of Transportation (DOT). II. Background services to DOT-regulated employers.
ACTION: Final rule. Given the fact that additional services
Historically, service agents have have been offered to employers related
SUMMARY: This final rule amends the played an integral role in many DOT- to DOT’s drug and alcohol program, the
U.S. Department of Transportation’s regulated employers’ drug and alcohol types of providers that fall into the
(DOT) regulation to conform to recent testing programs. Many employers use definition of service agent have evolved.
legislation that changed the definition of their service agents as advisors and rely In this final rule, we are deleting from
the term ‘‘service agent’’ in the DOT on their services to maintain the current definition of ‘‘service agent’’
drug and alcohol testing regulations. compliance with DOT regulations. the phrases ‘‘specified under this part’’
The final rule also revises the definition Service agents who are focused on and ‘‘set forth in applicable sections of
of ‘‘service agent’’ to include all entities compliance typically increase this part’’ (both of which refer to 49 CFR
that provide services for DOT mandated efficiencies and contribute to the safety part 40). We have also inserted the
drug and alcohol programs. of the traveling public. language ‘‘if applicable’’ to the
MAP–21 is a transportation definition because we believe that it is
DATES: This final rule is effective on
reauthorization bill signed into law on important to continue to note that if a
August 8, 2016. July 6, 2012. In response to section DOT regulation requires specific
FOR FURTHER INFORMATION CONTACT: 32402 of the bill, codified at 49 U.S.C. qualifications, then the service agent
Patrice M. Kelly, Acting Director, Office 30106a, FMCSA issued a proposed rule, must comply. In so doing, we are
of Drug and Alcohol Policy and 79 FR 9703 (Feb. 20, 2014), to create the conforming to MAP–21 and clarifying
Compliance, 1200 New Jersey Avenue Commercial Driver’s License Drug and that the expanding range of drug and
SE.; Washington, DC 20590; telephone: Alcohol Clearinghouse (Clearinghouse) alcohol program services has been
(202) 366–3784; email: under 49 CFR part 382. The included in this definition.
ODAPCWebMail@dot.gov. Clearinghouse would be a database
SUPPLEMENTARY INFORMATION: containing drug and alcohol test III. Regulatory Analyses and Notices
program violations by the holders of Changes to Federal regulations must
Good Cause Exemption From Delayed
commercial driver’s licenses (CDLs) undergo several analyses. First,
Effect Date and Notice and Comment
subject to 49 CFR part 382. The proposal Executive Orders 12866 and 13563
Section 553(b)(3)(B) of title 5, U.S. contained, among other things, a direct that each Federal agency shall
Code, authorizes agencies to dispense provision that would permit motor propose or adopt a regulation only upon
with notice and comment procedures carrier employers to designate service a reasoned determination that the
for rules when the agency for ‘‘good agents to perform various tasks on their benefits of the intended regulation
cause’’ finds that those procedures are behalf within the Clearinghouse (e.g., justify its costs. Second, the Regulatory
‘‘impracticable, unnecessary, or contrary reporting employees’ drug and alcohol Flexibility Act of 1980 (Pub. L. 96–354),
to the public interest.’’ In this instance, violations to the Clearinghouse). MAP– as codified in 5 U.S.C. 601 et seq.,
the Moving Ahead for Progress in the 21 defines a service agent as ‘‘a person requires agencies to analyze the
21st Century Act (MAP–21) required the or entity, other than an employee of the economic impact of regulatory changes
Federal Motor Carrier Safety employer, who provides services to on small entities. The Paperwork
Administration (FMCSA) to create a employers or employees under the Reduction Act of 1995 (PRA) (44 U.S.C.
database for records pertaining to drug [DOT-wide drug and alcohol] testing 3501 et seq.) requires that DOT consider
and alcohol program violations by program’’ (49 U.S.C. 31306a(m)(8)). the impact of paperwork and other
commercial motor vehicle operators. As For more than sixteen years, the term information collection burdens imposed
part of that legislative mandate, MAP– ‘‘service agent’’ has been defined as, on the public and, under the provisions
21 included a definition of the term ‘‘any person or entity, other than an of PRA section 3507(d), obtain approval
‘‘service agent’’ that is inconsistent with employee of the employer, who from OMB for each collection of
the current definition of ‘‘service agent’’ provides services specified under this information it conducts, sponsors, or
in DOT’s drug and alcohol testing part to employers and/or employees in requires through regulations. Section
regulation at 49 CFR 40.3. This final connection with DOT drug and alcohol (a)(5) of division H of the Fiscal Year
rule amends the DOT regulation so that testing requirements. This includes, but 2005 Omnibus Appropriations Act,
it is consistent with MAP–21 and is not limited to, collectors, BATs Public Law 108–447, 118 Stat. 3268
clarifies the scope of the definition of [Breath Alcohol Technicians] and STTs (Dec. 8, 2004) and section 208 of the E-
service agent, as the term applies [Saliva Testing Technicians], Government Act of 2002, Public Law
throughout the DOT Agencies that laboratories, MROs [Medical Review 107–347, 116 Stat. 2889 (Dec. 17, 2002)
rmajette on DSK2TPTVN1PROD with RULES

utilize 49 CFR part 40, including Officers], substance abuse professionals, requires DOT to conduct a Privacy
FMCSA. Since the definition of ‘‘service and C/TPAs [Consortia/Third Party Impact Assessment (PIA) of a regulation
agent’’ found in 49 CFR part 40 is now Administrators]. To act as service that will affect the privacy of
inconsistent with MAP–21, DOT finds agents, persons and organizations must individuals. Finally, the National
that notice and public comment to this meet the qualifications set forth in Environmental Policy Act of 1969
final rule, as well as any delay in its applicable sections of this part. Service (NEPA) (42 U.S.C. 4321 et seq.) requires

VerDate Sep<11>2014 13:12 Aug 05, 2016 Jkt 238001 PO 00000 Frm 00040 Fmt 4700 Sfmt 4700 E:\FR\FM\08AUR1.SGM 08AUR1
Document Created: 2016-08-06 03:08:27
Document Modified: 2016-08-06 03:08:27
Category		Regulatory Information
Collection		Federal Register
sudoc Class		AE 2.7: GS 4.107: AE 2.106:
Publisher		Office of the Federal Register, National Archives and Records Administration
Section		Rules and Regulations
Action		Final rule.
Dates		This final rule is effective on August 8, 2016.
Contact		Patrice M. Kelly, Acting Director, Office of Drug and Alcohol Policy and Compliance, 1200 New Jersey Avenue SE.; Washington, DC 20590; telephone: (202) 366-3784; email: [email protected]
FR Citation		81 FR 52364
RIN Number		2105-AE54
CFR Associated		Administrative Practice and Procedure; Drug Testing; Laboratories; Reporting and Recordkeeping Requirements; Safety and Transportation
81 FR 52364 - Technical Amendment

DEPARTMENT OF TRANSPORTATIONOffice of the Secretary

Federal Register Volume 81, Issue 152 (August 8, 2016)

DEPARTMENT OF TRANSPORTATION
Office of the Secretary
