[Federal Register Volume 81, Number 152 (Monday, August 8, 2016)]
[Rules and Regulations]
[Pages 52364-52365]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-18328]



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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.

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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

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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