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The Recent Final Rule Revision to the DOT Regulations

  • By: Andrew Easler, Esq.
  • Published: Aug, 20 2016
  • Updated: Dec, 20 2022

Part of servicing the Department of Transportation is understanding their requirements. This means keeping up with any changes that have been made to their laws and guidelines as well. For example, if you handle drug and alcohol testing for any Department of Transportation entity, one recent change to their regulations would be of interest.

Summary of the Final Rule

This final rule was put into place to bring the definition of the term “service agent” in the regulations of the U.S. Department of Transportation (DOT) in line with legislation that was recently passed.

Furthermore, this rule also modifies the definition of “service agent” so that it includes all entities that offer services for DOT mandated drug and alcohol programs.

Both of these components of this final rule went into effect on August 8th, 2016. If you or your company has a question about these modifications, you can contact the Acting Director of the Office of Drug and Alcohol Policy and Compliance, Patrice M. Kelly. The email is [email protected] or you can call (202) 366–3784. Otherwise, the address for his office is:

1200 New Jersey Avenue SE.
Washington, DC 20590

Background and Explanation

In the past, service agents have played an essential role in the drug and alcohol testing programs used by the DOT to test their employees and those employers they regulate.

On July 6th, 2012, MAP 21 – a transportation reauthorization bill – was signed into law. As a response to one of its sections, FMCSA issued a proposed rule to create the Commercial Driver’s License Drug and Alcohol Clearinghouse. This clearinghouse would serve as a database housing all drug and alcohol test program violations by anyone with a commercial driver’s license.

Previously, “service agent” was 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)”

However, for years now, service agents have provided electronic services. As additional services have become available, the definition of “service agent” has also needed to evolve.

Therefore, ‘‘specified under this part’’ and ‘‘set forth in applicable sections of this part’’ from the above have been deleted. “If applicable” has also been added to the definition, so that the DOT can still enforce specific qualifications on service agents wherever appropriate.

The end result is the MAP-21 definition of “service agent”:

“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)).

Also in the proposal is a provision that would allow motor carrier employers to let service agents carry out various tasks on their behalf.

What This Means for You

If you’re a drug and alcohol tester who services any employees of the DOT (or hopes to in the future), this really isn’t a huge change that will affect your business. It just means that you need to follow the DOT’s rules for administering these tests. Most of you were probably doing this anyway.

The only people who may need to change their procedures are those who are only now just being considered service agents because of this new definition.

The information on this page may have changed since we first published it. We give great legal advice, but this page (and the rest of our site) is for informational use only and is no substitute for actual legal advice. If you’d like to establish an attorney-client relationship, reach out to us and we’ll tell you how we can make it official. Sending us an email or reading this page alone doesn’t mean we represent you.

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